Exhibit 4.1


Form of


SECOND
SUPPLEMENTAL INDENTURE


between


SunPower
Corporation


and


Wells Fargo Bank, National Association,


as


Trustee


0.75%
SENIOR CONVERTIBLE DEBENTURES DUE 2027


 
















TABLE OF
CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article 1 Definitions and Incorporation by Reference

  	
  1

  
	
   

  	
   

  	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
  Section 1.02

  	
  Other Definitions

  	
  6

  
	
  Article 2 The Series of Debentures

  	
  6

  
	
   

  	
   

  	
  Section 2.01

  	
  Designation and Amount of Debentures

  	
  6

  
	
   

  	
   

  	
  Section 2.02

  	
  Form of the Debentures

  	
  6

  
	
   

  	
   

  	
  Section 2.03

  	
  Maturity Date; Interest

  	
  7

  
	
   

  	
   

  	
  Section 2.04

  	
  Exchange and Registration on Transfer.

  	
  7

  
	
   

  	
   

  	
  Section 2.05

  	
  Global Debentures

  	
  8

  
	
   

  	
   

  	
  Section 2.06

  	
  Additional Debentures

  	
  9

  
	
   

  	
   

  	
  Section 2.07

  	
  Defaulted Interest

  	
  9

  
	
  Article 3 Redemption and Repurchase of Debentures

  	
  10

  
	
   

  	
   

  	
  Section 3.01

  	
  Optional Redemption of Debentures

  	
  10

  
	
   

  	
   

  	
  Section 3.02

  	
  Notice of Optional Redemption; Selection of Debentures
  to Be Redeemed

  	
  10

  
	
   

  	
   

  	
  Section 3.03

  	
  Payment of Debentures Called for Redemption

  	
  11

  
	
   

  	
   

  	
  Section 3.04

  	
  Repurchase at Option of Holders Upon a Fundamental
  Change

  	
  12

  
	
   

  	
   

  	
  Section 3.05

  	
  Repurchase of Debentures by the Company at the
  Option of Holders

  	
  13

  
	
   

  	
   

  	
  Section 3.06

  	
  Company Repurchase Notice

  	
  14

  
	
   

  	
   

  	
  Section 3.07

  	
  Effect of Repurchase Notice; Withdrawal

  	
  15

  
	
   

  	
   

  	
  Section 3.08

  	
  Deposit of Repurchase Price

  	
  15

  
	
   

  	
   

  	
  Section 3.09

  	
  Debentures Repurchased in Part

  	
  16

  
	
   

  	
   

  	
  Section 3.10

  	
  Purchase of Debentures in the Open Market

  	
  16

  
	
   

  	
   

  	
  Section 3.11

  	
  Cancellation of Debentures Redeemed or Repurchased

  	
  16

  
	
   

  	
   

  	
  Section 3.12

  	
  Sinking Funds

  	
  16

  
	
  Article 4 Covenants

  	
  16

  
	
   

  	
   

  	
  Section 4.01

  	
  Payment of Debentures

  	
  16

  
	
   

  	
   

  	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  16

  
	
   

  	
   

  	
  Section 4.03

  	
  Compliance Certificate

  	
  17

  
	
   

  	
   

  	
  Section 4.04

  	
  Payment of Taxes and Other Claims

  	
  17

  
	
   

  	
   

  	
  Section 4.05

  	
  Further Instruments and Acts

  	
  17

  
	
  Article 5 Successors

  	
  17

  
	
   

  	
   

  	
  Section 5.01

  	
  When Company May Merge, Etc.

  	
  17

  
	
   

  	
   

  	
  Section 5.02

  	
  Successor Substituted

  	
  18

  
	
   

  	
   

  	
  Section 5.03

  	
  Opinion of Counsel to be Given Trustee

  	
  18

  
	
  Article 6 Default and Remedies

  	
  18

  
	
   

  	
   

  	
  Section 6.01

  	
  Events of Default

  	
  18

  
	
   

  	
   

  	
  Section 6.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  20

  
	
   

  	
   

  	
  Section 6.03

  	
  Waiver of Past Defaults

  	
  20

  
	
   

  	
   

  	
  Section 6.04

  	
  Limitation on Suits

  	
  21

  
	
   

  	
   

  	
  Section 6.05

  	
  Unconditional Rights of Holders to Receive Payment
  and to Convert

  	
  21

  
	
  Article 7 Amendments; Supplements and Waivers

  	
  21

  
	
   

  	
   

  	
  Section 7.01

  	
  Without Consent of Holders

  	
  21

  
	
   

  	
   

  	
  Section 7.02

  	
  With Consent of Holders

  	
  22

  
	
  Article 8 Conversion of Debentures

  	
  23

  
	
   

  	
   

  	
  Section 8.01

  	
  Right to Convert

  	
  23

  
	
   

  	
   

  	
  Section 8.02

  	
  Exercise of Conversion Right; Issuance of Class A
  Common Stock on Conversion; No Adjustment for Interest or Dividends

  	
  25

  
	
   

  	
   

  	
  Section 8.03

  	
  Cash Payments in Lieu of Fractional Shares

  	
  27

  
	
   

  	
   

  	
  Section 8.04

  	
  Conversion Rate

  	
  27

  
	
   

  	
   

  	
  Section 8.05

  	
  Adjustment of Conversion Rate

  	
  28

  
	
   

  	
   

  	
  Section 8.06

  	
  Effect of Reclassification, Consolidation, Merger or
  Sale

  	
  35

  
	
   

  	
   

  	
  Section 8.07

  	
  Taxes on Shares Issued

  	
  36

  
						



 



 i
 









 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 8.08

  	
  Reservation of Shares, Shares to be Fully Paid;
  Compliance with Governmental Requirements; Listing of Class A Common Stock

  	
  36

  
	
   

  	
   

  	
  Section 8.09

  	
  Responsibility of Trustee

  	
  36

  
	
   

  	
   

  	
  Section 8.10

  	
  Notice to Holders Prior to Certain Actions

  	
  37

  
	
   

  	
   

  	
  Section 8.11

  	
  Stockholder Rights Plans

  	
  37

  
	
   

  	
   

  	
  Section 8.12

  	
  Settlement Upon Conversion

  	
  37

  
	
  Article 9 Discharge of Indenture

  	
  38

  
	
   

  	
   

  	
  Section 9.01

  	
  Discharge of Liability on Debentures

  	
  39

  
	
   

  	
   

  	
  Section 9.02

  	
  Application of Trust Money

  	
  39

  
	
   

  	
   

  	
  Section 9.03

  	
  Repayment to Company

  	
  39

  
	
   

  	
   

  	
  Section 9.04

  	
  Reinstatement

  	
  39

  
	
   

  	
   

  	
  Section 9.05

  	
  Defeasance

  	
  39

  
	
  Article 10 Miscellaneous

  	
  39

  
	
   

  	
   

  	
  Section 10.01

  	
  Governing Law

  	
  39

  
	
   

  	
   

  	
  Section 10.02

  	
  No Debenture Interest Created

  	
  40

  
	
   

  	
   

  	
  Section 10.03

  	
  Successors

  	
  40

  
	
   

  	
   

  	
  Section 10.04

  	
  Counterparts

  	
  40

  
	
   

  	
   

  	
  Section 10.05

  	
  Severability

  	
  40

  
	
   

  	
   

  	
  Section 10.06

  	
  Table of Contents, Headings, Etc.

  	
  40

  
	
   

  	
   

  	
  Section 10.07

  	
  Inconsistency

  	
  40

  
	
   

  	
   

  	
  Section 10.08

  	
  Calculations in Respect of Debentures

  	
  40

  



 


Exhibit A — Form of Note


 



 ii















THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as of   •   ,
is between SunPower Corporation, a corporation duly organized under the laws of
the State of Delaware (the “Company”), and
Wells Fargo Bank, National Association, as Trustee (the “Trustee”).


RECITALS


WHEREAS, the Company and the Trustee have duly
executed and delivered an Indenture, dated as of February 7, 2007 (the “Base Indenture” and together with this Second Supplemental
Indenture, the “Indenture”), to provide for the
issuance by the Company from time to time of debentures, notes or other debt
instruments to be issued in one or more series by the Company;


WHEREAS, the issuance and sale of up to $225,000,000
aggregate principal amount of the Company’s 0.75% Senior Convertible Debentures
due 2027 has been authorized by resolutions adopted by the Board of Directors;


WHEREAS, Section 9.1(e) of the Base Indenture
expressly permits the Company and the Trustee to enter into one or more
supplemental indentures for the purposes of establishing the forms and terms of
any Securities to be issued under the Indenture without the consent of the
Holders of any Securities then outstanding;


WHEREAS, the Company desires to supplement the
provisions of the Base Indenture to provide for the issuance of the Debentures
under the terms of the Base Indenture as supplemented hereby; and


WHEREAS, for the purposes hereinabove recited, and
pursuant to due corporate action, the Company has duly determined to execute
and deliver to the Trustee this Second Supplemental Indenture;


NOW, THEREFORE, in consideration of the covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Trustee covenant and agree as follows:


Article 1

Definitions and Incorporation by Reference 


Section 1.01           Definitions.


All terms contained in this Second Supplemental
Indenture shall, except as specifically provided for herein or except as the context
may otherwise require, have the meanings given to such terms in the Base
Indenture. In the event of any inconsistency between the Base Indenture and the
Second Supplemental Indenture, this Second Supplemental Indenture shall govern.


Unless the context otherwise requires, the following
terms shall have the following meanings:


“Additional Debentures” has the meaning specified in
Section 2.06.


“Additional Shares” has the meaning specified in
Section 8.04(b).


“Applicable
Consideration” has the meaning specified in Section 8.06.


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


“Board of Directors” means the Board of Directors of
the Company or, other than in the case of the definitions of “Continuing
Directors” and “Fundamental Change,” any committee thereof duly authorized to
act on behalf of such Board.













“Class A Common Stock” means the class A common stock
of the Company, par value $0.001 per share, as it exists on the date of this
Second Supplemental Indenture and any shares of any class or classes of Capital
Stock of the Company resulting from any reclassification or reclassifications
thereof, or, in the event of a merger, consolidation or other similar
transaction involving the Company that is otherwise permitted hereunder in
which the Company is not the surviving corporation, the common stock, ordinary
shares or depositary shares or other common equity interests of such surviving
corporation or its direct or indirect parent corporation, which have no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company,
which are not subject to redemption by the Company; provided,
however, that if at any time there shall
be more than one such resulting class distributed to holders of the Class A
Common Stock, the shares of each such class then so issuable on conversion of
Debentures shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.


“Class B Common Stock” means the class B common stock
of the Company, par value $0.001 per share, as it exists on the date of the
Second Supplemental Indenture.


“Closing Sale
Price” of any share of Class A Common Stock or any other security on any
Trading Day means the closing sale price of such security (or, if no closing
sale price is reported, the average of the closing bid and ask prices or, if
more than one in either case, the average of the average closing bid and the
average closing ask prices) on such date as reported in composite transactions
for the principal U.S. securities exchange (or if not so listed, on the
principal regional securities exchange) on which the shares of Class A Common
Stock are traded or, if the shares of Class A Common Stock are not listed on a
U.S. national or regional securities exchange, as reported by Pink Sheets
LLC.  In the absence of such a quotation,
the Closing Sale Price shall be determined by a nationally recognized
securities dealer retained by the Company to make such determination.  The Closing Sale Price shall be determined
without reference to extended or after hours trading.


“Closing Date” means the date of this Second
Supplemental Indenture.


“Code” means the Internal Revenue Code of 1986, as
amended.


“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors who (i) was a member of the Board of Directors on the date
of this Second Supplemental Indenture; or (ii) was nominated for election or
elected to the Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of Directors at the time of
such new director’s nomination or election.


“Conversion
Date” has the meaning specified in Section 8.02.


“Conversion
Notice” has the meaning specified in Section 8.02.


“Conversion
Price” on any date of determination means $1,000 divided by the
Conversion Rate as of such date.


“Conversion Period” means the 20 consecutive Trading
Day period: (1) if the Company has called the Debentures delivered for
conversion for redemption, beginning on the 23rd scheduled Trading Day
immediately preceding the Redemption Date; (2) with respect to Conversion
Notices received during the period beginning 25 Trading Days preceding the Maturity
Date and ending one Trading Day preceding the Maturity Date, beginning on the
23rd scheduled Trading Day immediately preceding the Maturity Date; (3) with
respect to conversions in connection with a Fundamental Change, beginning on
the 23rd scheduled Trading Day immediately preceding the Repurchase Date
relating to such Fundamental Change; and (4) in all other cases, beginning on
the third Trading Day following the Company’s receipt of a Holder’s Conversion
Notice delivered in accordance with Section 8.02.


“Conversion
Rate” means the number of shares of Class A Common Stock into which each
$1,000 principal amount of Debentures is convertible, which is initially [   ] shares, subject to adjustments as set
forth herein.



 2
 









“Conversion Settlement Amount” means the sum of the
Daily Settlement Amounts for each of the 20 Trading Days during the Conversion
Period.


“Conversion Value” means the sum of the Daily
Conversion Value for 20 consecutive Trading Days during the Conversion Period.


“Corporate Trust Office” or other similar term, means
the designated office of the Trustee at any particular time its corporate trust
business as it relates to the Indenture shall be administered, which office is,
at the date as of which this Second Supplemental Indenture is dated, located at
Wells Fargo Bank, National Association, Corporate Trust Services, MAC
N9303-120, 608 Second Avenue South Minneapolis, MN 55479, Attention: SunPower
Account Manager or at any other time at such other address as the Trustee may
designate from time to time by notice to the Company.


“Current
Market Price” has the meaning specified in Section 8.05(g)(1).


“Daily Conversion Value” has the meaning specified in
Section 8.12.


“Daily Settlement Amount” has the meaning specified in
Section 8.12.


“Daily Share Amount” has the meaning specified in
Section 8.12.


“Debentureholder” or “Holder” means the Person in
whose name a Debenture is registered on the Registrar’s books.


“Debentures” means any debentures issued,
authenticated and delivered under the Indenture, including any Global
Debentures.


“Determination
Date” has the meaning specified in Section 8.05(l).


“Distribution
Notice” has the meaning specified in Section 8.01(c).


“Fair Market Value” has the meaning specified in
Section 8.05(g)(2).


“Fiscal Quarter” means, with respect to the Company,
each fiscal quarter publicly disclosed by the Company.  The Company shall confirm the ending dates of
its fiscal quarters for the current fiscal year to the Trustee upon the Trustee’s
request.


“Fundamental
Change” means the occurrence of any of the following after the original
issuance of the Debentures:


(a)           the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” other than Parent or
its successors or a controlling Person or Persons of Parent, directly or
indirectly, including through one or more wholly-owned subsidiaries, becomes
the “beneficial owner” (as these terms are defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act), of more than 75% of the voting power of the Company’s
Capital Stock that is at the time entitled to vote by the holder thereof in the
election of the Board of Directors (or comparable body);


(b)           the
first day on which a majority of the members of the Board of Directors are not
Continuing Directors;


(c)           the
adoption of a plan relating to the liquidation or dissolution of the Company;


(d)           the
consolidation or merger of the Company with or into any other “person” (as this
term is used in Section 13(d)(3) of the Exchange Act), or the sale, lease,
transfer, conveyance or other



 3
 









disposition, in one or a
series of related transactions, of all or substantially all of the Company’s
assets and those of its subsidiaries taken as a whole to any “person” (as this
term is used in Section 13(d)(3) of the Exchange Act), other than:


(i)            any transaction:


(A) that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of the Class A Common Stock; and


(B) pursuant to which the holders of 50% or more of the total voting
power of all shares of the Company’s Capital Stock entitled to vote generally
in elections of directors of the Company immediately prior to such transaction
have the right to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Company’s Capital Stock entitled to vote
generally in elections of directors of the continuing or surviving Person
immediately after giving effect to such transaction; or


(ii)           any merger primarily for the purpose
of changing the Company’s jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares of Class A
Common Stock solely into shares of common stock of the surviving entity;


(e)           the
termination of trading of the Class A Common Stock, which will be deemed to
have occurred if the Class A Common Stock or other common stock or common
equity interests into which the Debentures are then convertible, are neither
listed for trading on a United States national securities exchange nor approved
for listing on any United States system of automated dissemination of
quotations of securities prices, and no American Depositary Shares certificates
or similar instruments for such common stock or common equity interests are so
listed or approved for listing in the United States; or


(f)            Parent
repurchases or otherwise directly or indirectly acquires more than 50% of the
outstanding Class A Common Stock, excluding from this calculation all shares of
Class A Common Stock acquired by Parent through conversion of Parent’s Class B
Common Stock into Class A Common Stock pursuant to the terms of the Class B
Common Stock.


However, a Fundamental Change will be deemed not to
have occurred if more than 90% of the consideration in the transaction or
transactions (other than cash payments for fractional shares and cash payments
made in respect of dissenters’ appraisal rights) which otherwise would
constitute a Fundamental Change under clauses (a), (d) or (f) above consists of
shares of common stock, depositary receipts or other common equity interests
traded or to be traded immediately following such transaction on a national
securities exchange and, as a result of the transaction or transactions, the
Debentures become convertible into such common stock, depositary receipts or
other common equity interests (and any rights attached thereto) and other
applicable consideration.


“Fundamental
Change Repurchase Date” has the meaning specified in Section 3.04(a).


“Global
Debentures” has the meaning specified in Section 2.02.


“Indenture” means, collectively, the Base Indenture
and the Second Supplemental Indenture as the same may be amended or
supplemented from time to time pursuant to the terms of the Second Supplemental
Indenture and the Base Indenture, including the provisions of the TIA that are
automatically deemed to be a part of this Indenture by operation of the TIA.


“Interest Payment Date” means February 1 and August 1
of each year, commencing February 1, 2008.


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



 4
 









“Market Disruption Event” means the occurrence or
existence during the one-half hour period ending on the scheduled close of
trading on any Trading Day for the Class A Common Stock of any material
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by applicable U.S. national securities exchange on
which the Class A Common Stock is traded or otherwise) in the Class A Common
Stock or in any options, contracts or futures contracts relating to the Class A
Common Stock.


“Maturity Date” means August 1, 2027.


“Non-Stock
Change of Control” means a transaction described under clause (a), (d)
or clause (f) in the definition of Fundamental Change pursuant to which 10% or
more of the consideration for Class A Common Stock (other than cash payments
for fractional shares, if applicable, and cash payments made in respect of
dissenters’ appraisal rights) in such transaction consists of cash or
securities (or other property) that are not shares of common stock, depositary
receipts or other common equity interests traded or scheduled to be traded
immediately following such transaction on a U.S. national securities exchange.


“Parent” means Cypress Semiconductor Corporation, or
its successors.


“Prospectus Supplement” means the prospectus
supplement, dated July 26, 2007, relating to the Debentures, as filed by
the Company with the SEC pursuant to Rule 424(b) of the Securities Act.


“Purchased
Shares” has the meaning specified in Section 8.05(f).


“Record Date” means, with respect to each Interest
Payment Date, the February 1 or August 1, as the case may be, next preceding
such Interest Payment Date.  The “record
date,” with respect to the Conversion Rate adjustment as provided in Section
8.05, has the meaning specified in Section 8.05(g).


“Reference
Period” has the meaning specified in Section 8.05(d).


“Register”
has the meaning specified in Section 2.05.


“Registrar”
has the meaning specified in Section 2.05.


“Repurchase
Date” has the meaning specified in Section 3.05(a).


“Repurchase
Notice” has the meaning specified in Section 3.04(c).


“Spin-off”
has the meaning specified in Section 8.05(d).


“Spin-off
Valuation Period” has the meaning specified in Section 8.05(d).


“Stock Price”
has the meaning specified in Section 8.04(b).


“Trading Day” means a day during which (i) trading in
the Class A Common Stock generally occurs, (ii) there is no Market Disruption
Event and (iii) a Closing Sale Price for the Class A Common Stock is provided
on the principal U.S. national or regional securities exchange on which the
Class A Common Stock is then listed or, if the Class A Common Stock is not
listed on a U.S. national or regional securities exchange, on the principal
other market on which the Class A Common Stock is then traded.


“Trading Price”
means, with respect to a Debenture on any date of determination, the average of
the secondary market bid quotations per $1,000 principal amount of Debentures
obtained by the Trustee for $2,000,000 principal amount of Debentures at
approximately 3:30 p.m., New York City time, on such determination date from
two independent nationally recognized securities dealers selected by the
Company, which may include one or more of the Underwriters;  provided
that if two such bids cannot reasonably be obtained by the Trustee, but one
such bid can be reasonably obtained by the Trustee, then this one bid shall be
used; and provided  further that, if the Trustee
cannot reasonably obtain at least one bid for $2,000,000 principal amount of
Debentures from a



 5
 









nationally recognized securities dealer, then, for the
purpose of determining the convertibility of the Debentures only, the Trading
Price per $1,000 principal amount of Debentures shall be deemed to be less than
98% of the product of (a) the Conversion Rate on such determination date and
(b) the Closing Sale Price of a share of Class A Common Stock on such
determination date.


“Trigger Event”
has the meaning specified in Section 8.05(d).


“Underwriters” means Lehman Brothers Inc., Credit
Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Morgan Stanley
& Co. Incorporated and Cowen and Company, LLC.


Section 1.02           Other Definitions. 


	
  Term

  	
   

  	
   

  	
   

  	
  Defined in Section

  
	
  “Agent Members”

  	
   

  	
  2.06(g)

  
	
  “Bankruptcy Law”

  	
   

  	
  7.01

  
	
  “Base Indenture”

  	
   

  	
  Recitals

  
	
  “Conversion
  Agent”

  	
   

  	
  2.08

  
	
  “Custodian”

  	
   

  	
  6.01(a)

  
	
  “Second
  Supplemental Indenture”

  	
   

  	
  Preamble

  
	
  “Indenture”

  	
   

  	
  Recitals

  
	
  “Trustee”

  	
   

  	
  Preamble

  



 


Article 2

The Series of Debentures 


Section 2.01           Designation and Amount of
Debentures.  There is hereby
authorized a series of senior convertible debentures designated as “0.75%
Senior Convertible Debentures due 2027”. 
The Debentures will initially not exceed the aggregate principal amount
of $225,000,000 (except pursuant to Section 2.06 hereof or the Base Indenture).


Section 2.02           Form of the Debentures.  The Debentures and the Trustee’s certificate
of authentication to be borne by such Debentures shall be substantially in the
form set forth in Exhibit A.  The
terms and provisions contained in the form of Debentures attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a part
of this Second Supplemental Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Second
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby.


Any of the Debentures may have such letters, numbers
or other marks of identification and such notations, legends, endorsements or
changes as the Officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Second Supplemental Indenture or the Base Indenture, or as
may be required by the Trustee, the Depositary, or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation
system on which the Debentures may be listed, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular
Debentures are subject.


Subject to Section 2.05 hereof, so long as the
Debentures are eligible for book-entry settlement with the Depositary, or
unless otherwise required by law, or otherwise contemplated by the Base
Indenture, all of the Debentures will be represented by one or more Global
Debentures. The transfer and exchange of beneficial interests in any such
Global Debenture shall be effected through the Depositary in accordance with
this Second Supplemental Indenture and the Applicable Procedures.


Each Global Debenture shall represent such aggregate
principal amount of outstanding Debentures as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of



 6
 









outstanding Debentures from time to time endorsed
thereon and that the aggregate principal amount of outstanding Debentures
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of
such Debentures.


Section 2.03           Maturity Date; Interest.  The Debentures shall be issuable in
registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof.  Each
Debenture shall be dated the date of its authentication and shall bear interest
from the date specified on the face of the form of Debentures attached as
Exhibit A hereto.  Interest on the
Debentures shall be computed on the basis of a 360-day year comprised of twelve
30-day months.


On the Maturity Date, each Holder shall be entitled to
receive on such date $1,000 in cash for each $1,000 principal amount per
Debentures, together with accrued and unpaid interest to, but not including,
the Maturity Date.  With respect to
Global Debentures, principal and interest shall be paid to the Depositary in
immediately available funds.  With
respect to any certificated Debentures, principal and interest will be payable
at the Company’s office or agency maintained for such purpose, which initially
shall be the Corporate Trust Office of the Trustee.


The Person in whose name any Debenture is registered
on the Register at 5:00 p.m., New York City time, on any Record Date with
respect to any Interest Payment Date shall be entitled to receive the interest
payable on such Interest Payment Date. 
Notwithstanding the foregoing: (a) any Debentures or portion thereof
surrendered for conversion during the period from 5:00 p.m., New York City
time, on the Record Date for any Interest Payment Date to 5:00 p.m., New York
City time, on the Business Day preceding the applicable Interest Payment Date
shall be accompanied by payment, in immediately available funds or other funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such Interest Payment Date on the principal amount being converted; provided, that no such payment need be
made (1) if a Holder converts its Debentures in connection with a redemption
and the Company has specified a redemption date that is after a Record Date and
on or prior to the corresponding Interest Payment Date, (2) if a Holder
converts its Debentures in connection with a Fundamental Change and the Company
has specified a Fundamental Change Repurchase Date that is after a Record Date
and on or prior to the corresponding Interest Payment Date or (3) to the extent
of any overdue interest, if any, that exists at the time of conversion with
respect to such Debentures and (b) the Company shall pay accrued interest  to a Person other than the Holder on the
Record Date on the Maturity Date, at which date the Company shall pay accrued
and unpaid interest to the Person whom the principal amount is paid.


The Company shall pay interest (i) on any Global
Debentures by wire transfer of immediately available funds to the account of
the Depositary or its nominee, (ii) on any Debentures in certificated form
having a principal amount of less than $2,000,000, by check mailed to the address
of the Person entitled thereto as it appears in the Register, provided, however, that at maturity
interest will be payable at the office of the Company maintained by the Company
for such purposes, which shall initially be the Corporate Trust Office of the
Trustee and (iii) on any Debentures in certificated form having a principal
amount of $2,000,000 or more, by wire transfer in immediately available funds
at the election of the Holder of such Debentures duly delivered to the trustee
at least five Business Days prior to the relevant Interest Payment Date or by
check if no such election is made, provided, however, that on the Maturity Date,  interest will be payable at the office of the
Company maintained by the Company for such purposes, which shall initially the
Corporate Trust Office of the Trustee. 
If a payment date is not a Business Day, payment shall be made on the
next succeeding Business Day, and no additional interest shall accrue thereon.


Any interest on any Debentures which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
be subject to Section 2.07.


Section 2.04           Exchange and Registration on
Transfer.  In addition to Section 2.7 of the Base
Indenture, (a) all Debentures presented or surrendered for repurchase or
conversion shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company, and the Debentures shall be duly executed
by the Holder thereof or his attorney duly authorized in writing and (b)
neither the Company nor the Trustee nor any Registrar shall be required to
exchange, issue or register transfer of (1) any Debentures or portions thereof
surrendered for conversion pursuant to Article 8 of this Second Supplemental
Indenture, which may not be withdrawn, (2) any Debentures or portions thereof
tendered for repurchase (and not withdrawn) pursuant to Section 3.04 of this
Second Supplemental Indenture or (3)



 7
 









any Debentures or portions thereof tendered for
repurchase (and not withdrawn) pursuant to Section 3.05 of this Second
Supplemental Indenture.


Section 2.05           Global Debentures.


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


(b)        Notwithstanding any other provisions of
this Second Supplemental Indenture, the Base Indenture or the Debentures, no
Global Debentures may be exchanged in whole or in part for Debentures
registered, and no transfer of a Global Debenture in whole or in part may be registered,
in the name of any Person other than the Depositary or a nominee thereof unless
(A) the Depositary (x) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Debenture or (y) has ceased to be a
clearing agency registered under the Exchange Act, and a successor depositary
has not been appointed by the Company within 90 calendar days, or (B) the
Company, in its sole discretion, notifies the Trustee in writing that it no
longer wishes to have all the Debentures represented by Global Debentures.  Any Global Debentures exchanged pursuant to
this Section 2.05(b) shall be so exchanged in whole and not in part.


(c)        In addition, certificated Debentures
will be issued in exchange for beneficial interests in a Global Debenture upon
request by or on behalf of the Depositary in accordance with customary
procedures following the request of a beneficial owner seeking to enforce its
rights under the Debentures or this Indenture, including its rights following
the occurrence of an Event of Default.


(d)        Debentures issued in exchange for a
Global Debenture or any portion thereof pursuant to clause (b) or (c) above
shall be issued in definitive, fully registered form, without interest coupons,
shall have a principal amount equal to that of such Global Debenture or portion
thereof to be so exchanged, and shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
the legend set forth in Exhibit A hereto. Any Global Debenture to be exchanged
in whole shall be surrendered by the Depositary to the Trustee or the
Registrar. With regard to any Global Debenture to be exchanged in part, either
such Global Debenture shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Debenture, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Debenture issuable
on such exchange to or upon the order of the Depositary or an authorized
representative thereof.


(e)        Subject to the provisions of Section
2.05(g) below, the registered Holder may grant proxies and otherwise authorize
any Person, including Agent Members (as defined below) and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Second Supplemental Indenture or the Debentures.


(f)         In the event of the occurrence of any
of the events specified in Section 2.05(b) above or upon any request described
in Section 2.05(c) above, the Company will promptly make available to the Trustee
a reasonable supply of certificated Debentures in definitive, fully registered
form, without interest coupons.


(g)        Neither any members of, or participants
in, the Depositary (collectively, the “Agent Members”)
nor any other Persons on whose behalf Agent Members may act shall have any
rights under this Second Supplemental Indenture or the Base Indenture with
respect to any Global Debenture registered in the name of the Depositary or any
nominee thereof, or under any such Global Debenture, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of such
Global Debenture for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or such nominee, as the case
may be, or impair, as between the Depositary, its Agent Members and any other
Person on whose behalf an



 8
 









Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a Holder of
any Debenture.


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


Section 2.06           Additional Debentures.  The Company may, from time to time, subject
to compliance with any other applicable provisions of this Indenture, without
the consent of the Holders, create and issue pursuant to this Indenture
additional Debentures (“Additional Debentures”),
which shall be treated as a single class with the Debentures issued on the
Closing Date for all purposes under this Indenture and which shall have terms
and conditions set forth in Exhibit A identical to those of the other
outstanding Debentures, except that Additional Debentures:


(i)  may have a different issue price than other
outstanding Debentures;


(ii)  may have a different Issue Date from other
outstanding Debentures; and


(iii)  may have
a different amount of interest payable on the first Interest Payment Date after
issuance than is payable on other outstanding Debentures;


provided, that no
Additional Debentures may be issued if such Additional Debentures would
constitute, as determined pursuant to an Opinion of Counsel, a different class
of securities than the Debentures issued on the Issue Date for U.S. federal
income tax purposes and provided further, that the Additional Debentures have
the same CUSIP number as other outstanding Debentures.  No Additional Debentures may be issued if any
Event of Default has occurred and is continuing.


Section 2.07           Defaulted Interest.
Notwithstanding Section 2.13 of the Base Indenture, if the Company defaults in
a payment of interest on the Debentures, the Company shall pay the defaulted
interest (plus interest on such defaulted interest at the rate of 1% per annum
above the then applicable interest rate from the required payment date to the
extent lawful) in any lawful manner.  The
Company may pay the defaulted interest to the Persons who are Debentureholders
on a subsequent special record date.  The
Company shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly deliver
or cause to be delivered to each Debentureholder a notice that states the
special record date, the payment date and the amount of defaulted interest to
be paid.


(a)        Registrar, Paying Agent, Conversion
Agent and Trustee.In addition to Section 2.4 of the Base Indenture, the Company
shall maintain an office or agency where Debentures may be presented for
conversion (the “Conversion Agent”).  The Company hereby initially designates the
Trustee as the Conversion Agent.  The
Company further designates the Corporate Trust Office of the Trustee as its
office where Debentures may be surrendered for conversion.


The Company may at any time
and from time to time vary or terminate the appointment of any such office or
appoint any additional offices for any or all purposes; provided,
however, that until all of the
Debentures have been delivered to the Trustee for cancellation, or moneys sufficient
to pay the principal of and premium, if any, and interest on the Debentures
have been made available for payment and either paid or returned to the Company
pursuant to the provisions of Section 9.02 hereof, the Company shall maintain
an office or agency where Debentures may be surrendered for conversion.  The Company shall give prompt written notice
to the Trustee, and notice to the Holders, of the appointment or termination of
any such agents and of the location and any change in the location of any such
office or agency.



 9















The Company may also from
time to time designate on or more Conversion Agents and from time to time
rescind such designations.  The Company
shall give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of such Conversion Agent.


The rights, privileges,
protections, immunities and benefits given to the Trustee under the Base
Indenture and this Second Supplemental Indenture including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each Conversion Agent or other
Agent acting hereunder.


Article 3

Redemption and Repurchase of Debentures


Notwithstanding Article 3 of the Base Indenture, the
following Article 3 (and not Article 3 of the Base Indenture) shall apply for
purposes of this Second Supplemental Indenture and the Debentures.


Section 3.01           Optional Redemption of Debentures. 
At any time on or after August 1, 2010, the Debentures may be redeemed
at the option of the Company, in whole or in part, upon notice as set forth in
Section 3.02, in cash at the redemption price equal to 100% of the principal
amount thereof.  In addition, the Company
will pay interest on the Debentures being redeemed, which interest will include
such interest accrued and unpaid to, but excluding, the redemption date; provided, that if the redemption date is after a Record Date
and on or prior to the corresponding Interest Payment Date, the interest will
be paid on the redemption date to the Holder of record on the Record Date.  The Company may not redeem any Debentures if
a Default in the payment of interest on the Debentures has occurred and is
continuing.


Section 3.02           Notice of Optional Redemption;
Selection of Debentures to Be Redeemed. 
In case the Company shall desire to exercise the right to redeem all or,
as the case may be, any part of the Debentures pursuant to Section 3.01, it
shall fix a date for redemption and it or, at its written request received by
the Trustee not fewer than five Business Days (or such shorter period of time
as may be acceptable to the Trustee) prior to the date the notice of redemption
is to be delivered, the Trustee in the name of and at the expense of the
Company, shall deliver or cause to be delivered a notice of such redemption not
fewer than 30 calendar days nor more than 60 calendar days prior to the
redemption date to each Holder of Debentures so to be redeemed in whole or in
part at its last address as the same appears on the Register; provided, that if
the Company makes such request of the Trustee, it shall, together with such
request, also give written notice of the redemption date to the Trustee,
provided that the text of the notice shall be prepared by the Company.  Such delivery shall be by electronic
transmission or by first class mail.  The
notice, if delivered in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.  In any case, failure to give
such notice or any defect in the notice to the Holder of any Debentures
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Debentures.  Concurrently with the delivery of any such
notice of redemption, the Company shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Company in its sole discretion.  The
failure to issue any such press release or any defect therein shall not affect
the validity of the redemption notice or any of the proceedings for the
redemption of any Debentures called for redemption.


Each such notice of redemption shall specify: (i) the
aggregate principal amount of Debentures to be redeemed, (ii) the CUSIP number
or numbers of the Debentures being redeemed, (iii) the date fixed for
redemption (which shall be a Business Day), (iv) the redemption price at which
Debentures are to be redeemed, (v) the place or places of payment and that
payment will be made upon presentation and surrender of such Debentures, (vi)
that interest accrued and unpaid to, but excluding, the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portion thereof to be redeemed will cease to
accrue, (vii) that the Holder has a right to convert the Debentures called for
redemption, (viii) the Conversion Rate on the date of such notice, (ix) the
time and date on which the right to convert such Debentures or portions thereof
will expire and (x) that the Company will pay cash for fractional interests in
shares of Class A Common Stock issuable upon conversion, if any, as provided in
this Second Supplemental Indenture.  If
fewer than all the Debentures are to be redeemed, the notice of redemption
shall identify the Debentures to be redeemed (including CUSIP numbers, if
any).  In case any Debentures are to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that, on and after the
redemption date, upon surrender of



 10
 









such Debentures, a new Debenture or Debentures in
principal amount equal to the unredeemed portion thereof will be issued.


Whenever any Debentures are to be redeemed, the
Company will give the Trustee written notice of the redemption date, together
with an Officers’ Certificate as to the aggregate principal amount of
Debentures to be redeemed not fewer than 35 calendar days (or such shorter
period of time as may be acceptable to the Trustee) prior to the redemption
date.


On or prior to the redemption date specified in the
notice of redemption given as provided in this Section 3.02, the Company will
deposit with the Paying Agent (or, if the Company is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 2.5 of the
Base Indenture) an amount of money in immediately available funds sufficient to
redeem on the redemption date all the Debentures (or portions thereof) so
called for redemption (other than those theretofore surrendered for conversion
into cash and, if applicable, Class A Common Stock) at the appropriate
redemption price, together with accrued and unpaid interest to, but excluding,
the redemption date; provided that if such payment is made on the redemption
date, it must be received by the Paying Agent, by 10:00 a.m., New York City
time, on such date.  If any Debentures
called for redemption are converted pursuant hereto prior to such redemption
date, any money deposited with the Paying Agent or so segregated and held in
trust for the redemption of such Debentures shall be paid to the Company or, if
then held by the Company, shall be discharged from such trust.


If less than all of the outstanding Debentures are to
be redeemed, the Trustee shall select the Debentures or portions thereof of the
Global Debentures or the Debentures in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis
or by another method the Trustee deems fair and appropriate.  If any Debentures selected for redemption are
submitted for conversion in part after such selection, the portion of such
Debentures submitted for conversion shall be deemed (so far as may be possible)
to be the portion to be selected for redemption.  The Debentures (or portions thereof) so
selected for redemption shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Debentures are submitted for
conversion in part before the delivery of the notice of redemption.


Upon any redemption of less than all of the
outstanding Debentures, the Company and the Trustee may (but need not), solely
for purposes of determining the pro rata allocation among such Debentures that
are unconverted and outstanding at the time of redemption, treat as outstanding
any Debentures surrendered for conversion during the period of fifteen calendar
days preceding the delivery of a notice of redemption and may (but need not)
treat as outstanding any Debentures authenticated and delivered during such
period in exchange for the unconverted portion of any Debentures converted in
part during such period.


Section 3.03           Payment of Debentures Called for
Redemption.  If notice of redemption
has been given as provided in Section 3.02, the Debentures or portion of
Debentures with respect to which such notice has been given shall, unless
converted pursuant to the terms hereof, become due and payable on the date
fixed for redemption and at the place or places stated in such notice at the
redemption price, plus interest accrued and unpaid to, but excluding, the
redemption date (unless the redemption date is after a Record Date and on or
prior to the corresponding Interest Payment Date, in which event the interest
will be paid on the Interest Payment Date to the Holder of record on the Record
Date), and, unless the Company shall default in the payment of such Debentures
at the redemption price, plus interest, if any, accrued and unpaid to, but
excluding, such date, interest on the Debentures or portion of Debentures so
called for redemption, interest shall cease to accrue on and after such date
and, after 5:00 p.m., New York City time, on the Business Day immediately
preceding the redemption date (unless the Company shall default in the payment
of such Debentures at the redemption price, together with interest accrued to
such date) and such Debentures shall cease to be convertible and, except as
provided in Section 2.5 of the Base Indenture and Section 9.02 hereof, to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Debentures except the right to
receive the redemption price thereof plus accrued and unpaid interest to, but
excluding, the redemption date. On presentation and surrender of such
Debentures at a place of payment in said notice specified, the said Debentures
or the specified portions thereof shall be paid and redeemed by the Company at
the redemption price, together with interest accrued and unpaid thereon to, but
excluding, the redemption date; provided that if the applicable redemption date
is after the applicable Record Date and on or before an Interest Payment Date,
the interest payable on such Interest Payment Date shall be paid on



 11
 









such Interest Payment Date to the holders of record of
such Debentures on the applicable Record Date instead of the holders
surrendering such Debentures for redemption on such date.


Upon presentation of any Debentures redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a
new Debenture or Debentures, of authorized denominations, in principal amount
equal to the unredeemed portion of the Debentures so presented.


Notwithstanding the foregoing, the Company shall not
redeem any Debentures or deliver any notice of redemption during the
continuance of a Default in payment of interest on the Debentures. If any
Debentures called for redemption shall not be so paid upon surrender thereof
for redemption on the redemption date as provided in this Section 3.03, to the
extent legally permissible, the redemption price shall, until paid or duly
provided for, bear interest from and including the redemption date at a rate
equal to 1% per annum above the rate borne by the Debentures and such
Debentures shall remain convertible into cash and, if applicable, Class A
Common Stock until the redemption price and interest shall have been paid or
duly provided for.


Section 3.04           Repurchase at Option of Holders
Upon a Fundamental Change


(a)        If there shall occur a Fundamental
Change at any time prior to the Maturity Date of the Debentures, then each
Holder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Debentures, or any portion thereof that is a
multiple of $1,000 principal amount, on a date (the “Fundamental
Change Repurchase Date”) specified by the Company, that is not less
than 20 calendar days nor more than 35 calendar days after the date of the Company
Repurchase Notice related to such Fundamental Change at a cash repurchase price
equal to 100% of the principal amount of the Debentures being repurchased, plus
accrued and unpaid interest to, but excluding, the Fundamental Change
Repurchase Date, subject to the satisfaction by the Holder of the requirements
set forth in Section 3.04(c); provided, that
if such Fundamental Change Repurchase Date falls after a Record Date and on or
prior to the corresponding Interest Payment Date, then the interest payable on
such Interest Payment Date shall be paid on such Interest Payment Date to the
holders of record of the Debentures on the applicable Record Date instead of
the holders surrendering the Debentures for repurchase on such date.


(b)        On or before the fifth calendar day
after the occurrence of a Fundamental Change, the Company shall deliver or
cause to be delivered to all holders of record of the Debentures on the date of
the Fundamental Change at their addresses shown in the Register a Company
Repurchase Notice as set forth in Section 3.06 with respect to such Fundamental
Change.  The Company shall also deliver a
copy of the Company Repurchase Notice to the Trustee and the Paying Agent at
such time as it is delivered to holders of Debentures.  Concurrently with the delivery of such
Company Repurchase Notice, the Company shall issue a press release announcing
such Fundamental Change referred to in the Company Repurchase Notice, the form
and content of which press release shall be determined by the Company in its
sole discretion.


No failure of the Company to give the foregoing
notices and press release and no defect therein shall limit the repurchase
rights of holders of Debentures or affect the validity of the proceedings for
the repurchase of the Debentures pursuant to this Section 3.04.


(c)        For Debentures to be repurchased at the
option of the Holder, the Holder must deliver to the Paying Agent, prior to
5:00 p.m., New York City time, on the Fundamental Change Repurchase Date, (i) a
written notice of repurchase (the “Repurchase Notice”)
in the form set forth on the reverse of the Debentures duly completed (if the
Debentures are certificated) or stating the following (if the Debentures are
represented by a Global Debenture): (A) the certificate number of the Debentures
which the Holder will deliver to be repurchased or compliance with the
appropriate Depositary procedures, (B) the portion of the principal amount of
the Debentures which the Holder will deliver to be repurchased, which portion
must be in principal amounts of $1,000 or an integral multiple of $1,000 and
(C) that such Debentures shall be repurchased by the Company pursuant to the
terms and conditions specified in the Debentures and in this Indenture,
together with (ii) such Debentures duly endorsed for transfer (if the
Debentures are certificated) or book-entry transfer of such Debentures (if such
Debentures are represented by a Global Debenture).  The delivery of such Debentures to the Paying
Agent with, or at any time after delivery of, the Repurchase Notice (together
with all necessary endorsements) at the office of the Paying Agent shall be a
condition to the receipt by the Holder of the repurchase price therefor; provided, however, that
such repurchase



 12
 









price shall be so paid pursuant to this Section 3.04
only if the Debentures so delivered to the Paying Agent shall conform in all
respects to the description thereof in the Repurchase Notice.   All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Debentures for
repurchase shall be determined by the Company, whose determination shall be
final and binding absent manifest error.


(d)        The Company shall repurchase from the
Holder thereof, pursuant to this Section 3.04, a portion of a Debenture, if the
principal amount of such portion is $1,000 or a whole multiple of $1,000.  Provisions of this Indenture that apply to
the repurchase of all of a Debenture also apply to the repurchase of such
portion of such Debenture.


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


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 3.04 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Fundamental Change Repurchase Date and the time of the book-entry transfer or
delivery of the Debentures.


Section 3.05           Repurchase of Debentures by the
Company at the Option of Holders.


(a)        Each Holder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s
Debentures, or any portion thereof that is a multiple of $1,000 principal
amount, on August 1, 2010, August 1, 2015, August 1, 2020 and August 1, 2025
(each, a “Repurchase Date”), at a repurchase
price of 100% of the principal amount of the Debentures being repurchased, plus
accrued and unpaid interest to, but excluding, the Repurchase Date, provided
that if such Repurchase Date falls after a Record Date and on or prior to the
corresponding Interest Payment Date, then the interest payable on such Interest
Payment Date shall be paid on such Interest Payment Date to the holders of
record of the Debentures on the applicable Record Date instead of the holders surrendering
the Debentures for repurchase on such date.


(b)        On or before the twentieth Business Day
prior to each Repurchase Date, the Company shall deliver or cause to be
delivered to all holders of record on such date at their addresses shown in the
Register a Company Repurchase Notice as set forth in Section 3.06.  The Company shall also deliver a copy of the
Company Repurchase Notice to the Trustee and the Paying Agent at such time as
it is delivered to holders of Debentures.


No failure of the Company to give the foregoing
notices and no defect therein shall limit the repurchase rights of holders of
Debentures or affect the validity of the proceedings for the repurchase of the
Debentures pursuant to this Section 3.05.


(c)        For Debentures to be so repurchased at
the option of the Holder, the Holder must deliver to the Paying Agent, at any
time during the period beginning at 9:00 a.m., New York City time, on the date
that is 20 Business Days prior to the applicable Repurchase Date and ending at
5:00 p.m., New York City time, on the applicable Repurchase Date, (i) a
Repurchase Notice in the form set forth on the reverse of the Debentures duly
completed (if the Debentures are certificated) or stating the following (if the
Debentures are represented by a Global Debenture): (A) the certificate number
of the Debentures which the Holder will deliver to be repurchased or compliance
with the appropriate Depositary procedures, (B) the portion of the principal
amount of the Debentures which the Holder will deliver to be repurchased, which
portion must be in principal amounts of $1,000 or an integral multiple of
$1,000, and (C) that such Debentures shall be repurchased by the Company
pursuant to the terms and conditions specified in the Debentures and in this
Indenture, together with (ii) such Debentures duly endorsed for transfer (if
the Debentures are certificated) or book-entry transfer of such Debentures (if
such Debentures are represented by a Global Debenture).  The delivery of such Debentures to the Paying
Agent with, or at any time after delivery of, the Repurchase Notice (together
with all necessary endorsements) at the office of the Paying Agent shall be a
condition to the receipt by the Holder of the repurchase price therefor; provided,
however, that such repurchase price shall be so paid pursuant to this
Section 3.05 only if the Debentures so delivered to the Paying Agent shall
conform in all respects to the description thereof in the Repurchase
Notice.  All questions as to the
validity, eligibility (including time of receipt) and acceptance of any
Debentures for repurchase shall be determined by the Company, whose
determination shall be final and binding absent manifest error.



 13
 









(d)        The Company shall repurchase from the
Holder thereof, pursuant to this Section 3.05, a portion of a Debenture, if the
principal amount of such portion is $1,000 or a whole multiple of $1,000.  Provisions of this Second Supplemental
Indenture that apply to the repurchase of all of a Debenture also apply to the
repurchase of such portion of such Debentures.


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


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 3.05 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Repurchase Date and the time of the book-entry transfer or delivery of the
Debentures.


Section 3.06           Company Repurchase Notice.  In connection with any repurchase of
Debentures, the Company shall, in the case of a Fundamental Change, on or
before the fifth calendar day after the occurence of such Fundamental Change,
or no less than 20 Business Days prior to each Repurchase Date, give notice to
holders (with a copy to the Trustee) setting forth information specified in
this Section 3.06 (in either case, the “Company Repurchase Notice”).


Each Company Repurchase Notice shall:


(1)        state the
repurchase price and the Fundamental Change Repurchase Date or the Repurchase
Date to which the Company Repurchase Notice relates;


(2)        state, if
applicable, the circumstances constituting the Fundamental Change;


(3)        state that
the repurchase price will be paid in cash;


(4)        state that
holders must exercise their right to elect repurchase prior to 5:00 p.m., New
York City time, on the Fundamental Change Repurchase Date or Repurchase Date,
as the case may be;


(5)        include a
form of Repurchase Notice;


(6)        state the
name and address of the Paying Agent;


(7)        state that Debentures
must be surrendered to the Paying Agent to collect the repurchase price;


(8)        state that a
Holder may withdraw its Repurchase Notice at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date or on the Repurchase Date, as the case may be, by delivering a
valid written notice of withdrawal in accordance with Section 3.07;


(9)        state whether
the Debentures are then convertible, the then applicable Conversion Rate,
including, in the case of the occurrence of a Fundamental Change, expected
changes in the Conversion Rate resulting from such Fundamental Change
transaction and expected changes in the cash, shares or other property
deliverable upon conversion of the Debentures as a result of the occurrence of
the Fundamental Change;


(10)      that
Debentures as to which a Repurchase Notice has been given may be converted only
if the Repurchase Notice is withdrawn in accordance with the terms of this
Second Supplemental Indenture;



 14
 









(11)      state the
amount of interest accrued and unpaid per $1,000 principal amount of Debentures
to, but excluding, the Fundamental Change Repurchase Date or the Repurchase
Date, as the case may be; and


(12)      state the
CUSIP number of the Debentures.


A Company Repurchase Notice may be given by the
Company or, at the Company’s request, the Trustee shall give such Company
Repurchase Notice in the Company’s name and at the Company’s expense; provided, that the text of the Company Repurchase Notice
shall be prepared by the Company.


The Company will, to the extent applicable, comply
with the provisions of Rule 13e-4 and Rule 14e-1 (or any successor provision)
under the Exchange Act that may be applicable at the time of the repurchase of
the Debentures, file the related Schedule TO (or any successor schedule, form
or report) under the Exchange Act and comply with all other federal and state
securities laws in connection with the repurchase of the Debentures.


Section 3.07           Effect of Repurchase Notice;
Withdrawal.  Upon receipt by the
Paying Agent of the Repurchase Notice specified in Section 3.04 or Section
3.05, the Holder of the Debentures in respect of which such Repurchase Notice
was given shall (unless such Repurchase Notice is validly withdrawn in
accordance with the following paragraph) thereafter be entitled to receive
solely the repurchase price with respect to such Debentures.  Such repurchase price shall be paid to such
Holder, subject to receipt of funds and/or the Debentures by the Paying Agent,
promptly following the later of (x) the Fundamental Change Repurchase Date or
the Repurchase Date with respect to such Debentures (provided the Holder has
satisfied the conditions in Section 3.04 or Section 3.05) and (y) the time of
book-entry transfer or delivery of such Debentures to the Paying Agent by the
Holder thereof in the manner required by Section 3.04 or Section 3.05.  The Debentures in respect of which a
Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article 8 hereof on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn.


A Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Repurchase Notice at any time prior to 5:00 p.m., New York
City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date or on the Repurchase Date, as the case may be, specifying:


(a)        the certificate number, if any, of the
Debentures in respect of which such notice of withdrawal is being submitted, or
the appropriate Depositary information, in accordance with appropriate
Depositary procedures, if the Debentures in respect of which such notice of
withdrawal is being submitted is represented by a Global Debenture,


(b)        the principal amount of the Debentures
with respect to which such notice of withdrawal is being submitted, and


(c)        the principal amount, if any, of such
Debentures which remains subject to the original Repurchase Notice and which
has been or will be delivered for repurchase by the Company.


If a Repurchase Notice is properly withdrawn, the
Company shall not be obligated to repurchase the Debentures listed in such
Repurchase Notice.


Section 3.08           Deposit of Repurchase Price.  Prior to 10:00 a.m., New York City Time, on
the Business Day immediately following the Fundamental Change Repurchase Date
or the Repurchase Date, the Company shall deposit with the Paying Agent or, if
the Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.5 of the Base Indenture, an amount of cash (in
immediately available funds if deposited on the Fundamental Change Repurchase
Date or the Repurchase Date, as the case may be), sufficient to pay the
aggregate repurchase price of all the Debentures or portions thereof that are
to be repurchased as of the Fundamental Change Repurchase Date or the
Repurchase Date, as the case may be.



 15
 









If on the Business Day immediately following the
Fundamental Change Repurchase Date or the Repurchase Date the Paying Agent
holds cash sufficient to pay the repurchase price of the Debentures that
holders have elected to require the Company to repurchase in accordance with
Section 3.04 or 3.05, as the case may be, then, on the Fundamental Change
Repurchase Date or the Repurchase Date, as the case may be, such Debentures
will cease to be outstanding, interest will cease to accrue and all other
rights of the holders of such Debentures will terminate, other than the right to
receive the repurchase price upon delivery or book-entry transfer of the
Debentures.  This will be the case
whether or not book-entry transfer of the Debentures has been made or the
Debentures has been delivered to the Paying Agent.


Section 3.09           Debentures Repurchased in Part.  Upon presentation of any Debentures
repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a new Debentures or Debentures, of any authorized
denomination, in aggregate principal amount equal to the unrepurchased portion
of the Debentures presented.


Section 3.10           Purchase of Debentures in the Open
Market. The Company may purchase Debentures in the open market, by tender at
any price or pursuant to private agreements.


Section 3.11           Cancellation of Debentures
Redeemed or Repurchased.  The Company
may, at its option, surrender any Debenture redeemed or repurchased pursuant to
this Article 3 to the Trustee for cancellation; provided, however, such
Debentures may not be reissued or resold by the Company.  Any Debentures surrendered to the Trustee for
cancellation may not be reissued or resold by the Company and will be canceled
promptly in accordance with Section 2.12 of the Base Indenture.


Section 3.12           Sinking Funds.  No sinking fund is provided for the
Debentures.


Article 4

Covenants


In addition to the covenants set forth in Article 4 of the Base
Indenture (except for the covenants set forth in Sections 4.1, 4.3 and 4.6 of
the Base Indenture, which will not apply with respect to the Debentures
authorized and designated under this Second Supplemental Indenture), the
following covenants shall apply with respect to the Debentures authorized and
designated under this Second Supplemental Indenture.


Section 4.01           Payment of Debentures.  The Company shall promptly pay the principal
of and interest on the Debentures on the dates and in the manner provided in
the Debentures and in this Second Supplemental Indenture.  Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Second Supplemental Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Debentureholders on
that date pursuant to the terms of this Second Supplemental Indenture.


The Company shall pay interest on overdue principal at
the rate specified therefor in the Debentures, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.


Section 4.02           Maintenance of Office or Agency.  The Company shall maintain an office or
agency, where the Debentures may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or
repurchase.  As of the date of this
Second Supplemental Indenture, such office is located at the office of the
Trustee located at Wells Fargo Bank, National Association, Corporate Trust
Services, MAC N9303-121, 608 Second Avenue South, Minneapolis, MN 55479,
Attention: Corporate Trust Operations and, at any other time, at such other
address as the Trustee may designate from time to time by notice to the
Company.  The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not designated or appointed by the Trustee.  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 and surrenders may be made
at the Corporate Trust Office.


 



 16















The Company may also from time to time designate
co-registrars and one or more offices or agencies where the Debentures may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations.  The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.


In addition, the Company shall maintain an office or
agency in the Borough of Manhattan, The City of New York, where notices and
demands to or upon the Company in respect of the Debentures and the Indenture
may be served.  As of the date of this
Second Supplemental Indenture, such office is located at the agency for service
of process of the Trustee located at Wells Fargo Bank, N.A., Corporate Trust
Services, MAC N2666-140, 45 Broadway, 14th Floor, New York, New York 10006 and, at any
other time, at such other address as the Trustee may designate from time to
time by notice to the Company.  The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency not designated or
appointed by the Trustee.


Section 4.03           Compliance Certificate.  The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company an Officers’
Certificate stating that a review of the Company’s activities during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under the Indenture and further
stating, as to each such Officer signing such certificate, whether to the best
of such Officer’s knowledge the Company during such preceding fiscal year has
kept, observed, performed and fulfilled each and every such covenant contained
in the Indenture and that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default and whether or not the signers know of any Default that occurred
during such period.  If they do know of
any Default, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto.  The Company also shall comply with Section
314(a)(4) of the TIA.


Section 4.04           Payment of Taxes and Other Claims.  The Company shall pay or discharge, or cause
to be paid or discharged, before the same may become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Significant Subsidiary or upon the income, profits or property of the Company
or any Significant Subsidiary, (ii) all claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon the
property of the Company or any Significant Subsidiary and (iii) all stamp taxes
and other duties, if any, which may be imposed by the United States or any
political subdivision thereof or therein in connection with the issuance,
transfer, exchange, conversion, redemption or repurchase of any Debentures or
with respect to this Indenture; provided, that,
in the case of clauses (i) and (ii), the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim (A) if the failure to do so will not, in the aggregate, have a
material adverse impact on the Company, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.


Section 4.05           Further Instruments and Acts.  The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of the Indenture.


Article 5

Successors


Notwithstanding Article 5 of the Base Indenture, the following Article
5 (and not Article 5 of the Base Indenture) shall apply for purposes of this
Second Supplemental Indenture and the Debentures.


Section 5.01           When Company May Merge, Etc..  The Company shall not, in a single transaction
or a series of related transactions, consolidate with or merge into any other
person or sell, convey, transfer or lease its property and assets substantially
as an entirety to another Person unless:


(a)        either (i) the Company is the continuing
corporation, or (ii) the directly resulting, surviving or transferee person (if other than
the Company) is a corporation or limited liability
company organized and existing



 17
 









under the laws of the United States of America,
any state thereof or the District of Columbia and such person assumes, by a
supplemental indenture, all of the Company’s obligations under the Debentures
and the Indenture;


(b)        immediately after giving effect to the
transaction described above, no Default or Event of Default, has occurred and is
continuing;


(c)        if as a result of such transaction the
Debentures become convertible into common stock or other securities issued by a
third party, such third party fully and unconditionally assumes or guarantees
all obligations of the Company or such surviving Person under the Debentures
and the Indenture; and


(d)        the Company has, at or prior to the
effective date of such consolidation, merger or transfer, delivered to the
Trustee the Officers’ Certificate and Opinion of Counsel pursuant to Section
5.03.


Section 5.02           Successor Substituted.  In case of any such consolidation, merger,
sale, conveyance, transfer or lease in which the Company is not the continuing
corporation and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and reasonably satisfactory in
form and substance to the Trustee, of the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Debentures, and
the due and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed or satisfied by the Company, such
successor Person shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of this first part, and
SunPower Corporation shall be discharged from its obligations under the
Debentures and the Indenture.  Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of SunPower Corporation any or all of the Debentures,
issuable hereunder that 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 the Indenture prescribed, the Trustee shall authenticate and shall deliver,
or cause to be authenticated and delivered, any Debentures that previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Debentures that such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose.  All the Debentures so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Debentures theretofore or thereafter issued in accordance with the terms
of the Indenture as though all of such Debentures had been issued at the date
of the execution hereof.  In the event of
any such consolidation, merger, sale, conveyance, transfer or lease, upon
compliance with this Article 5 the Person named as the “Company” in the first
paragraph of the Indenture or any successor that shall thereafter have become
such in the manner prescribed in this Article 5 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be discharged from its
liabilities as obligor and maker of the Debentures and from its obligations
under the Indenture.


Section 5.03           Opinion of Counsel to be Given
Trustee.  Prior to execution of any
supplemental indenture pursuant to this Article 5, the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or lease and any such
assumption complies with the provisions of this Article 5.


Article 6

Default and Remedies


Section 6.01           Events of Default.


Notwithstanding Section 6.1 of the Base Indenture, the
following Section 6.01 (and Section 6.1 of the Base Indenture shall not apply)
shall apply for purposes of this Second Supplemental Indenture and the
Debentures.


An “Event of Default”
shall occur when any of the following occurs (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article 5 hereof or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):



 18
 









(a)           the
Company shall fail to pay any interest on the Debentures when due and such
failure continues for a period of 30 calendar days; or


(b)        the Company shall fail to pay the
principal of the Debentures when due at maturity, or the Company shall fail to
pay the redemption price, Repurchase Price or Fundamental Change Repurchase Price,
or any make-whole premium payable, in respect of any Debentures when due; or


(c)        the Company shall fail deliver cash and,
if applicable, shares of Class A Common Stock (including any Additional Shares
payable as a result of a make-whole premium), upon the conversion of any
Debentures and such failure continues for five calendar days following the
scheduled settlement date for such conversion; or


(d)        the Company shall fail to provide the
notice required in Section 3.04(b) of an anticipated effective date or actual
effective date of a Fundamental Change for a period of five Business Days after
such notice was required to be delivered; or


(e)        the Company fails to perform or observe
any other term, covenant or agreement contained in the Debentures, this Second
Supplemental Indenture or the Base Indenture and the failure continues for a
period of 60 calendar days after written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the then-outstanding Debentures; or


(f)         the Company fails to pay when due
(whether at stated maturity or otherwise) or a default that results in the
acceleration of maturity, of any Debt for borrowed money in excess of
$25,000,000 of the Company or any Significant Subsidiary of the Company, unless
such Debt is discharged or such acceleration is rescinded, stayed or annulled,
within a period of 30 calendar days after written notice of such failure or
default to the Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% in aggregate principal amount of the then-outstanding
Debentures; or


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


(1)        commences a
voluntary case;


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


(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; or


(5)         takes any
comparable action under any foreign laws relating to insolvency; or


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


(1)        is for relief
against the Company or any Significant Subsidiary in an involuntary case;


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


(3)        orders the
winding up or liquidation of the Company or any Significant Subsidiary;



 19
 









or any similar relief is granted under any foreign
laws and, in each case, the order or decree remains unstayed and in effect for
60 days.


The term “Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors.  The term “Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.


Section 6.02           Acceleration of Maturity;
Rescission and Annulment. 
Notwithstanding Section 6.2 of the Base Indenture, this Section 6.02
(and not Section 6.2 of the Base Indenture) shall apply for purposes of this
Second Supplemental Indenture and the Debentures.


If an Event of Default with respect to outstanding Debentures
(other than an Event of Default specified in Section 6.01(g) or 6.01(h) hereof)
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then-outstanding Debentures, by written
notice to the Company and the Trustee, may declare due and payable 100% of the
principal amount of all outstanding Debentures plus any accrued and unpaid
interest to the date of payment. Upon a declaration of acceleration, such
principal and accrued and unpaid interest to the date of payment shall be
immediately due and payable.


If an Event of Default specified in Section 6.01(g) or
6.01(h) hereof occurs, all unpaid principal of and accrued and unpaid interest
on the outstanding Debentures shall become and be immediately due and payable,
without any declaration or other act on the part of the Trustee or any Holder.


The Holders of a majority in aggregate principal
amount of the outstanding Debentures by written notice to the Trustee may
rescind and annul an acceleration and its consequences if:


(1)        the Company
has paid (or deposited with the Trustee a sum sufficient to pay) (i) all
overdue interest on all Debentures; (ii) the principal amount of any Debentures
that has become due otherwise than by such declaration of acceleration; (iii)
to the extent that payment of such interest is lawful, interest upon overdue
interest; and (iv) all sums paid or advanced by the Trustee under the Indenture
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and


(2)        all Events of
Default, other than the nonpayment of principal or interest on the Debentures
which has become due solely because of the acceleration, have been remedied,
cured or waived,


provided, however, that in the
event such declaration of acceleration has been made based on the existence of
an Event of Default under Section 6.01(f) hereof and such Event of Default has
been remedied, cured or waived in accordance with Section 6.01(f) hereof, then,
without any further action by the Holders, such declaration of acceleration
shall be rescinded automatically and the consequences of such declaration shall
be annulled. No such rescission or annulment shall affect any subsequent
Default or impair any right consequent thereon.


Section 6.03           Waiver of Past Defaults.  Notwithstanding Section 6.13 of the Base
Indenture, this Section 6.03 (and not 6.13 of the Base Indenture) shall apply
for purposes of this Second Supplemental Indenture and the Debentures.  The Holders, either (a) through the written
consent of not less than a majority in aggregate principal amount of the
outstanding Debentures or (b) by the adoption of a resolution, at a meeting of
Holders of the outstanding Debentures at which a quorum is present, by the
Holders of at least a majority in aggregate principal amount of the outstanding
Debentures, may, on behalf of the Holders of all of the Debentures, waive an
existing Default or Event of Default, except a Default or Event of Default:


(1)        in the
payment of the principal of or interest on any Debenture;


(2)        in respect of
the right to convert any Debenture in accordance with Article 8;


(3)        in the
payment of the redemption price on the redemption date, or the Repurchase Price
on the Repurchase Date or the Fundamental Change Repurchase Price on the



 20
 









Fundamental Repurchase Date in
connection with the repurchase rights under Sections 3.04 and 3.05 hereof; or


(4)        in respect of
a covenant or provision hereof which, under Section 7.02 hereof, cannot be
modified or amended without the consent of the Holder of each outstanding
Debenture affected.


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


Section 6.04           Limitation on Suits.
Notwithstanding Section 6.7 of the Base Indenture, this Section 6.04 (and not
Section 6.7 of the Base Indenture) shall apply for purposes of this Second
Supplemental Indenture and the Debentures.


Except to enforce the right to receive payment of
principal or interest when due, no Holder may pursue any remedy with respect to
the Indenture or the Debentures 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 principal
amount of the Debentures make a written request to the Trustee to pursue the
remedy;


(c)        such Holder or Holders offer to the
Trustee security or indemnity reasonably 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 the request and the offer of indemnity;
and


(e)        the Holders of a majority in principal
amount of the Debentures do not give the Trustee a direction inconsistent with
the request during such 60-day period.


A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.


Section 6.05           Unconditional Rights of Holders to
Receive Payment and to Convert.  In
addition to the other rights and remedies set forth in this Article 6 and in
Article 6 of the Base Indenture (to the extent applicable to the Debentures),
notwithstanding any other provision in this Second Supplemental Indenture, the
Holder of any Debenture shall have the right, which is absolute and
unconditional and shall not be impaired or affected without the consent of such
Holder, to receive payment of the principal amount, redemption price,
Repurchase Price, Fundamental Change Repurchase Price, interest or make-whole
premium, if any, in respect of the Debentures held by such Holder, on or after
the respective due dates expressed in the Debentures and this Second
Supplemental Indenture, and to convert such Debenture in accordance with
Article 8 hereof, and to bring suit for the enforcement of any such payment on
or after such respective due dates or for the right to convert in accordance
with Article 8 hereof.


Article 7

Amendments; Supplements and Waivers


Section 7.01           Without Consent of Holders.


In addition to the provisions of Section 9.1 of the
Base Indenture, the Company and the Trustee may also amend or supplement this
Second Supplemental Indenture or the Debentures without notice to or consent of
any Holder of a Debenture for any of the following purposes:



 21
 









(a)           to
provide for conversion rights of Holders of the Debentures and the Company’s
repurchase obligations in connection with a Fundamental Change in the event of
any reclassification of the Class A Common Stock, merger or consolidation, or
sale, conveyance, transfer or lease of the Company’s property and assets
substantially as an entirety;


(b)        to secure the Debentures;


(c)        to provide for the assumption of the
Company’s obligations to the Holders of the Debentures in the event of a merger
or consolidation, or sale, conveyance, transfer or lease of our property and
assets substantially as an entirety;


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


(e)        to add to the
covenants of the Company for the benefit of the Debentureholders;


(f)         to cure any ambiguity or correct or
supplement any inconsistent or otherwise defective provision contained in the
Base Indenture or this Second Supplemental Indenture or the Debentures; provided, that such modification or amendment does not
adversely affect the interests of the Debentureholders
in any material respect; provided, further,
that any amendment made solely to conform the provisions of the Base Indenture
or this Second Supplemental Indenture or the Debentures to the description of
the debentures contained in the Prospectus Supplement shall not be deemed to
adversely affect the interests of the holders of the debentures;


(g)        to make any provision with respect to
matters or questions arising under the Base Indenture or this Second
Supplemental Indenture or the Debentures that the Company may deem necessary or
desirable and that shall not be inconsistent with provisions of the Base Indenture
or this Second Supplemental Indenture or the Debentures; provided,
that such change or modification does not, in the good faith opinion of the
Board of Directors, adversely affect the interests of the Debentureholders
in any material respect;


(h)        to increase the Conversion Rate;


(i)         to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Base Indenture or
this Second Supplemental Indenture under the TIA;


(j)         to add guarantees of obligations under
the Debentures; or


(k)        to provide for a successor trustee.


Section 7.02           With
Consent of Holders.


Notwithstanding Section 9.2 of the Base Indenture,
this Section 7.02 (and not Section 9.2 of the Base Indenture) shall apply for
purposes of this Second Supplemental Indenture and the Debentures.


Except as provided below in this Section 7.02, this
Second Supplemental Indenture, the Base Indenture or the Debentures may be
amended or supplemented, and noncompliance by the Company in any particular
instance with any provision of the Indenture or the Debentures may be waived,
in each case (i) with the written consent of the Holders of at least a majority
in aggregate principal amount of the outstanding Debentures or (ii) by the
adoption of a resolution, at a meeting of Holders of the Debentures outstanding
at which a quorum is present, by the Holders of a majority in aggregate
principal amount of the outstanding Debentures.


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


(a)        extend the maturity of any Debentures;


(b)        reduce the rate or extend the time for
payment of interest on any Debentures;



 22
 









(c)        reduce the principal amount of any
Debentures;


(d)        reduce any amount payable upon redemption
or repurchase of any Debentures in accordance with Article 3;


(e)        impair the right of a Holder to
institute suit for payment of any Debentures;


(f)         change the currency in which any
Debentures is payable;


(g)        change the redemption provisions in a
manner adverse to the Holders;


(h)        change the Company’s obligation to
repurchase any Debentures at the option of the Holder in a manner adverse to
the holders except as provided in Section 7.01(a);


(i)         change the Company’s obligation to
repurchase any Debentures upon a Fundamental Change in a manner adverse to the
Holders after the occurrence of a Fundamental Change;


(j)         affect the right of a Holder to convert
any Debentures into cash and, if applicable, shares of Class A Common Stock or
reduce the number of shares of Class A Common Stock or any other property,
including cash, receivable upon conversion pursuant to Article 8 hereof;


(k)        change the Company’s obligation to
maintain an agency for service of process in New York City;


(l)         modify this paragraph or Section 6.03
hereof; or


(m)       reduce the percentage of the Debentures
required for consent to any modification of the Base Indenture or this Second
Supplemental Indenture that does not require the consent of each affected
Holder.


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


After an amendment, supplement or waiver under this
Section 7.02 becomes effective, the Company shall promptly deliver to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to deliver such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment, supplement or waiver.


Article 8

Conversion of Debentures


Section 8.01           Right
to Convert.


(a)        Subject to and upon compliance with the
provisions of this Second Supplemental Indenture, on or prior to the close of
business on the Business Day immediately preceding August 1, 2027, the Holder
of any outstanding Debentures shall have the right, at such Holder’s option, to
convert the principal amount of the Debentures held by such Holder, or any
portion of such principal amount which is an integral multiple of $1,000, into
cash and, if applicable, fully paid and non-assessable shares of Class A Common
Stock (as such shares shall then be constituted) as described in Section 8.12
hereof, at the Conversion Rate in effect at such time, by surrender of the
Debentures so to be converted, together with any required funds, under the
circumstances described in this Section 8.01 and in the manner provided in
Section 8.02 hereof.  The Debentures
shall be convertible only at the following times:


(1)        prior to
August 1, 2025 on any date during any Fiscal Quarter beginning after September 30,
2007 (and only during such Fiscal Quarter), if the Closing Sale Price of one



 23
 









share of Class A Common Stock was
more than 125% of the then current Conversion Price for at least 20 Trading
Days in the 30 consecutive Trading-Day period ending on the last Trading Day of
the immediately preceding Fiscal Quarter;


(2)        on or after
August 1, 2025;


(3)        with respect
to Debentures called for redemption pursuant to Section 3.01 hereof, until 5:00
p.m., New York City time, on the Business Day prior to the relevant redemption
date;


(4)        during the
period specified in Section 8.01(c) hereof, if the Company distributes to all
or substantially all holders of Class A Common Stock rights or warrants
entitling them to purchase, for a period of 45 calendar days or less, shares of
Class A Common Stock at less than the average Closing Sale Price per share of
the Class A Common Stock for the 10 Trading Days preceding the declaration date
for such distribution;


(5)        during the
period specified in Section 8.01(c) hereof, if the Company distributes to all
or substantially all holders of Class A Common Stock, cash or other assets,
debt securities or rights to purchase the Company’s securities, which
distribution has a per share value exceeding 10% of the Closing Sale Price per
share of the Class A Common Stock on the Trading Day preceding the declaration
for such distribution;


(6)        if a
Fundamental Change occurs, at any time beginning on the Business Day following
the effective date of the Fundamental Change until 5:00 p.m., New York City
time, on the Business Day preceding the Fundamental Change Repurchase Date
relating to such Fundamental Change; or


(7)        during the
five consecutive Business Days immediately following any five consecutive
Trading-Day period in which the Trading Price per $1,000 principal amount of
the Debentures is less than 98% of the average of the Closing Sale Price of a
share of Class A Common Stock during such five Trading -Day period multiplied
by the applicable Conversion Rate.


(b)           (1) The Company shall notify the
Trustee in writing on or prior to the fifth Business Day following the first
day of each Fiscal Quarter (commencing prior to August 1, 2025, beginning with
the Fiscal Quarter ending September 30, 2007) of the condition to conversion
set forth in Section 8.01(a)(1) above shall have been satisfied with respect to
such Fiscal Quarter.


(2)           The Trustee shall have no obligation
to determine the Trading Price of the Debentures and whether the Debentures are
convertible pursuant to clause (7) of Section 8.01(a) hereof unless the Company
has requested such determination; and the Company shall have no obligation to
make such request unless a Holder makes a request for a determination and
provides the Company with reasonable evidence that the Trading Price per $1,000
principal amount of Debentures is reasonably likely to be less than 98% of the
average of the Closing Sale Price of the Class A Common Stock during such five
Trading-Day period multiplied by the Conversion Rate then in effect per $1,000
principal amount of Debentures.  At such
time, the Company shall instruct the Trustee to determine the Trading Price of
the Debentures beginning on the next Trading Day and on each successive Trading
Day until the Trading Prices for the Debentures for each Trading Day in any
five consecutive Trading Day period exceeds 98% of the product of the Closing
Sale Price of the Class A Common Stock and the then current Conversion Rate,
and to notify the Company accordingly.


 



 24















The Trustee shall
be entitled at its sole discretion to consult with the Company and to request
the assistance of the Company in connection with the Trustee’s duties and
obligations pursuant to Section 8.01(b)(2) hereof  and the Company agrees, if requested by the
Trustee, to cooperate with, and provide assistance to, the Trustee in carrying
out its duties under this Section 8.01. 
Upon determination of the Trading Price the Trustee shall notify the
Company in writing of such determination and upon request the Company shall
promptly confirm such determination in writing to the Trustee.


(c)        In the case of a distribution
contemplated by clauses (4) or (5) of Section 8.01(a), the Company shall notify
Holders of Debentures and the Trustee in writing at least 20 calendar days
prior to the ex-dividend date (the first date on which the Class A Common Stock
trades, regular way, on the relevant market from which the Closing Sale Price
was obtained without the right to receive such right, warrant, dividend or
distribution) for such distribution (the “Distribution Notice”).  Once the Company has given the Distribution
Notice, Holders may surrender their Debentures for conversion at any time until
the earlier of (i) 5:00 p.m., New York City time, on the Business Day immediately
preceding the ex-dividend date or (ii) the Company’s announcement that such
distribution will not take place.  In the
event of a distribution contemplated by clauses (4) or (5) of Section 8.01(a)
hereof, holders may not convert the Debentures if the holders may otherwise
participate in such distribution without converting their Debentures.


(d)        In addition, if the Company consolidates
with or merges with or into another Person or is a party to a binding share
exchange or conveys, transfers, sells, leases or otherwise disposes of all or
substantially all of its properties and assets in each case in a transaction
not constituting a Fundamental Change, pursuant to which the Class A Common
Stock would be converted into cash, securities and/or other property, other
than in a transaction covered by the exceptions in clause (d)(i) or clause
(d)(ii) of the definition of “Fundamental Change,” then the holders shall have
the right to convert their Debentures at any time beginning 15 calendar days
prior to the date announced by the Company as the anticipated effective date of
the transaction and until and including the date which is 15 calendar days
after the date that is the actual effective date of such transaction.  The Board of Directors shall determine the
anticipated effective date of the transaction, and such determination shall be
conclusive and binding on the holders and shall be publicly announced by the
Company and posted on its website not later than 20 calendar days prior to such
date, to the extent the Company has the knowledge to make such public
announcement and posting 20 days prior to the anticipated effective date, or as
soon as possible after the Company obtains such knowledge.


(e)        Whenever the Debentures shall become
convertible pursuant to this Section 8.01, the Company or, at the Company’s
request, the Trustee in the name and at the expense of the Company, shall
notify the holders of the event triggering such convertibility in the manner
provided in Section 12.2 of the Base Indenture, and the Company shall also
publicly announce such information and publish it on the Company’s
website.  Any notice so given shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.  Except as provided
in Section 8.04 hereof, the Company shall notify Holders and the Trustee in
writing at least 10 calendar days prior to the anticipated effective date of
any Fundamental Change, to the extent the Company has the knowledge to do so,
or as soon as possible after the Company obtains such knowledge.


(f)         Debentures in respect of which a Holder
has delivered a Repurchase Notice exercising such Holder’s right to require the
Company to repurchase such Debentures pursuant to Section 3.04 or 3.05 hereof
may be converted only if such Repurchase Notice is withdrawn in accordance with
Section 3.07 hereof prior to 5:00 p.m., New York City time, on the Repurchase
Date or the Business Day immediately preceding the Fundamental Change
Repurchase Date, as applicable.


(g)        A Holder of Debentures is not entitled
to any rights of a holder of Class A Common Stock until such Holder has
converted his Debentures to Class A Common Stock, and only to the extent such
Debentures are deemed to have been converted to Class A Common Stock under this
Article 8.


Section 8.02           Exercise
of Conversion Right; Issuance of Class A Common Stock on Conversion; No
Adjustment for Interest or Dividends. 
In order to exercise the conversion right with respect to any Debentures
in certificated form, the Company must receive at the office or agency of the
Company maintained for that purpose or,



 25
 









at the option of such Holder, the Corporate Trust
Office, such Debentures with the original or facsimile of the form entitled “Conversion Notice” on the reverse thereof,
duly completed and manually signed, together with such Debentures duly endorsed
for transfer, together with any other required transfer documents, accompanied
by the funds, if any, required by this Section 8.02.  Such notice shall also state the name or
names (with address or addresses) in which the certificate or certificates for
shares of Class A Common Stock which shall be issuable on such conversion, if
any, shall be issued, and shall be accompanied by transfer or similar taxes, if
required pursuant to Section 8.07 hereof. Once delivered, a Conversion Notice
is irrevocable.


In order to exercise the conversion right with respect
to any interest in a Global Debenture, the Holder must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
Depositary’s book-entry conversion program; deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Debenture; furnish
appropriate endorsements and transfer documents if required by the Company or
the Trustee or conversion agent; and pay the funds, if any, required by this
Section 8.02 and any transfer or similar taxes if required pursuant to Section
8.07 hereof.


The cash and, if applicable, a certificate or
certificates for the number of full shares of Class A Common Stock into which
the Debentures are converted will be delivered to such Holder after
satisfaction of the requirements for conversion set forth above, in accordance
with Section 8.12 hereof.  In case any
Debentures of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Section 2.03 hereof, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of the
Debentures so surrendered, without charge to the Holder, a new Debenture or
Debentures in authorized denominations in an aggregate principal amount equal
to the unconverted portion of the surrendered Debentures.


Each conversion shall be deemed to have been effected
as to any such Debentures (or portion thereof) on the date on which the requirements
set forth above in this Section 8.02 have been satisfied as to such Debentures
(or portion thereof) (the “Conversion Date”)
and such Debentures will be deemed to have been converted immediately prior to
5:00 p.m., New York City time, on the Conversion Date.  The Person in whose name any certificate or
certificates for shares of Class A Common Stock shall be issuable upon such
conversion, if any, shall be deemed to have become, on said date, the holder of
record of the shares represented thereby; provided that
in the event of any such surrender on any date when the stock transfer books of
the Company shall be closed, that Person shall constitute the Person in whose
name the certificates are to be issued as the record holder thereof for all
purposes on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Rate in effect on the
Conversion Date.


Any Debentures or portion thereof surrendered for
conversion during the period from 5:00 p.m., New York City time, on the Record
Date for any Interest Payment Date to 5:00 p.m., New York City time, on the
Business Day preceding the applicable Interest Payment Date shall be
accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided that no such payment need be made (1) if a Holder
converts its Debentures in connection with a redemption and the Company has
specified a redemption date that is after a Record Date and on or prior to the
corresponding Interest Payment Date, (2) if a Holder converts its Debentures in
connection with a Fundamental Change and the Company has specified a Fundamental
Change Repurchase Date that is after a Record Date and on or prior to the
corresponding Interest Payment Date or (3) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Debentures.  Except as provided
above in this Section 8.02 and Section 8.05 hereof, no payment or other
adjustment shall be made for interest accrued on any Debentures converted or
for dividends on any shares issued upon the conversion of such Debentures as
provided in this Article 8.


Upon the conversion of an interest in a Global
Debenture, the Trustee (or other Conversion Agent appointed by the Company), or
the custodian for the Global Debenture at the direction of the Trustee (or
other Conversion Agent appointed by the Company), shall make a notation on such
Global Debenture as to the reduction in the principal amount represented
thereby.  The Company shall notify the
Trustee in writing of any conversions of Debentures effected through any
Conversion Agent other than the Trustee.


Upon the conversion of any Debentures, the accrued but
unpaid interest attributable to the period from the Issue Date of the
Debentures to the Conversion Date, with respect to the converted Debentures,
shall not be



 26
 









cancelled, extinguished or forfeited, but rather shall
be deemed to be paid in full to the Holder thereof through delivery of the cash
(including a cash payment in lieu of fractional shares, if any) and shares of
Class A Common Stock, if any, in exchange for the Debentures being converted
pursuant to the provisions hereof.


Section 8.03           Cash
Payments in Lieu of Fractional Shares. 
No fractional shares of Class A Common Stock or scrip certificates
representing fractional shares shall be issued upon conversion of
Debentures.  If more than one Debenture
shall be surrendered for conversion at one time by the same Holder, the number
of full shares that shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Debentures (or specified
portions thereof to the extent permitted hereby) so surrendered.  If any fractional share of stock would be
issuable upon the conversion of any Debenture or Debentures, the Company shall
make an adjustment and payment therefor in cash to the Holder of Debentures at
a price equal to the applicable fraction of the Closing Sale Price on the final
Trading Day of the Conversion Period.


Section 8.04           Conversion
Rate.


(a)        Each $1,000 principal amount of the
Debentures shall be convertible into cash and the number of shares of Class A
Common Stock, if any, based upon the Conversion Rate which is specified in the
form of Debenture attached as Exhibit A hereto, subject to adjustment as
provided in this Section 8.04 and Section 8.05 hereof.


(b)        Prior to August 1, 2010, if and only to
the extent a Holder elects to convert Debentures in connection with a Non-Stock
Change of Control at any time beginning on the Business Day following the date
on which such Non-Stock Change of Control becomes effective (the “Effective Date”) but before 5:00 p.m., New
York City time, on the Business Day immediately preceding the related
Fundamental Change Repurchase Date, the Company shall increase the Conversion
Rate applicable to such converted Debentures by a number of additional shares
of Class A Common Stock (the “Additional Shares”)
as set forth below.  A conversion of
Debentures shall be deemed to be “in connection with” a Non-Stock Change of
Control if the Conversion Notice is received by the Conversion Agent during the
period specified in the previous sentence. 
The number of additional shares of Class A Common Stock shall be
determined by reference to the table below, based on the Effective Date and the
price (the “Stock Price”) paid per
share for the Class A Common Stock in the Non-Stock Change of Control.  If holders of Class A Common Stock receive
only cash in the Non-Stock Change of Control, the Stock Price shall be the cash
amount paid per share. Otherwise, the Stock Price shall be the average of the
Closing Sale Prices of the Class A Common Stock on the five Trading Days prior
to, but not including, the Effective Date of such Non-Stock Change of Control.


The numbers of Additional Shares of Class A Common
Stock set forth in the table below shall be adjusted as of any date on which
the Conversion Rate is adjusted in the same manner in which the Conversion Rate
is adjusted.  The Stock Prices set forth
in the table below shall be adjusted, as of any date on which the Conversion
Rate is adjusted, to equal the Stock Price applicable immediately prior to such
adjustment multiplied by a fraction, of which


(1)        the numerator
shall be the Conversion Rate immediately prior to the adjustment and


(2)        the
denominator shall be the Conversion Rate as so adjusted.


The following table sets forth the Stock Price and
number of Additional Shares by which the Conversion Rate shall be adjusted:


Stock
Price


	
  Effective Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  July 31, 2007

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2008

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2009

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2010

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 



 27
 









If the Stock Price and Effective Date are not set
forth on the table above and the Stock Price is:


(i)         between two Stock Prices on the table
or the Effective Date is between two days on the table, the number of
additional shares of Class A Common Stock shall be determined by the Trustee by
straight-line interpolation between the number of additional shares of Class A
Common Stock set forth for the higher and lower Stock Price and the two
Effective Dates, as applicable, based on a 360-day year;


(ii)        in excess of $[  ] per share (subject to adjustment), no
additional shares of Class A Common Stock shall be issued upon conversion; or


(iii)       less than $[  ] per share (subject to adjustment), no
additional shares of Class A Common Stock shall be issued upon conversion.


Notwithstanding the foregoing, in no event will the
Conversion Rate as adjusted pursuant to this Section 8.04 exceed [  ] shares per $1,000 principal amount of the
Debentures, subject to adjustments in the same manner as the number of
Additional Shares of Class A Common Stock as set forth in this Section 8.04(b).


Additional Shares deliverable pursuant to this Section
8.04(b) or cash in lieu thereof, shall be delivered on the settlement date
applicable to the relevant conversion.


The Company shall provide written notice to all
Holders and to the Trustee as soon as practicable and if possible at least 20
calendar days prior to the anticipated Effective Date of a Non-Stock Change of
Control.  The Company must also provide
written notice to all Holders and to the Trustee upon the effectiveness of such
Non-Stock Change of Control.


Section 8.05           Adjustment
of Conversion Rate.  The Conversion
Rate shall be adjusted from time to time by the Company as follows:


(a)        In case the Company shall, at any time
or from time to time while any of the Debentures are outstanding, pay a
dividend in shares of Class A Common Stock or make a distribution in shares of
Class A Common Stock to all or substantially all holders of its outstanding
shares of Class A Common Stock, then the Conversion Rate in effect at the
opening of business on the date following the record date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by multiplying such Conversion Rate by a
fraction:


(1)        the numerator of which shall be the sum
of the number of shares of Class A Common Stock outstanding at the close of
business on the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution plus the total number of shares of
Class A Common Stock constituting such dividend or other distribution; and


(2)        the denominator of which shall be the
number of shares of Class A Common Stock outstanding at the close of business
on the date fixed for such determination,


such increase to become effective immediately after
the opening of business on the day following the record date fixed for such
determination.  For the purpose of this
paragraph (a), the number of shares of Class A Common Stock



 28
 









at any time outstanding shall not include shares held
in the treasury of the Company.  The
Company will not pay any dividend or make any distribution on shares of Class A
Common Stock held in the treasury of the Company.  If any dividend or distribution of the type
described in this Section 8.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.


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


(c)        In case the Company shall issue rights
or warrants to all or substantially all holders of its outstanding shares of
Class A Common Stock entitling them to subscribe or purchase, for a period of
up to 45 calendar days, shares of Class A Common Stock at a price per share
less than the then Current Market Price, the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion
Rate in effect immediately prior to the date fixed for determination of
stockholders entitled to receive such rights or warrants by a fraction,


(1)        the numerator of which shall be the
number of shares of Class A Common Stock outstanding on the date fixed for
determination of stockholders entitled to receive such rights or warrants plus
the total number of additional shares of Class A Common Stock offered for
subscription or purchase, and


(2)        the denominator of which shall be the
sum of the number of shares of Class A Common Stock outstanding at the close of
business on the date fixed for determination of stockholders entitled to
receive such rights or warrants plus the number of shares that the aggregate
offering price of the total number of shares so offered would purchase at the
Current Market Price on such date.


Such adjustment shall be successively made whenever
any such rights or warrants are issued, and shall become effective immediately
after the opening of business on the day following the date fixed for
determination of stockholders entitled to receive such rights or warrants.  To the extent that shares of Class A Common
Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Class A
Common Stock actually delivered.  If such
rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such date
fixed for the determination of stockholders entitled to receive such rights or
warrants had not been fixed.  In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Class A Common Stock at less than such Current Market
Price, and in determining the aggregate offering price of such shares of Class
A Common Stock, there shall be taken into account any consideration received by
the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.


(d)        In case the Company shall, by dividend
or otherwise, distribute to all or substantially all holders of its outstanding
shares of Class A Common Stock shares of any class of Capital Stock of the
Company or evidences of its Debt or assets (including securities, but excluding
(i) any rights or warrants referred to in Section 8.05(c) hereof, (ii) any
dividends or distributions in connection with a reclassification,
consolidation, merger, combination or sale or conveyance to which Section 8.06
hereof applies, (iii) any dividends or distributions paid exclusively in cash
or (iv) any dividends or distributions referred to in Section 8.05(a) hereof)
(any of the foregoing hereinafter in this Section 8.05(d)) called the “Distributed Assets”), then, in each such case, the
Conversion Rate



 29
 









shall be increased so that the same shall be equal to
the rate determined by multiplying the Conversion Rate in effect on the record
date with respect to such distribution by a fraction,


(1)        the numerator
of which shall be the Current Market Price on such record date; and


(2)        the
denominator of which shall be the Current Market Price on such record date less
the Fair Market Value (as determined by the Board of Directors, whose
determination shall be conclusive, and set forth  in a resolution of the Board of Directors) on
the record date of the portion of the Distributed Assets so distributed
applicable to one share of Class A Common Stock,


such adjustment to become effective immediately prior
to the opening of business on the day following such record date; provided, that if the then Fair Market Value (as so
determined) of the portion of the Distributed Assets so distributed applicable
to one share of Class A Common Stock is equal to or greater than the Current
Market Price on the record date or the Current Market Price exceeds such Fair
Market Value by less than $1.00, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive
upon conversion the amount of Distributed Assets such Holder would have
received had such Holder converted each Debentures solely into Class A Common
Stock immediately prior to the record date; and provided,
further, that no adjustment to the
Conversion Rate shall be made if the Holder will otherwise participate in such
distribution without conversion as a result of holding the Debentures.  If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared.


If the Board of Directors determines the Fair Market
Value of any distribution for purposes of this Section 8.05(d) by reference to
the actual or when issued trading market for any Distributed Assets comprising
all or part of such distribution, it must in doing so consider the prices in
such market over the same period (the “Reference
Period”) used in computing the Current Market Price pursuant to
Section 8.05(g)(1) hereof to the extent possible, unless the Board of Directors
determines in good faith that determining the Fair Market Value during the
Reference Period would not be a reasonably accurate measure of value.  Notwithstanding the foregoing, in the event
any such distribution consists of shares of Capital Stock of, or similar equity
interests in, one or more of the Company’s Subsidiaries (a “Spin-Off”), the Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying
the Conversion Rate in effect immediately prior to the close of business on the
record date with respect to such distribution by a fraction:


(1)           the
numerator of which shall be the Current Market Price of the Class A Common
Stock, plus the Fair Market Value of the portion of the distributed assets so
distributed applicable to one share of Class A Common Stock (determined on the
basis of the number of shares of Class A Common Stock outstanding on the record
date), determined as set forth above, and


(2)           the
denominator of which shall be the Current Market Price on such record date,


such increase shall become effective immediately prior
to the opening of business on the day following the last Trading Day of the
Spin-Off Valuation Period (as defined below). 
In the event that such dividend or distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been
declared.  In the case of a Spin-Off of a
subsidiary whose securities are publicly traded, the Fair Market Value of the
securities to be distributed shall equal the average of the Closing Sale Prices
of such securities on the principal securities market on which such securities
are traded for the five consecutive Trading Days commencing on and including
the sixth day of trading of those securities after the effectiveness of the Spin-Off
(the “Spin-Off Valuation Period”),
and the Current Market Price shall be measured for the same period.  In the event, however, that an underwritten
initial public offering of the securities in the Spin-Off occurs simultaneously
with the Spin-Off, Fair Market Value of the securities distributed in the
Spin-Off shall mean the initial public offering price of such securities and
the Current Market Price shall mean the Closing Sale Price for the Class A
Common Stock on the same Trading Day.



 30
 









Rights or warrants distributed by the Company to all
holders of Class A Common Stock entitling the holders thereof to subscribe for
or purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of Class A Common Stock; (ii)
are not exercisable; and (iii) are also issued in respect of future issuances
of Class A Common Stock, shall be deemed not to have been distributed for
purposes of this Section 8.05 (and no adjustment to the Conversion Rate under
this Section 8.05 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 8.05(d).  If any such right or warrant, including any
such existing rights or warrants distributed prior to the date of this Second
Supplemental Indenture, are subject to events, upon the occurrence of which
such rights or warrants become exercisable to purchase different securities,
evidences of Debt or other assets, then the date of the occurrence of any and
each such event shall be deemed to be the date of distribution and record date
with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof).  In addition, in the
event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under this
Section 8.05 was made, (1) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Class A
Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Class A Common Stock
as of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such
rights and warrants had not been issued.


No adjustment of the Conversion Rate shall be made
pursuant to this Section 8.05(d) in respect of rights or warrants distributed
or deemed distributed on any Trigger Event to the extent that such rights or
warrants are actually distributed or reserved by the Company for distribution
to Holders of Debentures upon conversion by such Holders of Debentures to Class
A Common Stock.


For purposes of this Section 8.05(d) and Sections
8.05(a) and (b) hereof, any dividend or distribution to which this Section
8.05(d) is applicable that also includes shares of Class A Common Stock, or
rights or warrants to subscribe for or purchase shares of Class A Common Stock
(or both), shall be deemed instead to be (1) a dividend or distribution of the
evidences of Debt, assets or shares of Capital Stock other than such shares of
Class A Common Stock or rights or warrants (and any Conversion Rate adjustment
required by this Section 8.05(d) with respect to such dividend or distribution
shall then be made) immediately followed by (2) a dividend or distribution of
such shares of Class A Common Stock or such rights or warrants (and any further
Conversion Rate adjustment required by Sections 8.05(a) or 8.05(b) hereof with
respect to such dividend or distribution shall then be made), except (A) the
record date of such dividend or distribution shall be substituted as “the date
fixed for the determination of stockholders entitled to receive such dividend
or other distribution”, “the date fixed for the determination of stockholders
entitled to receive such rights or warrants” and “the date fixed for such
determination” within the meaning of Sections 8.05(a) and 8.05(b) hereof and
(B) any shares of Class A Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the
date fixed for such determination” within the meaning of Section 8.05(a)
hereof.


(e)        In case the Company shall, by dividend
or otherwise, distribute to all holders of its Class A Common Stock cash
(including any quarterly cash dividend, but excluding (x) any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary and (y) any dividend or
distribution in connection with a reclassification, consolidation, merger,
binding share exchange or sale to which Section 8.06 hereof applies), then the
Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect on the applicable
record date by a fraction,


(1)        the numerator of which shall be the
Current Market Price on such record date; and



 31
 









(2)        the denominator of which shall be the
Current Market Price on such record date less the amount of the cash
distribution applicable to one share of Class A Common Stock,


such adjustment to be effective immediately prior to
the opening of business on the day following the record date; provided, that if the portion of the cash so distributed
applicable to one share of Class A Common Stock is equal to or greater than the
Current Market Price on the record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each Debentures solely into Class A Common Stock
immediately prior to the record date.  If
such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


(f)         In case a tender or exchange offer made
by the Company or any Subsidiary for all or any portion of the Class A Common
Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration
per share of Class A Common Stock having a Fair Market Value (as determined by
the Board of Directors, whose determination shall be conclusive and set forth
in a resolution of the Board of Directors) that as of the last time (the “Expiration Time”) tenders or exchanges may
be made pursuant to such tender or exchange offer (as it may be amended)
exceeds the Closing Sale Price of a share of Class A Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the Expiration Time by a
fraction,


(1)        the numerator of which shall be the sum
of (x) the Fair Market Value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of
the number of shares of Class A Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of a share of Class A
Common Stock on the Trading Day next succeeding the Expiration Time, and


(2)        the denominator of which shall be the
number of shares of Class A Common Stock outstanding (including any Purchased
Shares) at the Expiration Time multiplied by the Closing Sale Price of a share
of Class A Common Stock on the Trading Day next succeeding the Expiration Time,


such adjustment to become effective immediately prior
to the opening of business on the day following the Expiration Time.  If the Company is obligated to purchase
shares pursuant to any such tender or exchange offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or
exchange offer had not been made.


(g)        For purposes of this Section 8.05, the
following terms shall have the meaning indicated:


(1)        “Current Market Price” on any date means the
average of the daily Closing Sale Prices per share of Class A Common Stock for
the ten consecutive Trading Days immediately prior to such date (the “day in
question”); provided that if:


(A)     the “ex” date
(as hereinafter defined) for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 8.05 (a), (b), (c), (d), (e) or (f) occurs during such ten
consecutive Trading Days, the Closing Sale Price for each Trading Day prior to
the “ex” date for such other event shall be adjusted by



 32
 









dividing such Closing Sale Price by
the same fraction by which the Conversion Rate is so required to be multiplied
as a result of such other event;


(B)      the “ex” date
for the issuance or distribution requiring such computation is prior to the day
in question, after taking into account any adjustment required pursuant to
clause (A) of this proviso, the Closing Sale Price for each Trading Day on or
after such “ex” date shall be adjusted by adding thereto the amount of any cash
and the Fair Market Value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes of Section
8.05(d), (e) or (f)) of the evidences of Debt, shares of Capital Stock or
assets being distributed applicable to one share of Class A Common Stock as of
the close of business on the day before such “ex” date.


Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Rate are called for pursuant to this Section
8.05, such adjustments shall be made to the Current Market Price as may be
necessary or appropriate to effectuate the intent of this Section 8.05 and to
avoid unjust or inequitable results as determined in good faith by the Board of
Directors.


“Ex” date, when used:


(i)            with
respect to any issuance or distribution, means the first date on which the
shares of Class A Common Stock trade regular way on the relevant exchange or in
the relevant market from which the Closing Sale Price was obtained without the
right to receive such issuance or distribution;


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


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


(2)        “Fair Market Value” shall mean the amount
which a willing buyer would pay a willing seller in an arm’s-length
transaction.


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


(h)        The Company, in its sole discretion, may
make such increases in the Conversion Rate, in addition to those required by
Sections 8.05(a)-(f) hereof, as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Class A Common
Stock or rights to purchase Class A Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.


To the extent permitted by applicable law, the Company
from time to time may increase the Conversion Rate by any amount for any period
of time if the period is at least 20 Business Days, the increase is irrevocable
during the period and the Board of Directors shall have made a determination
that such increase would be in the best interests of the Company, which
determination shall be conclusive. 
Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall deliver to Holders of record of the Debentures and
the Trustee a notice of the increase, which notice will be given at least 15
days prior to the effectiveness of any such increase, and such notice shall
state the increased Conversion Rate and the period during which it will be in
effect.



 33
 









(i)            No
adjustment in the Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in such
rate; provided that any adjustments that by
reason of this Section 8.05(i) are not required to be made shall be carried
forward and the Company shall make such carry forward adjustments, regardless
of whether the aggregate adjustment is less than 1%, (x) annually on the
anniversary of the Closing Date and otherwise (y)(1) five Business Days prior
to the maturity of the Debentures (whether at stated maturity or otherwise) or
(2) prior to the redemption date or Repurchase Date or Fundamental Change
Repurchase Date, unless such adjustment has already been made.  All calculations under this Article 8 shall
be made by the Company and shall be made to the nearest cent or to the nearest
one-ten thousandth (1/10,000) of a share, as the case may be.  No adjustment need be made for rights to
purchase Class A Common Stock pursuant to a Company plan for reinvestment of
dividends or interest or for any issuance of Class A Common Stock or convertible
or exchangeable securities or rights to purchase Class A Common Stock or
convertible or exchangeable securities. 
Interest will not accrue on any cash into which the Debentures are
convertible.


(j)         Whenever the Conversion Rate is
adjusted as herein provided, the Company will issue a press release through
Business Wire or another widely accepted business wire service containing the
relevant information and make this information available on the Company’s
website or through another public medium as the Company may use at that
time.  In addition, the Company shall
promptly file with the Trustee and any conversion agent other than the Trustee
an Officers’ Certificate setting forth the Conversion Rate after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.  Unless and until a Trust
Officer of the Trustee shall have received such Officers’ Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume that the last Conversion Rate of which it has
actual knowledge is still in effect. 
Promptly after delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and shall
deliver such notice of such adjustment of the Conversion Rate to the Holder of
each Debentures at his last address appearing on the Register, within 20
calendar days after execution of such notice. 
Failure to deliver such notice shall not affect the legality or validity
of any such adjustment.


(k)        In any case in which this Section 8.05
provides that an adjustment shall become effective immediately after (1) a
record date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section
8.05(a) hereof, (3) a date fixed for the determination of stockholders entitled
to receive rights or warrants pursuant to Section 8.05(b) hereof, or (4) the
Expiration Time for any tender or exchange offer pursuant to Section 8.05(f)
hereof, (each a “Determination Date”),
the Company may elect to defer until the occurrence of the applicable
Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any
Debentures converted after such Determination Date and before the occurrence of
such Adjustment Event, the additional shares of Class A Common Stock, if any,
or other securities, cash or other property issuable upon such conversion by
reason of the adjustment required by such Adjustment Event over and above the
Class A Common Stock, if any, issuable upon such conversion before giving
effect to such adjustment and (y) paying to such Holder any amount in cash in
lieu of any fractional share pursuant to Section 8.03 hereof.  For purposes of this Section 8.05(k), the
term “Adjustment Event” shall
mean:


(i)            in any case referred to in clause
(1) hereof, the occurrence of such event,


(ii)           in any case referred to in clause (2)
hereof, the date any such dividend or distribution is paid or made,


(iii)          in any case referred to in clause (3)
hereof, the date of expiration of such rights or warrants, and


(iv)          in any case referred to in clause (4)
hereof, the date a sale or exchange of Class A Common Stock pursuant to such
tender or exchange offer is consummated and becomes irrevocable.


(l)         For purposes of this Section 8.05, the
number of shares of Class A Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of Class A Common Stock.  The Company
will not pay any dividend or make any distribution on shares of Class A Common
Stock held in the treasury of the Company.



 34















(m)       No adjustment to the Conversion Rate
shall be made pursuant to this Section 8.05 if the holders of the Debentures
may participate in the transaction that would otherwise give rise to adjustment
pursuant to this Section 8.05.


Section 8.06           Effect
of Reclassification, Consolidation, Merger or Sale.  If any of the following events occur, namely:


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


(b)        any consolidation or merger of the
Company with or into another Person, or


(c)        any sale, lease, transfer, conveyance or
other disposition of all or substantially all of the Company’s assets and those
of its Subsidiaries taken as a whole to any other Person or Persons, as a
result of which holders of Class A Common Stock shall be entitled to receive
stock, other securities or other property or assets (including cash or any
combination thereof) with respect to or in exchange for such Class A Common
Stock,


in each case, the Company
or the successor or purchasing corporation, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture, if such supplemental indenture is then required to so comply)
providing that such Debentures shall, without the consent of any holders of
Debentures, be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash or any combination
thereof) (the “Applicable Consideration”) that
such Holder would have been entitled to receive upon such reclassification,
change, consolidation, merger, sale, lease, transfer, conveyance or other
disposition had such Debentures been converted into Class A Common Stock
immediately prior to such reclassification, change, consolidation, merger,
sale, lease, transfer, conveyance or other disposition; provided,
that in the event that holders of Class A Common Stock have the opportunity to
elect the form of consideration to be received in such transaction, then from
and after the effective date of such transaction, the Debentures shall be
convertible into the consideration that a majority of the holders of Class A
Common Stock who made such an election received in such transaction and the
term “Applicable Consideration” shall be construed accordingly; and provided, further, that
Section 8.12 hereof shall continue to apply following any such
transaction.  Such supplemental indenture
shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 8.  If, in the case of any such reclassification,
change, consolidation, merger, sale, lease, transfer, conveyance or other
disposition, the stock or other securities and assets receivable thereupon by a
holder of Class A Common Stock includes shares of stock or other securities and
assets of a corporation other than the successor or purchasing corporation, as
the case may be, in such reclassification, change, consolidation, merger, sale,
lease, transfer, conveyance or other disposition, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the holders of the
Debentures as the Board of Directors shall reasonably consider necessary by
reason of the foregoing, including to the extent practicable the provisions
providing for the conversion rights set forth in this Article 8.


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


The above provisions of this Section 8.06 shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, sales, leases, transfers, conveyances or other dispositions.


If this Section 8.06 applies to any event or
occurrence, Section 8.05 hereof shall not apply.


Any additional shares of Class A Common Stock that a
Holder is entitled to receive upon conversion pursuant to Section 8.04(b)
hereof, if applicable, shall not be payable in shares of Class A Common Stock,
but shall represent a right to receive the aggregate amount of cash, securities
or other property into which the



 35
 









additional shares of Class A Common Stock would
convert as a result of such recapitalization, change, consolidation, merger,
sale, lease, transfer, conveyance or other disposition.


The Company may not become party to any such
transaction described in clauses (a), (b) or (c) of this Section 8.06, unless
the terms of such transactions are consistent with this Section 8.06.


Section 8.07           Taxes
on Shares Issued.  The issue of stock
certificates on conversions of Debentures shall be made without charge to the
converting Holder of Debentures for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof. 
The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue and delivery of
stock in any name other than that of the Holder of any Debentures converted,
and the Company shall not be required to issue or deliver any such stock
certificate unless and until the Person or Persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.


Section 8.08           Reservation
of Shares, Shares to be Fully Paid; Compliance with Governmental Requirements;
Listing of Class A Common Stock.  The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Class A Common
Stock to provide for the conversion of the Debentures, including any Additional
Shares, from time to time as such Debentures are presented for conversion.


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


The Company covenants that all shares of Class A
Common Stock which may be issued upon conversion of Debentures will upon issue
be fully paid and non-assessable by the Company and free from all taxes, liens
and charges with respect to the issue thereof.


The Company covenants that, if any shares of Class A
Common Stock to be provided for the purpose of conversion of Debentures
hereunder require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued upon
conversion, the Company will in good faith and as expeditiously as possible, to
the extent then permitted by the rules and interpretations of the Commission (or
any successor thereto), endeavor to secure such registration or approval, as
the case may be.


The Company further covenants that, if at any time the
Class A Common Stock shall be listed on any national securities exchange or
automated quotation system, the Company will, if permitted by the rules of such
exchange or automated quotation system, list and keep listed, so long as the
Class A Common Stock shall be so listed on such exchange or automated quotation
system, all Class A Common Stock issuable upon conversion of the Debentures; provided that if the rules of such exchange or automated
quotation system permit the Company to defer the listing of such Class A Common
Stock until the first conversion of the Debentures into Class A Common Stock in
accordance with the provisions of this Indenture, the Company covenants to list
such Class A Common Stock issuable upon conversion of the Debentures in
accordance with the requirements of such exchange or automated quotation system
at such time.


Section 8.09           Responsibility
of Trustee.  The Trustee and any
other Conversion Agent shall not at any time be under any duty or
responsibility to any Holder to determine the Conversion Price or the
Conversion Rate or whether any facts exist which may require any adjustment of
the Conversion Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same.  The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Class A Common Stock, or of any
Capital Stock, other securities or other assets or property, which may at any
time be issued or delivered upon the conversion of any Debentures; and the
Trustee and any other conversion agent make no representations with respect
thereto.  Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Class A Common Stock or stock certificates or



 36
 









other securities or property or cash upon the
surrender of any Debentures for the purpose of conversion or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article 8.  Without limiting the
generality of the foregoing, neither the Trustee nor any Conversion Agent shall
be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 8.06
hereof relating either to the kind or amount of shares of capital stock or
other securities or other assets or property (including cash) receivable by
holders of Debentures upon the conversion of their Debentures after any event
referred to in such Section 8.06 hereof or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.1 of the Base
Indenture, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers’ Certificate
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.


Section 8.10           Notice
to Holders Prior to Certain Actions. 
In case:


(a)        the Company shall declare a dividend (or
any other distribution) on its Class A Common Stock that would require an
adjustment in the Conversion Rate pursuant to Section 8.05 hereof; or


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


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


(d)        of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;


the Company shall cause to be filed with the Trustee
and to be delivered to each Holder at his address appearing on the Register
provided for in Section 2.4 of the Base Indenture, as promptly as possible but
in any event at least ten calendar days prior to the applicable date
hereinafter specified to the extent the Company has the knowledge to do so, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Class A Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of Class A Common
Stock of record shall be entitled to exchange their Class A Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up.  Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.


Section 8.11           Stockholder
Rights Plans.  If the rights provided
for in any future rights plan adopted by the Company have separated from the
shares of Class A Common Stock in accordance with the provisions of the
applicable stockholder rights agreement so that the holders of the Debentures
would not be entitled to receive any rights in respect of Class A Common Stock
issuable upon conversion of the Debentures, the Conversion Rate will be
adjusted as provided in Section 8.05(d) hereof. 
If such rights have not separated, any shares of Class A Common Stock
delivered upon the conversion of Debentures shall be accompanied by such
rights.


Section 8.12           Settlement
Upon Conversion.  (a) Subject to
Section 8.12 (b) hereof, upon any conversion of Debentures, the Company will
deliver to converting Holders in respect of each $1,000 principal amount of
Debentures being converted a “Settlement Amount”
equal to the sum of the Daily Settlement Amount for each of the 20 Trading Days
during the Conversion Period.


“Daily Settlement Amount”,
for each $1,000 principal amount of Debentures, for each of the 20 Trading Days
during the Conversion Period, shall consist of:



 37
 









(i)            cash
equal to the lesser of $50 and the Daily Conversion Value; and


(ii)           to
the extent the Daily Conversion Value exceeds $50, a number of shares of Class
A Common Stock, which is referred to as the “remaining shares,” equal to the
Daily Share Amount as defined below, subject to the Company’s right to deliver
cash in lieu of all or a portion of such remaining shares as described below.


“Daily Share Amount” means (A)
the difference between the Daily Conversion Value and $50, divided by (B) the
Closing Sale Price of the Class A Common Stock for such day.


“Daily Conversion Value”
means, for each of the 20 consecutive Trading Days during the Conversion
Period, one-twentieth (1/20) of the product of (1) the applicable Conversion
Rate and (2) the Closing Sale Price of the Class A Common Stock (or the
consideration into which the Class A Common Stock has been converted in
connection with transactions to which Sections 8.01(a)(6) or 8.06 hereof are
applicable) on such day.  For the
purposes of determining the Daily Conversion Value the following provisions
shall apply:  (i) if the Applicable
Consideration includes securities for which the price can be determined in a
manner contemplated by the definition of “Closing Sale Price,” then the value
of such securities shall be determined in accordance with the principles set
forth in such definition; (ii) if the Applicable Consideration includes other
property (other than securities as to which clause (i) applies or cash), then
the value of such property shall be the fair market value of such property as
determined by the Company’s Board of Directors in good faith; and (iii) if the
Applicable Consideration includes cash, then the value of such cash shall be
the amount thereof.


Subject to Section 8.12(b) hereof, the Company may
elect to pay cash to any Holder that surrenders Debentures for conversion in
lieu of all or a portion of the Common Stock otherwise issuable pursuant to
this Section 8.12(a).  In such event, on
any day prior to the first trading day of the applicable Conversion Period, the
Company may specify a percentage of the Daily Share Amount that will be settled
in cash (the “Cash Percentage”).  If the Company elects to specify a Cash
Percentage, the amount of cash that will be delivered by the Company in respect
of each Trading Day in the applicable Conversion Period will equal the product
of: (1) the Cash Percentage, (2) the Daily Share Amount for such Trading Day
and (3) the Closing Sale Price for such Trading Day (provided that after the
consummation of a Fundamental Change in which the consideration is comprised
entirely of cash, the amount used in this clause (3) will be the cash price per
share received by Holders in such Fundamental Change).  The number of shares deliverable in respect
of each Trading Day in the applicable Conversion Period will be a percentage of
the Daily Share Amount equal to 100% minus the Cash Percentage. If the Company
does not specify a Cash Percentage by the start of the applicable Conversion
Period, the Company must settle 100% of the Daily Share Amount for each Trading
Day in the applicable Conversion Period with shares of Class A Common Stock;
provided, however, that the Company will pay cash in lieu of fractional shares
otherwise issuable upon conversion of such Debentures.


(b)           If
a Holder converts Debentures pursuant to Section 8.01(a)(6) hereof, the Holder
shall receive per $1,000 principal amount of Debentures being converted: (1)
cash equal to the lesser of (i) $1,000 and (ii) the Conversion Value and (2) if
the Conversion Value exceeds $1,000, an amount of cash, securities and other
assets or property equal to such excess based on the consideration a Holder
would have received had the Holder held a number of shares of Class A Common
Stock based on the Conversion Rate immediately prior to the Fundamental Change,
with the Conversion Value based on the consideration received in such
Fundamental Change, if applicable.


The Settlement Amount will be delivered to converting
Holders on the third Trading Day following the final Trading Day of the
Conversion Period.


Article 9

Discharge of Indenture


Notwithstanding Article 8 of the Base Indenture, the
following Article 9 (and not Article 8 of the Base Indenture) shall apply for
purposes of this Second Supplemental Indenture and the Debentures.



 38
 









Section 9.01           Discharge
of Liability on Debentures.  (a)  When (i) the Company delivers to the Trustee
all outstanding Debentures (other than Debentures replaced pursuant to Section
2.8 of the Base Indenture) for cancellation or (ii) all outstanding Debentures
have become due and payable, whether at maturity or as a result of the delivery
of a notice of redemption or upon a repurchase pursuant to Article 3 hereof,
and the Company irrevocably deposits with the Trustee money sufficient to pay
at maturity or upon redemption or repurchase all outstanding Debentures,
including interest thereon to maturity or such redemption or repurchase date
(other than Debentures replaced pursuant to Section 2.8 of the Base Indenture),
and any shares of Class A Common Stock or other property due in respect of
converted Debentures, and if in each such case the Company pays all other sums
payable hereunder by the Company, then this Second Supplemental Indenture
shall, subject to Section 9.01(b), cease to be of further effect.  The Trustee shall acknowledge satisfaction
and discharge of this Indenture on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel and at the cost and expense of
the Company.


(b)        Notwithstanding clause (a) above, the
Company’s obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 7.7 and 7.8 of
the Base Indenture, in Sections 2.04 and 2.08 hereof and in this Article 9
shall survive until the Debentures have been paid in full.  Thereafter, the Company’s obligations in
Section 7.7 of the Base Indenture and 
Sections 9.03 and 9.04 hereof shall survive.


Section 9.02           Application
of Trust Money.  The Trustee shall
hold in trust money and any shares of Class A Common Stock or other property
due in respect of converted Debentures deposited with it pursuant to this
Article 9.  It shall apply the deposited
money through the Paying Agent and in accordance with this Indenture to the
payment of principal of and interest on the Debentures or, in the case of any
shares of Class A Common Stock or other property due in respect of converted Debentures,
in accordance with this Indenture in relation to the conversion of Debentures
pursuant to the terms hereof.


Section 9.03           Repayment
to Company.  The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any excess
money or securities held by them at any time.


Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon written request any
money held by them for the payment of principal or interest and any shares of
Class A Common Stock or other property due in respect of converted Debentures
that remains unclaimed for two years, and, thereafter, Debentureholders
entitled to the money and/or securities must look to the Company for payment as
general creditors.


Section 9.04           Reinstatement.  If the Trustee or Paying Agent is unable to
apply any money or to deliver any shares of Class A Common Stock or other
property due in respect of converted Debentures in accordance with this Article
9 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under this Indenture
and the Debentures shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 9 until such time as the Trustee or Paying
Agent is permitted to apply all such money and any shares of Class A Common
Stock or other property due in respect of converted Debentures in accordance
with this Article 9; provided, however, that, if the Company has made any
payment of interest on or principal of any Debentures because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Debentureholders of such Debentures to receive such payment from the
money held by the Trustee or Paying Agent.


Section 9.05           Defeasance.  Sections 8.3 and 8.4 of the Base Indenture
shall not apply to the Debentures authorized and designated under this Second
Supplemental Indenture.


Article
10

Miscellaneous


Section 10.01         Governing
Law.  This Second Supplemental
Indenture and the Debentures shall be governed by, and construed in accordance
with, the laws of the State of New York.



 39
 









Section 10.02         No
Debenture Interest Created.  Nothing
in this Second Supplemental Indenture or in the Debentures, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, now in effect or hereafter enacted and
made effective, in any jurisdiction.


Section 10.03         Successors.  All agreements of the Company in this Second
Supplemental Indenture and the Debentures shall bind its successor. All
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successor.


Section 10.04         Counterparts.  This Second Supplemental Indenture may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.


Section 10.05         Severability.  In case any provision in this Second
Supplemental Indenture or in the Debentures 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 10.06         Table
of Contents, Headings, Etc.  The
table of contents, cross-reference sheet and headings of the Articles and
Sections of this Second Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


Section 10.07         Inconsistency.  In the event of any inconsistency or conflict
between the Base Indenture and this Second Supplemental Indenture, this Second
Supplemental Indenture shall govern.


Section 10.08         Calculations
in Respect of Debentures.  Except as
explicitly stated herein, the Company will be responsible for making all
calculations required pursuant to this Second Supplemental Indenture,
including, without limitation, calculations with respect to determinations of
the Conversion Price and Conversion Rate. The Company or its Agents shall make
all such calculations in good faith and, absent manifest error, the Company’s
calculations shall be binding on the Holders. The Company shall provide a
written schedule of such calculations to the Trustee and the Conversion Agent,
and each of the Trustee and the Conversion Agent shall be entitled to rely upon
the accuracy of the Company’s calculations without responsibility for
independent verification thereof. The Trustee shall forward a copy of such
calculations to any Holder upon such Holder’s written request.


[SIGNATURE PAGE
FOLLOWS]



 40
 









IN WITNESS WHEREOF, the parties hereto have hereunto
set their hands as of the date and year first above written. 


	
  

  	
   

  	
  SUNPOWER CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 



 41