EXHIBIT 4.1


 


SUPERGEN, INC,


 


TO


 






 


AS TRUSTEE


 


INDENTURE


 


DATED AS OF                       ,
20


 


 


SENIOR DEBT SECURITIES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Compliance
  Certificates and Opinions

  	
  9

  
	
  Section 1.3

  	
  Form of
  Documents Delivered to Trustee

  	
  9

  
	
  Section 1.4

  	
  Acts of
  Holders; Record Dates

  	
  10

  
	
  Section 1.5

  	
  Notices,
  etc., to Trustee and Company

  	
  12

  
	
  Section 1.6

  	
  Notice to
  Holders; Waiver

  	
  12

  
	
  Section 1.7

  	
  Conflict
  with Trust Indenture Act

  	
  13

  
	
  Section 1.8

  	
  Effect of
  Headings and Table of Contents

  	
  13

  
	
  Section 1.9

  	
  Successors
  and Assigns

  	
  13

  
	
  Section 1.10

  	
  Separability
  Clause

  	
  13

  
	
  Section 1.11

  	
  Benefits of
  Indenture

  	
  13

  
	
  Section 1.12

  	
  Governing
  Law

  	
  13

  
	
  Section 1.13

  	
  Legal
  Holidays

  	
  13

  
	
  Section 1.14

  	
  Indenture
  and Securities Solely Corporate Obligations

  	
  14

  
	
  Section 1.15

  	
  Indenture
  May be Executed in Counterparts

  	
  14

  
	
  ARTICLE 2
  SECURITY FORMS

  	
  14

  
	
  Section 2.1

  	
  Forms
  Generally

  	
  14

  
	
  Section 2.2

  	
  Form of Face
  of Security

  	
  15

  
	
  Section 2.3

  	
  Form of
  Reverse of Security

  	
  16

  
	
  Section 2.4

  	
  Form of
  Legend for Global Securities

  	
  20

  
	
  Section 2.5

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  20

  
	
  Section 2.6

  	
  Form of
  Conversion Notice

  	
  21

  
	
  ARTICLE 3
  THE SECURITIES

  	
  23

  
	
  Section 3.1

  	
  Amount
  Unlimited; Issuable in Series

  	
  23

  
	
  Section 3.2

  	
  Denominations

  	
  26

  
	
  Section 3.3

  	
  Execution,
  Authentication, Delivery and Dating

  	
  26

  
	
  Section 3.4

  	
  Temporary
  Securities

  	
  27

  
	
  Section 3.5

  	
  Registration;
  Registration of Transfer and Exchange

  	
  28

  
	
  Section 3.6

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
  29

  
	
  Section 3.7

  	
  Payment of
  Interest; Interest Rights Preserved

  	
  30

  
	
  Section 3.8

  	
  Persons
  Deemed Owners

  	
  32

  
	
  Section 3.9

  	
  Cancellation

  	
  32

  
	
  Section 3.10

  	
  Computation
  of Interest

  	
  32

  
	
  ARTICLE 4
  SATISFACTION AND DISCHARGE

  	
  32

  
	
  Section 4.1

  	
  Satisfaction
  and Discharge of Indenture

  	
  32

  
	
  Section 4.2

  	
  Application
  of Trust Money

  	
  33

  
	
  ARTICLE 5
  REMEDIES

  	
  34

  
	
  Section 5.1

  	
  Events of
  Default

  	
  34

  
	
  Section 5.2

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  35

  
	
  Section 5.3

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  37

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Trustee May
  File Proofs of Claim

  	
  37

  
	
  Section 5.5

  	
  Trustee May
  Enforce Claims Without Possession of Securities

  	
  38

  
	
  Section 5.6

  	
  Application
  of Money Collected

  	
  38

  
	
  Section 5.7

  	
  Limitation
  on Suits

  	
  38

  
	
  Section 5.8

  	
  Unconditional
  Right of Holders to Receive Principal, Premium and Interest and to Convert

  	
  39

  
	
  Section 5.9

  	
  Restoration
  of Rights and Remedies

  	
  39

  
	
  Section 5.10

  	
  Rights and
  Remedies Cumulative

  	
  39

  
	
  Section 5.11

  	
  Delay or
  Omission Not Waiver

  	
  40

  
	
  Section 5.12

  	
  Control by
  Holders

  	
  40

  
	
  Section 5.13

  	
  Waiver of
  Past Defaults

  	
  40

  
	
  Section 5.14

  	
  Undertaking
  for Costs

  	
  41

  
	
  Section 5.15

  	
  Waiver of
  Usury, Stay or Extension Laws

  	
  41

  
	
  ARTICLE 6
  THE TRUSTEE

  	
  41

  
	
  Section 6.1

  	
  Certain
  Duties and Responsibilities

  	
  41

  
	
  Section 6.2

  	
  Notice of
  Defaults

  	
  42

  
	
  Section 6.3

  	
  Certain
  Rights of Trustee

  	
  42

  
	
  Section 6.4

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
  43

  
	
  Section 6.5

  	
  May Hold
  Securities and Act as Trustee under Other Indentures

  	
  43

  
	
  Section 6.6

  	
  Money Held
  in Trust

  	
  44

  
	
  Section 6.7

  	
  Compensation
  and Reimbursement

  	
  44

  
	
  Section 6.8

  	
  Conflicting
  Interests

  	
  44

  
	
  Section 6.9

  	
  Corporate
  Trustee Required; Eligibility

  	
  45

  
	
  Section 6.10

  	
  Resignation
  and Removal; Appointment of Successor

  	
  45

  
	
  Section 6.11

  	
  Acceptance
  of Appointment by Successor

  	
  46

  
	
  Section 6.12

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
  47

  
	
  Section 6.13

  	
  Preferential
  Collection of Claims Against Company

  	
  48

  
	
  Section 6.14

  	
  Appointment
  of Authenticating Agent

  	
  48

  
	
  ARTICLE 7
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
  49

  
	
  Section 7.1

  	
  Company to
  Furnish Trustee Names and Addresses of Holders

  	
  49

  
	
  Section 7.2

  	
  Preservation
  of Information; Communications to Holders

  	
  50

  
	
  Section 7.3

  	
  Reports by
  Trustee

  	
  50

  
	
  Section 7.4

  	
  Reports by
  Company

  	
  51

  
	
  ARTICLE 8
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  51

  
	
  Section 8.1

  	
  Company May
  Consolidate, etc., Only on Certain Terms

  	
  51

  
	
  Section 8.2

  	
  Successor
  Substituted

  	
  52

  
	
  ARTICLE 9
  SUPPLEMENTAL INDENTURES

  	
  53

  
	
  Section 9.1

  	
  Supplemental
  Indentures Without Consent of Holders

  	
  53

  
	
  Section 9.2

  	
  Supplemental
  Indentures with Consent of Holders

  	
  54

  
	
  Section 9.3

  	
  Execution of
  Supplemental Indentures

  	
  55

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

   

  
	
  Section 9.4

  	
  Effect of
  Supplemental Indentures

  	
  55

  
	
  Section 9.5

  	
  Conformity
  with Trust Indenture Act

  	
  56

  
	
  Section 9.6

  	
  Reference in
  Securities to Supplemental Indentures

  	
  56

  
	
  ARTICLE 10
  COVENANTS

  	
  56

  
	
  Section 10.1

  	
  Payment of
  Principal, Premium and Interest

  	
  56

  
	
  Section 10.2

  	
  Maintenance
  of Office or Agency

  	
  56

  
	
  Section 10.3

  	
  Money for
  Securities Payments To Be Held in Trust

  	
  57

  
	
  Section 10.4

  	
  Statement by
  Officers as to Default

  	
  58

  
	
  Section 10.5

  	
  Existence

  	
  58

  
	
  Section 10.6

  	
  Maintenance
  of Properties

  	
  58

  
	
  Section 10.7

  	
  Payment of
  Taxes and Other Claims

  	
  58

  
	
  Section 10.8

  	
  Waiver of
  Certain Covenants

  	
  59

  
	
  ARTICLE 11
  REDEMPTION OF SECURITIES

  	
  59

  
	
  Section 11.1

  	
  Applicability
  of Article

  	
  59

  
	
  Section 11.2

  	
  Election to
  Redeem; Notice to Trustee

  	
  59

  
	
  Section 11.3

  	
  Selection by
  Trustee of Securities to Be Redeemed

  	
  59

  
	
  Section 11.4

  	
  Notice of
  Redemption

  	
  60

  
	
  Section 11.5

  	
  Deposit of
  Redemption Price

  	
  61

  
	
  Section 11.6

  	
  Securities
  Payable on Redemption Date

  	
  62

  
	
  Section 11.7

  	
  Securities
  Redeemed in Part

  	
  62

  
	
  ARTICLE 12
  SINKING FUNDS

  	
  62

  
	
  Section 12.1

  	
  Applicability
  of Article

  	
  62

  
	
  Section 12.2

  	
  Satisfaction
  of Sinking Fund Payments with Securities

  	
  63

  
	
  Section 12.3

  	
  Redemption
  of Securities for Sinking Fund

  	
  63

  
	
  ARTICLE 13
  DEFEASANCE AND COVENANT DEFEASANCE

  	
  63

  
	
  Section 13.1

  	
  Company’s Option
  to Effect Defeasance or Covenant Defeasance

  	
  63

  
	
  Section 13.2

  	
  Defeasance
  and Discharge

  	
  64

  
	
  Section 13.3

  	
  Covenant
  Defeasance

  	
  64

  
	
  Section 13.4

  	
  Conditions
  to Defeasance or Covenant Defeasance

  	
  65

  
	
  Section 13.5

  	
  Deposited
  Money, U.S. Government Obligations and Foreign Government Obligations to be
  Held in Trust; Miscellaneous Provisions

  	
  67

  
	
  Section 13.6

  	
  Reinstatement

  	
  67

  
	
  ARTICLE 14
  CONVERSION OF SECURITIES

  	
  68

  
	
  Section 14.1

  	
  Applicability
  of Article

  	
  68

  
	
  Section 14.2

  	
  Exercise of
  Conversion Privilege

  	
  68

  
	
  Section 14.3

  	
  No
  Fractional Shares

  	
  69

  
	
  Section 14.4

  	
  Adjustment
  of Conversion Price or Conversion Rate

  	
  70

  
	
  Section 14.5

  	
  Notice of
  Certain Corporate Actions

  	
  70

  
	
  Section 14.6

  	
  Reservation
  of Shares of Common Stock

  	
  71

  
	
  Section 14.7

  	
  Payment of
  Certain Taxes upon Conversion

  	
  71

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 14.8

  	
  Nonassessability

  	
  71

  
	
  Section 14.9

  	
  Provision in
  Case of Consolidation, Merger or Sale of Assets

  	
  71

  
	
  Section
  14.10

  	
  Duties of
  Trustee Regarding Conversion

  	
  72

  
	
  Section
  14.11

  	
  Repayment of
  Certain Funds upon Conversion

  	
  73

  



 


iv

















 


SuperGen, Inc.


 


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


 


	
  Section 310(a)(1)

  	
  6.9

  
	
  (a)(2)

  	
  6.9

  
	
  (a)(3)

  	
  Not Applicable

  
	
  (a)(4)

  	
  Not Applicable

  
	
  (b)

  	
  6.8, 6.10

  
	
  Section 311(a)

  	
  6.13

  
	
  (b)

  	
  6.13

  
	
  Section 312(a)

  	
  7.1, 7.2

  
	
  (b)

  	
  7.2

  
	
  (c)

  	
  7.2

  
	
  Section 313(a)

  	
  7.3

  
	
  (b)

  	
  7.3

  
	
  (c)

  	
  7.3

  
	
  (d)

  	
  7.3

  
	
  Section 314(a)

  	
  7.4

  
	
  (a)(4)

  	
  10.1, 10.4

  
	
  (b)

  	
  Not Applicable

  
	
  (c)(1)

  	
  1.2

  
	
  (c)(2)

  	
  1.2

  
	
  (c)(3)

  	
  Not Applicable

  
	
  (d)

  	
  Not Applicable

  
	
  (e)

  	
  1.2

  
	
  Section 315(a)

  	
  6.1

  
	
  (b)

  	
  6.2

  
	
  (c)

  	
  6.1

  
	
  (d)

  	
  6.1

  
	
  (e)

  	
  5.14

  
	
  Section 316(a)

  	
  1.1

  
	
  (a)(1)(A)

  	
  5.2, 5.12

  
	
  (a)(1)(B)

  	
  5.13

  
	
  (a)(2)

  	
  Not Applicable

  
	
  (b)

  	
  5.8

  
	
  (c)

  	
  1.4

  
	
  Section 317(a)(1)

  	
  5.3

  
	
  (a)(2)

  	
  5.4

  
	
  (b)

  	
  10.3

  
	
  Section 318(a)

  	
  1.7

  



 


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


 


v

















 


INDENTURE,
dated as of                         ,
20    , between SuperGen, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the “Company”), having its principal executive office at 4140 Dublin
Blvd., Suite 200, Dublin, California, and                     ,
as Trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences
of indebtedness (herein called the “Securities”), to be issued in one or more
series as provided in this Indenture.


 


All things
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE 1


 


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


 


(3)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United
States of America, 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 in the
United States of America as are generally accepted at the date of such computation;


 

















 


(4)                                  all references to “$”
refer to the lawful currency of the United States of America;


 


(5)                                  unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;
and


 


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


 


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


 


“Additional
Interest” has the meaning specified in Section 7.02(b).


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person.


 


“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 6.14
to act on behalf of the Trustee to authenticate Securities of one or more
series.


 


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


 


“Board
Resolution” means a copy of a resolution 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,
and delivered to the Trustee.


 


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


 


“Commission”
means the Securities and Exchange Commission, 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”
includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company; provided, however,
subject to the provisions of Section 14.9, shares issuable upon conversion
of Securities shall include only shares of the class designated as Common Stock
of the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, further,
that if at any time there


 


2

















 


shall be more
than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.


 


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


 


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


 


“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.


 


“Corporate
Trust Office” means the corporate trust office of the Trustee at                     ,
Attention:  Corporate Trust Department,
or such other office, designated by the Trustee by written notice to the
Company, at which at any particular time its corporate trust business shall be
administered.


 


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


 


“Covenant
Defeasance” has the meaning specified in Section 13.3.


 


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


 


“Defeasance”
has the meaning specified in Section 13.2.


 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 3.1.


 


“euro” or “euros”
means the currency adopted by those nations participating in the third stage of
the economic and monetary union provisions of the Treaty on European Union,
signed at Maastricht on February 7, 1992.


 


“European
Economic Area” means the member nations of the European Economic Area pursuant
to the Oporto Agreement on the European Economic Area dated May 2, 1992,
as amended.


 


3

















 


“European
Union” means the member nations of the European Union established by the Treaty
of European Union, signed at Maastricht on February 2, 1992, which amended
the Treaty of Rome establishing the European Community.


 


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


 


“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.


 


“Expiration
Date” has the meaning specified in Section 1.4.


 


“Foreign
Government Obligation” means with respect to Securities of any series which are
not denominated in the currency of the United States of America (x) any
security which is (i) a direct obligation of the government which issued
or caused to be issued the currency in which such security is denominated and
for the payment of which obligations its full faith and credit is pledged or,
with respect to Securities of any series which are denominated in euros, a
direct obligation of any member nation of the European Union for the payment of
which obligation the full faith and credit of the respective nation is pledged
so long as such nation has a credit rating at least equal to that of the
highest rated member nation of the European Economic Area, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of a government specified in clause (i) above the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the such government, 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 Foreign 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 Foreign 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 Foreign Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.


 


“Global
Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.4 (or such legend as
may be specified as contemplated by Section 3.1 for such Securities).


 


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


 


“Indenture”
means this instrument as originally executed and 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.  The term “Indenture” shall also include the
terms of particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is
acting as Trustee under


 


4
















 


this Indenture due to the appointment of one or more separate Trustees
for any one or more separate series of Securities, “Indenture” shall mean, with
respect to such series of Securities for which any such Person is Trustee, 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 and shall include the terms
of particular series of Securities for which such Person is Trustee established
as contemplated by Section 3.1, exclusive, however, of any provisions or
terms which relate solely to other series of Securities for which such Person
is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee, but to which such person, as such Trustee, was not a party; provided,
further that in the event that this Indenture is supplemented or amended
by one or more indentures supplemental hereto which are only applicable to
certain series of Securities, the term “Indenture” for a particular series of
Securities shall only include the supplemental indentures applicable thereto.


 


“interest,”
when used with respect to an Original Issue Discount Security, which by its
terms bears interest only after Maturity, means interest payable after
Maturity.


 


“Interest
Payment Date,” when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.


 


“Investment
Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.


 


“Maturity,”
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, repurchase at the option of the Holder, upon redemption or
otherwise.


 


“Notice of
Default” means a written notice of the kind specified in Section 5.1(4).


 


“Officers’
Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.  One of the
officers signing an Officers’ Certificate given pursuant to Section 10.4
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, or an
employee of, the Company, and who shall be reasonably acceptable to the
Trustee.


 


“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.


 


5

















 


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


 


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


 


(2)                                  Securities
for whose payment or redemption 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;


 


(3)                                  Securities
as to which Defeasance has been effected pursuant to Section 13.2; and


 


(4)                                  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;


 


provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 3.1, (C) the principal amount
of a Security denominated in one or more non-U.S. dollar currencies or currency
units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated
by Section 3.1, of the principal amount of such Security (or, in the case
of a Security described in clause (A) or (B) above, of the
amount determined as provided in such clause), and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.


 


6

















 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.


 


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


 


“Place of
Payment,” when used with respect to the Securities of any series, means the
place or places where the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by 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.


 


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


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.


 


“Reporting
Default” has the meaning specified in Section 7.02(b).


 


“Responsible
Officer” means, when used with respect to the Trustee, an officer of the
Trustee in the Corporate Trust Office assigned and duly authorized by the
Trustee to administer its corporate trust matters.


 


“Securities”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.


 


“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.


 


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


 


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


 


7

















 


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


 


“Subsidiary”
means a Person of which at least a majority of the outstanding voting stock
having the power to elect a majority of the board of directors of such Person
(in the case of a corporation) is, or of which at least a majority of the
equity interests (in the case of a Person which is not a corporation) are, at
the time 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 similar interests to the Company 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.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939 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 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 or
include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.


 


“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.


 


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


 


8

















 


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 such
certificates and opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be
given in the form of an Officers’ Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.


 


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


 


(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 each such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


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


 


Section
1.3                                   Form of
Documents Delivered to Trustee.


 


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


 


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


 


9

















 


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; Record Dates.


 


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


 


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


 


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


 


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


 


The Company
may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any
request, demand, authorization, direction, vote, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may
not set a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date; provided
that no such 


 


10

















 


action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.


 


The Trustee
may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of
such series.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. 
Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company’s expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 1.6.


 


With respect
to any record date set pursuant to this Section, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time
to time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


11

















 


Without
limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.


 


Section
1.5                                   Notices,
etc., to Trustee and Company.


 


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


 


(1)                                  the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile
transmissions, provided that oral confirmation of receipt shall have
been received) to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or


 


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


 


Section
1.6                                   Notice
to Holders; Waiver.


 


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


 


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


 


12

















 


Section
1.7                                   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 the Trust Indenture 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.


 


Section
1.8                                   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
1.9                                   Successors
and Assigns.


 


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


 


Section
1.10                            Separability
Clause.


 


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


 


Section
1.11                            Benefits
of Indenture.


 


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


 


Section
1.12                            Governing
Law.


 


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


 


Section
1.13                            Legal
Holidays.


 


In any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert a Security
at a particular conversion price or conversion rate, as the case may be, shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any
Security which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any) or, if
applicable to a particular series of Securities, conversion need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if 


 


13

















 


made on the Interest Payment Date or
Redemption Date, at the Stated Maturity or on such last day for conversion, as
the case may be.


 


Section
1.14                            Indenture
and Securities Solely Corporate Obligations.


 


No recourse
for the payment of the principal of or premium, if any, or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture 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; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.


 


Section
1.15                            Indenture
May be Executed in Counterparts.


 


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


 


ARTICLE 2


 


SECURITY FORMS


 


Section
2.1                                   Forms
Generally.


 


The Securities
of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.  Any such Board Resolution or
record of such action shall have attached thereto a true and correct copy of
the form of Security referred to therein approved by or pursuant to such Board
Resolution.


 


14
















 


The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.


 


Section 2.2                                   Form of
Face of Security.


 


[INSERT
ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS
THEREUNDER.]


 


SUPERGEN, INC.


 


	
  NO.

  	
  $

  
	
   

  	
  CUSIP:

  



 


 


                                                                                                                                          


SuperGen, Inc.,
a corporation duly organized and existing under the laws of Delaware (herein
called the “Company,” which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to                         ,
or registered assigns, the principal sum of                           
dollars on                                                             [if the
Security is to bear interest prior to Maturity, insert — , and to
pay interest thereon from                     
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                       
and                     
in each year, commencing                   ,
at the rate of       % per annum, until the
principal hereof is paid or made available for payment [if applicable, insert — , provided
that any principal and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of       %
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such 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              or
            
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.  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 Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].


 


[If the Security is not to bear interest
prior to Maturity, insert — The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon 


 


15

















 


acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of       % per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on
demand.  [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the
rate of       % per annum (to the extent that the
payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for
payment.  Interest on any overdue
interest shall be payable on demand.]]


 


Payment of the
principal of (and premium, if any) and [if
applicable, insert — any such] interest on this Security will be
made at the office or agency of the Company maintained for that purpose in               ,
in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert — ; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].


 


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 by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.


 


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


 


	
  Dated:

  	
   

  	
   

  	
  SuperGen, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
							



 


Section 2.3                                   Form of
Reverse of Security.


 


This Security
is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an
Indenture, dated as of                     
(herein called the “Indenture,” which term shall have the meaning assigned to
it in such instrument), between the Company and                     ,
as Trustee (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture and
all indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the 


 


16

















 


Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable, insert — , limited in aggregate principal
amount to $                ].


 


[If applicable, insert — The Securities of
this series are subject to redemption upon not less than [if  applicable,
insert — 30] days’ notice by mail, [if applicable, insert — (1) on                     
in any year commencing with the year                 
and ending with the year                 
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after                     ,
20    ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if
applicable, insert —  on or
before                     ,
      %, and if redeemed] during the 12-month
period beginning                         
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter
at a Redemption Price equal to       % of the
principal amount, together in the case of any such redemption [if applicable, insert — (whether through
operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest installments 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.]


 


[If applicable, insert — The Securities of
this series are subject to redemption upon not less than [if applicable, insert
30] days’ notice by mail, (1) on                     
in any year commencing with the year           
and ending with the year           
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert — on or
after                     ],
as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning                     
of the years indicated,


 


	
  Year

  	
   

  	
  Redemption Price For

  Redemption Through

  Operation of the

  Sinking Fund

  	
   

  	
  Redemption Price For

  Redemption Otherwise Than

  Through

  Operation of the

  Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


and thereafter
at a Redemption Price equal to         %
of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued 


 


17

















 


interest to
the Redemption Date, but interest installments 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.]


 


[If applicable, insert — Notwithstanding the
foregoing, the Company may not, prior to                     ,
redeem any Securities of this series as contemplated by [if applicable, insert — clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than       %
per annum.]


 


[If applicable, insert — The sinking fund
for this series provides for the redemption on                     
in each year beginning with the year             
and ending with the year             
of [if applicable, insert — not
less than $              
(“mandatory sinking fund”) and not more than] $              
aggregate principal amount of Securities of this series.  Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may
be credited against subsequent [if applicable,
insert  — mandatory] sinking
fund payments otherwise required to be made [if
applicable, insert — , in the inverse order in which they become
due].]


 


[If the Security is subject to redemption of any kind,
insert —- In the event of redemption of this Security in part only,
a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]


 


[If applicable, insert — The Indenture
contains provisions for defeasance at any time of [the entire indebtedness of
this Security] [or] [certain restrictive covenants and Events of Default with
respect to this Security] [, in each case] upon compliance with certain
conditions set forth in the Indenture.]


 


[If
the Security is convertible into other securities of the Company, specify the
conversion features.]


 


[If the Security is not an Original Issue Discount
Security, insert — If an Event of Default with respect to Securities
of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.]


 


[If the Security is an Original Issue Discount
Security, insert — If an Event of Default with respect to Securities
of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture. 
Such amount shall be equal to — insert
formula for determining the amount. 
Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and
interest (in each case to the extent that the payment of such interest 


 


18

















 


shall be legally enforceable), all of the
Company’s obligations in respect of the payment of the principal of and premium
and interest, if any, on the Securities of this series shall terminate.]


 


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 of each series to be affected under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of
more than 50% in principal amount of the Securities at the time Outstanding of
each series to be affected.  The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.


 


As provided in
and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than a majority in principal amount of
the Securities of this series at the time Outstanding 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 Securities of this series at the time 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 any
premium or interest hereon on or after the respective due dates expressed
herein.


 


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 any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.


 


19

















 


The Securities
of this series are issuable only in registered form without coupons in
denominations of $            
and any integral multiple thereof.  As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.


 


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


 


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


 


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


 


Section 2.4                                   Form of
Legend for Global Securities.


 


Unless
otherwise specified as contemplated by Section 3.1 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:


 


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


 


Section 2.5                                   Form of
Trustee’s Certificate of Authentication.


 


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


 


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


 


	
   

  	
                                    

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
				



 


20

















 


Section 2.6                                   Form of
Conversion Notice.


 


Conversion notices shall be in substantially the following form:


 


To SuperGen, Inc.:


 


The
undersigned owner of this Security hereby irrevocably exercises the option to
convert this Security, or portion hereof (which is $1,000 or an integral
multiple thereof) below designated, into shares of Common Stock of the Company
in accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
this Notice is being delivered on a date after the close of business on a Regular
Record Date and prior to the opening of business on the related Interest
Payment Date (unless this Security or the portion thereof being converted has
been called for redemption on a Redemption Date during the period beginning at
the close of business on a Regular Record Date and ending at the opening of
business on the first Business Day after the next succeeding Interest Payment
Date, or if such Interest Payment Date is not a Business Day, the second such
Business Day), this Notice is accompanied by payment, in funds acceptable to
the Company, of an amount equal to the interest payable on such Interest
Payment Date of the principal of this Security to be converted. If shares are
to be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect hereto.  Any amount required to be paid by the
undersigned on account of interest accompanies this Security.


 


Principal Amount to be Converted

(in an integral multiple of $1,000, if less than all)


 


	
  U.S. $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s) must
  be guaranteed by an eligible guarantor institution (banks, stock brokers,
  savings and loan associations and credit unions with membership in an
  approved signature guarantee medallion program) pursuant to Securities and
  Exchange Commission Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guaranty

  
	
   

  	
   

  	
   

  
	
  Fill in for
  registration of shares of Common Stock and Security if to be issued otherwise
  than to the registered Holder.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


21

















 


	
  (Name)

  	
   

  	
  Social
  Security or Other Taxpayer Identification Number

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please print
  Name and Address

  (including zip code)

  	
   

  	
   

  



 


[The above
conversion notice is to be modified, as appropriate, for conversion into other
securities or property of the Company.]


 


22

















 


ARTICLE 3


 


THE SECURITIES


 


Section 3.1                                   Amount
Unlimited; Issuable in Series.


 


The aggregate
principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.


 


The Securities
may be issued in one or more series. 
There shall be established in or pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,


 


(1)                                  the
title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);


 


(2)                                  any
limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.4,
3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to Section 3.3,
are deemed never to have been authenticated and delivered hereunder);


 


(3)                                  the
Person to whom any interest on a Security of the series shall be payable, if
other than 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;


 


(4)                                  the
date or dates on which the principal of any Securities of the series is
payable;


 


(5)                                  the
rate or rates (which may be fixed or variable) at which any Securities of the
series shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any such interest payable on
any Interest Payment Date (or the method for determining the dates and rates);


 


(6)                                  the
place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;


 


(7)                                  the
period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or
in part, 


 


23

















 


at the option
of the Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be evidenced;


 


(8)                                  the
obligation, if any, of the Company to redeem or purchase any Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
the Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which any Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;


 


(9)                                  if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;


 


(10)                            if
the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts shall be determined;


 


(11)                            if
other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of “Outstanding”
in Section 1.1;


 


(12)                            if
the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units
in which the principal of or any premium or interest on such Securities as to
which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);


 


(13)                            if
other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 5.2;


 


(14)                            if
the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);


 


(15)                            if
applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 13.2 or Section 13.3 or both
such Sections, or any other defeasance provisions applicable to any Securities
of the series, and, if other than by a


 


24
















 


Board
Resolution, the manner in which any election by the Company to defease such
Securities shall be evidenced;


 


(16)                            if
applicable, the terms of any right to convert or exchange Securities of the
series into shares of Common Stock of the Company or other securities or
property;


 


(17)                            if
applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to
or in lieu of those set forth in clause (2) of the last paragraph of Section 3.5
in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;


 


(18)                            any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2;


 


(19)                            any
addition to or change in the covenants set forth in Article 10 which
applies to Securities of the series;


 


(20)                            any
Authenticating Agents, Paying Agents, Security Registrars or such other agents
necessary in connection with the issuance of the Securities of such series,
including, without limitation, exchange rate agents and calculation agents;


 


(21)                            if
applicable, the terms of any security that will be provided for a series of
Securities, including any provisions regarding the circumstances under which
collateral may be released or substituted;


 


(22)                            if
applicable, the terms of any guaranties for the Securities and any
circumstances under which there may be additional obligors on the Securities;
and


 


(23)                            any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 9.1(5)).


 


All Securities
of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 3.3) set forth, or determined in
the manner provided, in the Officers’ Certificate referred to above or in any
such indenture supplemental hereto.


 


If any of the
terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an


 


25

















 


Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth the terms of the series.


 


Section 3.2                                   Denominations.


 


The Securities
of each series shall be issuable only in registered form without coupons and only
in such denominations as shall be specified as contemplated by Section 3.1.  In the absence of any such specified
denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral
multiple 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
Vice Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, attested by its
Treasurer, its Secretary or one of its Assistant Treasurers or Assistant
Secretaries.  The signature of any of
these officers on the Securities may be manual or facsimile.


 


Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the 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 of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.  If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, a copy of such Board Resolution, the
Officers’ Certificate setting forth the terms of the series and an Opinion of
Counsel, with such Opinion of Counsel stating,


 


(1)                                  if
the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;


 


(2)                                  if
the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this Indenture; and


 


(3)                                  that
such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company 


 


26

















 


enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


 


If such form
or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.


 


Notwithstanding
the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required
pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.


 


Each Security
shall be dated the date of its authentication.


 


No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. 
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.


 


Neither the
Company nor the Trustee shall have any responsibility for any defect in the
CUSIP number that appears on any Security, check, advice of payment or
redemption notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers.


 


Section 3.4                                   Temporary
Securities.


 


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


 


If temporary
Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay.  After the preparation of definitive


 


27

















 


Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder.  Upon surrender for
cancellation of any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.  Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.


 


Section 3.5                                   Registration;
Registration of Transfer and Exchange.


 


The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of
the Company in a Place of Payment being herein sometimes collectively 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 of Securities as herein provided.


 


Upon surrender
for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, 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 the same
series, of any authorized denominations and of like tenor and aggregate
principal amount.


 


At the option
of the Holder, Securities of any series may be exchanged for other Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.


 


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


 


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


 


No service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.


 


28

















 


If the
Securities of any series (or of any series and specified tenor) are to be
redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series
and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3
and ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.


 


The provisions
of clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:


 


(1)                                  Each
Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated 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.


 


(2)                                  Notwithstanding
any other provision in this Indenture, 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 unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.1.


 


(3)                                  Subject
to clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.


 


(4)                                  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 Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a 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.


 


Section 3.6                                   Mutilated,
Destroyed, Lost and Stolen Securities.


 


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


 


If there shall
be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice 


 


29

















 


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 the same series and 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 may, instead of issuing a
new Security, pay such Security.


 


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


 


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


 


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


 


Section 3.7                                   Payment
of Interest; Interest Rights Preserved.


 


Except as
otherwise provided as contemplated by Section 3.1 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.


 


Any interest
on any Security of any series which 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 of such series (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 of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount 


 


30

















 


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. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which 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 shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 1.6, 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 of such series (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 on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.


 


Subject to the
foregoing provisions of this Section, 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.


 


Subject to the
provisions of Section 14.2, in the case of any Security (or any part
thereof) which is converted after any Regular Record Date and on or prior to
the next succeeding Interest Payment Date (other than any Security the
principal of (or premium, if any, on) which shall become due and payable,
whether at Stated Maturity or by declaration of acceleration or otherwise prior
to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or any one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence or in Section 14.2, in the case of
any Security (or any part thereof) which is converted, interest whose Stated
Maturity is after the date of conversion of such Security (or such part
thereof) shall not be payable.


 


31

















 


Section 3.8                                   Persons
Deemed Owners.


 


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


 


Section 3.9                                   Cancellation.


 


All Securities
surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it.  The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee.  No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture.  All canceled Securities held by the Trustee
shall be disposed of in accordance with its customary procedures.


 


Section 3.10                            Computation
of Interest.


 


Except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.


 


ARTICLE 4


 


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 registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when


 


(1)                                  either


 


(A)                              all
Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose payment
money has 


 


32

















 


theretofore
been deposited in trust or segregated and held in trust by the Trustee or 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 for cancellation


 


(i)                                     have
become due and payable, or


 


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


 


(iii)                               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 (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
money in an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest 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 Trustee
to any Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 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 and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.


 


33

















 


ARTICLE 5


 


REMEDIES


 


Section 5.1                                   Events
of Default.


 


“Event of
Default,” wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless in the Board
Resolution, supplemental indenture or Officers’ Certificate establishing such
series, it is provided that such series shall not have the benefit of said
Event of Default:


 


(1)                                  default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 90 days; or


 


(2)                                  default
in the payment of the principal of or any premium on any Security of that
series at its Maturity; or


 


(3)                                  default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or


 


(4)                                  default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series 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


 


(5)                                  the
entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or


 


34
















 


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


 


(7)                                  any
other Event of Default provided with respect to Securities of that series in
the Board Resolution, supplemental indenture or Officers’ Certificate
establishing that series.


 


Section 5.2                                   Acceleration of Maturity;
Rescission and Annulment.


 


(a)                                  Unless
the Board Resolution, supplemental indenture or Officers’ Certificate
establishing such series provides otherwise, if an Event of Default (other than
an Event of Default specified in Section 5.1(5) or 5.1(6)) with
respect to Securities of any series at the time Outstanding 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 of that series may
declare the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof), and premium, if any, together with accrued and unpaid interest, if
any, thereon, 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 amount (or specified amount), and premium, if any,
together with accrued and unpaid interest, if any, thereon, shall become
immediately due and payable. If an Event of Default specified in Section 5.1(5) or
5.1(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof), and premium, if any, together with accrued and unpaid interest, if
any, thereon, shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and payable.


 


(b)                                 Notwithstanding
the foregoing, at the election of the Company, the sole remedy with respect to
an Event of Default for the failure by the Company to comply with its
obligations under Section 314(a)(1) of the Trust Indenture Act
relating to the Company’s failure to file any documents or reports that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act or of its covenants set forth in Section 7.4 (any such
Event of Default, a “Reporting Default”), shall for the first 180 calendar days
after the occurrence of such Reporting Default consist


 


35

















 


exclusively of
the right to receive additional interest (the “Additional Interest”) on the
Securities at an annual rate equal to (i) 0.25% of the principal amount of
the Securities for the first 90 calendar days after the occurrence of such
Reporting Default and (ii) 0.50% of the principal amount of the Securities
from the 91st day to, and including, the 180th day after the occurrence of such Reporting
Default.  If the Company so elects, the
Additional Interest shall accrue on all Outstanding Securities from and
including the date on which such Reporting Default first occurs until such
violation is cured or waived and shall be payable as provided in Section 3.7.  On the 181st day after such Reporting Default (if such
violation is not cured or waived prior to such 181st calendar day), then the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding securities may
declare the principal of, and premium, if any, together with accrued and unpaid
interest, if any, on all such Securities to be due and payable immediately.


 


If the Company
elects to pay the Additional Interest as the sole remedy for the Reporting
Default, the Company shall notify in writing, by a certificate, the Holders,
the Paying Agent and the Trustee of such election at any time on or before the
close of business on the first Business Day following the date on which such
Event of Default first occurs.  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
Additional Interest is not payable.  The
Company shall pay the Additional Interest semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date following the
date of such Reporting Default, in the same manner as described on the face of
the Security.


 


(c)                                  At
any time after such a declaration of acceleration with respect to Securities of
any series 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 of
that series, by written notice to the Company and the Trustee, may 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 on all Securities of that series,


 


(B)                                the
principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Securities,


 


(C)                                to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and


 


(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;
and


 


36

















 


(2)                                  all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.


 


No such
rescission 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 on any Security when such interest
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 (or premium, if any, on) 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 any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


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


 


Section 5.4                                   Trustee May File Proofs
of Claim.


 


In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.


 


37

















 


No provision
of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


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 such judgment has been recovered.


 


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 any premium 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 and any premium, if any, and interest 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 any premium, if any, and
interest, respectively; and


 


THIRD:  The balance, if any, to the Company or any
other Person or Persons entitled thereto.


 


Section 5.7                                   Limitation on Suits.


 


No Holder of
any Security of any series 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 a continuing Event
of Default with respect to the Securities of that series;


 


38

















 


(2)                                  the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series 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 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 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 of that series;


 


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 to 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 of such
Holders.


 


Section 5.8                                   Unconditional Right of
Holders to Receive Principal, Premium 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 any premium and (subject to Section 3.7) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date), to convert such Securities in
accordance with Article 14 to the extent that such right to convert is
applicable to such Security, and to institute suit for the enforcement of any
such payment, 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 has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.


 


Section5.10                               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 is intended to be exclusive of any other


 


39

















 


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 Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee (subject to the limitations contained in this Indenture) or by the
Holders, as the case may be.


 


Section
5.12                            Control by Holders.


 


The Holders of
a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series, provided
that


 


(1)                                  such
direction shall not be in conflict with any rule of law or with this
Indenture and the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to Holders of Securities of that series, or any
other series, not taking part in such direction; and


 


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


 


Section
5.13                            Waiver of Past Defaults.


 


The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series
waive any past default hereunder with respect to such series and its
consequences, except


 


(1)                                  a
default in the payment of the principal of or any premium or interest on any
Security of such series as and when the same shall become due and payable by
the terms thereof, otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest,
principal and premium, if any, has been deposited with the Trustee), or


 


(2)                                  to
the extent such right is applicable to such Security, a failure by the Company
on request to convert any Security into Common Stock; or


 


40

















 


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


 


In any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or in any suit for the
enforcement of the right to convert any Security in accordance with Article 14.


 


Section
5.15                            Waiver of Usury, Stay or
Extension Laws.


 


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


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.1                                   Certain Duties and
Responsibilities.


 


The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act.  Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers 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.  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.


 


41

















 


Section 6.2                                   Notice of Defaults.


 


If a default
occurs hereunder with respect to Securities of any series, the Trustee shall
give the Holders of Securities of such series notice of such default as and to
the extent provided by the Trust Indenture Act; provided, however,
that except in the case of a default in the payment of principal of (or
premium, if any) or interest on any Securities of such series or in the payment
of any sinking fund installment or any conversion right applicable to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the holders of Securities of such series; provided,
further, however, that in the case of any default of the
character specified in Section 5.1(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. 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 with respect to Securities of such series.


 


Except with
respect to Section 10.1, the Trustee shall have no duty to inquire as to
the performance of the Company with respect to the covenants contained in Article 10.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 5.1(1), 5.1(2) and 5.1(3) (defaults
in payments on the Securities) or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.


 


Delivery of
reports, information and documents to the Trustee under Section 7.4 is for
informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).


 


Section 6.3                                   Certain Rights of Trustee.


 


Subject to the
provisions of Section 6.1:


 


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


 


(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


 


42

















 


action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) is entitled to and may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;


 


(4)                                  the
Trustee may consult with counsel and the written 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 pursuant to this Indenture, unless such Holders shall have offered 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, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; 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 neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness.  The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture
or of the Securities.  Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.


 


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


 


The Trustee,
any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.


 


Subject to the
limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures
under which other


 


43

















 


securities, or
certificates of interest of participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee hereunder.


 


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 with the Company.


 


Section 6.7                                   Compensation and
Reimbursement.


 


The Company
agrees:


 


(1)                                  to
pay to the Trustee from time to time reasonable compensation 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 the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.1(5) or Section 5.1(6) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency, reorganization or
similar law.


 


Section 6.8                                   Conflicting Interests.


 


If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act and there is an Event of Default under the Securities of that
series, 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. 
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.


 


44
















 


Section 6.9            Corporate Trustee Required;
Eligibility.


 


There shall at all times be one (and only
one) Trustee hereunder with respect to the Securities of each series, which may
be Trustee hereunder for Securities of one or more other series.  Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has (or if the
Trustee is a member of a bank holding company system, its bank holding company
has) a combined capital and surplus of at least $50,000,000.  If any such Person or bank holding company
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person or bank holding company 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 with respect to the Securities of any series
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.


 


Section 6.10         Resignation and Removal; Appointment of
Successor.


 


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 6.11.


 


The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company.  If the
instrument of acceptance by a successor Trustee required by Section 6.11
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 with respect
to the Securities of such series.


 


The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.


 


If at any time:


 


(1)           the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or


 


(2)           the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by
any such Holder, or


 


(3)           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,


 


45

















 


then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.


 


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, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series 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 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by Section 6.11,
the retiring Trustee may petition, or any Holder who has been a bona fide
Holder of a Security of such series for at least six months may petition, on
behalf of himself and all others similarly situated, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.


 


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


 


Section 6.11         Acceptance of Appointment by Successor.


 


In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such successor Trustee
so appointed 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.


 


46

















 


In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each 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 with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.


 


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
referred to in the first or second preceding paragraph, as the case may be.


 


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


 


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


 


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


 


47

















 


any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such
Securities in either its own name or that of such predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.


 


Section 6.13         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).


 


Section 6.14         Appointment of Authenticating Agent.


 


The Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.6, and Securities
so authenticated 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. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference 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 acceptable
to 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, having (or if the Authenticating Agent is a member of a bank holding
company system, its bank holding company has) a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent 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 Authenticating Agent 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
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.


 


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 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


 


48

















 


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 acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve.  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.


 


The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 6.7.


 


If an appointment with respect to one or more
series is made pursuant to this Section 6.12, the Securities of such
series may have endorsed thereon, in lieu of the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following
form:


 


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


 


	
   

  	
                                          

  	
  ,

  
	
   

  	
  As Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   As
  Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Authorized
  Officer

  
				



 


ARTICLE 7


 


HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.1            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 later than 15 days after the Regular
Record Date for each respective series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Securities of each series as of such Regular


 


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Record Date, as the case may be, or if there is no Regular Record Date
for such series of Securities, semi-annually, and


 


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


 


provided that no
such list need be furnished by the Company to the Trustee so long as the
Trustee is acting as Security Registrar.


 


Section 7.2            Preservation of Information;
Communications to Holders.


 


The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar.  The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt
of a new list so furnished.


 


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 privileges of the Trustee, shall
be as provided by the Trust Indenture Act.


 


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


 


Section 7.3            Reports by Trustee.


 


The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.


 


Reports so required to be transmitted at
stated intervals of not more than 12 months shall be transmitted no later than July 15
in each calendar year, commencing with the first July 15 after the first
issuance of Securities pursuant to this Indenture.


 


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 any Securities are listed, with the Commission and with the
Company.  The Company will notify the
Trustee when any Securities are listed on any stock exchange.


 


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Section 7.4            Reports by Company.


 


Any information, documents or other reports
that the Company shall file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act shall be filed with the Trustee within 15 days
after the same is filed with the Commission; provided that any such
information, documents or reports filed or furnished with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval (or EDGAR)
system shall be deemed to be filed with the Trustee as of the time such
information, documents or reports are filed or furnished via EDGAR.


 


ARTICLE 8


 


CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.1            Company May Consolidate, etc.,
Only on Certain Terms.


 


The Company shall not consolidate with or
merge into any other Person (other than a Subsidiary of the Company) (in a
transaction in which the Company is not the surviving corporation) or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person (other than a Subsidiary of the Company), unless:


 


(1)           in case the Company shall consolidate with or merge into
another Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, limited liability
company, partnership, trust or other business entity, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and the conversion rights shall be provided for in
accordance with Article 14, if applicable, or as otherwise specified
pursuant to Section 3.1, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee, by the Person (if other
than the Company) formed by such consolidation or into which the Company shall
have been merged or by the Person which shall have acquired the Company’s
assets;


 


(2)           immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and


 


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


 


Section 8.2            Successor Substituted.


 


Upon any consolidation of the Company with,
or merger of the Company into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an entirety
in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.


 


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ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.1            Supplemental Indentures Without
Consent of Holders.


 


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


 


(1)           to evidence the succession of another Person to the
Company, or successive successions, and the assumption by any such successor of
the covenants of the Company herein and in the Securities in compliance with Article 8;
or


 


(2)           to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or


 


(3)           to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or


 


(4)           to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or


 


(5)           to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (ii) modify
the rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security
Outstanding; or


 


(6)           to secure the Securities, including provisions regarding
the circumstances under which collateral may be released or substituted; or


 


(7)           to add or provide for a guaranty of the Securities or
additional obligors on the Securities; or


 


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(8)           to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or


 


(9)           to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
or


 


(10)         to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided  that such action
pursuant to this clause (10) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect; or


 


(11)         to supplement any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Articles 4 and 13, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any material
respect.


 


Section 9.2            Supplemental Indentures with Consent
of Holders.


 


With the consent of the Holders of a majority
in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected thereby,


 


(1)           change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2,
or change the place of payment or the coin or currency in which, any Security
or any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
modify the provisions of this Indenture in the case of Securities of any series
that are convertible into Securities or other securities of the Company,
adversely affect the right of Holders to convert any of the Securities of such
series other than as provided in or pursuant to this Indenture, or


 


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(2)                                  reduce
the percentage in principal amount of the Outstanding Securities of any series,
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
any of the provisions of this Section, Section 5.13 or Section 10.8,
except to increase any such percentage 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; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant changes
in this Section and Section 10.8, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 9.1(8), or


 


(4)                                  if
applicable, make any change that adversely affects the right to convert any
security as provided in Article 14 or pursuant to Section 3.1 (except
as permitted by Section 9.1(9)).


 


A supplemental
indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.


 


It shall not
be necessary for any Act of Holders 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 9.3                                   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 Sections 6.1 and 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.  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 9.4                                   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 shall be bound
thereby.


 


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Section 9.5                                   Conformity
with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act.


 


Section 9.6                                   Reference
in Securities to Supplemental Indentures.


 


Securities of
any series 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 of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.


 


ARTICLE 10


 


COVENANTS


 


Section 10.1                            Payment
of Principal, Premium and Interest.


 


The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.


 


Section 10.2                            Maintenance
of Office or Agency.


 


The Company
will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series may be surrendered for
conversion and where notices and demands to or upon the Company in respect of
the Securities of that series 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.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.  Unless otherwise provided in a supplemental
indenture or pursuant to Section 3.1 hereof, the Place of Payment for any
series of Securities shall be the Corporate Trust Office of the Trustee.


 


The Company
may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided,
however, that no such


 


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designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes.  The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.


 


Section 10.3                            Money
for Securities Payments To Be Held in Trust.


 


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


 


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


 


The Company
will cause each Paying Agent for any series of Securities 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) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.


 


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 any premium or interest on any
Security of any series and remaining unclaimed for a period ending on the
earlier of the date that is ten Business Days prior to the date such money
would escheat to the State or two years after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent,


 


57

















 


before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in each
Place of Payment, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.


 


Section 10.4                            Statement
by Officers as to Default.


 


The Company
will deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers’ Certificate, stating
whether or not to the 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 fiscal year of the Company currently ends on
December 31; and the Company will give the Trustee prompt written notice
of any change of its fiscal year.


 


Section 10.5                            Existence.


 


Subject to Article 8,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence.


 


Section 10.6                            Maintenance
of Properties.


 


The Company
will cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, and to
the extent, in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any
material respect to the Holders.


 


Section 10.7                            Payment
of Taxes and Other Claims.


 


The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or upon the income, profits or property of
the Company, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company; provided,
however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim (i) whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings or (ii) if the failure to pay or


 


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discharge
would not have a material adverse effect on the assets, business, operations,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole.


 


Section 10.8                            Waiver
of Certain Covenants.


 


Except as
otherwise specified as contemplated by Section 3.1 for Securities of such
series, the Company may, with respect to the Securities of any series, omit in
any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 3.1(19), 9.1(2),
9.1(7), 10.6 or 10.7 for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.


 


ARTICLE 11


 


REDEMPTION OF SECURITIES


 


Section 11.1                            Applicability
of Article.


 


Securities of
any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.1 for such Securities) in accordance with this
Article.


 


Section 11.2                            Election
to Redeem; Notice to Trustee.


 


The election
of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.  In case of any
redemption at the election of the Company of less than all the Securities of
any series (including any such redemption affecting only a single Security),
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 of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed.  In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction.


 


Section 11.3                            Selection
by Trustee of Securities to Be Redeemed.


 


If less than
all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 45 days


 


59

















 


prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by lot, or in the Trustee’s discretion,
on a pro-rata basis, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for such Security.
If less than all the Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.


 


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 that have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.


 


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


 


The provisions
of the three preceding paragraphs shall not apply with respect to any
redemption affecting only a single Security, whether such Security is to be
redeemed in whole or in part.  In the
case of any such redemption in part, the unredeemed portion of the principal
amount of the Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.


 


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 11.4                            Notice
of Redemption.


 


Notice of
redemption shall be given by first-class mail, postage prepaid, mailed not
fewer than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to each Holder of
Securities to be redeemed, at its address appearing in the Security Register.


 


All notices of
redemption shall state:


 


(1)                                  the
Redemption Date,


 


(2)                                  the
Redemption Price (including accrued interest, if any),


 


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(3)                                  if
less than all the Outstanding Securities of any series consisting of more than
a single Security are to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,


 


(4)                                  in
case any Security is to be redeemed in part only, that on and after the
Redemption Date, upon surrender of the Security, the Holder of such Security
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;


 


(5)                                  that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,


 


(6)                                  the
place or places where each such Security is to be surrendered for payment of
the Redemption Price,


 


(7)                                  if
applicable, the conversion price or the conversion rate, as the case may be,
the date on which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate, and the place or places where
such Securities may be surrendered for conversion,


 


(8)                                  that
the redemption is for a sinking fund, if such is the case, and


 


(9)                                  the
CUSIP number or numbers and/or common code(s) of the Security being
redeemed.


 


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 request, by the Trustee in the name
and at the expense of the Company and shall be irrevocable.


 


Section 11.5                            Deposit
of Redemption Price.


 


On or prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (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
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.


 


If any
Security called for redemption is converted, any money deposited with the
Trustee or with a Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to the right of any Holder of such
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.


 


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Section 11.6                            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 and accrued interest) such Securities
shall cease to bear interest.  Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates 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 and any premium shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.


 


Section 11.7                            Securities
Redeemed in Part.


 


Any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (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 its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, 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.


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.1                            Applicability
of Article.


 


The provisions
of this Article shall be applicable to any sinking fund for the retirement
of Securities of any series except as otherwise specified as contemplated by Section 3.1
for such Securities.


 


The minimum
amount of any sinking fund payment provided for by the terms of any Securities
is herein referred to as a “mandatory sinking fund payment,” and any payment in
excess of such minimum amount provided for by the terms of such Securities is
herein referred to as an “optional sinking fund payment.”  If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. 
Each sinking


 


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fund payment
shall be applied to the redemption of Securities as provided for by the terms
of such Securities.


 


Section 12.2                            Satisfaction
of Sinking Fund Payments with Securities.


 


The Company (1) may
deliver Outstanding Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided
that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.


 


Section 12.3                            Redemption
of Securities for Sinking Fund.


 


Not fewer than
60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of
the next ensuing sinking fund payment for such Securities pursuant to the terms
of such Securities, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 12.2 and will also
deliver to the Trustee any Securities to be so delivered. Not fewer than 30
days prior to each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 11.4.  Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.1                            Company’s
Option to Effect Defeasance or Covenant Defeasance.


 


The Company
may elect, at its option at any time, to have Section 13.2 or Section 13.3
applied to any Securities or any series of Securities, as the case may be,
designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1
and upon compliance with the conditions set forth below in this Article.  Any such election shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 3.1
for such Securities.


 


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Section 13.2                            Defeasance
and Discharge.


 


Upon the
Company’s exercise of its option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be, 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 13.4 are satisfied (hereinafter called “Defeasance”).  For this purpose, such Defeasance 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 13.4 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on such
Securities when payments are due,


 


(2)                                  the
Company’s obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2 and 10.3, and, if applicable, Article 14,


 


(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 notwithstanding the prior exercise of its option (if any) to
have Section 13.3 applied to such Securities.


 


Section 13.3                            Covenant
Defeasance.


 


Upon the
Company’s exercise of its option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be,


 


(1)                                  the
Company shall be released from its obligations under Sections 10.6 and
10.7 and any covenants provided pursuant to Sections 3.1(19), 9.1(2) or
9.1(7) for the benefit of the Holders of such Securities and


 


(2)                                  the
occurrence of any event specified in Section 5.1(4) (with respect to
any of Sections 10.6 and 10.7 and any such covenants provided pursuant to Section 3.1(19),
9.1(2) or 9.1(7)) and the occurrence of any other Event of Default
specified pursuant to Section 3.1 shall be deemed not to be or result in
an Event of Default,


 


in each case
with respect to such Securities or any series of Securities as provided in this
Section on and after the date the conditions set forth in Section 13.4
are satisfied (hereinafter called “Covenant Defeasance”).  For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to comply
with and shall have no liability in respect of any term, 


 


64
















 


condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.1(4) and the
occurrence of any other Event of Default specified pursuant to Section 3.1),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.


 


Section 13.4   Conditions
to Defeasance or Covenant Defeasance.


 


The following shall be the
conditions to the application of Section 13.2 or Section 13.3 to any
Securities or any series of Securities, as the case may be:


 


(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 6.9 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)                              in the case of Securities of a series
denominated in currency of the United States of America,


 


(i)            cash in currency of the United
States of America in an amount, or


 


(ii)           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, an amount in cash, or


 


(iii)          a combination thereof, or


 


(B)                                in the case of Securities of a series
denominated in currency other than that of the United States of America,


 


(i)            cash in the currency in which such
series of Securities is denominated in an amount, or


 


(ii)           Foreign 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, an amount in cash, or


 


(iii)          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 


 


65

















 


pay and discharge, the
principal of and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities.


 


(2)           In the event of an election to have Section 13.2
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received 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)           In the event of an election to have Section 13.3
apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance 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 and Covenant Defeasance were not to occur.


 


(4)           The Company shall have delivered to
the Trustee an Officers’ Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.


 


(5)           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
Sections 5.1(5) and (6), 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).


 


(6)           Such Defeasance or Covenant
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).


 


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


 


(8)           Such Defeasance or Covenant
Defeasance shall not result in the trust arising from such deposit constituting
an investment 


 


66

















 


company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.


 


(9)           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 or Covenant
Defeasance have been complied with.


 


Section
13.5   Deposited Money, U.S. Government Obligations and Foreign
Government Obligations to be Held in Trust; Miscellaneous Provisions.


 


Subject to the provisions of
the last paragraph of Section 10.3, all money, U.S. Government Obligations
and Foreign Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.6, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 13.4 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 any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. 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 or Foreign Government
Obligations deposited pursuant to Section 13.4 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, U.S. Government Obligations
or Foreign Government Obligations held by it as provided in Section 13.4
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 or Covenant
Defeasance, as the case may be, with respect to such Securities.


 


Section 13.6   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
or 13.3 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 13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such 


 


67

















 


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 14


 


CONVERSION OF SECURITIES


 


Section
14.1   Applicability of Article.


 


The provisions of this Article shall
be applicable to the Securities of any series which are convertible into shares
of Common Stock of the Company, and the issuance of such shares of Common Stock
upon the conversion of such Securities, except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series.


 


Section
14.2   Exercise of Conversion Privilege.


 


In order to exercise a
conversion privilege, the Holder of a Security of a series with such a
privilege shall surrender such Security to the Company at the office or agency
maintained for that purpose pursuant to Section 10.2, accompanied by a
duly executed conversion notice to the Company substantially in the form set
forth in Section 2.6 stating that the Holder elects to convert such
Security or a specified portion thereof. 
Such notice shall also state, if different from the name and address of
such Holder, the name or names (with address) in which the certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued.  Securities
surrendered for conversion shall (if so required by the Company or the Trustee)
be duly endorsed by or accompanied by instruments of transfer in forms
satisfactory to the Company and the Trustee duly executed by the Holder or its
attorney duly authorized in writing; and Securities so surrendered for
conversion (in whole or in part) during the period from the close of business
on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (excluding Securities or portions thereof called for
redemption during the period beginning at the close of business on a Regular
Record Date and ending at the opening of business on the first Business Day
after the next succeeding Interest Payment Date, or if such Interest Payment
Date is not a Business Day, the second such Business Day) shall also be
accompanied by payment in 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 then being converted, and such interest shall be payable to such
Holder notwithstanding the conversion of such Security, subject to the
provisions of Section 3.7 relating to the payment of Defaulted Interest by
the Company. As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers’ Certificate,
or established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe, the
Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers’ Certificate or 


 


68

















 


supplemental indenture, and
cash as provided therein in respect of any fractional share of such Common
Stock otherwise issuable upon such conversion. Such conversion shall be deemed
to have been effected immediately prior to the close of business on the date on
which such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have been
surrendered as aforesaid (unless such Holder shall have so surrendered such
Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be deemed
to be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon
such conversion shall be deemed to have become the Holder or Holders of record
of the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 3.7, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the Securities (or
any part thereof) surrendered for conversion or on account of any dividends on
the Common Stock of the Company issued upon such conversion.  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 or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal
to the unconverted portion of such Security.


 


Section
14.3   No Fractional Shares.


 


No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series.  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 shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered.  If, except for the provisions of this Section 14.3,
any Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder
an amount in cash equal to the current market value of such fractional share
computed, (i) if such Common Stock is listed or admitted to unlisted
trading privileges on a national securities exchange or market, on the basis of
the last reported sale price regular way on such exchange or market on the last
trading day prior to the date of conversion upon which such a sale shall have
been effected, or (ii)  if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange or
market, on the basis of the average of the bid and asked prices of such Common
Stock in the over-the-counter market, on the last trading day prior to the date
of conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no
longer reporting such information, or if not so available, the fair market
price as determined by the Board of Directors. For purposes of this Section,
“trading day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
other than any day on which the Common Stock is not traded on the 


 


69

















 


Nasdaq National Market, or
if the Common Stock is not traded on the Nasdaq National Market, on the
principal exchange or market on which the Common Stock is traded or quoted.


 


Section
14.4   Adjustment of Conversion Price or Conversion Rate.


 


The conversion price or
conversion rate, as the case may be, of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any stock
dividends, stock splits, reclassifications, combinations or similar
transactions in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such
series.  Whenever the conversion price or
conversion rate, as the case may be, is adjusted, the Company shall compute the
adjusted conversion price or conversion rate, as the case may be, in accordance
with terms of the applicable Board Resolution or supplemental indenture and
shall prepare an Officers’ Certificate setting forth the adjusted conversion
price or conversion rate, as the case may be, and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2 and, if different, with
the Trustee. The Company shall forthwith cause a notice setting forth the
adjusted conversion price or conversion rate, as the case may be, to be mailed,
first class postage prepaid, to each Holder of Securities of such series at its
address appearing on the Security Register and to any conversion agent other
than the Trustee.


 


Section
14.5   Notice of Certain Corporate Actions.


 


In case:


 


(1)           the Company shall declare a dividend
(or any other distribution) on its Common Stock payable otherwise than in cash
out of its retained earnings (other than a dividend for which approval of any
shareholders of the Company is required) that would require an adjustment
pursuant to Section 14.4; 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 (other than any such grant for which
approval of any shareholders of the Company is required); or


 


(3)           of any reclassification of the Common
Stock of the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any
shareholders of the Company is required), or of the sale 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 with the Trustee, and shall cause to be mailed to all Holders at
their last addresses as they shall appear in the Security Register, at least 20
days (or 10 days in any 


 


70

















 


case specified in
clause (1) or (2) above) prior to the applicable record date
hereinafter specified, a notice stating (i) 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 (ii) the date on
which such reclassification, consolidation, merger, share exchange, sale,
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, share
exchange, sale, dissolution, liquidation or winding up. If at any 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.


 


Section
14.6   Reservation of Shares of 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 of the
Company then issuable upon the conversion of all outstanding Securities of any
series that has conversion rights.


 


Section
14.7   Payment of Certain Taxes upon Conversion.


 


Except as provided in the
next sentence, the Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of its Common Stock on conversion of
Securities pursuant hereto.  The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of shares of its 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 has established, to the satisfaction of the Company, that such tax has
been paid.


 


Section
14.8   Nonassessability.


 


The Company covenants that
all shares of its Common Stock that may be issued upon conversion of Securities
will upon issue in accordance with the terms hereof be duly and validly issued
and fully paid and nonassessable.


 


Section
14.9   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 which 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, 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 of a series
then Outstanding that is convertible into 


 


71

















 


Common Stock of the Company
shall have the right thereafter (which right shall be the exclusive conversion
right thereafter available to said Holder), during the period such Security
shall be convertible, 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
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease, assuming such holder of Common Stock of the Company (i) is not 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 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 14.9 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 which, 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 or in
accordance with the terms of the supplemental indenture or Board Resolutions
setting forth the terms of such adjustments. 
The above provisions of this Section 14.9 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 of a series that is convertible into Common Stock of the Company as
provided in Section 1.6 promptly upon such execution.  Neither the Trustee nor any conversion agent,
if any, 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 of a series convertible into Common Stock
of the Company 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
14.10   Duties of Trustee Regarding Conversion.


 


Neither the Trustee nor any
conversion agent shall at any time be under any duty or responsibility to any
Holder of Securities of any series that is convertible into Common Stock of the
Company to determine whether any facts exist which may require any adjustment
of the conversion price or conversion rate, as the case may be, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any 


 


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supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company provided to be employed in making the same.
Neither the Trustee nor any conversion agent shall be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock
of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect
thereto.  Subject to the provisions of Section 6.1,
neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.


 


Section
14.11   Repayment of Certain Funds upon Conversion.


 


Any funds which at any time
shall have been deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, and premium,
if any, and interest, if any, on any of the Securities (including, but not
limited to, funds deposited for the sinking fund referred to in Article 12
hereof and funds deposited pursuant to Article 13 hereof) and which shall
not be required for such purposes because of the conversion of such Securities
as provided in this Article 14 shall after such conversion be repaid to
the Company by the Trustee upon the Company’s written request.


 


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


 


	
   

  	
  SuperGen, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: