EX-4.3






EXHIBIT 4.2




EPICEPT CORPORATION




and




THE BANK OF NEW YORK MELLON, as Trustee




Indenture




Dated as of _________, 20__




Providing for Issuance of Convertible Debt Securities




 









 





	 	 	 	 	 	 	 
	ARTICLE 1

	Definitions And Other Provisions Of General Application

	 
	 	 	 	 	 	 
	Section 1.01.

	 	Definitions
	 	 	1	 
	Section 1.02.

	 	Officers’ Certificates and Opinions
	 	 	12	 
	Section 1.03.

	 	Form of Documents Delivered to Trustee
	 	 	12	 
	Section 1.04.

	 	Acts of Holders
	 	 	13	 
	Section 1.05.

	 	Notices, etc., to Trustee and Company
	 	 	14	 
	Section 1.06.

	 	Notice To Holders; Waiver
	 	 	14	 
	Section 1.07.

	 	Conflict with Trust Indenture Act
	 	 	14	 
	Section 1.08.

	 	Effect of Headings and Table of Contents
	 	 	14	 
	Section 1.09.

	 	Successors and Assigns
	 	 	15	 
	Section 1.10.

	 	Separability Clause
	 	 	15	 
	Section 1.11.

	 	Benefits Of Indenture
	 	 	15	 
	Section 1.12.

	 	Governing Law
	 	 	15	 
	Section 1.13.

	 	Counterparts
	 	 	15	 
	Section 1.14.

	 	Judgment Currency
	 	 	15	 
	Section 1.15.

	 	Legal Holidays
	 	 	15	 
	Section 1.16.

	 	Waiver of Jury Trial
	 	 	16	 
	Section 1.17.

	 	Force Majeure
	 	 	16	 
	Section 1.18.

	 	Facsimile Instructions
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE 2

	The Securities

	 
	 	 	 	 	 	 
	Section 2.01.

	 	Form Generally
	 	 	16	 
	Section 2.02.

	 	Forms of Securities
	 	 	16	 
	Section 2.03.

	 	Securities in Global Form
	 	 	17	 
	Section 2.04.

	 	Form of Trustee’s Certificate of Authentication
	 	 	17	 
	Section 2.05.

	 	Title and Terms
	 	 	18	 
	Section 2.06.

	 	Denominations
	 	 	21	 
	Section 2.07.

	 	Execution, Authentication, Delivery and Dating
	 	 	21	 
	Section 2.08.

	 	Global Securities
	 	 	22	 
	Section 2.09.

	 	Registration, Registration of Transfer and Exchange
	 	 	23	 
	Section 2.10.

	 	Mutilated, Destroyed, Lost or Stolen Securities
	 	 	24	 
	Section 2.11.

	 	Payment of Interest; Interest Rights Preserved
	 	 	24	 
	Section 2.12.

	 	Persons Deemed Owners
	 	 	25	 
	Section 2.13.

	 	Cancellation
	 	 	26	 
	Section 2.14.

	 	Computation of Interest
	 	 	26	 
	Section 2.15.

	 	CUSIP Numbers
	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE 3

	Satisfaction and Discharge

	 
	 	 	 	 	 	 
	Section 3.01.

	 	Satisfaction and Discharge of Indenture
	 	 	26	 
	Section 3.02.

	 	Application of Trust Money; Excess Funds
	 	 	27	 
	Section 3.03.

	 	Paying Agent to Repay Moneys Held
	 	 	28	 
	Section 3.04.

	 	Return of Unclaimed Amounts
	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE 4

	Remedies

	 
	 	 	 	 	 	 
	Section 4.01.

	 	Events of Default
	 	 	28	 






i









 






	 	 	 	 	 	 	 
	Section 4.02.

	 	Acceleration of Maturity; Rescission, and Annulment
	 	 	30	 
	Section 4.03.

	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	31	 
	Section 4.04.

	 	Trustee May File Proofs of Claim
	 	 	31	 
	Section 4.05.

	 	Trustee May Enforce Claims Without Possession of Securities
	 	 	32	 
	Section 4.06.

	 	Application of Money Collected
	 	 	32	 
	Section 4.07.

	 	Limitation on Suits
	 	 	32	 
	Section 4.08.

	 	Unconditional Right of Holders to Receive Principal, Premium, and Interest and to Convert
	 	 	33	 
	Section 4.09.

	 	Restoration of Rights and Remedies
	 	 	33	 
	Section 4.10.

	 	Rights and Remedies Cumulative
	 	 	33	 
	Section 4.11.

	 	Delay or Omission Not Waiver
	 	 	33	 
	Section 4.12.

	 	Control by Holders
	 	 	34	 
	Section 4.13.

	 	Waiver of Past Defaults
	 	 	34	 
	Section 4.14.

	 	Undertaking for Costs
	 	 	34	 
	Section 4.15.

	 	Waiver of Stay or Extension Laws
	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE 5

	The Trustee

	 
	 	 	 	 	 	 
	Section 5.01.

	 	Certain Duties and Responsibilities of Trustee
	 	 	35	 
	Section 5.02.

	 	Notice of Defaults
	 	 	36	 
	Section 5.03.

	 	Certain Rights of Trustee
	 	 	36	 
	Section 5.04.

	 	Not Responsible for Recitals or Issuance of Securities
	 	 	37	 
	Section 5.05.

	 	May Hold Securities
	 	 	38	 
	Section 5.06.

	 	Money Held in Trust
	 	 	38	 
	Section 5.07.

	 	Compensation and Reimbursement
	 	 	38	 
	Section 5.08.

	 	Disqualification; Conflicting Interests
	 	 	39	 
	Section 5.09.

	 	Corporate Trustee Required; Eligibility
	 	 	39	 
	Section 5.10.

	 	Resignation and Removal; Appointment of Successor
	 	 	39	 
	Section 5.11.

	 	Acceptance of Appointment by Successor
	 	 	40	 
	Section 5.12.

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	41	 
	Section 5.13.

	 	Preferential Collection of Claims Against Company
	 	 	41	 
	Section 5.14.

	 	Appointment of Authenticating Agent
	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE 6

	Consolidation, Merger, Conveyance, Transfer Or Lease

	 
	 	 	 	 	 	 
	Section 6.01.

	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	42	 
	Section 6.02.

	 	Successor Substituted
	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE 7

	Supplemental Indentures

	 
	 	 	 	 	 	 
	Section 7.01.

	 	Supplemental Indentures Without Consent of Holders
	 	 	43	 
	Section 7.02.

	 	Supplemental Indentures With Consent of Holders
	 	 	44	 
	Section 7.03.

	 	Execution of Supplemental Indentures
	 	 	45	 
	Section 7.04.

	 	Effect of Supplemental Indentures
	 	 	45	 
	Section 7.05.

	 	Conformity With Trust Indenture Act
	 	 	45	 
	Section 7.06.

	 	Reference in Securities to Supplemental Indentures
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE 8

	Covenants

	 
	 	 	 	 	 	 
	Section 8.01.

	 	Payment of Principal, Premium and Interest
	 	 	45	 






ii









 






	 	 	 	 	 	 	 
	Section 8.02.

	 	Maintenance of Office or Agency
	 	 	46	 
	Section 8.03.

	 	Money or Security Payments to Be Held in Trust
	 	 	46	 
	Section 8.04.

	 	Certificate to Trustee
	 	 	47	 
	Section 8.05.

	 	Corporate Existence
	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE 9

	Conversion of Securities

	 
	 	 	 	 	 	 
	Section 9.01.

	 	Conversion Privilege and Conversion Rate
	 	 	47	 
	Section 9.02.

	 	Exercise of Conversion Privilege
	 	 	47	 
	Section 9.03.

	 	Fractions of Shares
	 	 	49	 
	Section 9.04.

	 	Adjustment of Conversion Rate
	 	 	49	 
	Section 9.05.

	 	Notice of Adjustments of Conversion Rate
	 	 	53	 
	Section 9.06.

	 	Notice of Certain Corporate Action
	 	 	54	 
	Section 9.07.

	 	Company to Reserve Common Stock
	 	 	55	 
	Section 9.08.

	 	Taxes on Conversions
	 	 	55	 
	Section 9.09.

	 	Covenant as to Common Stock
	 	 	55	 
	Section 9.10.

	 	Cancellation of Converted Securities
	 	 	55	 
	Section 9.11.

	 	Provision in Case of Consolidation, Merger or Sale of Assets
	 	 	55	 
	Section 9.12.

	 	Responsibility of Trustee for Conversion Provisions
	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE 10

	Holders Lists And Reports By Trustee And Company; Non-Recourse

	 
	 	 	 	 	 	 
	Section 10.01.

	 	Company to Furnish Trustee Names and Addresses of Holders
	 	 	56	 
	Section 10.02.

	 	Preservation of Information
	 	 	57	 
	Section 10.03.

	 	No Recourse Against Others
	 	 	57	 
	Section 10.04.

	 	Reports by Trustee
	 	 	57	 
	Section 10.05.

	 	Section 13 or 15(d) Reports by Company
	 	 	58	 







iii











 





     THIS INDENTURE, between EpiCept Corporation, a Delaware corporation (hereinafter called the
“Company”), and The Bank of New York Mellon, a New York banking corporation, as trustee
(hereinafter called the “Trustee”), is made and
entered into as of this ___ day of                     , 20___.



Recitals of the Company




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



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



Agreements of the Parties




     To set forth or to provide for the establishment of the terms and conditions upon which the
Securities are and are to be authenticated, issued, and delivered, and in consideration of the
premises thereof, and the purchase of Securities by the Holders (as hereinafter defined) thereof,
it is mutually covenanted and agreed as follows, for the equal and proportionate benefit of all
Holders from time to time of the Securities or of any series thereof, as the case may be:



ARTICLE 1

Definitions And Other Provisions Of General Application




     Section 1.01. Definitions. For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the context otherwise
requires:



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



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



     (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles (“GAAP”); and



     (d) all references in this instrument to designated “Articles”, “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this instrument as
originally executed. The words “herein”, “hereof”, and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section, or other
subdivision.



     “Act”, when used with respect to any Holder of a Security, has the meaning specified in
Section 1.04.



 









 





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



     “Agent Members” means a member of, or a participant in, the Depositary.



     “Aggregate Current Market Price” has the meaning specified in Section 9.04(e).




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



     “Authenticating Agent” means any Person authorized by the Trustee to authenticate Securities
of one or more series under Section 5.14.



     “Authentication Order” has the meaning specified in Section 2.07.



     “Board of Directors” means (i) the board of directors of the Company, (ii) any duly authorized
committee of that board, or (iii) any officer, director or authorized representative of the
Company, in each case duly authorized by such Board to act hereunder.



     “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.



     “Capital Stock” means any class of authorized capital stock of the Company, whether common or
preferred stock, as specified from time to time in the Company’s certificate of incorporation, as
amended and restated, and as in effect from time to time.



     “Cash Equivalents” means (1) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (2) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500 million and a Thompson Bank Watch
Rating of “B” or better, (3) repurchase obligations with a term of not more than seven (7) days for
underlying securities of the types described in clause (1) above entered into with any financial
institution meeting the qualifications specified in clause (2) above, (4) commercial paper having
the highest rating obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Ratings
Services and in each case maturing within six months after the date of acquisition and (5) money
market funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1)-(4) of this definition.



2









 





     “Chairman” means the Company’s Chairman of the Board.



     “Closing Price” means, with respect to the Common Stock on any day, the closing sale price
regular way on such day or, in the case where no such sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, in each case on The Nasdaq Capital Market,
or, if the Common Stock is not listed or admitted to trading on such exchange, on the principal
national security exchange or quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to trading on any national securities
exchange or quotation system, the average of the closing bid and asked prices of the Common Stock
on the over-the-counter market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected from time to time by the
Board of Directors for that purpose, or if no bid or asked price is available a price determined in
good faith by the Board of Directors, whose determination shall be conclusive and described in a
Board Resolution.



     “Combined Cash and Tender Amount” has the meaning specified in Section 9.04(e).



     “Combined Tender and Cash Amount” has the meaning specified in Section 9.04(f).



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



     “Common Stock” means the shares of the class designated as common stock of the Company at the
date of this Indenture or as such stock may be reconstituted from time to time. Subject to the
provisions of Section 9.11, shares issuable on conversion or repurchase of Securities shall include
only shares of Common Stock or shares of any class or classes of Common Stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any time there shall
be more than one such resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class then so issuable shall be
substantially in the proportion that 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 EpiCept Corporation, unless and until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall
mean such successor corporation.



     “Company Order” means a written request, order, or consent signed in the name of the Company
by its Chairman, Chief Executive Officer, Chief Financial Officer, Senior Vice President, or any
Vice President (as hereinafter defined), or by any other officer or officers of the Company
pursuant to an applicable Board Resolution, and delivered to the Trustee.



     “Completion Date” has the meaning specified in Section 9.04(f).



     “Constituent Person” has the meaning specified in Section 9.11.



3









 





     “Conversion Agent” means any Person authorized by the Company to convert Securities in
accordance with Article 9. The Company has initially appointed the Trustee as its Conversion
Agent.



     “Conversion Date” means the date on which both the Securities and the duly signed and
completed notice of conversion substantially in the form attached hereto as Exhibit A have
been delivered to the Trustee.



     “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion.



     “Conversion Shares” has the meaning specified in Section 9.04(m).



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the dated hereof is located at 101
Barclay Street, Floor, 8 West, New York, New York 10286, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).



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



     “Defaulted Interest” has the meaning specified in Section 2.11.



     “Depositary” means with respect to any Registered Securities a clearing agency that is
registered as such under the Exchange Act and is designated by the Company to act as Depositary for
such Registered Securities (or any successor clearing agency so registered). The Company has
initially appointed DTC as Depositary hereunder.



     “Distribution Date” has the meaning specified in Section 9.04(m).



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



     “Equivalent Government Securities” means, in relation to Securities denominated in a currency
other than U.S. dollars, securities of the government that issued the currency in which such
Securities are denominated or securities of government agencies backed by the full faith and credit
of such government.



     “Event of Default” has the meaning specified in Article 4.



     “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Standards Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession.



4









 





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



     “Hercules Loan” means that certain amended loan and security agreement, dated as of August 30,
2006, among the Company, Maxim Pharmaceuticals Inc. and Hercules Technology Growth Capital, Inc.,
and as amended on May 5, 2008 and June 23, 2008.



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



     “Indebtedness” means the principal of (and premium, if any) and interest (including all
interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowable as a claim in any such proceeding) on, and
rent payable on or in connection with, and all fees, costs, claims, expenses and other amounts
payable in connection with, the following, whether absolute or contingent, secured or unsecured,
due or to become due, outstanding on the date of this Indenture or thereafter created, incurred or
assumed: (1) all the Company’s indebtedness evidenced by a credit or loan agreement, note, bond,
debenture, or other similar instrument whether or not the recourse of the lender is to all of the
Company’s assets or only to a portion, (2) all of the Company’s indebtedness, obligations and other
liabilities, contingent or otherwise, for borrowed money, including, without limitation,
overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection
agreements and any loans or advances from banks, whether or not evidenced by notes or similar
instruments, or bonds, debentures, notes or similar instruments, whether or not the recourse of the
lender is to all of the Company’s assets or only to a portion thereof, (3) all of the Company’s
obligations as lessee under leases required to be capitalized on the balance sheet of the lessee
under GAAP, (4) all of the Company’s obligations and other liabilities, contingent or otherwise,
under any lease or related document, including a purchase agreement, in connection with the lease
of real property or improvements, or any personal property included as part of any such lease,
which provides that the Company is contractually obligated to purchase or cause a third party to
purchase the leased property and thereby guarantee a residual value of leased property to the
lessor and all of the Company’s obligations under such lease or related document to purchase or
cause a third party to purchase the leased property, whether or not such lease transaction is
characterized as an operating lease or capitalized lease in accordance with generally accepted
accounting principles, (5) all of the Company’s obligations under interest rate and currency swaps,
caps, floors, collars, hedge agreements, forward contracts, or similar agreements or arrangements,
(6) all of the Company’s obligations with respect to letters of credit, bank guarantees, bankers’
acceptances and similar facilities, including related reimbursement obligations, (7) all of the
Company’s obligations issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable and accrued liabilities arising in the ordinary course of
business), (8) all of the Company’s obligations of the type referred to in clauses (1) through (7)
above of another Person and all dividends of another Person, the payment of which, in either case,
the Company has assumed or guaranteed or for which the Company is responsible or liable, directly
or indirectly, jointly or severally, as obligor, guarantor or otherwise or which is secured by a
lien on the Company’s property and (9) renewals, extensions, modifications, replacements,
restatements and refundings of, or any indebtedness or obligation issued in exchange for, any such
indebtedness or obligation described in clauses (1) through (8) of this definition; provided,
however, that Indebtedness shall not include accounts payable or other accrued liabilities or
obligations incurred in the ordinary course of business in connection with the obtaining of
materials or services and any indebtedness or obligation that the



5









 







Company may owe to any direct or indirect Subsidiary and obligations owed to a Person
specified in clause (11) of the definition of Permitted Lien in connection with the licensing
and/or partnering arrangement referred to therein.



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



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



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind with respect to such asset.



     “Maturity”, when used with respect to any Security, means the date on which the principal
amount outstanding under such Security or an installment of principal amount outstanding under such
Security becomes due and payable, as therein or herein provided, whether on the Scheduled Maturity
Date (as hereinafter defined), by declaration of acceleration, conversion, call for redemption, or
otherwise.



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



     “New York Business Day” means any day other than a Saturday or Sunday that is neither a legal
holiday nor a day on which banking institutions are authorized or required by law, regulation, or
executive order to be closed.



     “Non-electing Share” has the meaning specified in Section 9.11.



     “Notice of Default” has the meaning specified in Section 4.01.



     “Officers’ Certificate” means a certificate signed by (a) both the President and Chief
Executive Officer, and the Senior Vice President and Chief Financial Officer, or (b) any other
officer or officers of the Company pursuant to an applicable Board Resolution, and delivered to the
Trustee.



     “Opinion of Counsel” means a written opinion of counsel to the Company, which counsel may be
an employee of the Company or other counsel who shall be reasonably acceptable to the Trustee.



     “Outstanding” means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:



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



     (ii) such Securities, or portions thereof, for whose payment or redemption money in the
necessary amount has been theretofore deposited in trust with the Trustee or with any Paying Agent
(as hereinafter defined) other than the Company, or, if the Company shall act as its own



6









 







Paying Agent, has been set aside and segregated in trust by the Company; provided, in any
case, that if such Securities are to be redeemed prior to their Scheduled Maturity Date, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made; and



     (iii) such Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid, in each
case, pursuant to the terms of Section 2.10 (except with respect to any such Security as to which
proof reasonably satisfactory to the Trustee is presented that such Security is held by a Person in
whose hands such Security is a legal, valid, and binding obligation of the Company).


In determining whether the Holders of the requisite principal amount of such Outstanding Securities
have given a direction concerning the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or concerning the exercise of any trust or power conferred upon
the Trustee under this Indenture, or concerning a consent on behalf of the Holders of Securities to
the waiver of any past default and its consequences, Securities owned by the Company, any other
obligor upon the Securities, or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent, or
waiver, only Securities which a Responsible Officer assigned to the corporate trust department of
the Trustee knows to be owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor 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 to act as owner 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 such other obligor.




     “Paying Agent” means, with respect to any Securities, any Person appointed by the Company to
distribute amounts payable by the Company on such Securities. As of the date of this Indenture, the
Company has appointed The Bank of New York Mellon as Paying Agent with respect to all Securities
issuable hereunder.



     “Permitted Lien” means the following types of Liens:



     (1) Liens imposed by law for taxes, fees, assessments or other governmental charges or levies
that are not yet due and payable or are being contested in good faith by appropriate proceedings as
to which the Company or its Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;



     (2) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, vendors’ or lessors’
Liens (and deposits to obtain the release of such Liens), set-off rights and other like Liens
imposed by law (or contract, to the extent that such contractual Liens are similar in nature and
scope to Liens imposed by law), in each case arising in the ordinary course of business and
securing obligations that either (a) are not overdue by more than sixty (60) days or (ii) are being
contested in good faith by appropriate proceedings as to which the Company or its Subsidiaries
shall have set aside on its books such reserves as may be required pursuant to GAAP;



     (3) Liens incurred and pledges and deposits made in the ordinary course of business in
connection with workers’ compensation, disability or unemployment insurance, old-age



7









 







pensions, retiree health benefits and other similar plans or programs and other social
security laws or regulations;



     (4) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;



     (5) (a) easements, covenants, conditions, restrictions, zoning restrictions, building codes,
land use laws, leases, subleases, licenses, rights of way, minor irregularities in, or lack of,
title and similar encumbrances affecting real property, (b) with respect to any lessee’s or
licensee’s interest in real or personal property, mortgages, liens, rights and obligations and
other encumbrances arising by, through or under any owner, lessor or licensor thereof, with or
without the lessee’s or licensee’s consent and (c) leases, licenses, rights and obligations in
connection with patents, copyrights, trademarks, tradenames and other intellectual property, in
each case that do not secure the payment of borrowed money (other than, with respect to any
lessee’s or licensee’s interest in real or personal property, mortgages, liens, rights and
obligations and other encumbrances arising by, through or under any owner, lessor or licensor
thereof) to the extent, in the case of each of clauses (a), (b) and (c), that the Liens referred to
therein do not, in the aggregate, materially detract from the value of the affected property as
used by the Company and its Subsidiaries in the ordinary course of business taken as a whole or
materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries
taken as a whole;



     (6) Liens in favor of customs and revenue authorities to secure payment of customs duties in
connection with the importation of goods;



     (7) any interest or title of a lessor under any capitalized lease obligation; provided,
however, that such Liens do not extend to any property or assets which is not leased property
subject to such capitalized lease obligation;



     (8) Liens securing purchase money indebtedness incurred in the ordinary course of business;
provided, however, that (a) such purchase money indebtedness shall not exceed the purchase price or
other cost of such property or equipment and shall not be secured by any property or equipment of
the Company or any Subsidiary of the Company other than the property and equipment so acquired and
(b) the Lien securing such purchase money indebtedness shall be created within ninety (90) days of
such acquisition;



     (9) Liens securing interest swap obligations which interest swap obligations relate to
Indebtedness that is otherwise permitted under this Indenture;



     (10) Liens securing Indebtedness under currency agreements;



     (11) Liens in favor of Strategic Partners in connection with a biopharmaceutical licensing
and/or partnering arrangement;



     (12) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated for the review of
such judgment shall not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;



8









 





     (13) Liens upon specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such inventory or other goods;



     (14) Liens securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit and products and
proceeds thereof;



     (15) banker’s Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of business; and



     (16) Liens arising from filing Uniform Commercial Code financing statements regarding leases.



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



     “Place of Conversion” has the meaning specified in Section 2.05.



     “Place of Payment” has the meaning specified in Section 2.05.



     “Predecessor Securities” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 2.10 in lieu of
a lost, destroyed, mutilated, or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed, mutilated, or stolen Security.



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



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



     “Registered Common Stock” means Common Stock that does not require registration or approval
under any federal securities law or, if applicable, the securities law of any state where a Holder
is located, before such shares are freely transferable without being transfer restrictions under
the Securities Act.



     “Registered Securities” has the meaning specified in Section 2.01.



     “Regular Record Date” means, for interest payable in respect of any Security on any Interest
Payment Date means the June 15 and the December 15 (whether or not a New York Business Day), as the
case may be, next preceding such Interest Payment Date.



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of



9









 







such person’s knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.



     “Scheduled Maturity Date”, when used with respect to any Security, means the date specified in
such Security as the date on which all outstanding principal and interest will be due and payable.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Security Register” has the meaning specified in Section 2.09.



     “Security Registrar” means the Person who maintains the Security Register, which Person shall
be the Trustee unless and until a successor Security Registrar is appointed by the Company.



     “Senior Debt” means any debt outstanding under the Hercules Loan.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such regulation is in effect on the date hereof.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Company pursuant to Section 2.11.



     “Specified Currency” has the meaning specified in Section 2.05.



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



     “Strategic Partner” means (i) a pharmaceutical or biotechnology company with book equity of at
least U.S.$200,000,000, (ii) a pharmaceutical or biotechnology company with sales of at least
U.S.$150,000,000, or (iii) a publicly traded, or division or subdivision of a publicly traded,
pharmaceutical or biotechnology company with market capitalization in excess of U.S.$200,000,000.



     “Subsidiary” of any specified corporation means any entity at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by the specified
corporation or by one or more of its Subsidiaries, or both.



     “Successor Security” of any particular Security means every Security issued after, and
evidencing all or a portion of the same debt as that evidenced by, such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 2.07 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.



     “Trading Day” means: (1) if the Common Stock is listed or admitted for trading on any
national securities exchange, days on which such national securities exchange is open for business;
(2) if the Common Stock is quoted on the Nasdaq Capital Market or any other system of automated
dissemination of quotations of securities prices, days on which trades may be effected



10









 







through such system; or (3) if the Common Stock is not listed or admitted for trading on any
national securities exchange or quoted on the Nasdaq Capital Market or any other system of
automated dissemination of quotation of securities prices, days on which the Common Stock is traded
regular way in the over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock are available.



     “Trading Market” means the following markets or exchanges on which the Common Stock is listed
or quoted for trading on the date in question: the American Stock Exchange, The Nasdaq Capital
Market, The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock Exchange or
the OTC Bulletin Board.



     “Trust Indenture Act”, or “TIA” 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 such successor Trustee.



     “U.S. Government Obligations” means (i) securities that are direct obligations of the United
States of America, the payment of which is unconditionally guaranteed by the full faith and credit
of the United States of America and (ii) securities that are obligations 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 by the full faith and credit of the United States of
America, and also includes depository receipts issued by a bank or trust company as custodian with
respect to any of the securities described in the preceding clauses (i) and (ii), and any payment
of interest or principal payable under any of the securities described in the preceding clauses (i)
and (ii) that is held by such custodian for the account of the holder of a depository receipt,
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 depository receipt, or from any amount received by
the custodian in respect of such securities, or from any specific payment of interest or principal
payable under the securities evidenced by such depository 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.”



     “Volume Weighted Average Price” means, with respect to the Common Stock of the Company, for
any date, the price determined by the first of the following clauses that applies: (a) if the
Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which
the Common Stock is then listed or quoted for trading as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); (b) if the OTC
Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for
such date (or the nearest preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not
then quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then
reported in the “Pink Sheets” published by Pink Sheets, LLC (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported; or (d) in all other



11









 







cases, the fair market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the Holders of a majority in interest of the Notes then
outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid
by the Company.



     “Voting Stock”, as applied to the stock of any corporation, means stock of any class or
classes (however designated), the outstanding shares of which have, by the terms thereof, ordinary
voting power to elect a majority of the members of the board of directors (or other governing body)
of such corporation, other than stock having such power only by reason of the happening of a
contingency.



     Section 1.02. Officers’ Certificates and Opinions. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have
been complied with. Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for in this Indenture
shall include the following:



     (a) a statement that each individual signing such certificate or opinion has read all
covenants and conditions of this Indenture relating to such proposed action, including the
definitions herein relating thereto;



     (b) 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;



     (c) 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



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



     Section 1.03. 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 the 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, legal counsel, unless such
officer knows that any such certificate, opinion, or representation is erroneous. Any opinion of
counsel for the Company 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, unless such counsel
knows that any such certificate, opinion, or representation is erroneous.



12









 





     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, such
instruments may, but need not, be consolidated and form a single instrument.



     Section 1.04.
Acts of Holders.

     (a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an 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 (if expressly required by the applicable terms of this Indenture) to
the Company. If any Securities are denominated in coin or currency other than that of the United
States, then for the purposes of determining whether the Holders of the requisite principal amount
of Securities have taken any action as herein described, the principal amount of such Securities
shall be deemed to be that amount of United States dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the Trustee by a certificate
provided by a financial institution, selected by the Company, that maintains an active trade in the
currency in question, acting as conversion agent) as of the date of the taking of such action by
the Holders of such requisite principal amount as evidenced to the Trustee as provided in the
immediately preceding sentence. 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 5.01)
conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness to such execution or by the certificate of any 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 the execution thereof. Where such execution
is by an officer of a corporation or a member of a partnership, on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient proof of his authority.
The fact and date of the execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner which the Trustee deems
sufficient.



     (c) The ownership of Securities shall for all purposes be determined by reference to the
Security Register, as such register shall exist as of the applicable date.



     (d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its option, by Board
Resolution, fix in advance a Record Date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such Record Date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given before or after such
Record Date, but only the Holders of record at the close of business on such Record Date shall be
deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Securities shall be computed as of such Record Date.



13









 





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



     Section 1.05. Notices, etc., to Trustee and Company. Any request, order, authorization,
direction, consent, waiver, or other action to be taken by the Trustee, the Company, or the Holders
hereunder (including any Company Order), and any notice to be given to the Trustee or the Company
with respect to any action taken or to be taken by the Trustee, the Company, or the Holders
hereunder, shall be sufficient if made in writing and



     (a) (if to be furnished or delivered to or filed with the Trustee by the Company or any
Holder) delivered to the Trustee at its Corporate Trust Office, or



     (b) (if to be furnished or delivered to the Company by the Trustee or any Holder, and except
as otherwise provided in Section 4.01 and, in the case of a request for repayment, except as
specified in the Security carrying the right to repayment) mailed to the Company, first-class
postage prepaid, at its principal office located in Tarrytown, New York, Attention: Chief
Financial Officer, or at any other address hereafter furnished in writing by the Company to the
Trustee.



     Section 1.06. Notice To Holders; Waiver. Where this Indenture or any Security provides for
notice to Holders of any event, such notice shall be sufficiently given (unless otherwise expressly
provided herein or in such Security) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his or her address as it appears in the Security Register as of
the applicable Record Date, not later than the latest date or earlier than the earliest date
prescribed by this Indenture or such Security for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect
to other Holders. Where this Indenture or any Security 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 as a result of a strike, work
stoppage or otherwise, it shall be impractical to mail notice of any event to any Holder when such
notice is required to be given pursuant to any provision of this Indenture or the applicable
Security, then any method of notification as shall be reasonably satisfactory to the Trustee and
the Company shall be deemed to be sufficient for the giving of such notice.



     Section 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies
or conflicts with another provision hereof which is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.



     Section 1.08. Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents hereof are for convenience only and shall not affect the
construction of any provision of this Indenture.



14









 





     Section 1.09. 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 any Securities, express
or implied, shall give to any Person, other than the parties hereto, their successors hereunder,
the Authenticating Agent, the Security Registrar, any Paying Agent, and the Holders of Securities
(or such of them as may be affected thereby), any benefit or any legal or equitable right, remedy
or claim under this Indenture.



     Section 1.12. Governing Law. This Indenture shall be governed by and construed in accordance
with the laws of the State of New York.



     Section 1.13. Counterparts. This instrument may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all of which shall together
constitute but one and the same instrument.



     Section 1.14. Judgment Currency. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court, with respect to the Securities of any series, it is necessary to convert the sum due in
respect of the principal, premium, if any, or interest, if any, payable with respect to such
Securities into a currency in which a judgment can be rendered (the “Judgment Currency”), the rate
of exchange from the currency in which payments under such Securities is payable (the “Required
Currency”) into the Judgment Currency shall be the highest bid quotation (assuming European-style
quotation — i.e., Required Currency per Judgment Currency) received by the Company from three
recognized foreign exchange dealers in the City of New York for the purchase of the aggregate
amount of the judgment (as denominated in the Judgment Currency) on the New York Business Day
preceding the date on which a final unappealable judgment is rendered, for settlement on such
payment date, and at which the applicable dealer timely commits to execute a contract, and (b) the
Company’s obligations under this Indenture to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, or by any recovery pursuant to any judgment (whether or
not entered in accordance with the preceding clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the actual receipt by
the judgment creditor of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action
for the purpose of recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so expressed to be payable,
and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture.



     Section 1.15. Legal Holidays. In any case where any Interest Payment Date or Maturity of any
Security or the last day on which a Holder of a Security has a right to convert his Security shall
not be a New York Business Day at any Place of Payment or Place of Conversion, as the case may be,
then (notwithstanding any other provision of this Indenture or of the Securities) payment of
interest or principal (and premium, if any) need not be made at such Place of Payment or Place of
Conversion, as the case may be, on such date, but may be made on the next succeeding New York
Business Day at such Place of Payment or Place of Conversion, as the case



15









 







may be, with the same force and effect as if made on the Interest Payment Date, at Maturity,
or by such last day for conversion; provided that no interest shall accrue for the period from and
after such Interest Payment Date, Maturity, or last day for conversion, as the case may be.



     Section 1.16. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.



     Section 1.17.
Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



     Section 1.18. Facsimile Instructions. The Trustee agrees to accept and act upon facsimile
transmission of written instructions or directions pursuant to this Indenture given by the Company;
provided, however that: (i) the Company, subsequent to such facsimile transmission of written
instructions or directions, shall provide the originally executed instructions to the Trustee in a
timely manner, and (ii) such originally executed instructions or directions shall be signed by an
authorized officer of the Company.



ARTICLE 2

The Securities




     Section 2.01. Form Generally.



     All Securities shall be issued in registered form, as opposed to bearer form, and shall
sometimes be referred to as the “Registered Securities.” Registered Securities shall be printed,
lithographed or engraved or produced by any combination of these methods on a steel engraved border
or steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange upon which the Securities may be listed or,
if the Securities are not listed on a securities exchange, in any other manner approved by the
Company, all as determined by the officers
of the Company executing such Securities, as evidenced by their execution of such Securities.



     Section 2.02. Forms of Securities.



     Subject to Section 2.01, the form of Security of any series issued pursuant to this Indenture
may be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such Security, as evidenced
by their execution of such Security.



     Prior to the delivery to the Trustee for authentication of any Security in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the Trustee a copy of such Board
Resolution, together with a true and correct copy of the form of Security which has



16









 







been approved thereby, or, if a Board Resolution authorizes a specific officer or officers to
approve a form of Security, together with a certificate of such officer or officers approving the
form of Security attached thereto; provided, however, that with respect to all Securities issued
pursuant to the same Board Resolution, the required copy of such Board Resolution, together with
the appropriate attachment, need be delivered only once. Any form of Security approved by or
pursuant to a Board Resolution must be reasonably acceptable as to form to the Trustee, such
acceptance to be evidenced by the Trustee’s authentication of Securities in that form.



     Section 2.03. Securities in Global Form.



     If Securities of a series are issuable in global form, any such Security may provide that it
shall represent the aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges. Any
endorsement of any Global Security to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein or in the Company
Order to be delivered pursuant to Section 2.07 with respect thereto. Subject to the provisions of
Section 2.07, the Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Person or Persons specified therein or in the applicable Company Order.


     Upon their original issuance, Securities shall be issued in the form of one or more Global
Securities without interest coupons and shall be registered in the name of DTC, as Depositary, or
its nominee and deposited with the Trustee, as custodian for DTC, for credit by DTC to the
respective accounts of beneficial owners of the Securities represented thereby (or such other
accounts as they may direct).



     Section 2.04. Form of Trustee’s Certificate of Authentication. The form of Trustee’s
Certificate of Authentication for any Security issued pursuant to this Indenture shall be
substantially as follows:




17











 





TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 
	 	The Bank of New York Mellon, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 




     Section 2.05. Title and Terms.



     The aggregate principal amount of Securities that may be authenticated, delivered, and
Outstanding at any time under this Indenture is unlimited.



     The Securities may be issued in one or more series in such aggregate principal amount as may
from time to time be authorized by the Board of Directors. All Securities of a series issued under
this Indenture shall in all respects be equally and ratably entitled to the benefits hereof,
without preference, priority, or distinction on account of the actual time of the authentication
and delivery or Scheduled Maturity Date thereof.



     Each series of Securities shall be created either by or pursuant to one or more Board
Resolutions or by one or more indentures supplemental hereto. Any such Board Resolution or
supplemental indenture (or, in the case of a series of Securities created pursuant to a Board
Resolution, any officer or officers authorized by such Board Resolution) shall establish the terms
of any such series of Securities, including the following (as and to such extent as may be
applicable):



     (1) the title of such series;



     (2) the limit, if any, upon the aggregate principal amount or issue price of the Securities of
such series;



     (3) the issue date or issue dates of the Securities of such series;



     (4) the Scheduled Maturity Date of the Securities of such series;



     (5) the place or places where the principal, premium, if any, interest, if any, and additional
amounts, if any, payable with respect to the Securities of such series shall be payable;



     (6) whether the Securities of such series will be issued at par or at a premium over or a
discount from their face amount;



     (7) the rate or rates (which may be fixed or variable) at which the Securities of such series
shall bear interest, if any, and, if applicable, the method by which such rate or rates may be
determined;



18









 





     (8) the date or dates (or the method by which such date or dates may be determined) from which
interest, if any, shall accrue, and the Interest Payment Dates on which such interest shall be
payable;



     (9) the rights, if any, to defer payments of interest on the Securities by extending the
interest payment periods and the duration of such extension;



     (10) whether the Securities of such series are to be issued in whole or in part in global form
and, if so, the identity of the Depositary for such global security and the terms and conditions,
if any, upon which interests in the Securities represented by such global security may be
exchanged, in whole or in part, for the individual Securities represented thereby (if other than as
provided in Section 2.09);



     (11) the denominations in which the Securities of such series will be issued (which may be any
denomination as set forth in the terms of such Securities) in minimum denominations of U.S.$2,000
and any integral multiple of $1,000;



     (12) whether and under what circumstances additional amounts on the Securities of such series
shall be payable in respect of any taxes, assessments, or other governmental charges withheld or
deducted and, if so, whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;



     (13) the basis upon which interest shall be calculated;



     (14) if the Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security for a definitive Security of such series)
only upon receipt of certain certificates or other documents or upon satisfaction of other
conditions, then the form and terms of such certificates, documents, and/or conditions;



     (15) the exchange or conversion of the Securities of that series, whether or not at the option
of the Holders thereof, for or into new Securities of a different series or for or into any other
securities which may include shares of Capital Stock of the Company or any Subsidiary of the
Company or securities directly or indirectly convertible into or exchangeable for any such shares
or securities of entities unaffiliated with the Company or any Subsidiary of the Company;



     (16) if other than U.S. dollars, the foreign or composite currency or currencies, which shall
be reasonably acceptable to the Trustee, (each such currency a “Specified Currency”) in which the
Securities of such series shall be denominated and in which payments of principal, premium, if any,
interest, if any, or additional amounts, if any, payable with respect to such Securities shall or
may be payable;



     (17) if the principal, premium, if any, interest, if any, or additional amounts, if any,
payable with respect to the Securities of such series are to be payable in any currency other than
that in which the Securities are stated to be payable, which currency shall be reasonably
acceptable to the Trustee, whether at the election of the Company or of a Holder thereof, the
period or periods within which, and the terms and conditions upon which, such election may be made;



     (18) if the amount of any payment of principal, premium, if any, interest, if any, or other
sum payable with respect to the Securities of such series may be determined by reference to



19









 







the relative value of one or more Specified Currencies, commodities, securities, or
instruments, the level of one or more financial or non-financial indices, or any other designated
factors or formulas, the manner in which such amounts shall be determined;



     (19) the exchange of Securities of such series, at the option of the Holders thereof, for
other Securities of the same series of the same aggregate principal amount of a different
authorized kind or different authorized denomination or denominations, or both;



     (20) the appointment by the Trustee of an Authenticating Agent in one or more places other
than the Corporate Trust Office of the Trustee, with power to act on behalf of the Trustee, and
subject to its direction, in the authentication and delivery of the Securities of such series;



     (21) any trustees, depositaries, paying agents, transfer agents, exchange agents, conversion
agents, registrars, or other agents with respect to the Securities of such series if other than the
Trustee, Paying Agent and Security Registrar named herein;



     (22) the portion of the principal amount of Securities of such series, if other than the
principal amount thereof, that shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 4.02 or provable in bankruptcy pursuant to Section 4.04;



     (23) any Event of Default with respect to the Securities of such series, if not set forth
herein, or any modification of any Event of Default set forth herein with respect to such series;



     (24) any covenant solely for the benefit of the Securities of such series; and



     (25) any other terms not inconsistent with the provisions of this Indenture.



     If any series of Securities shall be established by action taken pursuant to any Board
Resolution, the execution by the officer or officers authorized by such Board Resolution of an
Authentication Order with respect to the first Security of such series to be issued, and the
delivery of such Authentication Order to the Trustee at or before the time of issuance of the first
Security of such series, shall constitute a sufficient record of such action. Except as otherwise
permitted by Section 2.07, if all of the Securities of any such series are not to be issued at one
time, the Company shall deliver an Authentication Order with respect to each subsequent issuance of
Securities of such series, but such Authentication Orders may be executed by any authorized officer
or officers of the Company, whether or not such officer or officers would have been authorized to
establish such series pursuant to the aforementioned Board Resolution.



     Unless otherwise provided by or pursuant to the Board Resolution or supplemental indenture
creating such series (i) a series may be reopened for issuances of additional Securities of such
series, and (ii) all Securities of the same series shall be substantially identical, except for the
initial Interest Payment Date, issue price, initial interest accrual date and the amount of the
first interest payment.



     The form of the Securities of each series shall be established in a supplemental indenture or
by or pursuant to the Board Resolution creating such series. The Securities of each series shall
be distinguished from the Securities of each other series in such manner as the Board of Directors
or its authorized representative or representatives may determine.



20









 





     Unless otherwise provided with respect to Securities of a particular series, the Securities of
any series may only be issuable in registered form, without coupons.



     The principal of, premium, if any, and interest, if any, on the Securities shall be payable as
provided in the form of Security for any series. Any city in which any Paying Agent is located
being herein called a “Place of Payment”.



     If the Securities of any series shall be convertible they shall also be governed by Article 9.
Any city in which any Conversion Agent is located being herein called a “Place of Conversion”.



     Section 2.06. Denominations. The Securities of each series shall be issuable in such
denominations and currency (such currency to be reasonably acceptable to the Trustee) as shall be
provided in the provisions of this Indenture or by or pursuant to the Board Resolution or
supplemental indenture creating such series. In the absence of any such provisions with respect to
the Securities of any series, the Securities of that series shall be issuable only in fully
registered form in minimum denominations of U.S.$2,000 and any integral multiple of $1,000. The
Securities shall be issuable only in registered form, without interest coupons, in minimum
denominations of U.S.$2,000 and any integral multiple of $1,000.



     Section 2.07. Execution, Authentication, Delivery and Dating.



     The Securities of any series shall be executed on behalf of the Company by its Chairman of the
Board, President and Chief Executive Officer, or its Senior Vice President and Chief Financial
Officer. Any such signature may be manual or facsimile.



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities to the Trustee for authentication, together with an order for
authentication and delivery (an “Authentication Order”) with respect to such Securities, and the
Trustee shall, upon receipt of such Authentication Order, and an Officers’ Certificate and Opinion
of Counsel in the form described in Section 1.02, in accordance with procedures reasonably
acceptable to the Trustee set forth in the Authentication Order, and subject to the provisions
hereof, authenticate and deliver such Securities to such recipients as may be specified from time
to time pursuant to such Authentication Order.



     Each Security shall be dated the date of its authentication.



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



21









 





     Section 2.08. Global Securities.



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



     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 as such under the Exchange Act or announces an intention permanently to
cease business or does in fact do so or (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security.



     If any Global Security is to be exchanged for other Securities or cancelled in whole, it shall
be surrendered by or on behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancellation, as provided in this Article 2. If any Global Security is
to be exchanged for other Securities or cancelled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any Global Security, in each case, as
provided in Section 2.09, then either (A) such Global Security shall be so surrendered for exchange
or cancellation, as provided in this Article 2, or (B) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled or
equal to the principal amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global Security, the Trustee
shall authenticate and make available for delivery any Securities issuable in exchange for such
Global Security (or any portion thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative. Upon the request of the
Trustee in connection with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be entitled to rely
upon any order, direction or request of the Depositary or its authorized representative which is
given or made pursuant to this Article 2.



     Every Security authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article 2 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof, in which case such Registered Security shall be
authenticated and delivered in definitive, fully registered form, without interest coupons.



     The Depositary or its nominee, as registered owner of a Global Security, shall be the Holder
of such Global Security for all purposes under the Indenture and the Registered Securities, and
owners of beneficial interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner’s beneficial interest in a Global Security



22









 







shall be shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members, and such owners of
beneficial interests in a Global Security shall not be considered the owners or holders thereof.



     Section 2.09. Registration, Registration of Transfer and Exchange.



     (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 8.02 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 Registered Securities and of transfers of Registered Securities. The Trustee is
hereby appointed “Security Registrar” for the purpose of registering Registered Securities and
transfers and exchanges of Registered Securities as herein provided.



     Upon surrender for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 8.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any series of authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by this Indenture.



     At the option of the Holder, and subject to the other provisions of this Section 2.09,
Securities of any series may be exchanged for other Securities of such series of authorized
denomination and of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange,
and subject to the other provisions of this Section 2.09, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities the Holder making the
exchange is entitled to receive. Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company
and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in
writing.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, subject to the other provisions of this
Section 2.09, and entitled to the same benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.



     Unless otherwise provided in the Security to be transferred or exchanged, no service charge
shall be made to a Holder for any registration of transfer or exchange of Securities except as
provided in Section 2.10, but the Company may (unless otherwise provided in such Security) 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 this Section 2.09 or Sections 7.06, or 9.02 (other than where the shares of Common
Stock are to be issued or delivered in a name other than that of the Holder of the Security) not
involving any transfer and other than any stamp and other duties, if any, that may be imposed in
connection with any such transfer or exchange by the United States or any political subdivision
thereof or therein, which shall be paid by the Company.



     (b) Neither the Trustee, the Paying Agent nor any of their agents shall (1) have any duty to
monitor compliance with or with respect to any federal or state or other securities or tax



23









 







laws or (2) have any duty to obtain documentation on any transfers or exchanges other than as
specifically required hereunder.



     Section 2.10. Mutilated, Destroyed, Lost or Stolen Securities.



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



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



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



     (b) such security or indemnity as may be satisfactory to the Company and the Trustee to save
each of them and any agent of either of them harmless,


then, in the absence of actual notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously outstanding.




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



     Upon the issuance of any new Security under this Section 2.10, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto (other than any stamp and other duties, if any, that may be imposed in connection
therewith by the United States or any political subdivision thereof or therein, which shall be paid
by the Company) and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security issued pursuant to this Section 2.10 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder.



     The provisions of this Section 2.10 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.



     Section 2.11. Payment of Interest; Interest Rights Preserved.



     Interest on any Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for



24









 







such interest. For the purpose of any interest payment in Registered Common Stock, whether in
whole or in part, such payment will have a fair market value equal to the interest payment due on
the Interest Payment Date.



     Any interest on any Security that is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (“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 (a) or (b)
below:



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities (or their respective Predecessor Securities) are registered at the close of
business on a special record date (the “Special Record Date”) for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security, the date of the
proposed payment and the Special Record Date, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as provided in this clause. The Special Record
Date for the payment of such Defaulted Interest shall be not more than fifteen (15) days and not
less than ten (10) days prior to the date of the proposed payment and not less than fifteen (15)
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee, in the
name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at such Holder’s address as it appears in the Security Register, not less than ten
(10) days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).



     (b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if, after written 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 2.11 and Section 2.09, 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, that were
carried by such other Security.



     Interest on any Security that is converted in accordance with Section 9.02 during a Record
Date Period shall be payable in accordance with the provisions of Section 9.02.



     Section 2.12. 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



25









 







Security is registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 2.11) 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.



     None of the Company, the Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar, or any co-Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Security
in global form or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests and each of them may act or refrain from acting without liability on any
information relating to such records provided by the Depositary.



     Section 2.13. Cancellation. All Securities surrendered for payment, repurchase, redemption,
registration of transfer or exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall, at the
written request of the Company, be cancelled promptly by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section
2.13. The Trustee shall dispose of all cancelled Securities in accordance with applicable law and
its customary practices in effect from time to time.



     Section 2.14. Computation of Interest. Interest on the Securities shall be computed on the
basis of a 360-day year of twelve (12) 30-day months.



     Section 2.15. CUSIP Numbers. The Company in issuing Securities shall obtain and use “CUSIP”
numbers (if then generally in use) in addition to serial numbers and the Trustee shall use such
CUSIP numbers in addition to serial numbers in notices of repurchase as a convenience to Holders;
provided, however, that any such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Securities or as contained in any notice
of a repurchase or redemption and that reliance may be placed only on the serial or other
identification numbers printed on the Securities, and any such repurchase or redemption shall not
be affected by any defect in or omission of such CUSIP numbers. The Company shall promptly notify
the Trustee in writing of any change in any such CUSIP number.



ARTICLE 3

Satisfaction and Discharge




     Section 3.01. Satisfaction and Discharge of Indenture. This Indenture shall cease to be of
further effect with respect to any series of Securities (except as to any surviving rights of
conversion or transfer or exchange of Securities of such series expressly provided for herein or in
the form of Security for such series), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments, in form and substance reasonably satisfactory to the
Trustee, acknowledging satisfaction and discharge of this Indenture as to such series, when



     (a) either




     (i) all Securities of that series theretofore authenticated and delivered (other than
(A) Securities of such series which have been destroyed, lost, or stolen and which have
been replaced or paid as provided in Section 2.09, and (B) Securities of such series for
whose payment money has theretofore been deposited in trust or segregated and held



26









 







in trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 8.03) have been delivered to the Trustee canceled or for
cancellation; or




     (ii) all such Securities of that series not theretofore delivered to the Trustee
canceled or for cancellation




     (A) have become due and payable, or




     (B) will, in accordance with their Scheduled Maturity Date, become due and
payable within one year,


and, in any of the cases described in subparagraphs (A) or (B) above, the Company has irrevocably
deposited or caused to be deposited with the Trustee, as trust funds in trust for the purpose, (x)
an amount in money sufficient, (y) U.S. Government Obligations or Equivalent Government Securities
which through the payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment, money sufficient, or
(z) a combination of (x) and (y) 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 the entire indebtedness on the Securities of such series with respect
to principal, premium, if any, and interest, if any, to the date of such deposit (in the case of
Securities of such series which have become due and payable), or to the Scheduled Maturity Date;
provided, however, that if such U.S. Government Obligations or Equivalent Government Securities are
callable or redeemable at the option of the issuer thereof, the amount of such money, U.S.
Government Obligations and Equivalent Government Securities deposited with the Trustee must be
sufficient to pay and discharge the entire indebtedness referred to above if such issuer elects to
exercise such call or redemption provisions at any time prior to the Scheduled Maturity Date. The
Company, but not the Trustee, shall be responsible for monitoring any such call or redemption
provision; and




     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to the Securities of such series; and



     (c) 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 with respect to the Securities of such series have
been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company under paragraph (a) of this Section 3.01 and its
obligations to the Trustee with respect to that series under Section 5.07 shall survive, and the
obligations of the Trustee under Sections 3.02, 3.04 and 8.03 shall survive.



     Section 3.02. Application of Trust Money; Excess Funds. All money and U.S. Government
Obligations or Equivalent Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 3.01 hereof shall be held in trust and applied by it, in accordance
with the provisions of this Indenture and the Securities in respect of which it was deposited, 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,
premium, if any, and interest, if any, for whose payment such money has been



27









 







deposited with the Trustee; but such money need not be segregated from other funds except to
the extent required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or U.S. Government Obligations or Equivalent Government Securities
deposited pursuant to Section 3.01 hereof 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 the
Outstanding Securities.



     Anything in this Article 3 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Order any money or U.S. Governmental Obligations or
Equivalent Government Securities held by it as provided in Section 3.01 which, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, (which may be the opinion delivered under Section 3.01), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent satisfaction and
discharge.



     Section 3.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent of the Securities of any series (other than the
Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to such moneys.



     Section 3.04. Return of Unclaimed Amounts. Any amounts deposited with or paid to the Trustee
or any Paying Agent or then held by the Company, in trust for payment of the principal of, premium,
if any, or interest, if any, on the Securities of any series and not applied but remaining
unclaimed by the Holders of such Securities for two years after the date upon which the principal
of, premium, if any, or interest, if any, on such Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on Company Order or (if then held by
the Company) shall be discharged from such trust; and the Holder of any of such Securities shall
thereafter look only to the Company for any payment which such Holder may be entitled to collect
(until such time as such unclaimed amounts shall escheat, if at all, to the State of New York) 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. Notwithstanding the foregoing,
the Trustee or Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once a week for two successive weeks (in each case on any day
of the week) in a newspaper printed in the English language and customarily published at least once
a day at least five days in each calendar week and of general circulation in the Borough of
Manhattan, in the City and State of New York, a notice that said amounts have not been so applied
and that after a date named therein any unclaimed balance of said amounts then remaining will be
promptly returned to the Company.



ARTICLE 4

Remedies




     Section 4.01. Events of Default. “Event of Default”, wherever used herein, means with
respect to any series of Securities 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



28









 







any administrative or governmental body), unless such event is either inapplicable to a
particular series or it is specifically deleted or modified in the manner contemplated by Article
2:



     (a) default in the payment of any interest on any Security of such series when it becomes due
and payable, and continuance of such default for a period of 30 days; or



     (b) default in the payment of the principal amount of (or premium, if any, on) any Security of
such series as and when the same shall become due, either at Stated Maturity, upon redemption, by
declaration, or otherwise; or



     (c) default in the performance, or breach, of any covenant of the Company or any Subsidiary in
this Indenture in respect of the Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in the performance or breach of which is
specifically dealt with elsewhere in this Section 4.01), and continuance of such default or breach
for a period of ninety (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
aggregate principal amount of the Outstanding Securities of such 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



     (d) default in the payment when due of the principal of any indebtedness under any bond,
debenture, note or other evidence of indebtedness for money borrowed by the Company or any
Significant Subsidiary, if any, in excess of U.S.$2,000,000, whether such indebtedness now exists
or shall hereafter be created, if the indebtedness is not discharged and such default continues for
a period of thirty (30) days or more, or if such indebtedness has been accelerated, such
acceleration is not annulled, within a period of thirty (30) days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities
of such series, a written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or such acceleration to be rescinded or annulled and stating that
such notice is a “Notice of Default” hereunder;



     (e) the entry by a court having jurisdiction in the premises of (1) a decree or order for
relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Significant Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of
any substantial part of 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



     (f) the commencement by the Company or any Significant Subsidiary of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any



29









 







bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or similar 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 any Significant Subsidiary 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 or any Significant Subsidiary in furtherance of any such action; or



     (g) any other Event of Default provided for with respect to the Securities of such series in
accordance with Section 2.05.



     A default under any indebtedness of the Company other than the Securities will not constitute
an Event of Default under this Indenture, and a default under one series of Securities will not
constitute a default under any other series of Securities.



     Section 4.02. Acceleration of Maturity; Rescission, and Annulment. If any Event of Default
described in Section 4.01 above (other than an Event of Default described in Section 4.01(e) and
Section 4.01(f)) shall have occurred and be continuing, with respect to any Securities of any
series then and in each and every such case, unless the aggregate principal amount of all the
Securities of such series have already become due and payable, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of such series hereunder,
by notice in writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount of all the Securities of such series and any and all accrued interest thereon to
be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, any provision of this Indenture or the Securities of such series to
the contrary notwithstanding. If an Event of Default specified in Section 4.01(e) or Section
4.01(f) occurs, the principal amount of the Outstanding Securities of such series and any and all
accrued interest thereon shall immediately become and be due and payable without any declaration or
other act on the part of the Trustee or any Holder. No declaration of acceleration by the Trustee
with respect to any series of Securities shall constitute a declaration of acceleration by the
Trustee with respect to any other series of Securities, and no declaration of acceleration by the
Holders of at least 25% in aggregate principal amount of the Outstanding Securities of any series
shall constitute a declaration of acceleration or other action by any of the Holders of any other
series of Securities, in each case whether or not the Event of Default on which such declaration is
based shall have occurred and be continuing with respect to more than one series of Securities, and
whether or not any Holders of the Securities of any such affected series shall also be Holders of
Securities of any other such affected series.



     At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of
such series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the Securities which have become due
solely by such acceleration, have been cured or waived as provided in Section 4.13, if such cure or
waiver does not conflict with any judgment or decree set forth in Section 4.01(e) and Section
4.01(f) and if all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel have been paid.



30









 





     No such rescission shall affect any subsequent default or impair any right consequent thereon.



     Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if:



     (a) default is made in the payment of any installment of interest on any Security of any
series when such interest becomes due and payable, or



     (b) default is made in the payment of the principal of (or premium, if any, on) any Security
of any series at the Maturity thereof,


then, with respect to the Securities of such series, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holder of any such Security, the whole amount then due and
payable on any such Security for principal (and premium, if any) and interest, if any, with
interest (to the extent that payment of such interest shall be legally enforceable) upon the
overdue principal (and premium, if any) and upon overdue installments of interest, if any, at such
rate or rates as may be prescribed therefor by the terms of any such Security; 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 and all other amounts due the Trustee under Section 5.07.




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



     If an Event of Default with respect to any series of Securities 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 4.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition, or other
judicial proceeding relative to the Company or any other obligor upon the Securities of any series
or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceedings or otherwise,



     (a) to file and prove a claim for the whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary and advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements, and advances
of



31









 







the Trustee, its agents and counsel, and all other amounts due the Trustee under Section 5.07)
and of the Holders allowed in such judicial proceedings, and



     (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any 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 to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and its agent and
counsel, and any other amounts due the Trustee under Section 5.07 hereof.



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



     Section 4.05. Trustee May Enforce Claims Without Possession of Securities. All rights of
action and claims under this Indenture or the Securities of any series may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such series 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 and its agents and counsel, be for the ratable benefit of
the Holders of the Securities, of such series in respect of which such judgment has been recovered.



     Section 4.06. Application of Money Collected. Any money collected by the Trustee with
respect to a series of Securities 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, premium, if any, or interest, if any, upon presentation of the Securities of such
series 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 5.07 hereof.



     Second: To the payment of the amounts then due and unpaid upon the Securities of that series
for principal, premium, if any, interest, if any, and additional amounts, if any, in respect of
which or for the benefit of which such money has been collected, ratably, without preference or
priority of any kind.



     Section 4.07. 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



     (a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to Securities of such series;



     (b) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such 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;



32









 





     (c) 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;



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



     (e) 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 such series; it being understood and intended that no one or more Holders of Securities of such
series 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 Holders of Securities of
such series (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are prejudicial to such Holders), or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and proportionate benefit of
all the Holders of all Securities of such series.



     Section 4.08. 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
any series, premium, if any, and (subject to Section 2.10) interest, if any on such Security on or
after the respective payment dates expressed in such Security and to convert such Security in
accordance with Article 9, and to institute suit for the enforcement of any such payment on or
after such respective date, and such right shall not be impaired or affected without the consent of
such Holder.



     Section 4.09. 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, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.



     Section 4.10. Rights and Remedies Cumulative. No right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right or 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 4.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or 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 or by the Holders, as the case may be.




33












 





     Section 4.12. Control by Holders. The Holders of a majority in aggregate 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



     (a) the Trustee shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal liability or be unjustly
prejudicial to the Holders not taking part in such direction, and



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



     Section 4.13. 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 a default not theretofore cured:



     (a) in the payment of principal, premium, if any, or interest, if any, on any Security of such
series, or



     (b) in respect of a covenant or provision in this Indenture which, under Article 7 hereof,
cannot be modified or amended without the consent of the Holder of each Outstanding Security of
such series.



     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 4.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder of any Security or group of
Holders holding in the aggregate more than 10% in principal amount of the Outstanding Securities of
any series to which the suit relates, or to any suit instituted by any Holder for the enforcement
of the payment of principal, premium, if any, or interest, if any, on any Security on or after the
respective payment dates expressed in such Security or for the enforcement of the right to convert
any Security in accordance with Article 9.



     Section 4.15. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law (other than any bankruptcy
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



34









 




lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law had
been enacted.




ARTICLE 5

The Trustee




     Section 5.01.
Certain Duties and Responsibilities of Trustee.

     (a) Except during the
continuance of an Event of Default with respect to any series of Securities,




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




     (ii) in the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely, as to the truth of the statements and
correctness of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).



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



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




     (i) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;




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




     (iii) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of not less
than a majority in principal amount of the Outstanding Securities of any series relating to
the time, method, and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Securities of such series, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such
series; and



35









 






     (iv) 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.



     (d) 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.



     Section 5.02. Notice of Defaults. Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment of the principal,
premium, if any, or interest, if any, on any Security of such series or in the payment of any
sinking or purchase fund installment or analogous obligation with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors 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 and; provided, further, that, in the case of any default of
the character specified in Section 4.01(c), no such notice to Holders of such series shall be given
until at least 90 days after the occurrence thereof. For the purpose of this Section, the term
“default”, with respect to Securities of any series, 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.



     Section 5.03. Certain Rights of Trustee. Except as otherwise provided in Section 5.01 above:



     (a) 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 or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;



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



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



     (d) the Trustee may consult with counsel and 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;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders of the Securities of any
series pursuant to this Indenture, unless such Holders shall have offered to the Trustee



36









 




security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or direction;




     (f) 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 or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;



     (g) 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;



     (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;



     (i) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



     (j) the Trustee shall not be deemed to have notice of any default or Event of Default with
respect to the Securities unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;



     (k) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder (including, but not limited to, in its capacity as
Conversion Agent); and



     (l) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



     Section 5.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Securities, except the certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities or of the Common Stock issuable upon the conversion of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities or the proceeds
thereof.



37









 





     Section 5.05. May Hold Securities. The Trustee or any Paying Agent, Security Registrar,
Conversion Agent or other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Section 5.08 and Section 5.13 hereof, may
otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Conversion Agent or such other agent.



     Section 5.06. 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 5.07. Compensation and Reimbursement. The Company covenants and agrees:



     (a) to pay the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee shall from time to time agree in writing 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);



     (b) 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
reasonable 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



     (c) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any and all loss, damage, claims, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income of the Trustee), 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 (whether asserted by the
Company, or any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, or in connection with enforcing the
provisions of this Section, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or bad faith.



     Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 4.01(f) and Section 4.01(g) above, such expenses (including the reasonable charges and
expenses of its counsel) and compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law.



     The Trustee shall have a lien prior to the Securities upon all property and funds held or
collected by it as such for any amount owing to it or any predecessor Trustee pursuant to this
Section 5.07, except with respect to funds held in trust for the benefit of the Holders of
particular Securities.



     The provisions of this Section shall survive the satisfaction and discharge of this Indenture
and the termination or resignation of the Trustee.



38









 





     Section 5.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire
any conflicting interest within the meaning of the Trust Indenture Act, it shall either eliminate
such interest or resign as Trustee with respect to one or more series of Securities, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.



     Section 5.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder with respect to each series of Securities that shall be a corporation organized and doing
business under the laws of the United States of America or of any State or Territory thereof or of
the District of Columbia, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, and subject to supervision or examination by
federal or state authority and having its principal office and place of business in the City of New
York, if there be such a corporation having its principal office and place of business in said City
and willing to act as Trustee on customary and usual terms. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee with respect to any series of
Securities 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 5.10.
Resignation and Removal; Appointment of Successor.

     (a) 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 under Section 5.11.



     (b) The Trustee may resign with respect to any one or more series of Securities at any time by
giving at least 60 days’ written notice thereof to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.



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



     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 5.08 with respect to any series of
Securities after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of that series for at least 6 months, or




     (ii) the Trustee shall cease to be eligible under Section 5.09 with respect to any
series of Securities and shall fail to resign after written request therefor by the Company
or by any such Holder, or




     (iii) 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



39









 






for the purpose of rehabilitation, conservation or liquidation, then, in any such
case, subject to Section 4.14, any Holder who has been a bona fide Holder of a Security of
such series for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to such series of Securities or, in the
case of this clause (iii), with respect to all series of Securities.



     (e) If the Trustee shall resign, be removed or become incapable of acting with respect to any
series of Securities, or if a vacancy shall occur in the office of Trustee with respect to any
series of Securities for any cause, the Company shall promptly appoint a successor Trustee for that
series of Securities. If, within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to such series of Securities 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, become the successor Trustee with respect
to such series and supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to Securities of such series shall have been so
appointed by the Company or the Holders of Securities of such series and accepted appointment in
the manner hereinafter provided, any Holder who has been bona fide Holder of a Security of that
series for at least 6 months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to Securities of any series and each appointment of a successor Trustee with respect to
Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of that series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee and the address of
its principal Corporate Trust Office.



     Section 5.11. Acceptance of Appointment by Successor. Every successor Trustee appointed
hereunder with respect to all series of Securities shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor 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 predecessor Trustee with respect to any Securities of such series;
but, on request of the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges (including, but not limited to, attorneys’ fees and expenses), if
any, execute and deliver an instrument, in form and substance reasonably satisfactory to the
predecessor Trustee, transferring to such successor Trustee all the rights, powers and trusts of
the predecessor Trustee, and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such predecessor Trustee hereunder.



     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to above.



     No successor Trustee with respect to any series of Securities shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.



40









 





     Section 5.12. 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 of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder; provided that 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 Trustee by
merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



     Section 5.13. Preferential Collection of Claims Against Company. If and when the Trustee
shall be or shall become a creditor, of the Company (or of 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 against any such other obligor, as the case may be).



     Section 5.14. Appointment of Authenticating Agent. At any time when any of the Securities
remain Outstanding, the Trustee, with the approval of the Company, may appoint an Authenticating
Agent or Agents with respect to one or more series of the Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 2.09, 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 an Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and, if other than the Company itself, 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.



41









 




     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and, if other than the Company, to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and, if
other than the Company, 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, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register. 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 Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.


     If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternate 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.



	 	 	 	 	 
	 	The Bank of New York Mellon, as Trustee

 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 



ARTICLE 6

Consolidation, Merger, Conveyance, Transfer Or Lease




     Section 6.01. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not
consolidate with or merge into any other Person or convey, transfer, sell or lease its properties
and assets substantially as an entirety to any Person, and the Company shall not permit any Person
to consolidate with or merge into it or convey, transfer, sell or lease such Person’s properties
and assets substantially as an entirety to it, unless:



     (a) the Company is the surviving person or the Person formed by such consolidation or into
which the Company is merged, or the Person to which the Company’s properties and assets are
conveyed, transferred, sold or leased, shall be a corporation, limited liability company,
partnership or trust organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and, if other than the Company, shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the principal of, premium,
if any, and interest on all of the Securities, and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or observed;



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



     (c) 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 6 and that all conditions precedent herein provided for
relating to such transaction have been complied with, together with any documents required under
Section 7.03.



     Section 6.02. Successor Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer of all or substantially



42









 




all the assets of the Company in accordance with Section 6.01, the successor Person formed by
such consolidation or into which the Company is merged or to which such conveyance or transfer 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 Company shall be relieved of all
of its obligations and covenants under this Indenture and the Securities except with respect to any
obligations that arise from, or are related to, such transaction.




ARTICLE 7

Supplemental Indentures




     Section 7.01. Supplemental Indentures Without Consent of Holders. Without the consent of the
Holders of any series of Securities, the Company and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to
the Trustee, for any of the following purposes:



     (a) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by any such successor of the covenants, agreements and obligations
of the Company herein and in the Securities; or



     (b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the Holders of the Securities of any or all series of Securities as the
Company and the Trustee shall consider to be for the protection of the Holders of the Securities of
any or all series or to surrender any right or power herein conferred upon the Company (and if such
covenants or the surrender of such right or power are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified series); or



     (c) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein or in any supplemental indenture, or to make any other
provisions with respect to matters or questions arising under this Indenture that do not adversely
affect the interests of the Holders of Securities of any series in any material respect; or



     (d) to add guarantors or co-obligors with respect to any series of Securities; or



     (e) to secure any series of Securities; or



     (f) to make provision with respect to the conversion rights of Holders of Securities of any
series pursuant to Article 9; or



     (g) to establish any form of Security as provided in Article 2 hereof, and to provide for the
issuance of any series of Securities, as provided in Article 2 hereof, and to set forth the terms
thereof, and/or to add to the rights of the Holders of the Securities of any series; or



     (h) to evidence and provide for the acceptance of appointment by another corporation as a
successor Trustee hereunder with respect to one or more series of Securities 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 Section 5.11
hereof; or



43









 





     (i) to comply with the requirements of the Commission in connection with the qualification of
this Indenture under the TIA; or



     (j) to make any change in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such Securities.



     Section 7.02. Supplemental Indentures With Consent of Holders. With the consent of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of
each series affected by such supplemental indenture or indentures, by Act of said Holders delivered
to the Company and the Trustee, the Company and the Trustee may from time to time and at any time
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 any
supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of
each such series under this Indenture; provided, however, that no such supplemental indenture,
amendment, modification or supplement shall, without the consent of the Holder of each Outstanding
Security of such series affected thereby:



     (a) change the Scheduled Maturity Date or the stated payment date of any payment of premium or
interest payable on any Security of such series, or reduce the principal amount thereof, or any
amount of interest or premium payable thereon, or



     (b) change the method of computing the amount of principal of any Security of such series or
any interest payable thereon on any date, or change any Place of Payment where, or the coin or
currency in which, any Security of such series or any payment of premium or interest thereon is
payable, or



     (c) impair the right to institute suit for the enforcement of any payment described in clauses
(a) or (b) on or after the same shall become due and payable at Maturity; or



     (d) 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



     (e) modify any of the provisions of this Section or Section 4.13, 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 of such series 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, or the deletion of this proviso, in accordance with the requirements of Sections 5.11 and
7.01(h); or



     (f) modify the provisions of this Indenture with respect to the ranking of the Securities or
any series in a manner adverse to the Holders; or



     (g) except as permitted by Section 9.11, adversely affect the right to convert any Security as
provided in Article 9.



     A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture that has expressly been included solely for the benefit of one or more particular



44









 




series of Securities, or that 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 7.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.



     Section 7.03. Execution of Supplemental Indentures. Upon the written request of the Company
and upon filing with the Trustee of evidence of an Act of Holders as aforementioned, the Trustee
shall join with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, powers, trusts, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 5.01) shall be fully protected in relying upon, an Officers’ Certificate
pursuant to Section 1.02 hereof and an Opinion of Counsel pursuant to Section 1.02 hereof, each
setting forth the statements required by Section 1.02 and stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.



     Section 7.04. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith, and such supplemental indenture shall form a part of this Indenture for all
purposes; and the respective rights, limitation of rights, duties, powers, trusts and immunities
under this Indenture of the Trustee, the Company, and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be determined, exercised and enforced
thereunder to the extent provided therein.



     Section 7.05. Conformity With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the TIA as then in effect.



     Section 7.06. Reference in Securities to Supplemental Indentures. Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding Securities.



ARTICLE 8

Covenants




     Section 8.01. Payment of Principal, Premium and Interest. With respect to each series of
Securities, the Company covenants and agrees that it will duly and punctually pay or cause to be
paid the principal, premium, if any, and interest, if any, on such series of Securities in
accordance with their terms and this Indenture, and will duly comply with all the other terms,
agreements and conditions contained in the Indenture for the benefit of the Securities of such
series.



45









 





     Section 8.02. Maintenance of Office or Agency. With respect to each series of Securities, so
long as any of the Securities remain outstanding, the Company will maintain an office or agency in
each Place of Payment where Securities of such series may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer or exchange, where
Securities of such series may be surrendered for conversion, and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Company shall fail to maintain such office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, conversions, notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.



     Section 8.03. Money or Security Payments to Be Held in Trust. If the Company shall at any
time act as its own Paying Agent for any series of Securities, it will, on or before each due date
of the principal, premium, if any, or interest, if any, on any of the Securities of such series,
segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal, premium, or interest so becoming due until such sums shall be
paid to such Holders of such Securities or otherwise disposed of as herein provided, and will
promptly notify the Trustee, in writing, 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, premium, if any, or interest, if any, on any
Securities of such series, deposit with a Paying Agent a sum sufficient to pay such principal,
premium, or interest so becoming due, such sum to be held in trust for the benefit of the Holders
of the Securities entitled to the same and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee, in writing, 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



     (a) hold all sums held by it for the payment of principal, premium, if any, or interest, if
any, on Securities of such series in trust for the benefit of the Holders of the Securities
entitled thereto until such sums shall be paid to such Holders of such Securities or otherwise
disposed of as herein provided;



     (b) give the Trustee written notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any such payment of principal, premium, if any, or
interest, if any, on the Securities of such series; and



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



     The Company may, at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture with respect to any series of Securities 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 in respect of each and every series of Securities as to which it seeks to
discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in
respect of all Securities, such sums to be held by the Trustee upon the same trusts as



46









 




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.




     Section 8.04. Certificate to Trustee. The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company (beginning in 2009), an Officers’
Certificate, one of whose signatories shall be the Company’s principal executive, accounting or
financial officer, stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default by the Company in the
performance of any of its covenants, conditions or agreements contained herein (without regard to
any period of grace or requirement of notice provided hereunder), stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.



     Section 8.05. Corporate Existence. Subject to Article 6, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence.



ARTICLE 9

Conversion of Securities




     Section 9.01. Conversion Privilege and Conversion Rate. Subject to and upon compliance with
the provisions of this Article 9, at the option of the Holder thereof, any Security or any portion
of the principal amount thereof that is U.S.$2,000 or an integral multiple of U.S.$1,000 may be
converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest
1/100th of a share) of Common Stock of the Company at the Conversion Rate, determined as
hereinafter provided, in effect at the time of conversion. Such conversion right shall commence
upon the original issuance of the Securities and expire at the close of business two (2) New York
Business Days prior to the Maturity, unless such Security has been previously repurchased, redeemed
or converted, subject, in the case of conversion of any Global Security, to any Applicable
Procedures. The Conversion Rate shall be adjusted in certain instances as provided in this Article
9.



     Section 9.02. Exercise of Conversion Privilege. In order to exercise the conversion
privilege, the Holder of any Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency of the Company maintained for that
purpose pursuant to Section 8.02, accompanied by a duly signed and completed notice of conversion
(substantially in the form attached hereto as Exhibit A) stating that the Holder elects to
convert such Security or, if less than the entire principal amount thereof is to be converted, the
portion thereof to be converted. Each Security surrendered for conversion (in whole or in part)
during the period from the close of business on any Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall 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 (or part thereof, as the case may be) being
surrendered for conversion. The interest so payable on such Interest Payment Date, with respect to
any Security (or portion thereof, if applicable) that is surrendered for conversion during the
period from the close of business on any Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date, shall be paid to the Holder of such Security
as of such Record Date. Interest payable in respect of any Security surrendered for conversion on
or after an Interest Payment Date shall be paid to the Holder of



47









 




such Security as of the next preceding Record Date, notwithstanding the exercise of the right
of conversion. Except as provided in this paragraph, no cash payment or adjustment shall be made
upon any conversion on account of any interest accrued from the Interest Payment Date next
preceding the Conversion Date, in respect of any Security (or part thereof, as the case may be)
surrendered for conversion, or on account of any dividends on the Common Stock issued upon
conversion. The Company’s delivery to the Holder of the number of shares of Common Stock (and cash
in lieu of fractions thereof as provided in Section 9.03) into which a Security is convertible and
any rights pursuant to Section 9.04(m) will be deemed to satisfy the Company’s obligation to pay
the principal amount of the Security.




     Securities shall be deemed to have been converted on the day of surrender of such Securities
for conversion in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or
holders of such Common Stock at such time. As promptly as practicable on or after the Conversion
Date, the Company shall issue and deliver to the Conversion Agent, for delivery to the Holder, a
certificate or certificates for the number of full shares of Common Stock issuable upon conversion,
together with payment in lieu of any fraction of a share, as provided in Section 9.03.



     Neither the Trustee nor the Conversion Agent shall have any responsibility for the inclusion
or content of any restrictive legends on such Common Stock; provided, however, that the Trustee or
the Conversion Agent shall have provided to the Company or to the Company’s transfer agent for such
Common Stock, prior to or concurrently with a request to the Company to deliver such Common Stock,
written notice that the securities delivered for conversion are Securities.



     In the case of any Security that is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and make available for delivery to the Holder
thereof, at the expense of the Company, a new Security or Securities of authorized denominations in
an aggregate principal amount equal to the unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount of such Security
to be converted is any integral multiple of U.S.$2,000 and the principal amount of such security to
remain Outstanding after such conversion is equal to U.S.$2,000 or any integral multiple of
U.S.$1,000 in excess thereof.



     Notwithstanding anything to the contrary contained herein, the number of Conversion Shares
that may be acquired by the Holder upon any conversion of the Securities (or otherwise in respect
hereof) shall be limited to the extent necessary to insure that, following such exercise (or other
issuance), the total number of shares of Common Stock then beneficially owned by such Holder and
its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder’s for purposes of Section 13(d) of the Exchange Act, does not exceed 4.99% of the
total number of issued and outstanding shares of Common Stock (including for such purpose the
shares of Common Stock issuable upon such conversion). For such purposes, beneficial ownership
shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. This restriction may not be waived.



     Unless and until the Conversion Agent receives an Officers’ Certificate from the Company
notifying the Trustee that, upon a conversion of Securities, a Holder would own in



48









 




excess of 4.99% of the total number of issued and outstanding shares of Common Stock
(including for such purpose the shares of Common Stock issuable upon such conversion), the
Conversion Agent may assume without inquiry (i) that no Holder owns or upon a conversion of
Securities would own in excess of that number and (ii) that each Holder is in compliance with the
requirements of this Section 9.02.




     Section 9.03. Fractions of Shares. No fractional shares of Common Stock shall be issued upon
conversion of any Security or Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of
such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same
fraction of the Closing Price at the close of business on the day of conversion.



     Section 9.04. Adjustment of Conversion Rate. The Conversion Rate shall be subject to
adjustments from time to time as follows:



     (a) In case the Company shall pay or make a dividend or other distribution on any class of
Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at
the opening of business on the day following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares constituting such dividend
or other distribution, such increase to become effective (subject to paragraph (l) of this Section
9.04) immediately after the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (a), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company. In no event shall this paragraph (a) apply in the case of an
ordinary dividend.



     (b) In case the Company shall issue rights, options or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (determined as provided in paragraph (h) of this Section
9.04) of the Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than any rights, options or warrants (1) that by
their terms will also be issued to any Holder upon conversion of a Security into shares of Common
Stock without any action required by the Company or any other Person or (2) that are only
exercisable upon the occurrence of a specified triggering event and such triggering event has not
occurred), the Conversion Rate in effect at the opening of business on the day following the date
fixed for such determination shall be increased by dividing such Conversion Rate by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price and the denominator shall be
the number of shares of Common Stock outstanding at the



49









 




close of business on the date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such increase to become effective (subject to
paragraph (l) of this 9.04) immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph (b), the number of shares of
Common Stock at any time outstanding shall not include shares held in the treasury of the Company
but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not issue any rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.




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



     (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its Indebtedness, shares of any class of Capital Stock, or other property
(including cash or assets or securities, but excluding (1) any rights, options or warrants referred
to in paragraph (b) of this Section 9.04 and the distribution of rights to all holders of Common
Stock pursuant to the adoption of a stockholders’ rights plan or the detachment of such rights
under the terms of such stockholders’ rights plan, (2) any dividend or distribution paid in cash,
except as set forth in paragraphs (e) and (f) of this Section 9.04 and (3) any dividend or
distribution referred to in paragraph (a) of this Section 9.04, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect
immediately prior to the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in this Section 9.04(h)) of the Common Stock on the
date fixed for such determination less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board Resolution) of the
portion of the assets, shares or evidences of Indebtedness so distributed applicable to one share
of Common Stock and the denominator shall be such current market price per share (determined as
provided in this Section 9.04(h)) of the Common Stock, such adjustment to become effective (subject
to paragraph (l) of this Section 9.04) immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled to receive such
distribution.



     (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash (excluding cash portions of distribution referred to in Section 9.04(d) and any
cash that is distributed upon a merger or consolidation to which Section 9.11 applies) in an
aggregate amount that, combined together with (1) the aggregate amount of any other cash
distributions to all holders of its Common Stock made exclusively in cash within the 365-day period
preceding the date of payment of such distribution and in respect of which no adjustment pursuant
to this paragraph (e) has been made and (2) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution) of other consideration payable in respect of any tender offer



50









 




by the Company or any Subsidiary for all or any portion of the Common Stock concluded within
the 365-day period preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (f) of this Section 9.04 has been made (the “Combined Cash and
Tender Amount”) exceeds ten percent (10%) of the product of the current market price per share
(determined as provided in paragraph (h) of this Section 9.04) of the Common Stock on the date for
the determination of holders of shares of Common Stock entitled to receive such distribution times
the number of shares of Common Stock outstanding on such date (the “Aggregate Current Market
Price”), then, and in each such case, immediately after the close of business on such date for
determination, subject to paragraph (l) of Section 9.04, the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for determination of the stockholders entitled to
receive such distribution by a fraction (A) the numerator of which shall be equal to the current
market price per share (determined as provided in paragraph (h) of this Section 9.04) of the Common
Stock on the date fixed for such determination less an amount equal to the quotient of (i) the
excess of such Combined Cash and Tender Amount over ten percent (10%) of such Aggregate Current
Market Price divided by (ii) the number of shares of Common Stock outstanding on such date fixed
for determination and (B) the denominator of which shall be equal to the current market price per
share (determined as provided in paragraph (h) of this Section 9.04) of the Common Stock on such
date fixed for determination.




     (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the
Common Stock shall be completed for an aggregate consideration consisting of cash and/or property
having a fair market value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that combined together with (1) the aggregate of
the cash plus the fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), of other consideration payable in respect
of any other tender offer by the Company or any Subsidiary for all or any portion of the Common
Stock concluded within the 365-day period preceding the completion of such tender offer and in
respect of which no adjustment pursuant to this paragraph (f) has been made and (2) the aggregate
amount of any distributions to all holders of the Company’s Common Stock made exclusively in cash
within the 365-day period preceding the completion of such tender offer and in respect of which no
adjustment pursuant to paragraph (e) of this Section 9.04 has been made (the “Combined Tender and
Cash Amount”) exceeds ten percent (10%) of the product of the current market price per share of the
Common Stock (determined as provided in paragraph (h) of this Section 9.04) as of the completion of
such tender offer (the “Completion Date”) times the number of shares of Common Stock outstanding
(including any tendered shares) as of the Completion Date, then, and in each such case, immediately
prior to the opening of business on the day after the date of the Completion Date, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion
Rate immediately prior to close of business on the Completion Date by a fraction (A) the numerator
of which shall be equal to (i) the product of (x) the current market price per share of the Common
Stock (determined as provided in paragraph (h) of this Section 9.04) on the Completion Date
multiplied by (y) the number of shares of Common Stock outstanding (including any tendered shares)
on the Completion Date less (ii) the Combined Tender and Cash Amount, and (B) the denominator of
which shall be equal to the product of (x) the current market price per share of the Common Stock
(determined as provided in paragraph (h) of this Section 9.04) as of the Completion Date multiplied
by (y) the number of shares of Common Stock outstanding (including any tendered shares) as of the
Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date.




51












 





     (g) The reclassification of Common Stock into securities including other than Common Stock
(other than any reclassification upon a consolidation or merger to which Section 9.11 applies)
shall be deemed to involve (1) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the
date fixed for the determination of stockholders entitled to receive such distribution” and “the
date fixed for such determination” within the meaning of paragraph (d) of this Section 9.04), and
(2) a subdivision or combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such reclassification shall be deemed
to be “the day upon which such subdivision becomes effective” or “the day upon which such
combination becomes effective”, as the case may be, and “the day upon which such subdivision or
combination becomes effective” within the meaning of paragraph (c) of this Section 9.04).



     (h) For the purpose of any computation under paragraphs (b), (d), (e) or (f) of this Section
9.04, the current market price per share of Common Stock on any date shall be calculated by the
Company and be deemed to be the Volume Weighted Average Price for the Trading Day before the “ex
date” with respect to the issuance or distribution requiring such computation. For purposes of
this paragraph, the term “ex date,” when used with respect to any issuance or distribution, means
the first date on which the Common Stock trades regular way in the applicable securities market or
on the applicable securities exchange without the right to receive such issuance or distribution.



     (i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any
adjustments not previously made by reason of this paragraph (i)) would require an increase or
decrease of at least one percent in such rate; provided, however, that any adjustments which by
reason of this paragraph (i) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article 9 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.



     (j) The Company may make such increases in the Conversion Rate, for the remaining term of the
Securities or any shorter term, in addition to those required by paragraphs (a), (b), (c), (d), (e)
and (f) of this Section 9.04, as it considers to be advisable in order to avoid or diminish any
income tax liability to any holders of shares of Common Stock resulting from any dividend or
distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common
Stock or from any event treated as such for income tax purposes.



     To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and
the Board of Directors shall have made a determination that such increase would be in the best
interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall give notice of the increase to the
Holders of Securities in the manner provided in Section 1.06 at least fifteen (15) days prior to
the date the increased Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.



     (k) Notwithstanding the foregoing provisions of this Section 9.04, no adjustment of the
Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock
pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender
or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act



52









 







or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented
by the Company.



     (l) In any case in which this Section 9.04 shall require that an adjustment be made
immediately following a Record Date, the Company may elect to defer the effectiveness of such
adjustment (but in no event until a date later than the effective time of the event giving rise to
such adjustment), in which case the Company shall, with respect to any Security of any series to
which this Article 9 applies, converted after such Record Date and on and before such adjustment
shall have become effective (1) defer paying any cash payment pursuant to Section 9.03 hereof or
issuing to the Holder of such Security the number of shares of Common Stock issuable upon such
conversion in excess of the number of shares of Common Stock issuable thereupon only on the basis
of the Conversion Rate prior to adjustment, and (2) not later than five (5) New York Business Days
after such adjustment shall have become effective, pay to such Holder the appropriate cash payment
pursuant to Section 9.03 hereof and issue to such Holder the additional shares of Common Stock
issuable on such conversion. Notwithstanding the foregoing, no adjustment of the Conversion Rate
shall be made if the event giving rise to such adjustment does not occur.



     (m) In the event that the Company distributes rights or warrants (other than those referred to
in paragraph (b) above) pro rata to holders of Common Stock, so long as any such rights or warrants
have not expired, the Company shall make proper provision so that the Holder of any Security of any
series to which this Article 9 applies, surrendered for conversion will be entitled to receive upon
such conversion, in addition to the Common Stock issuable upon conversion of the Securities (the
“Conversion Shares”), a number of rights and warrants to be determined as follows: (i) if such
conversion occurs on or prior to the date for the distribution to the holders of rights or warrants
of separate certificates evidencing such rights or warrants (the “Distribution Date”), the same
number of rights or warrants to which a holder of a number of shares of Common Stock equal to the
number of Conversion Shares is entitled at the time of such conversion in accordance with the terms
and provisions of and applicable to the rights or warrants, and (ii) if such conversion occurs
after such Distribution Date, the same number of rights or warrants to which a holder of the number
of shares of Common Stock into which the principal amount of such Security so converted was
convertible immediately prior to such Distribution Date would have been entitled on such
Distribution Date in accordance with the terms and provisions of and applicable to the rights or
warrants.



     (n) Notwithstanding anything to the contrary, in the event that the Company shall effect any
increase in the Conversion Rate pursuant to this Section 9.04, the Company shall procure any
required shareholder approvals.



     Section 9.05. Notice of Adjustments of Conversion Rate. Whenever the Conversion Rate is
adjusted as herein provided:



     (a) the Company shall compute the adjusted Conversion Rate in accordance with Section 9.04 and
shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the
adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall promptly be delivered to the Trustee and the Conversion Agent;
and



     (b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall be required, and as soon as



53









 







practicable after it is required, such notice shall be provided by the Company to all Holders
in accordance with Section 1.06.



     Neither the Trustee nor the Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained therein, except to
exhibit the same to any Holder of Securities of any series to which this Section 10 applies,
desiring inspection thereof at its office during normal business hours. Unless and until a
Responsible Officer of the Trustee and Conversion Agent receive notice of an adjusted Conversion
Rate, the Trustee and the Conversion Agent may rely without inquiry on the Conversion Rate most
recently in effect.



     Section 9.06. Notice of Certain Corporate Action. In case:



     (a) the Company shall declare a dividend (or any other distribution) on its Common Stock
payable (i) otherwise than exclusively in cash or (ii) exclusively in cash in an amount that would
require any adjustment pursuant to Section 9.04; or



     (b) the Company shall authorize the granting to the holders of its Common Stock of rights,
options or warrants to subscribe for or purchase any shares of Capital Stock of any class or of any
other rights; or



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



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


then the Company shall cause to be delivered to the Trustee and Conversion Agent at each office or
agency maintained for the purpose of conversion of Securities of any series to which this Article 9
applies pursuant to Section 9.02, and shall cause to be provided to all Holders in accordance with
Section 1.06, at least twenty (20) days prior to the applicable record or effective date
hereinafter specified, a notice stating (1) 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 (2) the date on which such
reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. Neither the
failure to give such notice or the notice referred to in the following paragraph nor any defect
therein shall affect the legality or validity of the proceedings described in clauses (a) through
(d) of this Section 9.06. If at the time the Trustee shall not be the Conversion Agent, a copy of
such notice shall also forthwith be delivered by the Company to the Trustee.




     The Company shall cause to be delivered to the Trustee and Conversion Agent at each office or
agency maintained for the purpose of conversion of Securities of any series to which this Article 9
applies pursuant to Section 8.02, and shall cause to be provided to all Holders in



54









 







accordance with Section 1.06, notice of any tender offer by the Company or any Subsidiary for
all or any portion of the Common Stock at or about the time that such notice of tender offer is
provided to the public generally.



     Section 9.07. Company to Reserve Common Stock. The Company shall at all times reserve and
keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for
the purpose of effecting the conversion of Securities of any series to which this Article 9
applies, the full number of shares of Common Stock then issuable upon the conversion of all
Outstanding Securities of any such series.



     Section 9.08. Taxes on Conversions. Except as provided in the next sentence, the Company
will pay any and all taxes and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities of any series to which this Article 9 applies
pursuant hereto. The Company shall not, however, be required to pay any tax or duty which may be
payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in
a name other than that of the Holder of the Security or Securities to be converted, and no such
issue or delivery shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax or duty or has established to the satisfaction of the Company
that such tax or duty has been paid.



     Section 9.09. Covenant as to Common Stock. The Company agrees that all shares of Common
Stock that may be delivered upon conversion of Securities of any series to which this Article 9
applies, upon such delivery, will be newly issued shares and will have been duly authorized and
validly issued and will be fully paid and nonassessable and, except as provided in Section 9.08,
the Company will pay all taxes, liens and charges with respect to the issue thereof.



     Section 9.10. Cancellation of Converted Securities. All Securities of any series to which
this Article 9 applies delivered for conversion shall be delivered to the Trustee or the Conversion
Agent to be cancelled by or at the direction of the Trustee, which shall dispose of the same in
accordance with Section 2.13.



     Section 9.11. Provision in Case of Consolidation, Merger or Sale of Assets. In case of any
consolidation or merger of the Company with or into any other Person, any merger of another Person
with or into the Company (other than a merger that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or that 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 any series to which this Article 9 applies then Outstanding shall
have the right thereafter, during the period such Security shall be convertible as specified in
Section 9.01, 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 (a) is not a Person with which the
Company consolidated or merged with or into or that 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 (b) 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



55









 







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 other than
a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall
not have been exercised (the “Non-electing Share”), then for the purpose of this Section 9.11 the
kind and amount of securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be deemed to be
the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments that, for events subsequent to the effective
date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 9. The above provisions of this Section 9.11 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 any series to which this Article 9 applies as provided in Section 1.06
promptly upon such execution.



     Neither the Trustee nor the Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property or cash receivable by Holders
of Securities of any series to which this Article 9 applies 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 Officers Certificate or an Opinion of Counsel with respect thereto,
which the Company shall cause to be furnished to the Trustee in accordance with Section 1.02.



     Section 9.12. Responsibility of Trustee for Conversion Provisions. The Trustee and any
Conversion Agent shall not at any time be under any duty or responsibility to any Holder of
Securities of any series to which this Article 9 applies to determine whether any facts exist that
may require any adjustment of the Conversion Rate, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed herein or in any supplemental
indenture in making the same, or whether a supplemental indenture need be entered into. Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Common Stock, or of any other securities or property or cash, that may
at any time be issued or delivered upon the conversion of any Security; and it or they do not make
any representation with respect thereto. Neither the Trustee, subject to the provisions of Section
5.01, nor any Conversion Agent shall be responsible for any failure of the Company to make or
calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any Security for the
purpose of conversion; and the Trustee and any Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company contained in this Article
9.



ARTICLE 10

Holders Lists And Reports By Trustee And Company; Non-Recourse




     Section 10.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will
furnish or cause to be furnished to the Trustee:



56









 





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



     (b) at such other times as the Trustee may reasonably request in writing, within thirty (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 fifteen (15) days prior to the time such list is furnished;


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




     Section 10.02. Preservation of Information.



     (a) 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 10.01 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 10.01
upon receipt of a new list so furnished.



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



     (c) 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 10.03. No Recourse Against Others. An incorporator or any past, present or future
director, officer, employee or stockholder, as such, of the Company or any successor entity shall
not have any liability for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder shall waive and release all such liability. Such waiver and
release shall be part of the consideration for the issue of the Securities.



     Section 10.04. Reports by Trustee.



     (a) After this Indenture has been qualified under the Trust Indenture Act, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner provided therein.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days
after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as
of such May 15, that complies with the provisions of such Section 313(a).



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



57









 





     Section 10.05. Section 13 or 15(d) Reports by Company. After this Indenture has been
qualified under the Trust Indenture Act, the Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided therein; provided, however, that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within fifteen (15) days after the same has been filed with the
Commission. Documents filed by the Company with the Commission via the EDGAR system shall be
deemed to be filed with the Trustee as of the time such documents are filed via EDGAR.



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



58









 





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



	 	 	 	 	 
	 	EpiCept Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	The Bank of New York Mellon, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



59









 






	 	 	 	 	 



EXHIBIT A




CONVERSION NOTICE





     The undersigned Holder of this Security hereby irrevocably exercises the option to convert
this Security, or any portion of the principal amount hereof (in minimum denominations of
U.S.$2,000 and any integral multiple of $1,000) below designated, into shares of Common Stock in
accordance with the terms of the Indenture referred to in this Security and directs that such
shares, together with a check in payment for any fractional share and any Securities representing
any unconverted principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares of Common Stock or
Securities are to be registered in the name of a Person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.



	 	 	 	 	 	 	 
	Dated:                     
	 	 	 	 	 	 
	 	 	 
	 	 	Signature
	 
	 	 	 	 	 	 
	If shares or Registered Securities
are registered in the name of a
Person other than the Holder,
please print such Person’s name and
address	 	If only a portion of the Securities
is to be to be converted, please
indicate:
	 
	 	 	 	 	 	 
	 

	 	1.	 	 	Principal amount to be converted:
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	U.S. $                    
	 
	 	 	 	 	 	 
	 
Address

	 	 	 	 	 	(in minimum denominations of
U.S.$2,000 and any integral multiple
of $1,000)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Social Security or other Taxpayer
Identification Number, if any

	 	2.	 	 	Principal amount and denomination
of Registered Securities
representing unconverted principal
amount to be issued:
	 
	 	 	 	 	 	 
	 
Signature Guaranteed

	 	 	 	 	 	Amount: U.S. $                    







60