Exhibit
4.7


 










 


PRICELINE.COM
INCORPORATED


 


ISSUER














 


AMERICAN STOCK
TRANSFER & TRUST COMPANY




TRUSTEE


 










 


INDENTURE




Dated as of
June 28, 2004












 


2.25% CONVERTIBLE
SENIOR NOTES DUE JANUARY 15, 2025


 










 
















 


TABLE
OF CONTENTS


 


	
  ARTICLE I
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 1.1
  Definitions

  	
   

  
	
  Section 1.2
  Compliance Certificates and Opinions

  	
   

  
	
  Section 1.3
  Form of Documents Delivered to the Trustee

  	
   

  
	
  Section 1.4
  Acts of Holders of Securities

  	
   

  
	
  Section 1.5
  Notices, Etc. to the Trustee and Company

  	
   

  
	
  Section 1.6
  Notice to Holders of Securities; Waiver

  	
   

  
	
  Section 1.7
  Effect of Headings and Table of Contents

  	
   

  
	
  Section 1.8
  Successors and Assigns

  	
   

  
	
  Section 1.9
  Separability Clause

  	
   

  
	
  Section 1.10
  Benefits of Indenture

  	
   

  
	
  Section 1.11
  Governing Law

  	
   

  
	
  Section 1.12
  Legal Holidays

  	
   

  
	
  Section 1.13
  Conflict With Trust Indenture Act

  	
   

  
	
   

  	
   

  
	
  ARTICLE II
  SECURITY FORMS

  	
   

  
	
   

  	
   

  
	
  Section 2.1
  Form Generally

  	
   

  
	
  Section 2.2
  Form of Security

  	
   

  
	
  Section 2.3
  Form of Certificate of Authentication

  	
   

  
	
  Section 2.4
  Form of Conversion Notice

  	
   

  
	
  Section 2.5
  Form of Assignment

  	
   

  
	
   

  	
   

  
	
  ARTICLE III
  THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 3.1
  Title and Terms

  	
   

  
	
  Section 3.2
  Denominations

  	
   

  
	
  Section 3.3
  Execution, Authentication, Delivery and Dating

  	
   

  
	
  Section 3.4
  Global Securities; Non-global Securities; Book-entry Provisions

  	
   

  
	
  Section 3.5
  Registration; Registration of Transfer and Exchange; Restrictions on Transfer

  	
   

  
	
  Section 3.6
  Mutilated, Destroyed, Lost or Stolen Securities

  	
   

  
	
  Section 3.7
  Payment of Interest; Interest Rights Preserved

  	
   

  
	
  Section 3.8
  Persons Deemed Owners

  	
   

  
	
  Section 3.9
  Cancellation

  	
   

  
	
  Section 3.10
  Computation of Interest

  	
   

  
	
  Section 3.11
  CUSIP Numbers

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 4.1
  Satisfaction and Discharge of Indenture

  	
   

  
	
  Section 4.2
  Application of Trust Money

  	
   

  



 


ii
















 


	
  ARTICLE V REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 5.1
  Events of Default

  	
   

  
	
  Section 5.2
  Acceleration of Maturity; Rescission and Annulment

  	
   

  
	
  Section 5.3
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
   

  
	
  Section 5.4
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 5.5
  Trustee May Enforce Claims Without Possession of Securities

  	
   

  
	
  Section 5.6
  Application of Money Collected

  	
   

  
	
  Section 5.7
  Limitation on Suits

  	
   

  
	
  Section 5.8
  Unconditional Right of Holders to Receive Principal and Interest and to
  Convert

  	
   

  
	
  Section 5.9
  Restoration of Rights and Remedies

  	
   

  
	
  Section 5.10
  Rights and Remedies Cumulative

  	
   

  
	
  Section 5.11
  Delay or Omission Not Waiver

  	
   

  
	
  Section 5.12
  Control by Holders of Securities

  	
   

  
	
  Section 5.13
  Waiver of Past Defaults

  	
   

  
	
  Section 5.14
  Undertaking for Costs

  	
   

  
	
  Section 5.15
  Waiver of Stay, Usury or Extension Laws

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI THE
  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 6.1
  Certain Duties and Responsibilities

  	
   

  
	
  Section 6.2
  Notice of Defaults

  	
   

  
	
  Section 6.3
  Certain Rights of Trustee

  	
   

  
	
  Section 6.4
  Not Responsible for Recitals or Issuance of Securities

  	
   

  
	
  Section 6.5
  May Hold Securities, Act as Trustee under Other Indentures

  	
   

  
	
  Section 6.6
  Money Held in Trust

  	
   

  
	
  Section 6.7
  Compensation and Reimbursement

  	
   

  
	
  Section 6.8
  Corporate Trustee Required; Eligibility

  	
   

  
	
  Section 6.9
  Resignation and Removal; Appointment of Successor

  	
   

  
	
  Section 6.10
  Acceptance of Appointment by Successor

  	
   

  
	
  Section 6.11
  Merger, Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section 6.12
  Authenticating Agents

  	
   

  
	
  Section 6.13
  Disqualification; Conflicting Interests

  	
   

  
	
  Section 6.14
  Preferential Collection of Claims Against Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  
	
  Section 7.1
  Company May Consolidate, Etc. Only on Certain Terms

  	
   

  
	
  Section 7.2
  Successor Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  
	
  Section 8.1
  Supplemental Indentures Without Consent of Holders of Securities

  	
   

  
	
  Section 8.2
  Supplemental Indentures with Consent of Holders of Securities

  	
   

  
	
  Section 8.3
  Execution of Supplemental Indentures

  	
   

  
	
  Section 8.4
  Effect of Supplemental Indentures

  	
   

  



 


iii
















 


	
  Section 8.5
  Reference in Securities to Supplemental Indentures

  	
   

  
	
  Section 8.6
  Notice of Supplemental Indentures

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX
  HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 9.1
  Company to Furnish Trustee Names and Addresses of Holders.

  	
   

  
	
  Section 9.2
  Preservation of Information

  	
   

  
	
  Section 9.3
  Reports by Trustee

  	
   

  
	
  Section 9.4
  Reports by Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE X
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 10.1
  Payment of Principal and Interest

  	
   

  
	
  Section 10.2
  Maintenance of Offices or Agencies

  	
   

  
	
  Section 10.3
  Money for Security Payments to Be Held in Trust

  	
   

  
	
  Section 10.4
  Existence

  	
   

  
	
  Section 10.5
  Statement by Officers as to Default

  	
   

  
	
  Section 10.6
  Delivery of Certain Information

  	
   

  
	
  Section 10.7
  Resale of Certain Securities

  	
   

  
	
  Section 10.8
  Registration Rights

  	
   

  
	
  Section 10.9
  Waiver of Certain Covenants

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 11.1
  Right of Redemption

  	
   

  
	
  Section 11.2
  Applicability of Article

  	
   

  
	
  Section 11.3
  Election to Redeem; Notice to Trustee

  	
   

  
	
  Section 11.4
  Selection by Trustee of Securities to Be Redeemed

  	
   

  
	
  Section 11.5
  Notice of Redemption

  	
   

  
	
  Section 11.6
  Deposit of Redemption Price

  	
   

  
	
  Section 11.7
  Securities Payable on Redemption Date

  	
   

  
	
  Section 11.8
  Conversion Arrangement on Call for Redemption

  	
   

  
	
   

  	
   

  
	
  ARTICLE XII
  CONVERSION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 12.1
  Conversion Privilege and Conversion Rate

  	
   

  
	
  Section 12.2
  Exercise of Conversion Privilege

  	
   

  
	
  Section 12.3
  Fractions of Shares

  	
   

  
	
  Section 12.4
  Adjustment of Conversion Rate

  	
   

  
	
  Section 12.5
  Notice of Adjustments of Conversion Rate

  	
   

  
	
  Section 12.6
  Notice of Certain Corporate Action

  	
   

  
	
  Section 12.7
  Company to Reserve Common Stock

  	
   

  
	
  Section 12.8
  Taxes on Conversions

  	
   

  
	
  Section 12.9
  Covenant as to Common Stock

  	
   

  
	
  Section 12.10
  Cancellation of Converted Securities

  	
   

  
	
  Section 12.11
  Provision in Case of Consolidation, Merger or Sale of Assets

  	
   

  
	
  Section 12.12
  Rights Issued in Respect of Common Stock

  	
   

  
	
  Section 12.13
  Responsibility of Trustee for Conversion Provisions

  	
   

  



 


iv
















 


	
  ARTICLE XIII
  DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 13.1
  Company’s Option to Effect Defeasance.

  	
   

  
	
  Section 13.2
  Defeasance and Discharge.

  	
   

  
	
  Section 13.3
  Conditions to Defeasance.

  	
   

  
	
  Section 13.4
  Deposited Money and U.S. Government Obligations to Be Held in Trust;
  Miscellaneous Provisions.

  	
   

  
	
  Section 13.5
  Reinstatement.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIV
  REPURCHASE OF SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 14.1
  Right to Require Repurchase.

  	
   

  
	
  Section 14.2
  Right to Require Repurchase Upon a Designated Event.

  	
   

  
	
  Section 14.3
  Conditions to the Company’s Election to Pay the Repurchase Price or the
  Designated Event Repurchase Price in Common Stock

  	
   

  
	
  Section 14.4
  Notices; Method of Exercising Repurchase Right, Etc.

  	
   

  
	
  Section 14.5
  Certain Definitions

  	
   

  
	
  Section 14.6
  Consolidation, Merger, Etc.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XV MAKE
  WHOLE PREMIUM

  	
   

  
	
   

  	
   

  
	
  Section 15.1
  Determination of the Make Whole Premium.

  	
   

  
	
  Section 15.2
  Payment of the Make Whole Premium.

  	
   

  
	
  Section 15.3
  Adjustments Relating to the Make Whole Premium.

  	
   

  



 


v
















 


CROSS-REFERENCE
TABLE*


 


	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  6.8

  
	
   

  	
  (a)(2)

  	
   

  	
  6.8

  
	
   

  	
  (a)(3)

  	
   

  	
  n/a

  
	
   

  	
  (a)(4)

  	
   

  	
  n/a

  
	
   

  	
  (a)(5)

  	
   

  	
  6.8

  
	
   

  	
  (b)

  	
   

  	
  6.13, 6.9

  
	
   

  	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  6.14

  
	
   

  	
  (b)

  	
   

  	
  6.14

  
	
   

  	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  9.1

  
	
   

  	
  (b)

  	
   

  	
  9.2

  
	
   

  	
  (c)

  	
   

  	
  9.2

  
	
   

  	
   

  	
   

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  9.3

  
	
   

  	
  (b)(1)

  	
   

  	
  9.3

  
	
   

  	
  (b)(2)

  	
   

  	
  9.3

  
	
   

  	
  (c)

  	
   

  	
  9.3

  
	
   

  	
  (d)

  	
   

  	
  9.4

  
	
   

  	
   

  	
   

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  9.4

  
	
   

  	
  (b)

  	
   

  	
  n/a

  
	
   

  	
  (c)(1)

  	
   

  	
  1.2

  
	
   

  	
  (c)(2)

  	
   

  	
  1.2

  
	
   

  	
  (c)(3)

  	
   

  	
  n/a

  
	
   

  	
  (d)

  	
   

  	
  n/a

  
	
   

  	
  (e)

  	
   

  	
  1.2

  
	
   

  	
  (f)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  6.1

  
	
   

  	
  (b)

  	
   

  	
  6.2, 10.5

  
	
   

  	
  (c)

  	
   

  	
  6.3

  
	
   

  	
  (d)

  	
   

  	
  6.1

  
	
   

  	
  (e)

  	
   

  	
  5.14

  
	
   

  	
   

  	
   

  	
   

  
	
  316

  	
  (a)(last
  sentence)

  	
  12.4

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (a)(2)

  	
   

  	
  n/a

  
	
   

  	
  (b)

  	
   

  	
  5.8

  
	
   

  	
  (c)

  	
   

  	
  2.2

  
					



 


vi
















 


	
  317

  	
  (a)(1)

  	
   

  	
  5.3

  
	
   

  	
  (a)(2)

  	
   

  	
  5.4

  
	
   

  	
  (b)

  	
   

  	
  6.2

  
	
   

  	
   

  	
   

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  1.13

  
	
   

  	
  (b)

  	
   

  	
  n/a

  
	
   

  	
  (c)

  	
   

  	
  1.13

  



 










“n/a”
means not applicable.


 


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


 


vii
















 


INDENTURE, dated as of
June 28, 2004, between PRICELINE.COM INCORPORATED, a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal office at 800 Connecticut Avenue, Norwalk, Connecticut 06854 (herein
called the “Company”), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New
York Corporation, as Trustee hereunder (herein called the “Trustee”).


 


RECITALS OF THE
COMPANY


 


The Company has duly
authorized the creation of an issue of its 2.25% Convertible Senior Notes due
January 15, 2025 (herein called the “Securities”) of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture.


 


All things necessary to
make the Securities, when the Securities are executed by the Company and
authenticated and delivered hereunder, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with
their and its terms, have been done. Further, all things necessary to duly
authorize the issuance of the Common Stock of the Company issuable upon the
conversion of the Securities, and to duly reserve for issuance the number of
shares of Common Stock issuable upon such conversion, have been done.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE I


DEFINITIONS AND OTHER
PROVISIONS OF


GENERAL APPLICATION


 


Section 1.1                                                              Definitions.


 


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


 


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


 


(2)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided, the term “generally
accepted accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and


 
















 


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


 


“Act,” when used with
respect to any Holder of a Security, has the meaning specified in
Section 1.4.


 


“Additional Shares” has
the meaning specified in Section 15.1(3).


 


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


 


“Agent Member” means any
member of, or participant in, the Depositary.


 


“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Security
or beneficial interest therein, the rules and procedures of DTC or any
successor Depository, in each case to the extent applicable to such transaction
and as in effect from time to time.


 


“Authenticating Agent”
means any Person authorized pursuant to Section 6.12 to act on behalf of
the Trustee to authenticate Securities.


 


“Board of Directors”
means either the board of directors of the Company or any duly authorized
committee of that board.


 


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


 


“Business Day,” when used
with respect to any Place of Payment, Place of Conversion or any other place,
as the case may be, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in such Place of Payment,
Place of Conversion or other place, as the case may be, are authorized or
obligated by law or executive order to close.


 


“Calculation Agent” has
the meaning specified in Section 15.1.


 


“Calculation Date” has
the meaning specified in Section 15.1(4)(A)(a).


 


“Change in Control” has the
meaning specified in Section 14.5(2).


 


2
















 


“Closing Price Per Share”
means, with respect to the Common Stock, for any day, (i) the last reported
sale price regular way on the Nasdaq National Market or, (ii) if the Common
Stock is not quoted on the Nasdaq National Market, the last reported sale price
regular way per share or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in either
case, on the principal national securities exchange on which the Common Stock
is listed or admitted to trading, or (iii) if the Common Stock is not quoted on
the Nasdaq National Market or listed or admitted to trading on any national
securities exchange, the average of the closing bid prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.


 


“Code” has the meaning
specified in Section 2.1.


 


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


 


“Common Stock” means the
Common Stock, par value $0.008 per share, of the Company authorized at the date
of this instrument as originally executed or as such stock may be constituted
from time to time.  Subject to the
provisions of Section 12.11, shares issuable on conversion or repurchase
of Securities shall include only shares of Common Stock or shares of any class
or classes of common stock resulting from any reclassification or
reclassifications thereof; provided,
however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.


 


“common stock” includes
any stock of any class of capital stock which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the issuer thereof and which is not
subject to redemption by the issuer thereof.


 


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


 


“Company Notice” has the
meaning specified in Section 14.4.


 


“Company Request” or
“Company Order” means a written request or order signed in the name of the
Company by (i) its Chairman of the Board, its Chief Executive Officer, its
President or an Executive Vice President, and by (ii) its Chief Financial
Officer, Controller or its Corporate Secretary and delivered to the Trustee.


 


“Constituent Person” has
the meaning specified in Section 12.11.


 


3
















 


“Conversion Agent” means
any Person authorized by the Company to convert Securities in accordance with
Article XII. The Company has initially appointed the Trustee as its
Conversion Agent pursuant to Section 10.2.


 


“Conversion Date” means
the date on which a Holder delivers its Securities and a duly signed and
completed conversion notice pursuant to this Indenture.


 


“Conversion Period” has
the meaning specified in Section 12.1.


 


“Conversion Price” means
at any time the amount equal to $1,000 divided by the then current Conversion
Rate.


 


“Conversion Rate” has the
meaning specified in Section 12.1.


 


“Conversion Value” has
the meaning specified in Section 12.1.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time the trust
created by this Indenture shall be principally administered (which at the date
of this Indenture is located at 59 Maiden Lane, New York, NY  10038, Attention:  Corporate Trust Administration (priceline.com
Incorporated, 2.25% Convertible Senior Notes due January 15, 2025.


 


“corporation” means a
corporation, company, association, joint-stock company or business trust.


 


“Defaulted Interest” has
the meaning specified in Section 3.7.


 


“Depositary” means, with
respect to any Securities (including any Global Securities), a clearing agency
that is registered as such under the Exchange Act and is designated by the
Company to act as Depositary for such Securities (or any successor securities
clearing agency so registered).


 


“Designated Event” has
the meaning specified in Section 14.5(3).


 


“Designated Event
Repurchase Date” has the meaning specified in Section 14.2.


 


“Designated Event
Repurchase Notice” has the meaning specified in Section 14.4(1)(D).


 


“Designated Event
Repurchase Price” has the meaning specified in Section 14.2.


 


“Distribution Notice” has
the meaning specified in Section 12.1.


 


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


 


“DTC” means The
Depository Trust Company, a New York corporation.


 


“Effective Date” has the
meaning specified in Section 15.1(2)(A).


 


4
















 


“Effective Failure” has
the meaning specified in Section 2.2.


 


“Effectiveness Period”
has the meaning specified in Section 2.2.


 


“Event of Default” has
the meaning specified in Section 5.1.


 


“Exchange Act” means the
United States Securities Exchange Act of 1934 (or any successor statute), as
amended from time to time.


 


“Expiration Date” has the
meaning specified in Section 12.4.


 


“Fundamental Change” has
the meaning specified in Section 14.5(4).


 


“Fundamental Change
Notice” has the meaning specified in Section 12.1.


 


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


 


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


 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.


 


“Initial Purchasers”
means Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated.


 


“Interest Payment Date”
means the Stated Maturity of an installment of interest on the Securities.


 


“Issue Date” means
June 28, 2004.


 


“Liquidated Damages” has
the meaning specified in Section 2.2.


 


“Make Whole Premium” has
the meaning specified in Section 15.1(2)(C).


 


“Make Whole Premium
Table” has the meaning specified in Section 15.1(2)(C)(d).


 


“Maturity,” when used
with respect to any Security, means the date on which the principal of such
Security becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, exercise of
the repurchase right set forth in Article XIV or otherwise.


 


“Non-electing Share” has
the meaning specified in Section 12.11.


 


“Notice of Default” has
the meaning specified in Section 5.1.


 


5
















 


“Officers’ Certificate”
means a certificate signed by (i) the Chairman of the Board or the Chief
Executive Officer, the President or an Executive Vice President and by (ii) the
Chief Financial Officer, Controller or the Corporate Secretary and delivered to
the Trustee. One of the Officers signing an Officers’ Certificate given
pursuant to Section 10.5 shall be the principal executive, financial or
accounting officer of the Company.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company and who
shall be acceptable to the Trustee.


 


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


 


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


 


(ii)                                  Securities
for the payment or redemption of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities, provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;


 


(iii)                               Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and


 


(iv)                              Securities
converted into Common Stock pursuant to Article XII;


 


provided,
however, that, in determining whether the Holders of the
requisite principal amount of Outstanding Securities are present at a meeting
of Holders of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such determination as to the presence of a quorum or upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee has been notified in
writing to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, and the Trustee shall be protected in relying
upon an Officer’s Certificate to such effect.


 


6
















 


“Paying Agent” means any
Person authorized by the Company to pay the principal of or interest on any
Securities on behalf of the Company and, except as otherwise specifically set
forth herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its Paying
Agent pursuant to Section 10.2.


 


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


 


“Place of Conversion” has
the meaning specified in Section 3.1.


 


“Place of Payment” has
the meaning specified in Section 3.1.


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered
under Section 3.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.


 


“Purchase Agreement”
means the Purchase Agreement, dated as of June 22, 2004, between the
Company and the Initial Purchasers, as such agreement may be amended from time
to time.


 


“Purchased Shares” has
the meaning specified in Section 12.4.


 


“Qualified Institutional
Buyer” means a “qualified institutional buyer” as defined in Rule 144A.


 


“Press Release” means any
press release issued by the Company and disseminated to Reuters Business News
Services and Bloomberg News Services.


 


“Record Date” means any
Regular Record Date or Special Record Date.


 


“Record Date Period”
means the period from the close of business of any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date.


 


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


 


“Redemption Price,” when
used with respect to any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.


 


“Registrable Securities”
has the meaning specified in Section 10.8.


 


“Registration Default”
has the meaning specified in Section 2.2.


 


7
















 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of June 28,
2004, between the Company and the Initial Purchasers, as such agreement may be
amended from time to time.


 


“Regular Record Date” for
interest payable in respect of any Security on any Interest Payment Date means
the close of business on January 1 or July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.


 


“Repurchase Date” has the
meaning specified in Section 14.1.


 


“Repurchase Notice” has
the meaning specified in Section 14.4.


 


“Repurchase Price” has
the meaning specified in Section 14.1.


 


“Responsible Officer,”
when used with respect to the Trustee, means any officer within the Corporate
Trust Office of the Trustee with direct responsibility for the administration
of this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge and familiarity with the particular subject.


 


“Restricted Global
Security” has the meaning specified in Section 2.1.


 


“Restricted Securities”
means all Securities required pursuant to Section 3.5(3) to bear any
Restricted Securities Legend. Such term includes the Restricted Global
Security.


 


“Restricted Securities
Legend” means, collectively, the legends substantially in the forms of the
legends required in the form of Security set forth in Section 2.2 to be
placed upon each Restricted Security.


 


“Rule 144” means Rule 144
under the Securities Act (or any successor provision), as it may be amended
from time to time.


 


“Rule 144A” means Rule
144A under the Securities Act (or any successor provision), as it may be
amended from time to time.


 


“Rule 144A Information”
has the meaning specified in Section 10.6.


 


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


 


“Securities Act” means
the United States Securities Act of 1933 (or any successor statute), as amended
from time to time.


 


“Security Register” and
“Security Registrar” have the respective meanings specified in
Section 3.5.


 


“Shelf Registration
Statement” has the meaning specified in Section 2.2.


 


8
















 


“Significant Subsidiary”
means, with respect to any Person, a Subsidiary of such Person that would
constitute a “significant subsidiary” as such term is defined under Rule 1-02
of Regulation S-X under the Securities Act and the Exchange Act.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Company
pursuant to Section 3.7.


 


“Stated Maturity,” when
used with respect to any Security or any installment of interest thereon, means
the date specified in such Security as the fixed date on which the principal of
such Security or such installment of interest is due and payable.


 


“Stock Price” has the
meaning specified in Section 15.1(2)(B).


 


“Stock Price Cap” has the
meaning specified in Section 15.1(2)(C)(c).


 


“Stock Price Threshold”
has the meaning specified in Section 15.1(2)(C)(b).


 


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


 


“Successor Security” of
any particular Security means every Security issued after, and evidencing all
or a portion of the same debt as that evidenced by, such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Surrender Certificate”
means a certificate substantially in the form set forth in Annex B.


 


“Termination of Trading”
has the meaning specified in Section 14.5(5).


 


“Trading Day” means (i)
if the Common Stock is quoted on the Nasdaq National Market or any other system
of automated dissemination of quotations of securities prices, days on which
trades may be effected through such system, (ii) if the Common Stock is listed
or admitted for trading on any national or regional securities exchange, days
on which such national or regional securities exchange is open for business, or
(iii) if the Common Stock is not listed on a national or regional securities
exchange or quoted on the Nasdaq National Market or any other system of
automated dissemination of quotation of securities prices, days on which the
Common Stock is traded regular way in the over-the-counter market and for which
a closing bid and a closing asked price for the Common Stock are available.


 


“Trading Price” has the
meaning specified in Section 12.1.


 


9
















 


“Trigger Event” has the meaning
specified in Section 12.12.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, and the rules and regulations
thereunder, as in force at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, and the rules and regulations thereunder, as so
amended.


 


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


 


“United States” means the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction
(its “possessions” including Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).


 


“Unrestricted Securities
Certificate” means a certificate substantially in the form set forth in Annex
A.


 


“U.S. Government
Obligation” has the meaning specified in Section 13.3.


 


Section 1.2                                                              Compliance
Certificates and Opinions.


 


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


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (including certificates provided for in Section 10.5) shall
include:


 


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


 


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


 


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


 


10
















 


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


 


Section 1.3                                                              Form
of Documents Delivered to the Trustee.


 


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


 


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


 


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


 


Section 1.4                                                              Acts
of Holders of Securities.


 


(1)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. The Trustee shall promptly deliver to the Company
copies of all such instruments and records delivered to the Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders of
Securities signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company if made in the manner provided in this Section.


 


(2)                                  The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual


 


11
















 


signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.


 


(3)                                  The
principal amount and serial number of any Security held by any Person, and the
date of his holding the same, shall be proved by the Security Register.


 


(4)                                  The
fact and date of execution of any such instrument or writing and the authority
of the Person executing the same may also be proved in any other manner which
the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.


 


(5)                                  The
Company may set any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized
or permitted by this Indenture to be given or taken by Holders. Promptly and in
any case not later than ten days after setting a record date, the Company shall
notify the Trustee and the Holders of such record date. If not set by the
Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 9.1) prior to such first solicitation or vote, as the
case may be. With regard to any record date, the Holders on such date (or their
duly appointed agents or proxies), and only such Persons, shall be entitled to
give or take, or vote on, the relevant action, whether or not such Holders
remain Holders after such record date. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this paragraph
shall not apply with respect to, any notice, declaration or direction referred
to in the next paragraph.


 


Upon receipt by the
Trustee from any Holder of (i) any notice of default or breach referred to in
Section 5.1(5), if such default or breach has occurred and is continuing
and the Trustee shall not have given such a notice to the Company, (ii) any
declaration of acceleration referred to in Section 5.2, if an Event of
Default has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in
Section 5.12, if the Trustee shall not have taken the action specified in
such direction, then, with respect to clauses (ii) and (iii), a record date
shall automatically and without any action by the Company or the Trustee be set
for determining the Holders entitled to join in such declaration or direction,
which record date shall be the close of business on the tenth day (or, if such
day is not a Business Day, the first Business Day thereafter) following the day
on which the Trustee receives such declaration or direction, and, with respect
to clause (i), the Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in such notice of default. Promptly
after such receipt by the Trustee of any such declaration or direction referred
to in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable  thereafter, the Trustee shall notify the
Company and the Holders of any such record date so fixed. The Holders on such
record date (or their duly appointed agents or proxies), and only such Persons,
shall be entitled to join in such notice, declaration or direction, whether or
not such Holders remain Holders after such record date; provided that, unless such notice,
declaration or direction shall have become effective by virtue of


 


12
















 


Holders of the requisite
principal amount of Securities on such record date (or their duly appointed
agents or proxies) having joined therein on or prior to the 90th day after such
record date, such notice, declaration or direction shall automatically and
without any action by any Person be canceled and of no further effect. Nothing
in this paragraph shall be construed to prevent a Holder (or a duly appointed
agent or proxy thereof) from giving, before or after the expiration of such
90-day period, a notice, declaration or direction contrary to or different
from, or, after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in which event a
new record date in respect thereof shall be set pursuant to this paragraph. In
addition, nothing in this paragraph shall be construed to render ineffective
any notice, declaration or direction of the type referred to in this paragraph
given at any time to the Trustee and the Company by Holders (or their duly
appointed agents or proxies) of the requisite principal amount of Securities on
the date such notice, declaration or direction is so given.


 


(6)                                  Except
as provided in Section 5.12 and Section 5.13, any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.


 


Section 1.5                                                              Notices,
Etc. to the Trustee and Company.


 


Any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of
Holders of Securities or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,


 


(1)                                  the
Trustee by any Holder of Securities or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (which
may be via facsimile) to or with a Responsible Officer of the Trustee and
received at its Corporate Trust Office, Attention: Corporate Trust
Administration, priceline.com Incorporated, 2.25% Convertible Senior Notes due
January 15, 2025.


 


(2)                                  the
Company by the Trustee or by any Holder of Securities shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing, mailed, first-class postage prepaid, or telecopied and confirmed by
mail, first-class postage prepaid, or delivered by hand or overnight courier,
addressed to the Company at 800 Connecticut Avenue, Norwalk, Connecticut 06854,
Attention:  Corporate Secretary, or at
any other address previously furnished in writing to the Trustee by the
Company.


 


Section 1.6                                                              Notice
to Holders of Securities; Waiver.


 


Except as otherwise
expressly provided herein, where this Indenture provides for notice to Holders
of Securities of any event, such notice shall be sufficiently given to Holders
if in writing and mailed, first-class postage prepaid or delivered by an
overnight delivery service, to each Holder of a Security affected by such
event, at the address of such Holder as it appears in the Security Register,


 


13
















 


not earlier than the
earliest date and not later than the latest date prescribed for the giving of
such notice.


 


Neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Security shall affect the sufficiency of such notice with respect
to other Holders of Securities. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Securities as shall
be made with the approval of the Trustee, which approval shall not be
unreasonably withheld, shall constitute a sufficient notification to such
Holders for every purpose hereunder.


 


Such notice shall be
deemed to have been given when such notice is mailed.


 


Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders of Securities shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance
upon such waiver.


 


Section 1.7                                                              Effect
of Headings and Table of Contents.


 


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


 


Section 1.8                                                              Successors
and Assigns.


 


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


 


Section 1.9                                                              Separability
Clause.


 


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


 


Section 1.10                                                        Benefits
of Indenture.


 


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


 


Section 1.11                                                        Governing
Law.


 


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


 


14
















 


Section 1.12                                                        Legal
Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Repurchase Date or Stated Maturity of
any Security or the last day on which a Holder of a Security has a right to
convert his Security shall not be a Business Day at a Place of Payment or Place
of Conversion, as the case may be, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of principal of, or interest on,
or the payment of the Redemption Price, Repurchase Price or Designated Event
Repurchase Price (whether the same is payable in cash, shares of Common Stock
or a combination thereof in the case of the Repurchase Price or Designated
Event Repurchase Price) with respect to, or delivery for conversion of, such
Security need not be made at such Place of Payment or Place of Conversion, as
the case may be, on or by such day, but may be made on or by the next
succeeding Business Day at such Place of Payment or Place of Conversion, as the
case may be, with the same force and effect as if made on the Interest Payment
Date, Redemption Date, Repurchase Date or Designated Event Repurchase Date, or
at the Stated Maturity or by such last day for conversion; provided, however,
that in the case that payment is made on such succeeding Business Day, no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repurchase Date, Designated Event
Repurchase Date, Stated Maturity or last day for conversion, as the case may
be.


 


Section 1.13                                                        Conflict
With Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this Indenture, the
Company and the Trustee shall be deemed for all purposes hereof to be subject
to and governed by the Trust Indenture Act to the same extent as would be the
case if this Indenture were so qualified on the date hereof.


 


ARTICLE II


SECURITY FORMS


 


Section 2.1                                                              Form
Generally.


 


The Securities shall be
in substantially the form set forth in this Article, with such appropriate
insertions, omissions, substitutions and other 
variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Internal Revenue Code of 1986, as amended, and
regulations thereunder (the “Code”), or as may, consistent herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof.  The Company shall
furnish any such legends and endorsements to the Trustee in writing.  All Securities shall be in fully registered
form.


 


The Trustee’s
certificates of authentication shall be in substantially the form set forth in
Section 2.3.


 


15
















 


Conversion notices shall
be in substantially the form set forth in Section 2.4.


 


Repurchase notices shall
be substantially in the form set forth in Section 2.2.


 


The Securities shall be
printed, lithographed, typewritten or engraved or produced by any combination
of these methods or may be produced in any other manner permitted by the rules
of any automated quotation system or securities exchange (including on steel
engraved borders if so required by any securities exchange upon which the
Securities may be listed) on which the Securities may be quoted or listed, as
the case may be, all as determined by the officers executing such Securities,
as evidenced by their execution thereof.


 


Upon their original
issuance, Securities issued as contemplated by the Purchase Agreement to
Qualified Institutional Buyers in reliance on Rule 144A shall be issued in the
form of one or more Global Securities in definitive, fully registered form
without interest coupons and bearing the Restricted Securities Legend.  Such Global Security shall be registered in
the name of DTC, as Depositary, or its nominee and deposited with the Trustee,
as custodian for DTC, for credit by DTC to the respective accounts of
beneficial owners of the Securities represented thereby (or such other accounts
as they may direct). Such Global Security, together with its Successor
Securities which are Global Securities, are collectively herein called the
“Restricted Global Security.”


 


16
















 


Section 2.2                                                              Form
of Security.


 


[FORM
OF FACE]


 


[THE
FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY:


 


THIS NOTE
AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE  SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF THIS NOTE
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THIS
NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT
OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL INVESTOR THAT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.


 


THIS
NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO
REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF)
OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES
GENERALLY.  THE HOLDER OF THIS NOTE AND
ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH
SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]


 


[THE
FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:


 


17
















 


THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT
THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.


 


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


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]


 


18
















 


PRICELINE.COM
INCORPORATED




2.25% CONVERTIBLE SENIOR NOTE DUE JANUARY 15, 2025


 


	
  No.                        

  	
   

  	
   

  	
  $                  

  



 


 


CUSIP NO. 741503AD8


 


PRICELINE.COM
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Company,” which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to                               ,
or registered assigns, the principal sum of
               
United States Dollars (U.S.
$             
) [if this Security is a Global Security,
then insert — (which principal amount may from time to time be
decreased to such other principal amounts (which, taken together with the
principal amounts of all other Outstanding Securities, shall not exceed
$100,000,000) by adjustments made on the records of the Trustee hereinafter
referred to in accordance with the Indenture)]
on January 15, 2025 and to pay interest thereon, from June 28, 2004,
or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, semi-annually in arrears on
January 15 and July 15 in each year (each, an “Interest Payment
Date”), commencing January 15, 2005, at the rate of 2.25% per annum, until
the principal hereof is due, and at the rate of 1.00% per annum on any overdue
principal and, to the extent permitted by law, on any overdue interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.  Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
the Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any automated quotation system or
securities exchange on which the Securities may be quoted or listed, and upon
such notice as may be required by such exchange, all as more fully provided in
the Indenture. Payments of principal shall be made upon the surrender of  this Security at the option of the Holder at
the Corporate Trust Office of the Trustee, or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of  New York, in such
lawful monies of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate, by United States Dollar check
drawn on, or wire transfer to, a United States Dollar account (such a transfer
to be made only to a Holder of an aggregate principal amount of Securities in
excess of U.S. $2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date). Payment of interest on this Security may be made by
United States Dollar check mailed to the address of the Person entitled thereto
as such address shall appear in the


 


19
















 


Security Register, or,
upon written application by the Holder to the Security Registrar setting forth
wire instructions not later than the relevant Record Date, by transfer to a
United States Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of  Securities
in excess of U.S. $2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date).


 


Except as specifically
provided herein and in the Indenture, the Company shall not be required to make
any payment with respect to any tax, assessment or other governmental charge
imposed by any government or any political subdivision or taxing authority
thereof or therein.


 


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


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof or an Authenticating Agent by the manual signature of one of
their respective authorized signatories, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.


 


20
















 


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


 


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
  Attest:

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  
						



 


 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION


 


This is one of the
Securities referred to in the within-mentioned Indenture.


 


Dated:  June 28, 2004


 


 


AMERICAN STOCK TRANSFER
& TRUST COMPANY,

as Trustee




 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


21
















 


[FORM
OF REVERSE]


 


This Security is one of a
duly authorized issue of securities of the Company designated as its “2.25%
Convertible Senior Notes due January 15, 2025” (herein called the
“Securities”), limited in aggregate principal amount to U.S. $100,000,000,
issued and to be issued under an Indenture, dated as of June 28, 2004
(herein called the “Indenture,” which term shall have the meaning assigned to
it in such instrument), between the Company and American Stock Transfer &
Trust Company, as Trustee (herein called the “Trustee,” which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.  As provided in the Indenture and subject to
certain limitations therein set forth, Securities are exchangeable for a like
aggregate principal amount of Securities of any authorized denominations as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged, at the Corporate Trust Office of the Trustee.  The Trustee upon such surrender by the Holder
will issue the new Securities in the requested denominations.


 


No sinking fund is
provided for the Securities.


 


The Securities are also
subject to redemption at the option of the Company at any time on or after
January 20, 2010, in whole or in part, upon not less than 30 nor more than
60 days’ notice to the Holders prior to the Redemption Date at a Redemption
Price equal to 100% of the principal amount, together, in each case, with
accrued and unpaid interest and Liquidated Damages, if any, to, but excluding,
the Redemption Date; provided, however, that interest installments on
Securities whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.


 


In the event of a
redemption of the Securities, the Company will not be required (a) to issue,
register the transfer or exchange of Securities for a period of 15 days
immediately preceding the date notice is given identifying the serial numbers
of the Securities called for such redemption or (b) to register the transfer or
exchange of any Security, or portion thereof, called for redemption.


 


Notice to the Holders
will be given not more than 60 and not less than 30 days prior to the
Redemption Date as provided in the Indenture.


 


In any case where the due
date for the payment of the principal of or interest or Liquidated Damages on
any Security or the last day on which a Holder of a Security has a right to
convert his Security shall be, at any Place of Payment or Place of Conversion,
as the case may be, a day on which banking institutions at such Place of
Payment or Place of Conversion are authorized or obligated by law or executive
order to close, then payment of principal, interest, or Liquidated Damages, or
delivery for conversion of such Security need not be made on or by such date at
such place but may be made on or by the next succeeding day at such place which
is not a day on which banking institutions are authorized or obligated by law
or executive order to close, with the same force and effect as if made on the
date for such payment or the date fixed for redemption or


 


22
















 


repurchase, or by such
last day for conversion, and no interest shall accrue on the amount so payable
for the period after such date.


 


Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at his option, to convert any Security that is an integral multiple
of $1,000 into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Common Stock of the Company at
the Conversion Rate, determined as hereinafter provided, in effect at the time
of conversion as follows:


 


(1)                                  if,
on or prior to January 15, 2020, the Closing Price Per Share of the Common
Stock for at least 20 Trading Days in the period of the 30 consecutive Trading
Days ending on the first day of a Conversion Period was more than 120% of the
then current Conversion Price of the Securities, then the Holder thereof will
be entitled to convert such Security during that Conversion Period;


 


(2)                                  if,
on any date after January 15, 2020 and prior to the Stated Maturity, the
Closing Price Per Share of the Common Stock is more than 120% of the then
current Conversion Price of the Securities, then the Holder thereof will be
entitled to convert such Security at all times thereafter;


 


(3)                                  if
the Company distributes to all or substantially all holders of Common Stock
rights, options or warrants entitling them to purchase Common Stock at less
than the Closing Price Per Share of the Common Stock on the last Trading Day
preceding the declaration of such distribution, then the Holder will be
entitled to convert such Security during the period specified below;


 


(4)                                  if
the Company distributes to all or substantially all holders of Common Stock
cash, assets, debt securities or capital stock, which distribution has a per
share value as determined by the Board of Directors exceeding 5% of the Closing
Price Per Share of the Common Stock on the last Trading Day preceding the
declaration of such distribution, then the Holder will be entitled to convert
such Security during the period specified below;


 


(5)                                  if
a Fundamental Change occurs, then the Holder will be entitled to convert such
Security during the period specified below; or


 


(6)                                  if,
on or after January 20, 2010, the Company elects to call any Security for
redemption, then the Holder thereof will be entitled to convert such Security
at any time from and after the date on which the Company gives notice of such
redemption until the close of business on the Business Day immediately
preceding the Redemption Date.


 


In the case of a
distribution contemplated by clauses (3) and (4) above, the Company will notify
Holders at least 20 days prior to the ex-dividend date for such distribution
(the “Distribution Notice”).  Once the
Company has given the Distribution Notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of
business on the last Business Day preceding the ex-dividend date or the
Company’s announcement that such distribution will not take place.  Notwithstanding the foregoing, in the event
of a distribution contemplated by clauses (3) and (4) above, Holders may not
convert the Securities if the Holders may participate in such distribution
without converting their Securities.  In
the event of a Fundamental Change as contemplated by clause (5) above, the
Company will notify Holders at least 20 days prior to the


 


23
















 


anticipated closing date
of such transaction (the “Fundamental Change Notice”).  Once the Company has given the Fundamental
Change Notice, the Holders may, in the event of such Fundamental Change,
surrender Securities for conversion at any time from and after the date which
is 15 days prior to the anticipated closing date of such transaction until the
date which is 15 days after the actual closing date of such transaction.


 


Subject to the provisions
of the Indenture, the Holder of a Security is entitled, at its option, to
convert the principal amount of this Security (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into Common Stock
for the five Business Day period after any five consecutive Trading Day period
in which the average Trading Prices for the Securities for such five Trading
Day period was less than 95% of the average Conversion Value for the Securities
during such period; provided, however, if on the Conversion Date, the
Closing Price Per Share of Common Stock is greater than the then current
Conversion Price of the Securities and less than or equal to 120% of the then
current Conversion Price of the Securities, a Holder surrenders its Securities
for conversion and the Securities are not otherwise convertible, then such
Holder will receive, at the Company’s option, cash, Common Stock or a
combination of cash and Common Stock with a value equal to the principal amount
of such Holder’s Securities on such Conversion Date.  The Trustee will determine the average
Trading Prices after being requested by the Company to do so as more fully
described in the Indenture.  If the
Company elects to pay the Holder in Common Stock or in a combination of cash
and Common Stock, the Company will notify the Holder in writing, and the Common
Stock will be valued at 100% of the average Closing Price Per Share for the
five Trading Days immediately following the Conversion Date.


 


Subject to and upon
compliance with the terms described above and the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or
before the close of business on the date of Maturity, or in case this Security
or a portion hereof is called for redemption or the Holder hereof has exercised
his right to require the Company to repurchase this Security or such portion
hereof, then in respect of this Security until the Business Day immediately
preceding, but (unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be) not after, the close of business
on the Business Day immediately preceding the Redemption Date, the Repurchase
Date or the Designated Event Repurchase Date, as the case may be, to convert
this Security (or any portion of the principal amount hereof that is an
integral multiple of U.S. $1,000, provided
that the unconverted portion of such principal amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof) into fully paid and
nonassessable shares of Common Stock of the Company at an initial Conversion
Rate of 26.3505 shares of Common Stock for each U.S. $1,000 principal amount of
Securities (or at the current adjusted Conversion Rate if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly endorsed
or assigned to the Company or in blank and, in case such surrender shall be
made during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (except if this Security or portion thereof has been
called for redemption on a Redemption Date or is repurchasable on a Repurchase
Date or Designated Event Repurchase Date occurring, in either case, during such
period and, as a result, the right to convert this Security would otherwise
terminate in such period if not exercised), also accompanied by payment in New
York Clearing House or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal amount
of


 


24
















 


this Security then being
converted, and also the conversion notice hereon duly executed, to the Company
at the Corporate Trust Office of the Trustee, or at such other office or agency
of the Company, subject to any laws or regulations applicable thereto and
subject to the right of the Company to terminate the appointment of any
Conversion Agent (as defined below) as may be designated by it for such purpose
in the Borough of  Manhattan, The City of
New York, or at such other offices or agencies as the Company may designate
(each a “Conversion Agent”), provided,
further, that, if this Security
or portion hereof has been called for redemption on a Redemption Date or is
repurchasable on a Repurchase Date or Designated Event Repurchase Date
occurring, in either case, during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such succeeding Interest Payment Date, and as a result, the right
to convert this Security would otherwise terminate in such period if not
exercised and this Security is surrendered for conversion during such period,
then the Holder of this Security on such Regular Record Date will be entitled
to receive the interest accruing hereon from the Interest Payment Date next
preceding the date of such conversion to such succeeding Interest Payment Date
and the Holder of this Security who converts this Security or a portion hereof
during such period shall not be required to pay such interest upon surrender of
this Security for conversion. Subject to the provisions of the preceding
sentence and, in the case of a conversion after the close of business on the
Regular Record Date next preceding any Interest Payment Date and on or before
the close of business on such Interest Payment Date, to the right of the Holder
of this Security (or any Predecessor Security of record as of such Regular
Record Date) to receive the related installment of interest to the extent and
under the circumstances provided in the Indenture, no cash payment or
adjustment is to be made on conversion for interest accrued hereon from the
Interest Payment Date next preceding the day of conversion, or for dividends on
the Common Stock issued on conversion hereof. 
The Company shall thereafter deliver to the Holder (1) the fixed number
of shares of Common Stock (together with any cash adjustment, as provided in
the Indenture) into which this Security is convertible and (2) if the conversion
of such Security is upon the occurrence of a Fundamental Change with an
Effective Date that is on or before January 15, 2010, the Make Whole
Premium payable upon such conversion, if any, and such delivery will be deemed
to satisfy the Company’s obligation to pay the principal amount of this
Security. No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest (calculated to
the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party (other than a
consolidation or merger that does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the conveyance,
transfer, sale or lease of all or substantially all of the property and assets
of the Company, the Indenture shall be amended, without the consent of any
Holders of Securities, so that this Security, if then Outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, transfer, sale
or lease by a holder of the number of 
shares of Common Stock of the Company into which this Security could
have been converted immediately prior to such consolidation, merger,
conveyance, transfer, sale or lease (assuming such holder of Common Stock is
not a Constituent Person or an Affiliate of a Constituent Person, failed to
exercise any rights of election and received per share the kind and amount
received per share by a plurality of Non-electing Shares).  A Holder may convert all or part of this
Security by delivering this Security at


 


25
















 


the corporate trust
office of the Trustee accompanied by a duly signed and completed conversion
notice, a copy of which may be obtained by the Trustee.  [if this
security is a global security, then insert – DTC will affect the
conversion upon notice from the Holder of a beneficial interest in this
Security in accordance with DTC’s rules and procedures.]  The conversion date will be the date on which
the Security and the duly signed and completed conversion notice are so
delivered.


 


If this Security is a
Registrable Security (as defined in this Indenture), then the Holder of this
Security [if this security is a global
security, then insert – (including any Person that has a beneficial
interest in this Security)] and
the Common Stock of the Company issuable upon conversion hereof is entitled to
the benefits of a Registration Rights Agreement, dated as of June 28,
2004, executed by the Company (the “Registration Rights Agreement”) between the
Company and the Initial Purchasers. 
Pursuant to the Registration Rights Agreement, the Company has agreed
for the benefit of the Holders from time to time of the Registrable Securities
that it will, at its expense, (a) within 90 days after the Issue Date file a
shelf registration statement (the “Shelf Registration Statement”) with the
Commission with respect to resales of the Registrable Securities, (b) use its
best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission within 180 days after the Issue Date of the
Securities, provided, however, that the Company may, upon
written notice to all the Holders, postpone having the Shelf Registration
Statement declared effective for a reasonable period not to exceed 90 days if
the Company possesses material non-public information, the disclosure of which
would have a material adverse effect on the Company and its subsidiaries taken
as a whole, and (c) use its best efforts to maintain such Shelf Registration
Statement effective under the Securities Act until the earliest of (i) the sale
of all outstanding Registrable Securities registered under such Shelf
Registration; (ii) the expiration of the period referred to in Rule 144(k) of
the Securities Act with respect to Registrable Securities held by
non-affiliates of the Company; (iii) all the Registrable Securities have ceased
to be outstanding (whether as a result of redemption, repurchase, cancellation,
conversion or otherwise); and (iv) two years after the effective date of such
Shelf Registration Statement (the “Effectiveness Period”). The Company will be
permitted to suspend the use of the prospectus which is part of the Shelf
Registration Statement during certain periods of time as provided in the
Registration Rights Agreement.


 


If (i) on or prior to 90
days following the Issue Date, a Shelf 
Registration Statement has not been filed with the Commission, or (ii)
on or prior to the 180th day following the Issue Date, such Shelf Registration
Statement is not declared effective (each, a “Registration Default”),
additional interest (“Liquidated Damages”) will accrue on this Restricted
Security from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date, as applicable, in respect of
the Restricted Securities following the date on which such Liquidated Damages
begin to accrue, and will accrue at a rate per annum equal to one-quarter of
one percent (0.25%) of the principal amount of the Restricted Securities to and
including the 90th day following such Registration Default and at a rate per
annum equal to one-half of one percent (0.50%) thereof from and after the 91st
day following such Registration Default. Pursuant to the Registration Rights
Agreement, in the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an “Effective
Failure”) during the Effectiveness Period for more than 30 days, whether or not
consecutive, during


 


26
















 


any 90-day period or for
more than 90 days, whether or not consecutive, during any 12-month period, then
the interest rate borne by the Restricted Securities shall increase by an
additional one-half of one percent (0.50%) per annum from the 31st day of the
applicable 90-day period or the 91st day of the applicable 12-month period
until the earlier of (A) such time as the Effective Failure is cured or (B) the
Effectiveness Period expires.


 


Whenever in this Security
there is a reference, in any context, to the payment of the principal of, or
interest on, or in respect of, any Security, such mention shall be deemed to
include mention of the payment of Liquidated Damages payable as described in
the preceding paragraph to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect of such Security and express mention
of the payment of Liquidated Damages (if applicable) in any provisions of this
Security shall not be construed as excluding Liquidated Damages in those
provisions of this Security where such express mention is not made.


 


If this Security is a
Registrable Security and the Holder of this Security [if this security is a global security, then insert –
(including any Person that has a beneficial interest in this Security)] elects to sell this Security pursuant to
the Shelf Registration Statement then, by its acceptance hereof, such Holder of
this Security agrees to be bound by the terms of the Registration Rights
Agreement relating to the Registrable Securities which are the subject of such
election.


 


Subject to the terms and
conditions of the Indenture, the Company shall repurchase all or a portion of
the Securities (any such portion being at least $1,000 or an integral multiple
of $1,000 in excess thereof and provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to $1,000 or integral
multiples of $1,000 in excess thereof) at the option of the Holder on each of
January 15, 2010, 2015 and 2020 (each, a “Repurchase Date”), at a
repurchase price equal to 100% of the principal amount of the Securities to be
repurchased, plus interest accrued but unpaid to, but excluding, such
Repurchase Date (the “Repurchase Price”). 
At the option of the Company, the Repurchase Price may be paid in cash,
or subject to the fulfillment by the Company of the conditions set forth in the
Indenture, by delivery of shares of Common Stock having a fair market value to
the Repurchase Price (less any cash payments), or a combination of cash and
Common Stock.


 


If a Designated Event
occurs, the Holder of this Security, at the Holder’s option, shall have the
right, in accordance with the provisions of the Indenture, to require the
Company to repurchase this Security (or any portion of the principal amount
hereof that is at least $1,000 or an integral multiple of $1,000 in excess
thereof, provided that the
portion of the principal amount of this Security to be Outstanding after such
repurchase is at least equal to U.S. $1,000) at a Designated Event Repurchase
Price equal to 100% of the principal amount thereof plus interest accrued to
the Designated Event Repurchase Date plus, in the case of a Designated Event
that is a Fundamental Change with an Effective Date that is on or before
January 15, 2010, a Make Whole Premium, if any. At the option of the
Company, the Designated Event Repurchase Price may be paid in cash or, subject
to the conditions provided in the Indenture, by delivery of shares of Common
Stock having a fair market value equal to the Designated Event Repurchase
Price.


 


27
















 


For purposes of the two
preceding paragraphs, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share for the five consecutive Trading Days immediately
preceding and including the third Trading Day prior to the Repurchase Date or
the Designated Event Repurchase Price, as the case may be. Whenever in this
Security there is a reference, in any context, to the principal of any Security
as of any time, such reference shall be deemed to include reference to the
Repurchase Price or the Designated Event Repurchase Price, as the case may be,
payable in respect of such Security to the extent that such Repurchase Price or
Designated Event Repurchase Price, as the case may be, is, was or would be so
payable at such time, and express mention of the Repurchase Price or the
Designated Event Repurchase Price, as the case may be, in any provision of this
Security shall not be construed as excluding the Repurchase Price or the
Designated Event Repurchase Price, as the case may be, so payable in those
provisions of this Security when such express mention is not made.


 


If a Fundamental Change
occurs on or before January 15, 2010, Holders of this Security will be
entitled to receive from the Company (a) upon the repurchase of this Security
tendered upon a Designated Event pursuant to Section 14.2 of the Indenture
or (b) upon conversion of this Security in accordance with
Section 12.1(a)(5) of the Indenture, the Make Whole Premium. The Company
may pay the Make Whole Premium in (at the Company’s option) Common Stock, cash
or a combination thereof, or in the same form of consideration into which all
or substantially all of the Common Stock has been converted in connection with
the applicable Fundamental Change, valued as set forth in the Indenture. If
Holders of the Common Stock have the right to elect the form of consideration
received in a Fundamental Change, then for purposes of the foregoing the
consideration into which a share of Common Stock has been converted shall be
deemed to equal the aggregate consideration distributed in respect of all
shares of Common Stock of the Company divided by the total number of shares of
Common Stock participating in the distribution.


 


[The
following paragraph shall appear in each Global Security:


 


In the event of a deposit
or withdrawal of an interest in this Security, including an exchange, transfer,
redemption, repurchase or conversion of this Security in part only, the
Trustee, as custodian of the Depositary, shall make an adjustment on its
records to reflect such deposit or withdrawal in accordance with the Applicable
Procedures.]


 


[The
following paragraph shall appear in each Security that is not a Global
Security:


 


In the event of
redemption, repurchase or conversion of this Security in part only, a new
Security or Securities for the unredeemed, unrepurchased or unconverted portion
hereof will be issued in the name of the Holder hereof.]


 


If an Event of Default
shall occur and be continuing, the principal of all the Securities, together
with accrued and unpaid interest and Liquidated Damages, if any, to the date of
declaration, may be declared due and payable in the manner and with the effect
provided in the Indenture. Upon payment (i) of the amount of principal so
declared due and payable, together with accrued interest to the date of
declaration, and (ii) of interest on any overdue principal and, to the extent
permitted by


 


28
















 


applicable law, overdue
interest, all of the Company’s obligations in respect of the payment of the
principal of and interest on the Securities shall terminate.


 


[The
following paragraph shall appear in each Global Security:


 


In the event of a
withdrawal of an interest in this Security resulting from any redemption,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such withdrawal in accordance with the Applicable Procedures.]


 


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


 


As provided in and
subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or
for the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the Trustee written
notice of a continuing Event of Default, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall not
have received from the Holders of a majority in principal amount of the
Securities Outstanding a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or interest (including Liquidated Damages) hereon
on or after the respective due dates expressed herein or for the enforcement of
the right to convert this Security as provided in the Indenture.


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest (including Liquidated Damages) on this
Security at the times, places and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.


 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register upon surrender of this
Security for registration of  transfer at
the Corporate Trust Office of the Trustee or at such other office or agency of
the


 


29
















 


Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York (which shall initially be an office or agency of the Trustee), or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of  authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees by the Security Registrar. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to recover any tax or other governmental charge payable in
connection therewith.


 


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


 


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


 


No recourse for the
payment of the principal or interest on this Security and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of consideration for the
issue hereof, expressly waived and released.


 


THE
INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.


 


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


 


30
















 


ABBREVIATIONS


 


The following
abbreviations, when used in the inscription of the face of this Security, shall
be construed as though they were written out in full according to applicable
laws or regulations:


 


	
  TEN COM

  	
   

  	
  as tenant in common

  	
   

  	
  UNIF GIFT MIN ACT

  	
   

  	
            Custodian
         

  
	
  TEN ENT

  	
   

  	
  as tenants by the
  entireties (Cust)

  	
   

  	
   

  	
   

  	
  (Cust)

  	
  (Minor)

  
	
  JT TEN

  	
   

  	
  as joint tenants with
  right of survivorship and not as tenants in common

  	
   

  	
   

  	
   

  	
  under Uniform Gifts to
  Minors Act            

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (State)

  



 


Additional abbreviations
may also be used though not in the above list.


 


31





















 


ELECTION OF HOLDER
TO REQUIRE REPURCHASE


 


(1)                                  Pursuant
to Section 14.2 of the Indenture, the undersigned hereby elects to have
this Security repurchased by the Company.


 


(2)                                  The
undersigned hereby directs the Trustee or the Company to pay it or
                        
an amount in cash or, at the Company’s election, Common Stock valued as set
forth in the Indenture, equal to 100% of the principal amount to be repurchased
(less any cash payments) (as set forth below), or a combination of cash and
Common Stock plus interest accrued to, but excluding, the Repurchase Date, as
provided in the Indenture plus, in the case of a repurchase upon a Designated
Event that is a Fundamental Change with an Effective Date that is on or before
January 15, 2010, the applicable Make Whole Premium, if any.


 


	
  Dated:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


Signature(s)


 


	
  Signature(s) must be
  guaranteed by an Eligible

  
	
  Guarantor Institution
  with membership in an

  
	
  approved signature
  guarantee program pursuant

  
	
  to Rule 17Ad-15 under
  the Securities Exchange

  
	
  Act of 1934.

  
	
   

  
	
   

  	
   

  
	
  Signature Guaranteed

  



 


 


Principal amount to be
repurchased (at least

U.S. $1,000 or an integral multiple of $1,000

in excess thereof): 
                                      


 


Remaining principal
amount following such

repurchase (not less than U.S. $1,000):  

                                



 


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


 


Section 2.3                                                              Form
of Certificate of Authentication.


 


The Trustee’s certificate
of authentication shall be in substantially the following form:


 


This is one of the
Securities referred to in the within-mentioned Indenture.


 


32
















 


	
  Dated:

  	
   

  	
   

  
	
   

  
	
   

  	
  AMERICAN STOCK TRANSFER
  &

  
	
   

  	
  TRUST
  COMPANY

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Authorized
  Signatory

  	
   

  
						



 


Section 2.4                                                              Form
of Conversion Notice.


 


CONVERSION NOTICE


 


The undersigned Holder of
this Security hereby irrevocably exercises the option to convert this Security,
or any portion of the principal amount hereof (which is U.S. $1,000 or an
integral multiple of U.S. $1,000 in excess thereof, provided that the unconverted portion of such principal
amount is U.S. $1,000 or any integral multiple of U.S. $1,000 in excess
thereof) below designated, into shares of Common Stock in accordance with the
terms of the Indenture referred to in this Security, and directs that such
shares, together with a check in payment for any fractional share and any Securities
representing any unconverted principal amount hereof, be delivered to and be
registered in the name of the undersigned unless a different name has been
indicated below. If shares of Common Stock or Securities are to be registered
in the name of a Person other than the undersigned, (a) the undersigned will
pay all transfer taxes payable with respect thereto and (b) signature(s) must
be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Signature(s)

  	
   

  
	
   

  
	
  If shares or Securities
  are to be registered in the

  
	
  name of a Person other
  than the Holder, please

  
	
  print such Person’s
  name and address:

  
	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
						



 


33
















 


	
   

  	
   

  
	
  Social Security or
  other Identification

  	
   

  
	
  Number, if any

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Signature
  Guaranteed]

  	
   

  



 


 


If only a portion of the
Securities is to be converted, please indicate:


 


1.                                       Principal
amount to be converted: U.S. $
                         


 


2.                                       Principal
amount and denomination of Securities

representing unconverted principal amount to be issued:


 


Amount: U.S.
$                                     Denominations: U.S.
$                  


 


(U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof, provided that the unconverted portion of such principal
amount is U.S. $1,000 or any integral multiple of U.S. $1,000 in excess
thereof)


 


Section 2.5                                                              Form
of Assignment.


 


ASSIGNMENT


 


For value received,
                
hereby sell(s), assign(s) and transfer(s) unto
                
(Please insert Social Security or other identifying number of assignee) the
within Security, and hereby irrevocably constitutes and appoints
                    
as attorney to transfer the said Security on the books of the Company, with
full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be
  guaranteed by an Eligible

  Guarantor Institution with membership in an

  approved signature guarantee program pursuant

  to Rule 17Ad-15 under the Securities 
  Exchange

  Act of 1934.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  
							



 


34
















 


ARTICLE III

THE SECURITIES


 


Section 3.1                                                              Title
and Terms.


 


The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is limited to U.S. $100,000,000, except for Securities authenticated
and delivered pursuant to Section 3.4, Section 3.5, Section 3.6,
Section 8.5, Section 12.2 or Section 14.4(6) in exchange for, or
in lieu of, other Securities previously authenticated and delivered under this
Indenture.


 


The Securities shall be
known and designated as the “2.25% Convertible Senior Notes due
January 15, 2025” of the Company. 
Their Stated Maturity shall be January 15, 2025, and they shall
bear interest on their principal amount from June 28, 2004, payable
semi-annually in arrears on January 15 and July 15 in each year,
commencing January 15, 2005, at the rate of 2.25% per annum until the
principal thereof is due and at the rate of 1.00% per annum on any overdue
principal and, to the extent permitted by law, on any overdue interest; provided, however,
that payments shall only be made on a Business Day as provided in
Section 1.12.


 


The principal of and
interest on the Securities shall be payable as provided in the form of
Securities set forth in Section 2.2, and the Repurchase Price or the
Designated Event Repurchase Price, as the case may be, whether payable in cash
or in shares of Common Stock or a combination thereof, shall be payable at such
places as are identified in the Company Notice given pursuant to
Section 14.4 (any city in which any Paying Agent is located being herein
called a “Place of Payment”).


 


The Securities shall be
senior unsecured obligations of the Company and shall rank pari passu with all of the Company’s other
senior unsecured obligations, including, without limitation, the Company’s
1.00% Convertible Senior Notes due August 1, 2010, issued pursuant to an
indenture dated as of August 1, 2003 between the Company and the Trustee,
as amended or supplemented.


 


The Registrable
Securities are entitled to the benefits of a Registration Rights Agreement as
provided by Section 10.8 and in the form of Security set forth in
Section 2.2. The Securities are entitled to the payment of Liquidated
Damages as provided by Section 10.8.


 


The Securities shall be
redeemable at the option of the Company at any time on or after
January 20, 2010, in whole or in part, subject to the conditions and as
otherwise provided in Article XI and in the form of Security set forth in
Section 2.2.


 


The Securities shall be
convertible as provided in Article XII (any city in which any Conversion
Agent is located being herein called a “Place of Conversion”).


 


The Securities shall be
subject to repurchase by the Company at the option of the Holders as provided
in Article XIV.


 


35
















 


Section 3.2                                                              Denominations.


 


The Securities shall be
issuable only in registered form, without coupons, in denominations of U.S.
$1,000 and integral multiples of U.S. $1,000 in excess thereof.


 


Section 3.3                                                              Execution,
Authentication, Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, or one of its
Executive Vice Presidents, and attested by its Chief Operating Officer, Controller
or Secretary.  Any such signature may be
manual or facsimile.


 


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


 


At any time and from time
to time after the execution and delivery of this Indenture, the Company may
deliver Securities executed by the Company to the Trustee or to its order for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and make available for delivery such Securities as in
this Indenture provided.


 


Each Security shall be
dated the date of its authentication.


 


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


 


Section 3.4                                                              Global
Securities; Non-global Securities; Book-entry Provisions.


 


(1)                                  Global
Securities


 


(A)                              Each
Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated by the Company for such Global Security or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture. The Company hereby appoints DTC as
the Depositary.


 


(B)                                Except
for exchanges of Global Securities for definitive, Non-global Securities at the
sole discretion of the Company, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or


 


36
















 


unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered as such under
the Exchange Act or announces an intention permanently to cease business or
does in fact do so or (B) there shall have occurred and be continuing an Event
of Default with respect to such Global Security.  In such event, if a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of an Officers’ Certificate
directing the authentication and delivery of Securities, will authenticate and
deliver, Securities, in any authorized denominations in an aggregate principal
amount equal to the principal amount of such Global Security in exchange for
such Global Security.


 


(C)                                If
any Global Security is to be exchanged for other Securities or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee
to the Trustee, as Security Registrar, for exchange or cancellation, as
provided in this Article III. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, in each
case, as provided in Section 3.5, then either (A) such Global Security
shall be so surrendered for exchange or cancellation, as provided in this
Article III, or (B) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 3.5(3) and as
otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article III if such order, direction or request is
given or made in accordance with the Applicable Procedures.


 


(D)                               Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Article III or otherwise, shall be authenticated and
delivered in the form of, and shall be, a registered Global Security, unless
such Security is registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof, in which case such Security
shall be authenticated and delivered in definitive, fully registered form,
without interest coupons.


 


(E)                                 The
Depositary or its nominee, as registered owner of a Global Security, shall be
the Holder of such Global Security for all purposes under the Indenture and the
Securities, and owners of beneficial interests in a Global Security shall hold
such interests pursuant to the Applicable Procedures.  Accordingly, any such owner’s beneficial
interest in a Global Security will be shown only on, and the transfer of such
interest shall be effected only through, records maintained


 


37
















 


by the Depositary or its nominee or its Agent Members
and such owners of beneficial interests in a Global Security will not be
considered the owners or holders thereof.


 


(2)                                  Non-global
Securities.  Securities issued upon the
events described in Section 3.4(1)(B) shall be in definitive, fully
registered form, without interest coupons, and shall bear the Restricted
Securities Legend if and as required by this Indenture.


 


Section 3.5                                                              Registration;
Registration of Transfer and Exchange; Restrictions on Transfer.


 


(1)                                  The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided.


 


Upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 10.2 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


At the option of the
Holder, and subject to the other provisions of this Section 3.5,
Securities may be exchanged for other Securities of any authorized denomination
and of a like aggregate principal amount, upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, and subject to the other provisions of this
Section 3.5, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to
receive. Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.


 


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


 


No service charge shall
be made to a Holder for any registration of transfer or exchange of Securities
except as provided in Section 3.6, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4,
Section 8.5, Section 12.2 or Section 14.4 (other than where the
shares of Common Stock are to be issued or delivered in a name other than that
of the Holder of the Security) not involving any transfer and other than any
stamp and other duties, if any, which may be imposed in connection with any
such transfer or exchange by the United States or any political subdivision
thereof or therein, which shall be paid by the Company.


 


38
















 


In the event of a
redemption of the Securities, neither the Company nor the Securities Registrar
will be required (a) to issue, register the transfer of or exchange of
Securities for a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer of or exchange of any Security, or
portion thereof, called for redemption.


 


(2)                                  Certain
Transfers and Exchanges. Notwithstanding any other provision of this
Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this
Section 3.5(2) shall be made only in accordance with this Section 3.5(2).


 


(A)                              Restricted
Global Security to Restricted Non-global Security.  In the event that Non-global Securities are
to be issued pursuant to Section 3.4(1)(B) in connection with any transfer
of Securities, such transfer may be effected only in accordance with the
provisions of this Clause (2)(A) and subject to the Applicable Procedures.  Upon receipt by the Trustee, as Security
Registrar, of (a) a Company Order from the Company directing the Trustee, as Security
Registrar, to (i) authenticate and deliver one or more Securities of the same
aggregate principal amount as the beneficial interest in the Restricted Global
Security to be transferred, such instructions to contain the name or names of
the designated transferee or transferees, the authorized denomination or
denominations of the Securities to be so issued and appropriate delivery
instructions and (ii) decrease the beneficial interest of a specified Agent
Member’s account in a Restricted Global Security by a specified principal
amount not greater than the principal amount of such Restricted Global
Security, and (b) such other certifications, legal opinions or other
information as the Company or the Trustee may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act, then the Trustee, as Security Registrar, shall decrease the principal
amount of the Restricted Global Security by the specified amount and
authenticate and deliver Securities in accordance with such instructions from
the Company as provided in Section 3.4(1)(C).


 


(B)                                Restricted
Non-global Security to Restricted Global Security.  If the Holder of a Restricted Security (other
than a Global Security) wishes at any time to transfer all or any portion of
such Restricted Security to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Restricted Global Security, such transfer
may be effected only in accordance with the provisions of this Clause (2)(B)
and subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of such Restricted Security as provided in
Section 3.5(1) and instructions from the Company directing that a
beneficial interest in the Restricted Global Security in a specified principal
amount not greater than the principal amount of such Security be credited to a
specified Agent Member’s account, then the Trustee, as Security Registrar,
shall cancel such Restricted Security (and issue a new Restricted Security in
respect of any untransferred portion thereof) as provided in
Section 3.5(1) and increase the principal amount of the Restricted Global
Security by the specified principal amount as provided in
Section 3.4(1)(C).


 


(C)                                Exchanges
Between Global Security and Non-global Security.  A beneficial interest in a Global Security
may be exchanged for a Security that is not a Global Security only as provided
in Section 3.4 or only if such exchange occurs in connection with a
transfer effected in


 


39
















 


accordance with Clause 2(A) above, provided that, if such interest is a
beneficial interest in the Restricted Global Security, then such interest shall
be exchanged for a Restricted Security (subject in each case to
Section 3.5(3)). A Security that is not a Global Security may be exchanged
for a beneficial interest in a Global Security only if such exchange occurs in
connection with a transfer effected in accordance with Clause (2)(B) above.


 


(3)                                  Securities
Act Legends. All Securities issued pursuant to this Indenture, and all
Successor Securities, shall bear the Restricted Securities Legend and shall be
subject to the restrictions on transfer specified therein, subject to the
following:


 


(A)                              subject
to the following Clauses of this Section 3.5(3), a Security or any portion
thereof which is exchanged, upon transfer or otherwise, for a Global Security
or any portion thereof shall bear the Restricted Securities Legend borne by
such Global Security for which the Security was exchanged;


 


(B)                                subject
to the following Clauses of this Section 3.5(3), a new Security that is
not a Global Security and is issued in exchange for another Security (including
a Global Security) or any portion thereof, upon transfer or otherwise, shall
bear the Restricted Securities Legend borne by the Security for which the new
Security was exchanged;


 


(C)                                any
Securities that are sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act (including the Shelf
Registration Statement), together with their Successor Securities shall not
bear a Restricted Securities Legend; the Company shall inform the Trustee in
writing of the effective date of any such registration statement registering
the Securities under the Securities Act and shall notify the Trustee at any
time when prospectuses must be delivered with respect to Securities to be sold
pursuant to such registration statement. The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned registration statement;


 


(D)                               at
any time after the Securities may be freely transferred without registration
under the Securities Act or without being subject to transfer restrictions
pursuant to the Securities Act, a new Security that does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof that bears such a legend if the
Trustee has received an Unrestricted Securities Certificate, satisfactory to
the Trustee and duly executed by the Holder of such Security bearing a
Restricted Securities Legend or his attorney duly authorized in writing, and
after such date and receipt of such certificate, the Trustee shall authenticate
and deliver such new Security in exchange for or in lieu of such other Security
as provided in this Article III;


 


(E)                                 a
new Security that does not bear a Restricted Securities Legend may be issued in
exchange for or in lieu of a Security or any portion thereof that bears such a
legend if, in the Company’s judgment, placing such a legend upon such new
Security is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the direction of the
Company, shall authenticate and deliver such a new Security as provided in this
Article III; and


 


40
















 


(F)                                 notwithstanding
the foregoing provisions of this Section 3.5(3), a Successor Security of a
Security that does not bear a Restricted Securities Legend shall not bear such
legend unless the Company has reasonable cause to believe that such Successor
Security is a “restricted security” within the meaning of Rule 144, in which
case the Trustee, at the direction of the Company, shall authenticate and
deliver a new Security bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article.


 


(4)                                  Any
stock certificate representing shares of Common Stock issued upon conversion of
the Securities shall bear the Restricted Securities Legend borne by such
Securities, to the extent required by this Indenture, unless such shares of
Common Stock have been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and that continues to be effective
at the time of such transfer) or sold pursuant to Rule 144(k) of the Securities
Act, or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent for the Common Stock.  With respect to the transfer of shares of
Common Stock issued upon conversion of the Securities that are restricted
hereunder, any deliveries of certificates, legal opinions or other instruments
that would be required to be made to the Security Registrar in the case of a
transfer of Securities, as described above, shall instead be made to the
transfer agent for the Common Stock.


 


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


 


Section 3.6                                                              Mutilated,
Destroyed, Lost or Stolen Securities.


 


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


 


If there be delivered to
the Company and to the Trustee:


 


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


 


(2)                                  such
security or indemnity as may be satisfactory to the Company and the Trustee to
save each of them and any agent of either of them harmless, then, in the
absence of actual notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.


 


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


 


41
















 


Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto (other than any stamp and other duties, if any, which may be
imposed in connection therewith by the United States or any political
subdivision thereof or therein, which shall be paid by the Company) and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.


 


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


 


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


 


Section 3.7                                                              Payment
of Interest; Interest Rights Preserved.


 


Subject to the last
paragraph of this Section, interest or Liquidated Damages on any Security that
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.


 


Any interest or
Liquidated Damages on any Security that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:


 


(1)                                  The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security, the date of the proposed payment and the Special Record Date, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. The Special Record Date for the payment of
such Defaulted Interest shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at such
Holder’s address as it appears in the


 


42
















 


Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).


 


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


 


Subject to the foregoing
and following provisions of this Section and Section 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Interest on any Security
that is converted in accordance with Section 12.2 during a Record Date
Period shall be payable in accordance with the provisions of Section 12.2.


 


Section 3.8                                                              Persons
Deemed Owners.


 


Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee, any
Paying Agent and any agent of the Company, the Trustee or any Paying Agent may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee, any Paying Agent nor any agent of the Company, the Trustee or any
Paying Agent shall be affected by notice to the contrary.


 


Section 3.9                                                              Cancellation.


 


All Securities
surrendered for payment, redemption, repurchase, registration of transfer or
exchange or conversion shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities so delivered to the
Trustee shall be canceled promptly by the Trustee (or its agent) and may not be
re-issued or resold. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section 3.9. The
Trustee shall dispose of all canceled Securities in accordance with applicable
law and its customary practices in effect from time to time.


 


Section 3.10                                                        Computation
of Interest.


 


Interest on the
Securities (including any Liquidated Damages) shall be computed on the basis of
a 360-day year of twelve 30-day months.


 


43
















 


Section 3.11                                                        CUSIP
Numbers.


 


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


 


ARTICLE IV

SATISFACTION AND
DISCHARGE


 


Section 4.1                                                              Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving
rights of conversion, or registration of transfer or exchange, or replacement
of Securities herein expressly provided for and any right to receive Liquidated
Damages as provided in the Registration Rights Agreement and in the form of
Securities set forth in Section 2.2 and the Company’s obligations to the
Trustee pursuant to Section 6.7), and the Trustee, at the expense of the
Company, shall execute proper instruments in form and substance satisfactory to
the Trustee acknowledging satisfaction and discharge of this Indenture, when


 


(1)                                  either


 


(A)                              all
Securities theretofore authenticated and delivered (other than (a) Securities
which have been destroyed, lost or stolen and that have been replaced or paid
as provided in Section 3.6 and (b) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or


 


(B)                                all
such Securities not theretofore delivered to the Trustee or its agent for
cancellation (other than Securities referred to in clauses (a) and (b) of
clause (1)(A) above)


 


(a)                                  have
become due and payable, or


 


(b)                                 will
have become due and payable at their Stated Maturity within one year, or


 


(c)                                  are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,


 


and the Company, in the
case of clause (a), (b) or (c) above, has deposited or caused to be deposited
with the Trustee as trust funds (immediately available to the Holders in the
case of clause (a)) in trust


 


44
















 


for the purpose an amount
in cash sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest (including any Liquidated Damages) to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.12, the obligation of the Company to
pay Liquidated Damages, if money shall have been deposited with the Trustee pursuant
to clause (1)(B) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 and the
obligations of the Company and the Trustee under Section 3.5 and
Article XII shall survive.


 


Section 4.2                                                              Application
of Trust Money.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust for the sole
benefit of the Holders, and such monies shall be applied by the Trustee, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent), to the Persons entitled thereto, of the principal and
interest (including Liquidated Damages, if any) for whose payment such money
has been deposited with the Trustee.


 


All moneys deposited with
the Trustee pursuant to Section 4.1 (and held by it or any Paying Agent)
for the payment of Securities subsequently converted shall be returned to the
Company upon Company Request.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed or assessed
against all money deposited with the Trustee pursuant to Section 4.1
(other than income taxes and franchise taxes incurred or payable by the Trustee
and such other taxes, fees or charges incurred or payable by the Trustee that
are not directly the result of the deposit of such money with the Trustee).


 


ARTICLE V

REMEDIES


 


Section 5.1                                                              Events
of Default.


 


“Event of Default,”
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default or whether it shall be voluntary or
involuntary or be effected by


 


45
















 


operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1)                                  default
in the payment of the principal of any Security at its Maturity; or


 


(2)                                  default
in the payment of any interest (including any Liquidated Damages) or the Make
Whole Premium, if any, upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or


 


(3)                                  failure
by the Company to pay the Repurchase Price or the Designated Event Repurchase
Price, as the case may be, if a Holder exercises its right to require such
payment pursuant to Section 14.1 or Section 14.2, as the case may be;
or


 


(4)                                  failure
by the Company to deliver Common Stock when such Common Stock is required to be
delivered following conversion of any Security, and the continuance of such
default for a period of 10 days; or


 


(5)                                  default
in the performance or breach of any covenant of the Company in this Indenture
(other than a covenant a default in the performance of which is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(6)                                  a
default in the payment when due (either at its stated maturity or upon
acceleration thereof, and after expiration of any applicable grace period)
under any bonds, debentures, notes or other evidences of indebtedness for money
borrowed (or guarantee thereof) by the Company or any Significant Subsidiary
with an aggregate principal amount in excess of U.S. $15,000,000, whether such
indebtedness now exists or shall hereafter be created, and such indebtedness is
not discharged, or such acceleration is not rescinded or annulled, within a
period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such default to be cured or waived or
such acceleration to be rescinded or annulled and stating that such notice is a
“Notice of Default” hereunder; or


 


(7)                                  the
entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of either, or ordering the winding up or
liquidation of its affairs, and the continuance of any


 


46
















 


such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days; or


 


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


 


Section 5.2                                                              Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default
(other than an Event of Default specified in Section 5.1(7) or
Section 5.1(8) with respect to the Company) occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal and all accrued interest thereon shall become
immediately due and payable. If an Event of Default specified in
Section 5.1(7) or Section 5.1(8) with respect to the Company occurs
and is continuing, the principal of, and accrued interest on, all the
Securities shall become immediately due and payable without any declaration or
other Act of the Holders or any act on the part of the Trustee.


 


At any time after such
declaration of acceleration has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities, by written notice to the Company and the Trustee,
may, on behalf of all Holders, rescind and annul such declaration and its
consequences if:


 


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


 


(A)                              all
overdue interest (including Liquidated Damages, if any) on all Securities,


 


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


 


(C)                                to
the extent permitted by applicable law, interest upon overdue interest at a
rate of 1.00% per annum, and


 


47
















 


(D)                               all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;


 


(2)                                  all
Events of Default, other than the nonpayment of the principal of and interest
on Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13; and


 


(3)                                  such
rescission and annulment would not conflict with any judgment or decree issued
in appropriate judicial proceedings regarding the payment by the Trustee to the
Holders of the amounts referred to in Section 5.2(1).


 


No rescission or
annulment referred to above shall affect any subsequent default or impair any
right consequent thereon.


 


Section 5.3                                                              Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants
that if:


 


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


 


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


 


the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities the whole amount then due and payable on such Securities for
principal and interest (including any Liquidated Damages) and interest on any
overdue principal and, to the extent permitted by applicable law, on any
overdue interest (including any Liquidated Damages), at a rate of 1.00% per
annum, and in addition thereto, such further amount as shall be sufficient to
cover the reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


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


 


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


 


48
















 


Section 5.4                                                              Trustee
May File Proofs of Claim.


 


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


 


(1)                                  to
file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and take such other actions, including
participating as a member, voting or otherwise, of any official committee of
creditors appointed in such matter, and to file such other papers or documents,
in each of the foregoing cases, as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders of Securities allowed in such judicial proceeding,
and


 


(2)                                  to
collect and receive any moneys or other property payable or deliverable on any
such claim and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder of Securities to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders of Securities to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.7.


 


Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder of a Security in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or similar official.


 


Section 5.5                                                              Trustee
May Enforce Claims Without Possession of Securities.


 


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


 


49
















 


Section 5.6                                                              Application
of Money Collected.


 


Any money collected by
the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
under Section 6.7;


 


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


 


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


 


Section 5.7                                                              Limitation
on Suits.


 


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


 


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


 


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


 


(3)                                  such
Holder or Holders have offered to the Trustee, and if requested, shall have
provided, reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;


 


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


 


(5)                                  no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities, it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.


 


50
















 


Section 5.8                                                              Unconditional
Right of Holders to Receive Principal and Interest and to Convert.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
(subject to Section 3.7) interest (including Liquidated Damages, if any) on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repurchase, on the Redemption Date or
Repurchase Date, as the case may be), and to convert such Security in
accordance with Article XII, and to institute suit for the enforcement of
any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.


 


Section 5.9                                                              Restoration
of Rights and Remedies.


 


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


 


Section 5.10                                                        Rights
and Remedies Cumulative.


 


Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


Section 5.11                                                        Delay
or Omission Not Waiver.


 


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


 


Section 5.12                                                        Control
by Holders of Securities.


 


Subject to
Section 6.3, the Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for


 


51
















 


any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided that


 


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


 


(2)                                  the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and


 


(3)                                  the
Trustee need not take any action that might be unjustly prejudicial to the
Holders of Securities not consenting.


 


Section 5.13                                                        Waiver
of Past Defaults.


 


The Holders of not less
than a majority in principal amount of the Outstanding Securities may on behalf
of the Holders of all the Securities waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of or
interest (including Liquidated Damages) on any Security, or (B) in respect of a
covenant or provision hereof which under Article VIII cannot be modified
or amended without the consent of the Holder of each Outstanding Security
affected.


 


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


 


Section 5.14                                                        Undertaking
for Costs.


 


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


 


Section 5.15                                                        Waiver
of Stay, Usury or Extension Laws.


 


The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any


 


52
















 


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


 


ARTICLE VI

THE TRUSTEE


 


Section 6.1                                                              Certain
Duties and Responsibilities.


 


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


 


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


 


(B)                                in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture, but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture,
but not to verify the contents thereof.


 


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


 


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


 


(A)                              this
paragraph (3) shall not be construed to limit the effect of paragraph (1) of
this Section;


 


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


 


(C)                                the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities relating to the
time, method and place of conducting any


 


53
















 


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


 


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


 


(4)                                  Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section and the
Trust Indenture Act.


 


Section 6.2                                                              Notice
of Defaults.


 


Within 90 days after the
occurrence of any default hereunder as to which the Trustee has received
written notice, the Trustee shall give to all Holders of Securities, in the
manner provided in Section 1.6, notice of such default, unless such
default shall have been cured or waived; provided,
however, that, except in the case
of a default in the payment of the principal of or interest (including
Liquidated Damages, if any) on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders; and provided,
further, that in the case of any
default of the character specified in Section 5.1(5), no such notice to
Holders of Securities shall be given until at least 60 days after the
occurrence thereof or, if applicable, the cure period specified therein. For
the purpose of this Section, the term “default” means any event which is, or
after notice or lapse of time or both would become, an Event of Default.


 


Section 6.3                                                              Certain
Rights of Trustee.


 


Subject to the provisions
of Section 6.1:


 


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


 


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


 


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


 


54
















 


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


 


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


 


(6)                                  the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document, but the Trustee may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and


 


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


 


Section 6.4                                                              Not
Responsible for Recitals or Issuance of Securities.


 


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


 


Section 6.5                                                              May
Hold Securities, Act as Trustee under Other Indentures.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Conversion Agent or any other agent
of the Company or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.


 


The Trustee may become
and act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee hereunder.


 


55
















 


Section 6.6                                                              Money
Held in Trust.


 


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


 


Section 6.7                                                              Compensation
and Reimbursement.


 


The Company agrees:


 


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


 


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


 


(3)                                  to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust, including
the reasonable costs, expenses and reasonable attorneys’ fees of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


The Trustee shall have a
lien prior to the Securities on all money or property held or controlled by the
Trustee to secure the Company’s payment obligations in this Section 6.7,
except that held in trust to pay principal and interest (including Liquidated
Damages) on the Securities.


 


When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 5.1(7) or Section 5.1(8), the expenses (including the
reasonable charges of its counsel) and the compensation for the services are
intended to constitute expenses of the administration under any applicable
Federal or state bankruptcy, insolvency or other similar law.


 


The provisions of this
Section shall survive the termination of this Indenture or the earlier
resignation or removal of the Trustee.


 


Section 6.8                                                              Corporate
Trustee Required; Eligibility.


 


There shall at all times
be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such, having (or be part of a holding company
group with) a combined capital and surplus of at least U.S. $10,000,000,
subject to supervision or examination by federal or state authority, and in
good standing. The Trustee or an Affiliate of the Trustee shall maintain an
established place of business in the Borough of Manhattan, The City of


 


56
















 


New York. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article and a successor shall be appointed pursuant to Section 6.9.


 


Section 6.9                                                              Resignation
and Removal; Appointment of Successor.


 


(1)                                  No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.


 


(2)                                  The
Trustee may resign at any time by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.


 


(3)                                  The
Trustee may be removed at any time by an Act of the Holders of a majority in
principal amount of the Outstanding Securities, delivered to the Trustee and
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the removed Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.


 


(4)                                  The
Trustee may be removed at any time by the Company and the Company may appoint a
successor Trustee pursuant to this Article, provided
that (i) there is not an Event of Default that is continuing at the time of
removal, (ii) the successor Trustee appointed by the Company meets the
eligibility requirements of Section 6.8, and (iii) such removal and
resignation shall not become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of
Section 6.10.


 


(5)                                  If
at any time:


 


(A)                              the
Trustee shall cease to be eligible under Section 6.8 and shall fail to
resign after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six months,
or


 


(B)                                the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,


 


then, in any such case
(i) the Company, by a Board Resolution, may remove the Trustee, or (ii) subject
to Section 5.14, any Holder of a Security who has been a bona fide Holder
of a Security


 


57
















 


for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.


 


(6)                                  If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee and shall comply
with the applicable requirements of this Section and Section 6.10. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner required by this
Section and Section 6.10, any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.


 


(7)                                  The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders of Securities in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


Section 6.10                                                        Acceptance
of Appointment by Successor.


 


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


 


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


 


Section 6.11                                                        Merger,
Conversion, Consolidation or Succession to Business.


 


Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee (including the trust created by this Indenture), shall be the successor
of the Trustee hereunder, provided
that such corporation shall be otherwise eligible under this Article,


 


58
















 


without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.


 


Section 6.12                                                        Authenticating
Agents.


 


The Trustee may, with the
consent of the Company, appoint an Authenticating Agent or Agents acceptable to
the Company with respect to the Securities, which Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon exchange or substitution pursuant to this Indenture.


 


Securities authenticated
by an Authenticating Agent shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder, and every reference in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be subject to acceptance by the Company and shall at
all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent and subject to
supervision or examination by government or other fiscal authority. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section 6.12.


 


Any corporation into
which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.


 


An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be subject to
acceptance by the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.


 


59
















 


The Company agrees to pay
to each Authenticating Agent, from time to time, reasonable compensation for
its services under this Section.


 


If an Authenticating
Agent is appointed with respect to the Securities pursuant to this Section, the
Securities may have endorsed thereon, in addition to or in lieu of the
Trustee’s certification of authentication, an alternative certificate of
authentication in the following form:


This is one of the
Securities referred to in the within-mentioned Indenture.


 


	
   

  	
  AMERICAN STOCK TRANSFER
  &

  
	
   

  	
  TRUST
  COMPANY

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 


Section 6.13                                                        Disqualification;
Conflicting Interests.


 


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


 


Section 6.14                                                        Preferential
Collection of Claims Against Company.


 


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


 


ARTICLE VII

CONSOLIDATION, MERGER,
CONVEYANCE,

TRANSFER OR LEASE


 


Section 7.1                                                              Company
May Consolidate, Etc. Only on Certain Terms.


 


The Company shall not
consolidate with or merge with or into any other Person or convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and
assets to any Person unless:


 


(1)                                  the
Person formed by such consolidation or into or with which the Company is merged
or the Person to which the properties and assets of the Company are so
conveyed, transferred, sold or leased shall be a corporation, limited liability
company, partnership or trust organized and validly existing under the laws of
the United States of America, any State thereof or the District of Columbia
and, if other than the Company, shall expressly assume, by an indenture


 


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supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and interest (including Liquidated Damages, if any) on all of
the Securities as applicable, and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in all material respects
in accordance with Article XII;


 


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


 


(3)                                  the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer,
lease or other disposal and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with, together with any documents required
under Section 8.3.


 


For purposes of this
Section, the sale, lease, conveyance assignment, transfer, or other disposition
of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially all
of the properties and assets of the Company on a consolidated basis, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.


 


Section 7.2                                                              Successor
Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company with or into any other Person or any
conveyance, transfer, lease or other disposal of all or substantially all the
properties and assets of the Company in accordance with Section 7.1, the
successor Person formed by such consolidation or into or with which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall not be relieved of all obligations and
covenants under this Indenture and the Securities.


 


ARTICLE VIII

SUPPLEMENTAL INDENTURES


 


Section 8.1                                                              Supplemental
Indentures Without Consent of Holders of Securities.


 


Without the consent of
any Holders of Securities, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto for any of the following purposes:


 


(1)                                  to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants and obligations of the Company herein and
in the Securities as permitted by Article VII of this Indenture; or


 


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(2)                                  to
add to the covenants of the Company or Events of Default for the benefit of the
Holders of Securities or to surrender any right or power herein conferred upon
the Company; or


 


(3)                                  to
secure the Securities; or


 


(4)                                  to
make provision with respect to the conversion rights of Holders of Securities
pursuant to Section 12.11 or to make provision with respect to the
repurchase rights of Holders of Securities pursuant to Section 14.6; or


 


(5)                                  to
make any changes or modifications to this Indenture necessary in connection
with the registration of any Registrable Securities under the Securities Act as
contemplated by Section 10.8, provided
that such action pursuant to this clause (5) shall not adversely affect the
interests of the Holders of Securities in any material respect; or


 


(6)                                  to
comply with the requirements of the Trust Indenture Act or the rules and
regulations of the Commission thereunder in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act, as contemplated
by this Indenture or otherwise; or


 


(7)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee; or


 


(8)                                  to
cure any ambiguity, to correct or supplement any provision herein that may be
inconsistent with any other provision herein or that is otherwise defective, or
to make any other provisions with respect to matters or questions arising under
this Indenture as the Company and the Trustee may deem necessary or desirable, provided that such action pursuant to this
clause (8) shall not adversely affect the interests of the Holders of Securities
in any material respect.


 


Upon Company Request,
accompanied by a Board Resolution authorizing the execution of any such
supplemental indenture, and subject to and upon receipt by the Trustee of the
documents described in Section 8.3, the Trustee shall join with the
Company in the execution of any supplemental indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements
and stipulations that may be therein contained.


 


Notwithstanding any other
provision of the Indenture or the Securities, the Registration Rights Agreement
and the obligation to pay Liquidated Damages thereunder may be amended,
modified or waived in accordance with the provisions of the Registration Rights
Agreement.


 


Section 8.2                                                              Supplemental
Indentures with Consent of Holders of Securities.


 


With the written consent
of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by the Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities under this Indenture; provided, however,
that no such


 


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supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,


 


(1)                                  extend
the Stated Maturity of the principal of, or the time of payment of interest on,
any Security, or reduce the principal amount thereof or the rate of interest
payable thereon, or reduce, change the terms or alter the method of computation
of the amount payable upon a redemption or mandatory repurchase, or change the
place or currency of payment of the principal of or interest on any Security
(including any payment of Liquidated Damages (except as may be effected through
an amendment with the Registration Rights Agreement in accordance with its
terms), Redemption Price, Repurchase Price or Designated Event Repurchase Price
in respect of such Security) or impair the right to institute suit for the
enforcement of any payment in respect of any Security on or after the Stated
Maturity thereof (or, in the case of redemption or any repurchase, on or after
the Redemption Date or Repurchase Date, as the case may be) or, except as
permitted by Section 12.11, adversely affect the right of Holders to
convert any Security as provided in Article XII; or


 


(2)                                  reduce
the percentage in principal amount of the Outstanding Securities the consent of
whose Holders is required for any such supplemental indenture or the consent of
whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or


 


(3)                                  modify
the obligation of the Company to maintain an office or agency in the Borough of
Manhattan, The City of New York, pursuant to Section 10.2; or


 


(4)                                  modify
any of the provisions of this Section or Section 5.13 or
Section 10.9, except to increase any percentage contained herein or
therein or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; or


 


(5)                                  modify
the provisions of Article XI in a manner adverse to the Holders; or


 


(6)                                  modify
any of the provisions of Section 10.6.


 


It shall not be necessary
for any Act of Holders of Securities 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.


 


Section 8.3                                                              Execution
of Supplemental Indentures.


 


In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1 and Section 6.3) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
such supplemental indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms subject to


 


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general equity principles
and applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, arrangement, dissolution, moratorium or other similar laws
relating to or affecting creditors’ rights generally. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


 


Section 8.4                                                              Effect
of Supplemental Indentures.


 


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


 


Section 8.5                                                              Reference
in Securities to Supplemental Indentures.


 


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


 


Section 8.6                                                              Notice
of Supplemental Indentures.


 


Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.2, the Company shall give notice to all
Holders of Securities of such fact, setting forth in general terms the
substance of such supplemental indenture, in the manner provided in
Section 1.6. Any failure of the Company to give such notice, or any defect
therein, shall not in any way impair or affect the validity of any such
supplemental indenture.


 


ARTICLE IX

HOLDERS LISTS AND
REPORTS

BY TRUSTEE AND COMPANY


 


Section 9.1                                                              Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish
or cause to be furnished to the Trustee:


 


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


 


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


 


provided,
however, that no such list need
be furnished so long as the Trustee is acting as Security Registrar.


 


Section 9.2                                                              Preservation
of Information.


 


(1)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 9.1 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list, if any, furnished to it as provided in
Section 9.1 upon receipt of a new list so furnished.


 


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


 


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


 


Section 9.3                                                              Reports
by Trustee.


 


(1)                                  After
this Indenture has been qualified under the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.


 


(2)                                  After
this Indenture has been qualified under the Trust Indenture Act, a copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange.


 


Section 9.4                                                              Reports
by Company.


 


After this Indenture has
been qualified under the Trust Indenture Act, the Company shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.


 


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ARTICLE X

COVENANTS


 


Section 10.1                                                        Payment
of Principal and Interest.


 


The Company covenants and
agrees that it will duly and punctually pay the principal of and interest
(including Liquidated Damages, if any) on the Securities in accordance with the
terms of the Securities and this Indenture. The Company will deposit or cause
to be deposited with the Trustee or its nominee, no later than the opening of
business on the date of the Stated Maturity of any Security or no later than
the opening of business on the due date for any installment of interest, all
payments so due, which payments shall be in immediately available funds on the
date of such Stated Maturity or due date, as the case may be.


 


Section 10.2                                                        Maintenance
of Offices or Agencies.


 


The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
the Securities may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will 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,
surrenders, notices and demands may be made or served at the Corporate Trust
Office or the office or agency of the Trustee in the Borough of Manhattan, The
City of New York.


 


The Company may at any
time and from time to time vary or terminate the appointment of any such agent
or appoint any additional agents for any or all of such purposes; provided, however,
that until all of the Securities have been delivered to the Trustee for
cancellation, or moneys sufficient to pay the principal of and interest
(including Liquidated Damages, if any) on the Securities have been made available
for payment and either paid or returned to the Company pursuant to the
provisions of Section 10.3, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment and conversion, which shall initially be
the Corporate Trust Office where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee, and notice to the Holders in
accordance with Section 1.6, 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.


 


The Company hereby
initially designates the Trustee as Paying Agent, Security Registrar,
Conversion Agent and Calculation Agent, and each of the Corporate Trust Office
of the Trustee and the office or agency of the Trustee in the Borough of Manhattan,
The City of New York, located at 59 Maiden Lane, New York, New York 10038,
attention: Corporate Trust Administration


 


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(priceline.com
Incorporated 2.25% Convertible Senior Notes due January 15, 2025) as one
such office or agency of the Company for each of the aforesaid purposes.


 


Section 10.3                                                        Money
for Security Payments to Be Held in Trust.


 


If the Company shall act
as its own Paying Agent, it will, on or before each due date of the principal
of or interest (including Liquidated Damages, if any) on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
the Company will promptly notify the Trustee of its action or failure so to
act.


 


Whenever the Company
shall have one or more Paying Agents, it will, no later than the opening of
business on each due date of the principal of or interest on any Securities,
deposit with the Trustee a sum in funds immediately payable on the payment date
sufficient to pay the principal or interest so becoming due, such sum to be
held for the benefit of the Persons entitled to such principal or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure so to act.


 


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


 


(1)                                  hold
all sums held by it for the payment of the principal of or interest on
Securities for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;


 


(2)                                  give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal or interest; and


 


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


 


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


 


Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or interest on any Security and remaining unclaimed
for two years after such principal or interest has become due and payable shall
be paid within 60 days of such date by the Trustee to the Company on Company
Request as its property free from trust, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all


 


67
















 


liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.


 


Section 10.4                                                        Existence.


 


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


 


Section 10.5                                                        Statement
by Officers as to Default.


 


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


 


The Company will deliver
to the Trustee, forthwith upon becoming aware of any default or any Event of
Default under the Indenture, an Officers’ Certificate specifying with
particularity such default or Event of Default and further stating what action
the Company has taken, is taking or proposes to take with respect thereto.  For the purpose of this Section, the term
“default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default.


 


Any notice required to be
given under this Section shall be delivered to the Trustee at its
Corporate Trust Office.


 


Section 10.6                                                        Delivery
of Certain Information.


 


At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Restricted Security or the holder of shares of
Common Stock issued upon conversion thereof, the Company will promptly furnish
or cause to be furnished Rule 144A Information (as defined below) to such
Holder of Restricted Securities or such holder of shares of Common Stock issued
upon conversion of Restricted Securities, or to a prospective purchaser of any
such security designated by any such Holder or holder, as the case may be, to
the extent required to permit compliance by such Holder or holder with Rule
144A under the Securities Act (or any successor provision thereto) in
connection with the resale of any such security; provided, however,
that the Company shall not be required to furnish such information in
connection with any request made on or after the date that is two years from
the later of (i) the date such a security (or any such predecessor security) was
last acquired from the Company or (ii) the date such a security (or any such
predecessor security) was last acquired from an “affiliate” of the Company
within the meaning of Rule 144 under the Securities Act (or any successor
provision thereto). “Rule 144A Information”


 


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shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto).


 


Section 10.7                                                        Resale
of Certain Securities.


 


During the period
beginning on the last date of original issuance of the Securities and ending on
the date that is two years from such date (or such shortened period under Rule
144(k) under the Securities Act or any successor rule), the Company will not,
and will not permit any of its subsidiaries or other “affiliates” (as defined
under Rule 144 under the Securities Act or any successor provision thereto) to,
resell (i) any Securities that constitute “restricted securities” under Rule
144 or (ii) any securities into which the Securities have been converted under
this Indenture that constitute “restricted securities” under Rule 144, that in
either case have been reacquired by any of them.  The Trustee shall have no responsibility in
respect of the Company’s performance of its agreement in the preceding
sentence.


 


Section 10.8                                                        Registration
Rights.


 


The Company agrees that
the Holders from time to time of Registrable Securities (as defined below) are
entitled to the benefits of a Registration Rights Agreement, dated as of
June 28, 2004 (the “Registration Rights Agreement”), executed by the
Company as it may be amended from time to time in accordance with its terms.


 


Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
or interest on, or in respect of, any Security, such mention shall be deemed to
include mention of the payment of Liquidated Damages provided for in this
Section to the extent that, in such context, Liquidated Damages are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Liquidated Damages (if
applicable) in any provisions hereof shall not be construed as excluding
Liquidated Damages in those provisions hereof where such express mention is not
made.


 


For the purposes of the
Registration Rights Agreement, “Registrable Securities” means all or any
portion of the Securities issued from time to time under this Indenture in
registered form and the shares of Common Stock issuable upon conversion, repurchase
or redemption of such Securities; provided,
however, that a security ceases
to be a Registrable Security when it is no longer a Restricted Security.


 


If a Security, or the
shares of Common Stock issuable upon conversion of a Security, is a Registrable
Security, and the Holder thereof elects to sell such Registrable Security
pursuant to the Shelf Registration Statement then, by its acceptance thereof,
the Holder of such Registrable Security will have agreed to be bound by the
terms of the Registration Rights Agreement relating to the Registrable
Securities which are the subject of such election.


 


For the purposes of the
Registration Rights Agreement, the term “Holder” includes any Person that has a
beneficial interest in any Restricted Global Security or any beneficial
interest in a global security representing shares of Common Stock issuable upon
conversion of a Security.


 


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If Liquidated Damages are
payable under the Registration Rights Agreement, the Company shall deliver to
the Trustee a certificate to that effect stating (i) the amount of Liquidated
Damages that is payable and (ii) the date on which Liquidated Damages are
payable.  Unless and until a Responsible
Officer of the Trustee receives at the Corporate Trust Office such a
certificate, the Trustee may assume without inquiry that no Liquidated Damages
are payable.  If Liquidated Damages have
been paid by the Company directly to the persons entitled to them, the Company
shall deliver to the Trustee a certificate setting forth the particulars of
such payment.


 


Section 10.9                                                        Waiver
of Certain Covenants.


 


The Company may omit in
any particular instance to comply with any covenant or condition set forth in
Section 10.4 (other than with respect to the existence of the Company
(subject to Article VII)) and Section 10.7, if before the time for
such compliance the Holders of not less than a majority in principal amount of
the Outstanding Securities, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee or any
Paying or Conversion Agent in respect of any such covenant or condition shall
remain in full force and effect.


 


ARTICLE XI

REDEMPTION OF SECURITIES


 


Section 11.1                                                        Right
of Redemption.


 


The Securities may be
redeemed in accordance with the provisions of the form of Securities set forth
in Section 2.2.


 


Section 11.2                                                        Applicability
of Article.


 


Redemption of Securities
at the election of the Company or otherwise, as permitted or required by any
provision of the Securities or this Indenture, shall be made in accordance with
such provision and this Article.


 


Section 11.3                                                        Election
to Redeem; Notice to Trustee.


 


The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of any of the Securities,
the Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date.


 


Section 11.4                                                        Selection
by Trustee of Securities to Be Redeemed.


 


If less than all the
Securities are to be redeemed, the particular Securities to be redeemed shall
be selected by the Trustee (in principal amounts of $1,000 or integral
multiples thereof) within


 


70
















 


five Business Days after
it receives the notice described in Section 11.3, from the Outstanding
Securities not previously called for redemption, by lot or by such other method
as the Trustee may deem fair and appropriate.


 


If any Security selected
for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities which have been converted during a
selection of Securities to be redeemed may be treated by the Trustee as
Outstanding for the purpose of such selection. 
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.


 


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


 


Section 11.5                                                        Notice
of Redemption.


 


Notice of redemption
shall be given by the Company in the manner provided in Section 1.6 to the
Trustee, the Paying Agent and the Holders of Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date, and such notice
shall be irrevocable.  The Company shall,
concurrently with the giving of such notice, publish a Press Release including
the information required to be included in such notice of redemption hereunder.


 


All notices of redemption
shall state:


 


(1)                                  the
Redemption Date,


 


(2)                                  the
Redemption Price, and accrued but unpaid interest (including Liquidated
Damages, if any), if any, to, but excluding, the Redemption Date,


 


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


 


(4)                                  that
on the Redemption Date the Redemption Price, and accrued but unpaid interest
(including Liquidated Damages, if any), if any, to, but excluding, the
Redemption Date, will become due and payable upon each such Security to be
redeemed, and that interest thereon shall cease to accrue on and after said
date,


 


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


 


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(6)                                  the
place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest (including Liquidated Damages, if any),
if any, to, but excluding, the Redemption Date.


 


In case of a partial
redemption, the notice shall specify the serial and CUSIP numbers (if any) and
the portions thereof called for redemption and that transfers and exchanges may
occur on or prior to the Redemption Date.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s written request, by the Trustee in the name of and
at the expense of the Company. Notice of redemption of Securities to be
redeemed at the election of the Company received by the Trustee shall be given
by the Trustee to each Paying Agent in the name of and at the expense of the
Company.


 


Section 11.6                                                        Deposit
of Redemption Price.


 


On or prior to the
Redemption Date, the Company shall deposit with the Trustee (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money (which shall be in immediately available
funds on such Redemption Date) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest (including Liquidated Damages, if any) to the Redemption Date on, all
the Securities which are to be redeemed on that date other than any Securities
called for redemption on that date which have been converted prior to the date
of such deposit.


 


If any Security called
for redemption is converted, any money deposited with the Trustee or so
segregated and held in trust for the redemption of such Security shall (subject
to any right of the Holder of such Security or any Predecessor Security to receive
interest as provided in the last paragraph of Section 3.7) be paid to the
Company on Company Request or, if then held by the Company, shall be discharged
from such trust.


 


Section 11.7                                                        Securities
Payable on Redemption Date.


 


Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price, including accrued interest) such Securities
shall cease to bear interest. Upon surrender of any Security for redemption in
accordance with said notice such Security shall be paid by the Company at the
Redemption Price together with accrued and unpaid interest (including
Liquidated Damages, if any) to but excluding the Redemption Date; provided, however,
that installments of interest on Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such on the relevant
Record Date according to their terms and the provisions of Section 3.7.


 


If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal amount of and, to the extent permitted by applicable law, accrued
interest on such Security shall, until paid, bear interest from the Redemption
Date at a rate of 1.00% per


 


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annum and such Security
shall remain convertible until the Redemption Price of such Security (or
portion thereof, as the case may be) shall have been paid or duly provided for.


 


Any Security that is to
be redeemed only in part shall be surrendered at the Corporate Trust Office or
an office or agency of the Company designated for that purpose pursuant to
Section 10.2 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. Upon redemption, interests in Global Securities
shall be reduced in accordance with the Applicable Procedures.


 


Section 11.8                                                        Conversion
Arrangement on Call for Redemption.


 


In connection with any
redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities by an agreement with one or more investment
bankers or other purchasers (the “Purchasers”) to purchase such securities by
paying to the Trustee in trust for the Holders, on or before the Redemption
Date, an amount not less than the applicable Redemption Price, together with any
interest accrued and unpaid to but excluding the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article,
the obligation of the Company to pay the Redemption Price, together with any
interest accrued and unpaid to but excluding the Redemption Date, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such Purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the close of business on the Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be
acquired by such Purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article XII) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it by the Purchasers to the Holders in the same manner as it would
monies deposited with it by the Company for the redemption of Securities.
Without the Trustee’s prior written consent, no arrangement between the Company
and such Purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
Purchasers, including the costs and expenses, including reasonable legal fees,
incurred by the Trustee in the defense of any claim or liability arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.


 


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ARTICLE XII

CONVERSION OF SECURITIES


 


Section 12.1                                                        Conversion
Privilege and Conversion Rate.


 


(a)                                  Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, any Security (or any portion thereof equal to $1,000 or any
integral multiple of $1,000 in excess thereof) may be converted into fully paid
and nonassessable shares (calculated as to each conversion to the nearest
1/100th of a share) of Common Stock of the Company at the Conversion Rate,
determined as hereinafter provided, in effect at the time of conversion as
follows:


 


(1)                                  if,
on or prior to January 15, 2020, the Closing Price Per Share of the Common
Stock for at least 20 Trading Days in the period of the 30 consecutive Trading
Days ending on the first day of a Conversion Period was more than 120% of the
then current Conversion Price, then the Holder thereof will be entitled to
convert such Security during that Conversion Period;


 


(2)                                  if,
on any date after January 15, 2020 and prior to the Stated Maturity, the
Closing Price Per Share of the Common Stock is more than 120% of the then
current Conversion Price, then the Holder thereof will be entitled to convert
such Security at all times thereafter;


 


(3)                                  if
the Company distributes to all or substantially all holders of Common Stock
rights, options or warrants entitling them to purchase Common Stock at less
than the Closing Price Per Share of the Common Stock on the last Trading Day
preceding the declaration of such distribution, then the Holder thereof will be
entitled to convert such Security during the period specified in this Section;


 


(4)                                  if
the Company distributes to all or substantially all holders of Common Stock
cash, assets, debt securities or capital stock, which distribution has a per
share value as determined by the Board of Directors exceeding 5% of the Closing
Price Per Share of the Common Stock on the last Trading Day preceding the
declaration for such distribution, then the Holder thereof will be entitled to
convert such Security during the period specified in this Section;


 


(5)                                  if
a Fundamental Change occurs, then the Holder thereof will be entitled to
convert such Security during the period specified in this Section; or


 


(6)                                  if,
on or after January 20, 2010, the Company elects to call any Security for
redemption, then the Holder thereof will be entitled to convert such Security
at any time from and after the date on which the Company gives notice of such
redemption until the close of business on the Business Day immediately
preceding the Redemption Date.


 


A “Conversion Period” for
the Securities is the period from and including the eleventh Trading Day in any
fiscal quarter of the Company to, but excluding, the eleventh Trading Day of
the immediately following fiscal quarter.


 


In the case of a
distribution contemplated by clauses (3) and (4) of this subsection (a),
the Company will notify Holders at least 20 days prior to the ex-dividend date
for such distribution (the


 


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“Distribution
Notice”).  Once the Company has given the
Distribution Notice, Holders may surrender their Securities for conversion at
any time until the earlier of the close of business on the last Business Day
preceding the ex-dividend date or the Company’s announcement that such
distribution will not take place. 
Notwithstanding the foregoing, in the event of a distribution
contemplated by clauses (3) and (4) of this subsection (a), Holders may
not convert the Securities if the Holders may participate in such distribution
without converting their Securities.  In
the event of a consolidation, merger or sale of all or substantially all of the
Company’s assets as contemplated by clause (5) of this subsection (a), the
Company will notify Holders at least 20 days prior to the anticipated closing
date of such transaction (the “Fundamental Change Notice”).  Once the Company has given the Fundamental
Change Notice, the Holders may, in the event of such consolidation, merger or
sale of all or substantially all of the Company’s assets, surrender Securities
for conversion at any time from and after the date which is 15 days prior to
the anticipated closing date of such transaction until the date which is 15
days after the actual closing date of such transaction.


 


With respect to clause
(1) of this subsection (a), the Conversion Agent will determine, on behalf
of the Company, on the first Business Day succeeding the first day of the
Conversion Period whether the Securities are convertible as set forth in such
clause (1) as a result of the Closing Price Per Share of the Common Stock and
the then current Conversion Price and, if so, will notify the Company.  With respect to clause (2) of this
subsection (a), the Conversion Agent will determine, on behalf of the
Company, daily on any date after January 15, 2020, whether the Securities
are convertible as set forth in such clause (2) as a result of the Closing
Price Per Share of the Common Stock and the then current Conversion Price and,
if so, will notify the Company.


 


(b)                                 Subject
to the further provisions of this Article, a Holder of a Security may also
convert the principal amount of such Security (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock for the five Business Day period after any five
consecutive Trading Day period in which the average Trading Prices for the
Securities for such five Trading Day period was less than 95% of the average
Conversion Value for the Securities during such period; provided, however,
if on the Conversion Date, the Closing Price Per Share of Common Stock is
greater than the then current Conversion Price and less than or equal to 120%
of the then current Conversion Price, a Holder surrenders its Securities for
conversion and the Securities are not otherwise convertible, then such Holder
will receive, at the Company’s option, cash, Common Stock or a combination of
cash and Common Stock with a value equal to the principal amount of such
Holder’s Securities on such Conversion Date. 
If the Company elects to pay the Holder in Common Stock or in a
combination of cash and Common Stock, the Company will notify the Holder in
writing, and the Common Stock will be valued at 100% of the average Closing
Price Per Share of Common Stock for the five Trading Days immediately following
the Conversion Date.


 


The “Conversion Value”
for the Securities is equal to the product of (i) the Closing Price Per Share
of the Common Stock on a given day and (ii) the then current Conversion Rate.


 


The “Trading Price” of
the Securities on any Trading Day means the secondary market bid quotations per
Security obtained by the Conversion Agent for $5,000,000 principal amount of
the


 


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Securities at
approximately 3:30 p.m., New York City time, on such Trading Day from an
independent nationally recognized securities dealer the Company selects; provided that if the Conversion Agent
cannot reasonably obtain a bid for $5,000,000 principal amount of the
Securities from a nationally recognized securities dealer or if in the
Company’s reasonable judgment, the bid quotations are not indicative of the
secondary market value of the Securities, then the Trading Price of the
Securities will be deemed to be equal to the product of the then current
Conversion Rate and the Closing Price Per Share of Common Stock on such Trading
Day.


 


The Conversion Agent
shall have no obligation to determine the Trading Price of the Securities
unless the Company has requested such determination; and the Company shall have
no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price of the Securities is reasonably
likely to be less than 95% of the Conversion Value; at which time, the Company
shall instruct the Conversion Agent to determine the Trading Price of the
Securities beginning on the next Trading Day and on each successive Trading Day
until the Trading Price is greater than or equal to 95% of the Conversion
Value.


 


In the case of a
conversion pursuant to subsection (a)(5) of this subsection upon a
Fundamental Change with an Effective Date that is on or before January 15,
2010, Holders electing to convert shall also receive the Make Whole Premium
payable upon such conversion as set forth in Article XV hereof.


 


(c)                                  The
conversion right, subject to the conditions described in subsections (a) and
(b) of this Section, shall commence on the initial issuance date of the
Securities and expire at the close of business on the date of Maturity,
subject, in the case of conversion of any Global Security, to any Applicable
Procedures. In case a Security or portion thereof is called for redemption at
the election of the Company or the Holder thereof exercises his right to
require the Company to repurchase the Security, such conversion right in
respect of the Security, or portion thereof so called, shall expire at the
close of business on the Business Day immediately preceding the Redemption Date
or the Repurchase Date, as the case may be, unless the Company defaults in
making the payment due upon redemption or repurchase, as the case may be (in
each case subject as aforesaid to any Applicable Procedures with respect to any
Global Security).


 


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


 


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


 


The rate at which shares
of Common Stock shall be delivered upon conversion (herein called the
“Conversion Rate”) shall be initially 26.3505 shares of Common Stock for each
U.S. $1,000 principal amount of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in this Article.


 


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Section 12.2                                                        Exercise
of Conversion Privilege.


 


In order to exercise the
conversion privilege, the Holder of any Security to be converted shall
surrender such Security, duly endorsed in blank, at any office or agency of the
Company maintained for that purpose pursuant to Section 10.2, accompanied
by a duly signed conversion notice substantially in the form set forth in
Section 2.4 stating that the Holder elects to convert such Security or, if
less than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Each Security surrendered for conversion (in whole or
in part) during the Record Date Period shall (except in the case of any
Security or portion thereof which has been called for redemption on a
Redemption Date, or is repurchasable on a Repurchase Date, occurring, in either
case, within such Record Date Period and, as a result, the right to convert
such Security would otherwise terminate in such period if not exercised) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security (or part
thereof, as the case may be) being surrendered for conversion. The interest so
payable on such Interest Payment Date with respect to any Security (or portion
thereof, if applicable) that is surrendered for conversion during the Record
Date Period shall be paid to the Holder of such Security as of such Regular
Record Date in an amount equal to the interest that would have been payable on
such Security if such Security had been converted as of the close of business
on such Interest Payment Date.  Interest
payable on any Interest Payment Date in respect of any Security surrendered for
conversion on or after such Interest Payment Date shall be paid to the Holder
of such Security as of the Regular Record Date next preceding such Interest
Payment Date, notwithstanding the exercise of the right of conversion.  Except as provided in this paragraph and
subject to the last paragraph of Section 3.7, no cash payment or
adjustment shall be made upon any conversion on account of any interest accrued
from the Interest Payment Date next preceding the conversion date, in respect
of any Security (or part thereof, as the case may be) surrendered for
conversion, or on account of any dividends on the Common Stock issued upon
conversion. The Company’s delivery to the Holder of the number of shares of
Common Stock (and cash in lieu of fractions thereof, as provided in this
Indenture) into which a Security is convertible will be deemed to satisfy the
Company’s obligation to pay the principal amount of the Security.


 


Securities shall be
deemed to have been converted immediately prior to the close of business on the
day of surrender of such Securities for conversion in accordance with the
foregoing provisions, and at such time the rights of the Holders of such
Securities as Holders shall cease, and the Person or Persons entitled to
receive the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the Conversion Date, the Company shall
issue and deliver to the Trustee, for delivery to the Holder (unless a
different Person is indicated on the Conversion Notice), a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 12.3.


 


All shares of Common
Stock delivered upon such conversion of Restricted Securities shall bear
restrictive legends substantially in the form of the legends required to be set
forth on the Restricted Securities pursuant to Section 3.5 and shall be
subject to the restrictions on transfer provided in such legends. Neither the
Trustee nor any agent maintained for the purpose of such


 


77
















 


conversion shall have any
responsibility for the inclusion or content of any such restrictive legends on
such Common Stock; provided, however, that the Trustee or any agent
maintained for the purpose of such conversion shall have provided, to the
Company or to the Company’s transfer agent for such Common Stock, prior to or
concurrently with a request to the Company to deliver such Common Stock,
written notice that the Securities delivered for conversion are Restricted
Securities.


 


In the case of any
Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of
authorized denominations in an aggregate principal amount equal to the unconverted
portion of the principal amount of such Security. A Security may be converted
in part, but only if the principal amount of such Security to be converted is
any integral multiple of $1,000 and the principal amount of such Security to
remain Outstanding after such conversion is equal to $1,000 or any integral
multiple of $1,000 in excess thereof.


 


If shares of Common Stock
to be issued upon conversion of a Restricted Security, or Securities to be
issued upon conversion of a Restricted Security in part only, are to be
registered in a name other than that of the beneficial owner of such Restricted
Security, then such Holder must deliver to the Conversion Agent a Surrender
Certificate, dated the date of surrender of such Restricted Security and signed
by such beneficial owner, as to compliance with the restrictions on transfer
applicable to such Restricted Security. Neither the Trustee nor any Conversion
Agent, Registrar or Transfer Agent shall be required to register in a name
other than that of the beneficial owner, shares of Common Stock or Securities
issued upon conversion of any such Restricted Security not so accompanied by a
properly completed Surrender Certificate.


 


Section 12.3                                                        Fractions
of Shares.


 


No fractional shares of
Common Stock shall be issued upon conversion of any Security or Securities. If
more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock that would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall calculate and pay a cash adjustment in respect of such fraction
(calculated to the nearest 1/100th of a share) in an amount equal to the same
fraction of the Closing Price Per Share at the close of business on the day of
conversion.


 


Section 12.4                                                        Adjustment
of Conversion Rate.


 


The Conversion Rate shall
be subject to adjustments from time to time as follows:


 


(1)                                  In
case the Company shall pay or make a dividend or other distribution on shares
of Common Stock payable in shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such


 


78
















 


number of shares and the total number of shares
constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. If, after any such date fixed for determination,
any dividend or distribution is not in fact paid, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, to the Conversion Rate
that would have been in effect if such determination date had not been fixed.
For the purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(2)                                  In
case the Company shall issue rights, options or warrants to all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (determined
as provided in paragraph (8) of this Section) of the Common Stock on the date
fixed for the determination of stockholders entitled to receive such rights,
options or warrants (other than any rights, options or warrants that by their
terms will also be issued to any Holder upon conversion of a Security into shares
of Common Stock without any action required by the Company or any other
Person), the Conversion Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Conversion Rate by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock that the
aggregate of the offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. If, after
any such date fixed for determination, any such rights, options or warrants are
not in fact issued, or are not exercised prior to the expiration thereof, the
Conversion Rate shall be immediately readjusted, effective as of the date such
rights, options or warrants expire, or the date the Board of Directors
determines not to issue such rights, options or warrants, to the Conversion
Rate that would have been in effect if the unexercised rights, options or
warrants had never been granted or such determination date had not been fixed,
as the case may be.  For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. 
The Company will not issue any rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.


 


(3)                                  In
case outstanding shares of Common Stock shall be subdivided into a greater
number of shares of 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 Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such subdivision or
combination becomes


 


79
















 


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.


 


(4)                                  In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares of any class of capital
stock or other property (including cash or assets or securities, but excluding
(i) any rights, options or warrants referred to in paragraph (2) of this
Section, (ii) any dividend or distribution paid exclusively in cash referred to
in paragraph (5) of this Section, (iii) any dividend or distribution referred
to in paragraph (1) of this Section and (iv) any consideration distributed
in any merger or consolidation to which Section 12.11 applies), the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets, shares or
evidences of indebtedness so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of the
Common Stock, such adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.  If after any such date fixed for
determination, any such distribution is not in fact made, the Conversion Rate
shall be immediately readjusted, effective as of the date the Board of
Directors determines not to make such distribution, to the Conversion Rate that
would have been in effect if such determination date had not been fixed.


 


(5)                                  In
case the Company shall, by dividend or otherwise, distribute cash (excluding
cash that is distributed upon a merger or consolidation to which
Section 12.11 applies) to all holders of its Common Stock, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal to the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the date fixed for such determination and (ii)
the denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Stock
on such date fixed for determination minus the amount of the cash distribution
per share, such adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.  If after any such date fixed for
determination, any such distribution is not in fact made, the Conversion Rate
shall be immediately readjusted, effective as of the date the Board of Directors
determines not to make such distribution, to the Conversion Rate that would
have been in effect if such determination date had not been fixed.


 


(6)                                  In
case the Company or any Subsidiary shall purchase shares of Common Stock
pursuant to a tender or exchange offer for all or any portion of the Common
Stock (the shares accepted by the Company or such Subsidiary in such offer
being referred to as the “Purchased


 


80
















 


Shares”) and the per share amount of cash and fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of any other
consideration included in the payment for a Purchased Share exceeds the Closing
Price Per Share on the Trading Day next succeeding the date (the “Expiration
Date”) of the last time tenders or surrenders for exchange could have been made
pursuant to such tender or exchange offer (as it may be amended), the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate immediately prior to close of
business on the Trading Day next succeeding the Expiration Date by a fraction
(i) the numerator of which shall be equal to (A) the product of (I) the current
market price per share of the Common Stock (determined as provided in paragraph
(8) of this Section) on the Expiration Date multiplied by (II) the total number
of shares of Common Stock outstanding on the Expiration Date (including the
Purchased Shares and any other shares tendered or surrendered for exchange)
less (B) the aggregate amount of cash and fair market value of other
consideration to be paid for all Purchased Shares, and (ii) the denominator of
which shall be equal to the product of (A) the current market price per share
of the Common Stock (determined as provided in paragraph (8) of this Section)
on the Expiration Date multiplied by (B) the total  number of shares of Common Stock outstanding
on the Expiration Date (including the Purchased Shares and any other shares
tendered or surrendered for exchange) less the total number of Purchased
Shares, such adjustment to become effective immediately prior to the opening of
business on the day following the Trading Day next succeeding the Expiration
Date.


 


(7)                                  The
reclassification of Common Stock into securities other than Common Stock (other
than any reclassification upon a consolidation or merger to which
Section 12.11 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be “the date fixed
for the determination of stockholders entitled to receive such distribution”
and “the date fixed for such determination” within the meaning of paragraph (4)
of this Section), and (b) a subdivision or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed to
be “the day upon which such subdivision becomes effective” or “the day upon
which such combination becomes effective,” as the case may be, and “the day
upon which such subdivision or combination becomes effective” within the
meaning of paragraph (3) of this Section).


 


(8)                                  For
the purpose of any computation under paragraphs (2), (4), or (6) of this
Section, the current market price per share of Common Stock on any date shall
be calculated by the Company and be the average of the daily Closing Prices Per
Share for the five consecutive Trading Days selected by the Company commencing
not more than 10 Trading Days before, and ending not later than the earlier of
the day in question and the day before the “ex” date with respect to the
issuance or distribution requiring such computation. For the purpose of any
computation under paragraph (5) of this Section, the current market price per
share of Common Stock on any date shall be calculated by the Company and be the
average of the daily Closing Prices Per Share for the first ten Trading Days
from and including the first “ex” date on which the Common Stock trades regular
way in the applicable securities market or on the applicable securities
exchange. For purposes of this paragraph, the term “‘ex’ date,” when used with
respect to any issuance or distribution, means the first date on


 


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which the Common Stock trades regular way in the applicable
securities market or on the applicable securities exchange without the right to
receive such issuance or distribution.


 


(9)                                  All
calculations under this Article shall be made to the nearest cent or to
the nearest one-hundredth of a share, as the case may be.


 


(10)                            The
Company may make such increases in the Conversion Rate, for the remaining term
of the Securities or any shorter term, in addition to those required by
paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to
be advisable in order to avoid or diminish any income tax to any holders of
shares of Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes. The Company shall have the power
to resolve any ambiguity or correct any error in this paragraph (10) and its
actions in so doing shall, absent manifest error, be final and conclusive.


 


(11)                            Notwithstanding
the foregoing provisions of this Section, no adjustment of the Conversion Rate
shall be required to be made (a) upon the issuance of shares of Common Stock
pursuant to any present or future plan for the reinvestment of dividends or (b)
because of a tender or exchange offer of the character described in Rule
13e-4(h)(5) under the Exchange Act or any successor rule thereto.


 


(12)                            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 twenty days, the increase is irrevocable during such 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 give notice of the
increase to the Holders in the manner provided in Section 1.6 at least 15
days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it
will be in effect.


 


Section 12.5                                                        Notice
of Adjustments of Conversion Rate.


 


Whenever the Conversion
Rate is adjusted as herein provided:


 


(1)                                  the
Company shall compute the adjusted Conversion Rate in accordance with
Section 12.4 and shall prepare a certificate signed by the Chief Financial
Officer of the Company setting forth the adjusted Conversion Rate and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and


 


(2)                                  upon
each such adjustment, a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall be required, and
as soon as practicable after it is required, such notice shall be provided by
the Company to all Holders in accordance with Section 1.6.


 


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Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect to
any such certificate or the information and calculations contained therein,
except to exhibit the same to any Holder of Securities desiring inspection
thereof at its office during normal business hours.


 


Section 12.6                                                        Notice
of Certain Corporate Action.


 


In case:


 


(1)                                  the
Company shall declare a dividend (or any other distribution) on its Common
Stock; or


 


(2)                                  the
Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or


 


(3)                                  of
any reclassification of the Common Stock, or of any consolidation, merger or
share exchange to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance, sale, transfer
or lease of all or substantially all of the assets of the Company; or


 


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


 


then the Company shall
cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2, and shall cause to be
provided to all Holders in accordance with Section 1.6, at least 20 days
(or 10 days in any case specified in clause (1) or (2) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, sale, lease,
dissolution, liquidation or winding up. Neither the failure to give such notice
or the notice referred to in the following paragraph nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(1) through (4) of this Section.  If at
the time the Trustee shall not be the Conversion Agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee.


 


The Company shall cause
to be filed at the Corporate Trust Office and each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2, and
shall cause to be provided to all Holders in accordance with Section 1.6,
notice of any tender offer by the Company or any Subsidiary for all or any
portion of the Common Stock at or about the time that such notice of tender
offer is provided to the public generally.


 


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Section 12.7                                                        Company
to Reserve Common Stock.


 


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


 


Section 12.8                                                        Taxes
on Conversions.


 


Except as provided in the
next sentence, the Company will pay any and all taxes and duties that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of (i) income of
the Holder, or (ii) any transfer involved in the issue and delivery of shares
of Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount
of any such tax or duty, or has established to the satisfaction of the Company
that such tax or duty has been paid.


 


Section 12.9                                                        Covenant
as to Common Stock.


 


The Company agrees that
all shares of Common Stock that may be delivered upon conversion of Securities,
upon such delivery, will have been duly authorized and validly issued and will
be fully paid and nonassessable and, except as provided in Section 12.8,
the Company will pay all taxes, liens and charges with respect to the issue
thereof.


 


Section 12.10                                                  Cancellation
of Converted Securities.


 


All Securities delivered
for conversion shall be delivered to the Trustee or its agent to be canceled by
or at the direction of the Trustee, which shall dispose of the same as provided
in Section 3.9.


 


Section 12.11                                                  Provision
in Case of Consolidation, Merger or Sale of Assets.


 


In case of any
consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger that
does not result in any reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the Company) or any conveyance, sale,
transfer or lease of all or substantially all of the assets of the Company
(other than a sale of all or substantially all of the assets of the Company
that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 12.1, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
by a holder of the number of shares of Common Stock of the Company into which
such Security might have been converted


 


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immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease, assuming such
holder of Common Stock of the Company (i) is not (A) a Person with which the
Company consolidated or merged with or into or which merged into or with the
Company or to which such conveyance, sale, transfer or lease was made, as the
case may be (a “Constituent Person”), or (B) an Affiliate of a Constituent
Person and (ii) failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer, or lease is not the same for each share of Common
Stock of the Company held immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease by others than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not
have been exercised (“Non-electing Share”), then for the purpose of this
Section the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
by the holders of each Non-electing Share shall be deemed to be the kind and
amount so receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security as provided in Section 1.6 promptly
upon such execution.


 


Neither the Trustee nor
any Conversion Agent shall be under any responsibility to determine the
correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property or cash receivable by Holders of Securities upon the conversion of
their Securities after any such consolidation, merger, conveyance, transfer,
sale or lease or to any such adjustment, but may accept as conclusive evidence
of the correctness of any such provisions, and shall be protected in relying
upon, an Opinion of Counsel with respect thereto, which the Company shall cause
to be furnished to the Trustee upon request.


 


Section 12.12                                                  Rights
Issued in Respect of Common Stock.


 


Rights or warrants
distributed by the Company to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Company’s capital stock
(either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events (a “Trigger Event”):


 


(i)             are deemed to be
transferred with such shares of Common Stock,


 


(ii)          are not exercisable, and


 


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


 


shall not be deemed
distributed for purposes of Section 12.4(2) until the occurrence of the
earliest Trigger Event.  In addition, in
the event of any distribution of rights or warrants, or any Trigger Event with
respect thereto, that shall have resulted in an adjustment to the Conversion
Rate under


 


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 Section 12.4(2), (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 of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such redemption or repurchase, and (2) in the case of
any such rights or warrants all of which shall have expired without exercise by
any holder thereof, the Conversion Price shall be readjusted as if such
issuance had not occurred.


 


Section 12.13                                                  Responsibility
of Trustee for Conversion Provisions.


 


The Trustee, subject to
the provisions of Section 6.1, and any Conversion Agent shall not at any
time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Rate, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, herein or in any
supplemental indenture provided to be employed, in making the same, or whether
a supplemental indenture need be entered into. Neither the Trustee, subject to
the provisions of Section 6.1, nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any Common Stock, or of any other securities or property or cash, which may at
any time be issued or delivered upon the conversion of any Security; and it or
they do not make any representation with respect thereto. Neither the Trustee,
subject to the provisions of Section 6.1, nor any Conversion Agent shall
be responsible for any failure of the Company to make or calculate any cash
payment or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 6.1, and any Conversion Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article.


 


ARTICLE XIII

DEFEASANCE


 


Section 13.1                                                        Company’s
Option to Effect Defeasance.


 


The Company may elect, at
its option at any time, to have Section 13.2 applied to any Securities
upon compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution.


 


Section 13.2                                                        Defeasance
and Discharge.


 


Upon the Company’s
exercise of its option (if any) to have this Section applied to any
Securities, the Company shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.3 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance


 


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means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in
Section 13.3 and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Securities when payments are
due, (2) the Company’s obligations with respect to such Securities under
Section 3.4, Section 3.5, Section 3.6, Section 10.2,
Section 10.3 and Article XII, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities.


 


Section 13.3                                                        Conditions
to Defeasance.


 


The following shall be
the conditions to the application of Section 13.2 to any Securities:


 


(1)                                  The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 6.8 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefits of the Holders of such Securities, (A) money
in an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and interest
(including any Liquidated Damages) on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities.
As used herein, “U.S. Government Obligation” means (x) any security which is
(i) a direct obligation of the United States of America for the payment of
which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.


 


(2)                                  In
the event of an election to have Section 13.2 apply to any Securities, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received


 


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from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


(3)                                  The
Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that such Securities, if then listed on any securities exchange, will be
delisted as a result of such deposit.


 


(4)                                  No
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with regard to any
such event specified in Section 5.1(7) and (8), at any time on or prior to
the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).


 


(5)                                  Such
Defeasance shall not cause the Trustee to have a conflicting interest within
the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).


 


(6)                                  Such
Defeasance shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a
party or by which it is bound.


 


(7)                                  Such
Defeasance shall not result in the trust arising from such deposit constituting
an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under the Investment Company Act or exempt from
registration thereunder.


 


(8)                                  The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance have been complied with.


 


Section 13.4                                                        Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.


 


Subject to the provisions
of the last paragraph of Section 10.3, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and
Section 13.5, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 13.3 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and interest, but money so held in trust need not be segregated from other
funds except to the extent required by law.


 


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The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to
Section 13.3 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.


 


Anything in this
Article to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.3 with respect
to any Securities which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance with respect to such
Securities.


 


Section 13.5                                                        Reinstatement.


 


If the Trustee or the
Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this Indenture and
such Securities from which the Company has been discharged or released pursuant
to Section 13.2 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until
such time as the Trustee or Paying Agent is permitted to apply all money held
in trust pursuant to Section 13.4 with respect to such Securities in
accordance with this Article; provided,
however, that if the Company
makes any payment of principal of or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.


 


ARTICLE XIV

REPURCHASE OF SECURITIES


 


Section 14.1                                                        Right
to Require Repurchase.


 


Securities shall be
repurchased by the Company pursuant to the terms of the Securities at the
option of the Holder on each of January 15, 2010, 2015 and 2020 (each, a
“Repurchase Date”), at a repurchase price equal to 100% of the principal amount
of the Securities to be repurchased (any such portion being at least $1,000 or
an integral multiple of $1,000 in excess thereof and provided that no single Security may be repurchased in part
unless the portion of the principal amount of such Security to be Outstanding
after such repurchase is equal to $1,000 or integral multiples of U.S. $1,000
in excess thereof), plus interest accrued but unpaid to, but excluding, such
Repurchase Date (the “Repurchase Price”), subject to the provisions of
Section 14.3. At the option of the Company, the Repurchase Price may be
paid in cash, or subject to the fulfillment by the Company of the conditions
set forth in Section 14.3, by delivery of shares of Common Stock having a
fair market value to the Repurchase Price (less any cash payments), or a
combination of cash and Common Stock. Whenever in this Indenture (including
Section 2.2, Section 3.1, Section 5.1(1) and Section 5.8)
there is a reference, in any context, to the principal of any Security as of
any time, such


 


89
















 


reference shall be deemed
to include reference to the Repurchase Price payable in respect of such
Security to the extent that such Repurchase Price is, was or would be so
payable at such time, and express mention of the Repurchase Price in any
provision of this Indenture shall not be construed as excluding the Repurchase
Price in those provisions of this Indenture when such express mention is not
made.


 


Section 14.2                                                        Right
to Require Repurchase Upon a Designated Event.


 


In the event that a
Designated Event (as hereinafter defined) shall occur, then each Holder shall
have the right, at the Holder’s option, but subject to the provisions of
Section 14.3, to require the Company to repurchase, and upon the exercise
of such right the Company shall repurchase, all of such Holder’s Securities not
theretofore called for redemption, or any portion of the principal amount
thereof that is equal to $1,000 or any integral multiple of $1,000 in excess
thereof (provided, however, that
no single Security may be repurchased in part unless the portion of the
principal amount of such Security to be Outstanding after such repurchase is
equal to $1,000 or integral multiples of U.S. $1,000 in excess thereof), on the
date (the “Designated Event Repurchase Date”) that is 35 Business Days after
the date of the Company Notice (as defined in Section 14.4), at a
repurchase price equal to 100% of the principal amount of the Securities to be
repurchased plus interest (including Liquidated Damages) accrued but unpaid to,
but excluding, the Designated Event Repurchase Date, plus, in the case of a
Designated Event that is a Fundamental Change with an Effective Date that is on
or before January 15, 2010, the Make Whole Premium, if any, determined as
set forth in Section 15.1 (the “Designated Event Repurchase Price”); provided, however,
that installments of interest on Securities whose Stated Maturity is on or
prior to the Designated Event Repurchase Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the provisions of
Section 3.7. Such right to require the repurchase of the Securities shall
not continue after a discharge of the Company from its obligations with respect
to the Securities in accordance with Article IV, unless a Designated Event
shall have occurred prior to such discharge. At the option of the Company, the
Designated Event Repurchase Price may be paid in cash or, subject to the
fulfillment by the Company of the conditions set forth in Section 14.3, by
delivery of shares of Common Stock having a fair market value equal to the
Designated Event Repurchase Price (less any cash payments), or a combination of
cash and Common Stock. Whenever in this Indenture (including Section 2.2,
Section 3.1, Section 5.1(1) and Section 5.8) there is a
reference, in any context, to the principal of any Security as of any time,
such reference shall be deemed to include reference to the Designated Event
Repurchase Price payable in respect of such Security to the extent that such
Designated Event Repurchase Price is, was or would be so payable at such time,
and express mention of the Designated Event Repurchase Price in any provision
of this Indenture shall not be construed as excluding the Designated Event
Repurchase Price in those provisions of this Indenture when such express
mention is not made.


 


Section 14.3                                                        Conditions
to the Company’s Election to Pay the Repurchase Price or the Designated Event
Repurchase Price in Common Stock.


 


The Company may elect to
pay the Repurchase Price or the Designated Event Repurchase Price, as the case
may be, in cash, Common Stock or a combination thereof. To the extent the


 


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Repurchase Price or the
Designated Event Repurchase Price, as the case may be, is paid in Common Stock,
the Company may elect to pay such amount by delivery of shares of Common Stock
pursuant to Section 14.1 or Section 14.2 if and only if the following
conditions shall have been satisfied:


 


(1)                                  The
shares of Common Stock deliverable in payment of the Repurchase Price, or the
Designated Event Repurchase Price, as the case may be, shall have a fair market
value as of the Repurchase Date or Designated Event Repurchase Date, as the
case may be, of not less than the Repurchase Price or the Designated Event
Repurchase Price, as the case may be. For purposes of Section 14.1,
Section 14.2 and this Section, the fair market value of shares of Common
Stock shall be determined by the Company and shall be equal to 95% of the
average of the Closing Prices Per Share of the Common Stock for the five
consecutive Trading Days immediately preceding and including the third Trading
Day prior to the Repurchase Date or Designated Event Repurchase Date, as the
case may be;


 


(2)                                  The
Repurchase Price, or Designated Event Repurchase Price, as the case may be,
shall be paid only in cash in the event that any shares of Common Stock to be
issued upon repurchase of Securities hereunder (i) require registration under
any federal securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the Securities Act
upon repurchase and if such registration is not completed or does not become
effective prior to the Repurchase Date or Designated Event Repurchase Date, as
the case may be, and/or (ii) require registration with or approval of any
governmental authority under any state law or any other federal law before such
shares may be validly issued or delivered upon repurchase and if such
registration is not completed or does not become effective or such approval is
not obtained prior to the Repurchase Date or Designated Event Repurchase Date,
as the case may be;


 


(3)                                  Payment
of the Repurchase Price or the Designated Event Repurchase Price, as the case
may be, may not be made in Common Stock unless such stock is, or shall have
been, listed or approved for quotation on the Nasdaq National Market or listed
or approved for quotation on a national securities exchange or quotation
system, in either case, prior to the Repurchase Date or the Designated Event
Repurchase Date, as the case may be; and


 


(4)                                  All
shares of Common Stock that may be issued upon repurchase of Securities will be
issued out of the Company’s authorized but unissued Common Stock (or, in the
event of a merger, consolidation or other similar transaction involving the
Company that is otherwise permitted under the terms of this Indenture in which
the Company is not the surviving entity, out of the authorized but unissued
Common Stock of the surviving entity or its direct or indirect parent entity)
and, will upon issue, be duly and validly issued and fully paid and
nonassessable and free of any preemptive or similar rights.


 


Section 14.4                                                        Notices;
Method of Exercising Repurchase Right, Etc.


 


(1)                                  Unless
the Company shall have theretofore called for redemption all of the Outstanding
Securities, the Company shall give to the Trustee, the Paying Agent and all
Holders of Securities, in the manner provided in Section 1.6, notice (the
“Company Notice”) on or before the 20th Business Day prior to the
Repurchase Date or on or before the 30th Business Day prior to the


 


91
















 


Designated Event Repurchase Date.  In connection with providing such Company
Notice, the Company shall, on or before the 20th Business Day prior
to the Repurchase Date or on or before the 30th day after the
occurrence of a Designated Event, as the case may be, issue a Press Release or
publish such information on the Company’s then existing website including the
information required to be included in such Company Notice hereunder. The
Company shall also deliver a copy of any Company Notice to the Trustee. At the
request and expense of the Company on or before the fifth Business Day prior to
the date on which the Company Notice is to be mailed, the Trustee shall give
the Company Notice to the Holders.


 


Each Company Notice shall
state:


 


(A)                              the
Repurchase Date or the Designated Event Repurchase Date, as the case may be,


 


(B)                                the
date by which the repurchase right must be exercised,


 


(C)                                the
Repurchase Price, or the Designated Event Repurchase Price, as the case may be,
and whether the Repurchase Price, or the Designated Event Repurchase Price, as
the case may be, shall be paid by the Company in cash or by delivery of shares
of Common Stock, or a combination thereof (and the applicable ratio of cash and
Common Stock),


 


(D)                               if
the notice relates to the occurrence of a Designated Event, the events causing
the Designated Event, the date of the Designated Event and that the Securities
with respect to which a Holder gives a Repurchase Notice with respect to a
Designated Event (a “Designated Event Repurchase Notice”) may be converted only
if the Holder withdraws the Repurchase Notice in accordance with the terms of
this Indenture,


 


(E)                                 a
description of the procedure that a Holder must follow to exercise a repurchase
right, and the place or places where such Securities are to be surrendered for
payment of the Repurchase Price or the Designated Event Repurchase Price, as
the case may be, and accrued but unpaid interest (including Liquidated
Damages), if any, to the Repurchase Date or the Designated Event Repurchase
Date, as the case may be,


 


(F)                                 that
on the Repurchase Date or the Designated Event Repurchase Date, as the case may
be, the Repurchase Price or the Designated Event Repurchase Price, as the case
may be, and accrued but unpaid interest (including Liquidated Damages), if any,
to the Repurchase Date or the Designated Event Repurchase Date, as the case may
be, will become due and payable upon each such Security designated by the
Holder to be repurchased, and that interest thereon shall cease to accrue on
and after said date,


 


(G)                                the
Conversion Rate then in effect, the date on which the right to convert the
principal amount of the Securities to be repurchased will terminate and the
place or places where such Securities may be surrendered for conversion,


 


(H)                               the
place or places that the Security certificate with the Election of Holder to
Require Repurchase as specified in Section 2.2 shall be delivered, and, if
the Security is a Restricted


 


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Securities Certificate, the place or places that the
Surrender Certificate required by Section 14.4 shall be delivered, and


 


(I)                                    the
name and address of the Paying Agent and Conversion Agent.


 


No failure of the Company
to give the foregoing notices or defect therein shall limit any Holder’s right
to exercise a repurchase right or affect the validity of the proceedings for
the repurchase of Securities.


 


If any of the foregoing
provisions or other provisions of this Article are inconsistent with
applicable law, such law shall govern.


 


(2)                                  To
exercise a repurchase right pursuant to Section 14.1 or Section 14.2,
a Holder shall deliver to the Paying Agent (i) written notice (a “Repurchase
Notice”) of the Holder’s exercise of such right, which notice shall set forth
the name of the Holder, the principal amount of the Securities to be
repurchased (and, if any Security is to repurchased in part, the serial number
thereof, the portion of the principal amount thereof to be repurchased (which
portion must be in principal amounts of $1,000 or a whole multiple of $1,000)
and the name of the Person in which the portion thereof to remain Outstanding
after such repurchase is to be registered), if certified, the certificate
numbers of the Securities to be repurchased, and a statement that an election
to exercise the repurchase right pursuant to the terms and conditions specified
in the Securities and the Indenture  is
being made thereby, and, in the event that any portion of the Repurchase Price
or the Designated Event Repurchase Price, as the case may be, shall be paid in
shares of Common Stock, the name or names (with addresses) in which the
certificate or certificates for shares of Common Stock shall be issued, and
(ii) book-entry transfer or delivery of such Security to the Paying Agent at
any time after delivery of the Repurchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Repurchase Price therefor or the
Designated Event Repurchase Price therefor, as the case may be; provided, however,
that such Repurchase Price or Designated Event Repurchase Price, as the case
may be, shall be so paid pursuant to this Section only if the Security so
delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice. In the case of a repurchase right
pursuant to Section 14.1, such delivery shall be at any time from the
opening of business on the date that is 20 Business Days prior to the
Repurchase Date until the close of business on the fifth Business Day prior to
the Repurchase Date and in the case of a repurchase right pursuant to
Section 14.2, such delivery shall be on or before the 35th day
after the date of the Company Notice, subject to extension to comply with
applicable law.


 


A repurchase notice given
by a Holder in accordance with this Section may be withdrawn, in whole or
in part, by means of a written notice of withdrawal delivered to the office of
the Paying Agent at any time prior to the close of business on the day that is
two Business Days before the Repurchase Date or Designated Event Repurchase
Date, as the case may be, specifying:


 


(A)                              the
certificate number, if any, of the Security in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary procedures if
Certificated Securities have not been issued,


 


93
















 


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


 


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


 


The Company may, in its
sole and complete discretion, accept a written notice of withdrawal on or after
the close of business on the day that is two Business Days prior to the
Repurchase Date or a Designated Event Repurchase Date, as the case may be. The
decision of the Company to accept or reject such a withdrawal notice shall be
conclusive and binding on the Holder proposing to make the withdrawal.


 


(3)                                  There
shall be no purchase of any Securities pursuant to this Article if an
Event of Default has occurred and is continuing (other than a default that is
cured by the payment of the Repurchase Price or Designated Event Repurchase
Price, as the case may be). The Paying Agent shall promptly return to the
respective Holders thereof any Securities (i) with respect to which a
Repurchase Notice or Designated Event Repurchase Notice, as the case may be,
has been withdrawn in compliance with this Indenture or (ii) held by it during
the continuance of an Event of Default (other than a default that is cured by
the payment of the Repurchase Price or Designated Event Repurchase Price, as
the case may be) in which case, upon such return, the Repurchase Notice or
Designated Event Repurchase Notice with respect thereto shall be deemed to have
been withdrawn.


 


(4)                                  In
the event a repurchase right shall be exercised in accordance with the terms
hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase
Price or the Designated Event Repurchase Price, as the case may be, in cash or
shares of Common Stock, as provided in Section 14.3, for payment to the
Holder on the Repurchase Date or the Designated Event Repurchase Date, as the
case may be, or, if shares of Common Stock are to be paid, on the date that is
35 days after the date of the Company’s Notice, subject to extension to comply
with applicable law, together with accrued and unpaid interest to the
Repurchase Date or the Designated Event Repurchase Date, as the case may be,
payable with respect to the Securities as to which the repurchase right has
been exercised; provided, however, that installments of interest
that mature on or prior to the Repurchase Date or the Designated Event
Repurchase Date, as the case may be, shall be payable in cash to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Date.


 


(5)                                  If
any Security (or portion thereof) surrendered for repurchase shall not be so
paid on the Repurchase Date or the Designated Event Repurchase Date, as the
case may be, the principal amount of such Security (or portion thereof, as the
case may be) shall, until paid, bear interest to the extent permitted by
applicable law from the Repurchase Date or the Designated Event Repurchase
Date, as the case may be, at the rate then in effect per annum, and each
Security shall remain convertible into Common Stock until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.


 


(6)                                  Any
Security that is to be repurchased only in part shall be surrendered to the
Trustee (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of


 


94
















 


transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and conditions,
each in an authorized denomination in aggregate principal amount equal to and
in exchange for the unrepurchased portion of the principal of the Security so
surrendered.


 


(7)                                  Any
issuance of shares of Common Stock in respect of the Repurchase Price or the
Designated Event Repurchase Price, as the case may be, shall be deemed to have
been effected immediately prior to the close of business on the Repurchase Date
or the Designated Event Repurchase Date, as the case may be, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such repurchase shall be deemed to have
become on the Repurchase Date or the Designated Event Repurchase Date, as the
case may be, the holder or holders of record of the shares represented thereby;
provided, however, that any surrender for repurchase
on a date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued as the record holder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open. No payment or adjustment shall be
made for dividends or distributions on any Common Stock issued upon repurchase
of any Security declared prior to the Repurchase Date or the Designated Event
Repurchase Date, as the case may be.


 


(8)                                  No
fractions of shares shall be issued upon repurchase of Securities. If more than
one Security shall be repurchased from the same Holder and the Repurchase Price
or the Designated Event Repurchase Price, as the case may be, shall be payable
in shares of Common Stock, then the number of full shares that shall be
issuable upon such repurchase shall be computed on the basis of the aggregate
principal amount of the Securities so repurchased. Instead of any fractional
share of Common Stock that would otherwise be issuable on the repurchase of any
Security or Securities, the Company will deliver to the applicable Holder its
check for the current market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying the current market
price of a full share by the fraction, and rounding the result to the nearest
cent. For purposes of this Section, the current market price of a share of
Common Stock is the Closing Price Per Share of the Common Stock on the Trading
Day immediately preceding the Repurchase Date or the Designated Event
Repurchase Date, as the case may be.


 


(9)                                  Any
issuance and delivery of certificates for shares of Common Stock on repurchase
of Securities shall be made without charge to the Holder of Securities being
repurchased for such certificates or for any tax or duty in respect of the issuance
or delivery of such certificates or the securities represented thereby; provided, however,
that the Company shall not be required to pay any tax or duty that may be
payable in respect of (i) income of the Holder or (ii) any transfer involved in
the issuance or delivery of certificates for shares of Common Stock in a name
other than that of the Holder of the Securities being repurchased, and no such
issuance or delivery shall be made unless and until the Person requesting such
issuance or delivery has paid to the Company the amount of any such tax or duty
or has established, to the satisfaction of the Company, that such tax or duty
has been paid.


 


95
















 


(10)                            If
shares of Common Stock to be delivered upon repurchase of a Restricted Security
are to be registered in a name other than that of the beneficial owner of such
Security, then such Holder must deliver to the Trustee a Surrender Certificate,
dated the date of surrender of such Restricted Security and signed by such
beneficial owner, as to compliance with the restrictions on transfer applicable
to such Restricted Security. Neither the Trustee nor any Registrar or Transfer
Agent or other agents shall be required to register in a name other than that
of the beneficial owner shares of Common Stock issued upon repurchase of any
such Restricted Security not so accompanied by a properly completed Surrender
Certificate.


 


(11)                            All
Securities delivered for repurchase shall be delivered to the Trustee to be
canceled at the direction of the Trustee, which shall dispose of the same as
provided in Section 3.9.


 


Section 14.5                                                        Certain
Definitions.


 


For purposes of this
Article,


 


(1)                                  the
term “beneficial owner” shall be determined in accordance with Rule 13d-3, as
in effect on the date of the original execution of this Indenture, promulgated
by the Commission pursuant to the Exchange Act;


 


(2)                                  a
“Change in Control” shall be deemed to have occurred at the time, after the
original issuance of the Securities, of:


 


(A)                              any
“person” or “group” (within the meaning of Section 13(d) of the Exchange
Act) other than the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or any Subsidiary files a Schedule TO,
Schedule 13D or any schedule, form or report under the Exchange Act
disclosing that such “person” or “group” has become a direct or indirect
ultimate beneficial owner of shares of common stock of the Company entitling
such “person” or “group” to exercise 50% or more of the total voting power of
all shares of common stock of the Company entitled to vote generally in the
elections of directors, other than any such filing by the Company, any
Subsidiary of the Company or any employee benefit plan of the Company or any
Subsidiary; or


 


(B)                                consummation
of any share exchange, consolidation or merger of the Company pursuant to which
the Company’s Common Stock will be converted into cash, securities or other
property or any sale, lease, or other transfer in one transaction or a series
of transactions of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to any person other than the
Company or one or more of the Company’s Subsidiaries; provided, however, that a transaction
pursuant to which the holders of 50% or more of the total voting power of all
shares of the common stock of the Company entitled to vote generally in the
election of directors immediately prior to such transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of common stock entitled to vote generally in the
election of directors of the continuing or surviving corporation immediately
after such transaction shall not be a Change in Control.


 


96
















 


(3)                                  a
“Designated Event” shall be deemed to have occurred upon a Fundamental Change
or a Termination of Trading; provided
that a Fundamental Change occurring on or prior to January 15, 2010, shall
not be a Designated Event unless the transaction or event resulting in such
Fundamental Change shall also constitute a Change in Control.


 


(4)                                  A
“Fundamental Change” shall be any transaction or event (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) in connection with which all
or substantially all of the Common Stock is exchanged for, converted into,
acquired for or constitutes solely the right to receive, consideration
(excluding cash payments for fractional shares) that is not all or
substantially all common shares, common stock or American Depositary Shares
that are:


 


(A)                              listed
on, or immediately after the transaction or event shall be listed on, the New
York Stock Exchange or a United States national securities exchange; or


 


(B)                                approved,
or immediately after the transaction or event shall be approved, for quotation
on the Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices; and


 


(5)                                  a
“Termination of Trading” shall be deemed to have occurred if the Common Stock
or other common stock into which the Securities are convertible is neither
listed for trading on a United States national securities exchange nor approved
for listing on the Nasdaq National Market or another established automated
over-the-counter trading market in the United States, and no American
depositary shares or similar instruments for such common stock are so listed or
approved for listing in the United States.


 


Section 14.6                                                        Consolidation,
Merger, Etc.


 


In the case of any
merger, consolidation, conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company to which Section 12.11
applies, in which the Common Stock of the Company is changed or exchanged as a
result into the right to receive shares of stock and other securities or
property or assets (including cash) that include shares of Common Stock of the
Company or common stock of another Person that are, or upon issuance will be,
traded on a United States national securities exchange or approved for trading
on an established automated over-the-counter trading market in the United
States and such shares constitute at the time such change or exchange becomes
effective in excess of 50% of the aggregate fair market value of such shares of
stock and other securities, property and assets (including cash) (as determined
by the Company, which determination shall be conclusive and binding), then the
Person formed by such consolidation or resulting from such merger or
combination or which acquires the properties or assets (including cash) of the
Company, as the case may be, shall execute and deliver to 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) modifying the
provisions of this Indenture relating to the right of Holders to cause the
Company to repurchase the Securities following a Designated Event, including
without limitation the applicable provisions of this Article and the
definitions of the Common Stock and Designated Event, as appropriate, and such
other related definitions set forth herein as


 


97
















 


determined in good faith
by the Company (which determination shall be conclusive and binding), to make
such provisions apply in the event of a subsequent Designated Event to the
common stock and the issuer thereof if different from the Company and Common
Stock of the Company (in lieu of the Company and the Common Stock of the
Company).


 


ARTICLE XV

MAKE WHOLE PREMIUM


 


Section 15.1                                                        Determination
of the Make Whole Premium.


 


(1)                                  If
a Fundamental Change occurs on or before January 15, 2010, Holders of
Securities shall be entitled to receive from the Company the Make Whole Premium
upon the repurchase of Securities as described in Section 14.2 and upon
the conversion of Securities upon a Fundamental Change as described in
Section 12.1.


 


(2)                                  The
Make Whole Premium shall be determined as follows:


 


(A)                              “Effective
Date” means the date that the applicable Fundamental Change becomes effective.


 


(B)                                “Stock
Price” means the price paid per share of Common Stock in the transaction
constituting the applicable Fundamental Change, determined as follows:


 


(i)  if holders of Common Stock receive only cash
in the Fundamental Change, the Stock Price shall be the cash amount paid per
share of Common Stock; or


 


(ii) in all other
circumstances, the Stock Price shall be the average of the last reported sale
price of the Common Stock on the 10 Trading Days up to, but not including, the
Effective Date.


 


(C)                                “Make
Whole Premium” means the amount per $1,000 original principal amount of
Securities equal to:


 


(a)  If the
Effective Date is after January 15, 2010, $0;


 


(b)  If the Stock
Price is less than $27.60 (subject to adjustment pursuant to Section 15.3)
(the “Stock Price Threshold”), $0;


 


(c)  If the
Stock Price is more than $200.00 (subject to adjustment pursuant to
Section 15.3) (the “Stock Price Cap”), $0; and


 


98
















 


(d)  Otherwise,
the dollar amount equal to the percentage set forth on the table below (the
“Make Whole Premium Table”) for the Stock Price and the Effective Time
multiplied by $1,000.


 


	
  Effective Date

  of Fundamental

  Change

  	
   

  	
  Stock Price

  	
   

  
	
  $27.60

  	
   

  	
  $30.00

  	
   

  	
  $32.50

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $100.00

  	
   

  	
  $200.00

  
	
  June 28,
  2004

  	
   

  	
  0.0

  	
  %

  	
  4.6

  	
  %

  	
  9.4

  	
  %

  	
  14.7

  	
  %

  	
  20.0

  	
  %

  	
  17.9

  	
  %

  	
  16.0

  	
  %

  	
  7.6

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2005

  	
   

  	
  0.0

  	
  %

  	
  3.9

  	
  %

  	
  8.7

  	
  %

  	
  13.7

  	
  %

  	
  19.1

  	
  %

  	
  17.0

  	
  %

  	
  15.1

  	
  %

  	
  6.9

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2006

  	
   

  	
  0.0

  	
  %

  	
  2.8

  	
  %

  	
  7.8

  	
  %

  	
  12.7

  	
  %

  	
  17.6

  	
  %

  	
  15.1

  	
  %

  	
  13.5

  	
  %

  	
  5.4

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2007

  	
   

  	
  0.0

  	
  %

  	
  2.5

  	
  %

  	
  6.8

  	
  %

  	
  11.6

  	
  %

  	
  15.9

  	
  %

  	
  13.7

  	
  %

  	
  11.5

  	
  %

  	
  4.2

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2008

  	
   

  	
  0.0

  	
  %

  	
  1.7

  	
  %

  	
  5.9

  	
  %

  	
  10.1

  	
  %

  	
  14.2

  	
  %

  	
  11.1

  	
  %

  	
  9.3

  	
  %

  	
  2.6

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2009

  	
   

  	
  0.0

  	
  %

  	
  1.1

  	
  %

  	
  4.2

  	
  %

  	
  8.0

  	
  %

  	
  10.4

  	
  %

  	
  7.8

  	
  %

  	
  5.6

  	
  %

  	
  1.3

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2010

  	
   

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  



 


If the Stock Price is
between two Stock Price amounts on the Make Whole Premium Table or the
Effective Date is between two dates on the Make Whole Premium Table, the Make
Whole Premium shall be determined by straight-line interpolation between Make
Whole Premium percentages set forth in the Make Whole Premium Table for the
higher and lower Stock Price amounts and the two dates, as applicable, based on
a 365-day year.  The Stock Prices set
forth in the column headers are subject to adjustment pursuant to
Section 15.3.


 


(3)                                  The
Company may pay the Make Whole Premium solely in shares of Common Stock
(“Additional Shares”) (other than cash paid in lieu of fractional shares) or in
the same form of consideration into which shares of Common Stock have been
converted in connection with the applicable Fundamental Change.  If holders of Common Stock have the right to elect
the form of consideration received in a Fundamental Change, then for purposes
of the foregoing the consideration into which a share of Common Stock has been
converted shall be deemed to equal the aggregate consideration distributed in
respect of all shares of Common Stock divided by the total number of shares of
Common Stock participating in the distribution.


 


(4)                                  The
value of the shares of Common Stock for purposes of determining the number of
shares to be issued in respect of the Make Whole Premium shall be calculated as
follows:


 


(A)                              in the
case of a Fundamental Change in which all or substantially all of the shares of
Common Stock have been converted as of the Effective Date into the right to
receive securities or other assets or property, then the value of the shares of
Common Stock shall equal the value of the consideration paid per share, with
the consideration valued as follows:


 


(a)  securities
that are traded on a United States national securities exchange or approved for
quotation on the Nasdaq National Market or any similar system of automated
dissemination of quotations of securities prices shall be valued based on 98%
of the average last reported sale price on the 10 Trading Days prior to, but
excluding, the Repurchase Date (the “Calculation Date”),


 


99
















 


(b)  other
securities, assets or property (other than cash) which holders will have the
right to receive will be valued based on 98% of the average of the fair market
value of such securities, assets or property (other than cash) as determined by
two independent nationally recognized investment banks selected by the Trustee,
and


 


(c)  100% of
any cash; and


 


(B)                                in
all other cases, the value of the Company’s shares of Common Stock shall equal
98% of the average last reported sale price on the 10 Trading Days prior to,
but excluding, the Effective Date.


 


Notwithstanding the
foregoing, in no event shall the value of the shares of Common Stock be less
than 50% of the Stock Price used to determine the amount of the Make Whole
Premium.


 


The Company may from time
to time appoint a calculation agent with respect to the calculation of the Make
Whole Premium (the “Calculation Agent”). The Calculation Agent shall, on behalf
of and upon request by the Company or the Trustee, calculate (A) the Stock
Price and (B) the Make Whole Premium with respect to such Stock Price based on
the Effective Date specified by the Company or the Trustee and shall deliver
its calculation of the Stock Price and Make Whole Premium to the Company and
the Trustee within five Business Days of the request by the Company or the
Trustee.  In addition, the Calculation
Agent shall, on behalf of and upon request by the Company or the Trustee no
less than five Business Days prior to a Designated Event Repurchase Date or
Calculation Date, as the case may be, in respect of an Effective Date occurring
on or before January 15, 2010, make the determinations described in
Section 15.1 above and deliver its calculations to the Company or the
Trustee by 9:00 p.m., New York City time, on the day prior to the Designated
Event Repurchase Date or Calculation Date, as the case may be.  The Company, or at the Company’s request, the
Trustee in the name and at the expense of the Company, (X) shall notify the Holders
of the Stock Price, Make Whole Premium and the estimated number of Additional
Shares per $1,000 original principal amount of Securities with respect to a
Fundamental Change as part of the Designated Event Repurchase Notice or
otherwise in accordance with the notice provisions of the Indenture and (Y)
shall notify the Holders promptly upon the opening of business on the
Designated Event Repurchase Date or Calculation Date, as the case may be, of
the number of Additional Shares (or, at the option of the Company, cash or
other securities, assets or property into which all or substantially all of the
shares of Common Stock have been converted as of the Effective Date as
described above) to be delivered in respect of the Make Whole Premium, if any,
in connection with such Fundamental Change.


 


Section 15.2                                                        Payment
of the Make Whole Premium.


 


On or prior to the
Designated Event Repurchase Date or the Calculation Date, as the case may be,
the Company will deposit with the Trustee or with one or more Paying Agents
(or, if the Company is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 10.3) an amount sufficient to satisfy
the entitlement of the Holders of Securities under Section 15.1 (which, at
the option of the Company, may be in the form the Company otherwise is


 


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entitled to deliver in
respect of Securities that are tendered upon a Designated Event or that are
converted; provided that if such
payment is made on the Designated Event Repurchase Date or Calculation Date, as
the case may be, it must be received by the Paying Agent or the Trustee, as the
case may be, by 10:00 a.m., New York City time, on such date.  Payment of the entitlement pursuant to
Section 15.1 to Holders of Securities surrendered for repurchase (and not
withdrawn) prior to the Designated Event Repurchase Date or surrendered for
conversion within the period described in Section 12.1, will be made
promptly (but in no event more than five Business Days) following the
Designated Event Repurchase Date or Calculation Date, as the case may be, by
mailing checks in respect of cash and otherwise delivering entitlements to
securities, other assets or property for the amount payable to the Holders of
such Securities entitled thereto as they (and their addresses) shall appear in
the Security Register.  To the extent
that the aggregate amount of cash or shares of Common Stock deposited by the
Company pursuant to this Section exceeds the aggregate entitlement of the
Holders of Securities under Section 15.1 that are tendered upon the
Designated Event to a Make Whole Premium or that are converted in respect of
the Fundamental Change and are entitled to receive the Make Whole Premium,
then, promptly after the Designated Event Repurchase Date or Calculation Date,
as the case may be, the Paying Agent shall return any such excess to the
Company.


 


Section 15.3                                                        Adjustments
Relating to the Make Whole Premium.


 


Whenever the Conversion
Rate shall be adjusted from time to time by the Company pursuant to
Section 12.4, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the Stock Prices set forth in the Make Whole Premium Table
shall be adjusted by multiplying each such amount by a fraction the numerator
of which is the Conversion Rate immediately prior to such adjustment and the
denominator of which is the Conversion Rate as so adjusted.


 


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


 


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


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Mylod,
  Jr.

  	
   

  
	
   

  	
  Name: Robert J. Mylod,
  Jr.

  
	
   

  	
  Title:   Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST

  COMPANY,

  
	
   

  	
  as Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Herbert J. Lemmer

  	
   

  
	
   

  	
  Name:  Herbert J. Lemmer

  	
   

  
	
   

  	
  Title:  Vice President

  	
   

  
						



 


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