EX-4.1



 




EXHIBIT
4.1



OSI PHARMACEUTICALS, INC.




2% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025



 
 




INDENTURE




DATED AS OF DECEMBER 21, 2005


 
 





THE BANK OF NEW YORK




AS TRUSTEE




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Article I
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Other Definitions
	 	 	8	 
	Section 1.3 Trust Indenture Act Provisions
	 	 	9	 
	Section 1.4 Rules of Construction
	 	 	10	 
	 
	 	 	 	 
	Article II
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Form And Dating
	 	 	10	 
	Section 2.2 Execution and Authentication
	 	 	12	 
	Section 2.3 Registrar, Paying Agent and Conversion Agent
	 	 	13	 
	Section 2.4 Paying Agent to Hold Money in Trust
	 	 	13	 
	Section 2.5 Securityholder Lists
	 	 	14	 
	Section 2.6 Transfer and Exchange
	 	 	14	 
	Section 2.7 Replacement Securities
	 	 	15	 
	Section 2.8 Outstanding Securities
	 	 	16	 
	Section 2.9 Treasury Securities
	 	 	16	 
	Section 2.10 Temporary Securities
	 	 	16	 
	Section 2.11 Cancellation
	 	 	17	 
	Section 2.12 Legend; Additional Transfer and Exchange Requirements
	 	 	17	 
	Section 2.13 CUSIP Numbers
	 	 	19	 
	 
	 	 	 	 
	Article III
	 	 	 	 
	REDEMPTION AND PURCHASES
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Right to Redeem; Notice to Trustee
	 	 	20	 
	Section 3.2 Selection of Securities to Be Redeemed
	 	 	20	 
	Section 3.3 Notice of Redemption
	 	 	20	 
	Section 3.4 Effect of Notice of Redemption
	 	 	21	 
	Section 3.5 Deposit of Redemption Price
	 	 	22	 
	Section 3.6 Securities Redeemed in Part
	 	 	22	 
	Section 3.7 Other Arrangement on Call for Redemption
	 	 	22	 
	Section 3.8 Repurchase of Securities at The Option Of Holders
	 	 	23	 
	Section 3.9 Repurchase of Securities at Option of the Holder
upon Fundamental Change
	 	 	27	 
	 
	 	 	 	 
	Article IV
	 	 	 	 
	CONVERSION
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Conversion Privilege
	 	 	33	 
	Section 4.2 Conversion Procedure; Conversion Rate; Fractional
Shares; Settlement in Cash in Lieu of Common Stock
	 	 	35	 






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	 	 	Page
	Section 4.3 Adjustment of Conversion Rate for Common Stock
	 	 	39	 
	Section 4.4 Consolidation or Merger of The Company
	 	 	47	 
	Section 4.5 Notice Of Adjustment
	 	 	49	 
	Section 4.6 Notice In Certain Events
	 	 	49	 
	Section 4.7 Company to Reserve Stock: Registration; Listing
	 	 	51	 
	Section 4.8 Taxes on Conversion
	 	 	51	 
	Section 4.9 Conversion After Record Date
	 	 	51	 
	Section 4.10 Company Determination Final
	 	 	52	 
	Section 4.11 Responsibility of Trustee for Conversion Provisions
	 	 	52	 
	Section 4.12 Unconditional Right of Holders to Convert
	 	 	53	 
	Section 4.13 Adjustment to the Conversion Rate upon Certain
Fundamental Changes
	 	 	53	 
	 
	 	 	 	 
	Article V
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Agreement to Subordinate
	 	 	57	 
	Section 5.2 Liquidation; Dissolution; Bankruptcy
	 	 	57	 
	Section 5.3 Default on Designated Senior Indebtedness
	 	 	57	 
	Section 5.4 Acceleration of Notes
	 	 	58	 
	Section 5.5 When Distribution Must Be Paid Over
	 	 	58	 
	Section 5.6 Notice by the Company
	 	 	59	 
	Section 5.7 Subrogation
	 	 	59	 
	Section 5.8 Relative Rights
	 	 	59	 
	Section 5.9 Subordination May Not Be Impaired by the Company
	 	 	59	 
	Section 5.10 Distribution or Notice to Representative
	 	 	60	 
	Section 5.11 Rights of Trustee and Paying Agent
	 	 	60	 
	Section 5.12 Anti-layering
	 	 	61	 
	 
	 	 	 	 
	Article VI
	 	 	 	 
	COVENANTS
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Payment of Securities
	 	 	61	 
	Section 6.2 SEC Reports
	 	 	61	 
	Section 6.3 Compliance Certificates
	 	 	62	 
	Section 6.4 Further Instruments and Acts
	 	 	62	 
	Section 6.5 Maintenance of Corporate Existence
	 	 	62	 
	Section 6.6 Rule 144a Information Requirement
	 	 	62	 
	Section 6.7 Stay, Extension and Usury Laws
	 	 	63	 
	Section 6.8 Payment of Additional Interest
	 	 	63	 
	 
	 	 	 	 
	Article VII
	 	 	 	 
	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	 	 
	 
	 	 	 	 
	Section 7.1 Company May Consolidate, Etc, Only on Certain Terms
	 	 	63	 
	Section 7.2 Successor Substituted
	 	 	64	 






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	 	 	Page
	 
	 	 	 	 
	Article VIII
	 	 	 	 
	DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Events of Default
	 	 	64	 
	Section 8.2 Acceleration
	 	 	67	 
	Section 8.3 Other Remedies
	 	 	67	 
	Section 8.4 Waiver of Defaults and Events of Default
	 	 	67	 
	Section 8.5 Control by Majority
	 	 	68	 
	Section 8.6 Limitations on Suits
	 	 	68	 
	Section 8.7 Rights of Holders to Receive Payment and to Convert
	 	 	68	 
	Section 8.8 Collection Suit by Trustee
	 	 	69	 
	Section 8.9 Trustee May File Proofs of Claim
	 	 	69	 
	Section 8.10 Priorities
	 	 	69	 
	Section 8.11 Undertaking for Costs
	 	 	70	 
	 
	 	 	 	 
	Article IX
	 	 	 	 
	TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Duties of Trustee
	 	 	70	 
	Section 9.2 Rights of Trustee
	 	 	71	 
	Section 9.3 Individual Rights of Trustee
	 	 	72	 
	Section 9.4 Trustee’s Disclaimer
	 	 	72	 
	Section 9.5 Notice of Default or Events of Default
	 	 	73	 
	Section 9.6 Reports by Trustee to Holders
	 	 	73	 
	Section 9.7 Compensation and Indemnity
	 	 	73	 
	Section 9.8 Replacement of Trustee
	 	 	74	 
	Section 9.9 Successor Trustee by Merger, Etc.
	 	 	75	 
	Section 9.10 Eligibility; Disqualification
	 	 	75	 
	Section 9.11 Preferential Collection of Claims Against Company
	 	 	75	 
	 
	 	 	 	 
	Article X
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 10.1 Satisfaction and Discharge of Indenture
	 	 	76	 
	Section 10.2 Application of Trust Money
	 	 	77	 
	Section 10.3 Repayment to Company
	 	 	77	 
	Section 10.4 Reinstatement
	 	 	77	 
	 
	 	 	 	 
	Article XI
	 	 	 	 
	AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	 	 
	 
	 	 	 	 
	Section 11.1 Without Consent of Holders
	 	 	77	 
	Section 11.2 With Consent of Holders
	 	 	78	 
	Section 11.3 Compliance with Trust Indenture Act
	 	 	79	 
	Section 11.4 Revocation and Effect of Consents
	 	 	79	 
	Section 11.5 Notation on or Exchange of Securities
	 	 	80	 
	Section 11.6 Trustee to Sign Amendments, Etc.
	 	 	80	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 11.7 Effect of Supplemental Indentures
	 	 	80	 
	 
	 	 	 	 
	Article XII
	 	 	 	 
	[RESERVED]
	 	 	 	 
	 
	 	 	 	 
	Article XIII
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 13.1 Trust Indenture Act Controls
	 	 	81	 
	Section 13.2 Notices
	 	 	81	 
	Section 13.3 Communications By Holders With Other Holders
	 	 	82	 
	Section 13.4 Certificate And Opinion As To Conditions Precedent
	 	 	82	 
	Section 13.5 Record Date For Vote Or Consent Of Securityholders
	 	 	82	 
	Section 13.6 Rules By Trustee, Paying Agent, Registrar And Conversion Agent
	 	 	83	 
	Section 13.7 Legal Holidays
	 	 	83	 
	Section 13.8 Governing Law
	 	 	83	 
	Section 13.9 No Adverse Interpretation Of Other Agreements
	 	 	83	 
	Section 13.10 Successors
	 	 	83	 
	Section 13.11 Multiple Counterparts
	 	 	83	 
	Section 13.12 Separability
	 	 	84	 
	Section 13.13 Table Of Contents, Headings, Etc.
	 	 	84	 
	Section 13.14 No Recourse Against Others
	 	 	84	 
	Section 13.15 Calculations In Respect Of Securities
	 	 	84	 







iv









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 	 	 	 	 	 	 
	TIA SECTION	 	INDENTURE SECTION	 	 
	Section

	 	 	310(a)	(1)	 	 	9.10	 	 	 
	 

	 	 	(a	)(2)	 	 	9.10	 	 	 
	 

	 	 	(a	)(3)	 	 	N.A.	**	 	 
	 

	 	 	(a	)(4)	 	 	N.A.	 	 	 
	 

	 	 	(a	)(5)	 	 	9.10	 	 	 
	 

	 	 	(b	)	 	 	9.8;	9.10	 	 
	 

	 	 	(c	)	 	 	N.A.	 	 	 
	Section

	 	 	311	(a)	 	 	9.11	 	 	 
	 

	 	 	(b	)	 	 	9.11	 	 	 
	 

	 	 	(c	)	 	 	N.A.	 	 	 
	Section

	 	 	312	(a)	 	 	2.5	 	 	 
	 

	 	 	(b	)	 	 	13.3	 	 	 
	 

	 	 	(c	)	 	 	13.3	 	 	 
	Section

	 	 	313	(a)	 	 	9.6	 	 	 
	 

	 	 	(b	)(1)	 	 	N.A.	 	 	 
	 

	 	 	(b	)(2)	 	 	9.6	 	 	 
	 

	 	 	(c	)	 	 	9.6;	13.2	 	 
	 

	 	 	(d	)	 	 	9.6	 	 	 
	Section

	 	 	314	(a)	 	 	6.2;	 6.4; 13.2	 	 
	 

	 	 	(b	)	 	 	N.A.	 	 	 
	 

	 	 	(c	)(1)	 	 	13.4	(a)	 	 
	 

	 	 	(c	)(2)	 	 	13.4	(a)	 	 
	 

	 	 	(c	)(3)	 	 	N.A.	 	 	 
	 

	 	 	(d	)	 	 	N.A.	 	 	 
	 

	 	 	(e	)	 	 	13.4	(b)	 	 
	 

	 	 	(f	)	 	 	N.A.	 	 	 
	Section

	 	 	315	(a)	 	 	9.1	(b)	 	 
	 

	 	 	(b	)	 	 	9.5;	13.2	 	 
	 

	 	 	(c	)	 	 	9.1	(a)	 	 
	 

	 	 	(d	)	 	 	9.1	(c)	 	 
	 

	 	 	(e	)	 	 	8.11	 	 	 
	Section

	 	316(a) (last sentence)
	 	 	2.9	 	 	 
	 

	 	 	(a)(1	)(A)	 	 	8.5	 	 	 
	 

	 	 	(a)(1	)(B)	 	 	8.4	 	 	 
	 

	 	 	(a	)(2)	 	 	N.A.	 	 	 
	 

	 	 	(b	)	 	 	8.7	 	 	 
	 

	 	 	(c	)	 	 	13.5	 	 	 
	Section

	 	 	317(a	)(1)	 	 	8.8	 	 	 
	 

	 	 	(a	)(2)	 	 	8.9	 	 	 
	 

	 	 	(b	)	 	 	2.4	 	 	 








 




			
	*	 	This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.
	 
	**	 	N.A. means Not Applicable.
















 






          THIS INDENTURE dated as of December 21, 2005 is between OSI Pharmaceuticals, Inc., a
corporation duly organized under the laws of the State of Delaware (the “Company”), and The
Bank of New York, a New York banking corporation duly incorporated under the laws of the State of
New York, as Trustee (the “Trustee”).




          In consideration of the premises and the purchase of the Securities by the Holders thereof,
both parties agree as follows for the benefit of the other and for the equal and ratable benefit of
the registered Holders of the Company’s 2% Convertible Senior Subordinated Notes due 2025.




ARTICLE I



DEFINITIONS AND INCORPORATION BY REFERENCE



          Section 1.1 Definitions.




          “Additional Interest” has the meaning specified in Paragraph 2 of the Security.




          “Affiliate” means, with respect to any specified person, 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” means any Registrar, Paying Agent or Conversion Agent.




          “Applicable Cash-Settlement Stock Price,” with respect to a Trading Day, is equal to
the VWAP per share of the Common Stock on such Trading Day.




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




          “Bid Solicitation Agent” means, an agent selected by the Company to serve as bid
solicitation agent hereunder, and, initially, the Trustee.




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




          “Business Day” means each day that is not a Legal Holiday.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, but excluding any debt securities convertible into such equity.




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





 









 








          “Certificated Security” means a Security that is in substantially the form attached
hereto as Exhibit A and that does not include the information or the schedule called for by
footnotes 1, 3 and 4 thereof.




          “Closing Sale Price” of one share of Common Stock on any date means the closing per
share sale price of such Common Stock (or, if no closing sale price is reported, the average of the
bid and ask prices or, if there is more than one bid or ask price, the average of the average bid
and the average ask prices) on such date as reported in composite transactions on the principal
U.S. national securities exchange on which the Common Stock is traded or if the Common Stock is not
traded on a U.S. national securities exchange, as reported by the Nasdaq National Market system,
the Nasdaq SmallCap Market system or by the National Quotation Bureau Incorporated. In the absence
of such a quotation, the Board of Directors of the Company shall be entitled to make a good faith
determination of the sale price on the basis it considers appropriate which shall be conclusive.




          “Common Stock” means the common stock of the Company, $0.01 par value, as it exists on
the date of this Indenture and any shares of any class or classes of capital stock of the Company
resulting from any reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are not subject to redemption by
the Company; provided, however, that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable on conversion of Securities shall be
substantially in the proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes resulting from all
such reclassifications.




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




          “Conversion Price” means, at any time, $1,000 divided by the Conversion Rate in effect
at such time, rounded to two decimal places (rounded up if the third decimal place thereof is 5 or
more and otherwise rounded down).




          “Conversion Rate” means initially 33.9847 shares per $1,000 principal amount of
Securities, subject to adjustment as set forth herein.




          “Conversion Value” means, at any time, the amount equal to the product of the Closing
Sale Price at such time multiplied by the then current Conversion Rate.




          “Corporate Trust Office” means the office of the Trustee at which at any particular
time the trust created by this Indenture shall be administered which office at the date of the
execution of this Indenture is located at 101 Barclay Street, Fl. 8W, New York, New York, 10286,
Attention: Corporate Trust Administration, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Company.




          “Default” or “default” means, when used with respect to the Securities, any
event which is or, after notice or passage of time or both, would be an Event of Default.




2









 








          “Designated Senior Indebtedness” means any Senior Indebtedness which, at the time of
determination, has an aggregate principal amount outstanding of at least $20.0 million and that has
been specifically designated in the instrument evidencing such Senior Indebtedness as “Designated
Senior Indebtedness” of the Company.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, as in effect from time to time.




          “Final Maturity Date” means December 15, 2025.




          “GAAP” means generally accepted accounting principles in the United States of America
as in effect as of the date of this Indenture, including those set forth in (1) the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, (2) the statements and pronouncements of the Financial Accounting Standards Board, (3)
such other statements by such other entity as approved by a significant segment of the accounting
profession and (4) the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in registration statements filed under the
Securities Act and periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC.




          “Global Security” means a permanent Global Security that is in substantially the form
attached hereto as Exhibit A and that includes the information and schedule called for by
footnotes 1 and 6 thereof and which is deposited with the Depositary or its custodian and
registered in the name of the Depositary or its nominee.




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




          “Indebtedness” means, with respect to any person, without duplication: (a) all
liabilities of such person for borrowed money (including overdrafts) or for the deferred purchase
price of property or services, excluding any trade payables and other accrued current liabilities
incurred in the ordinary course of business, but including, without limitation, all obligations,
contingent or otherwise, of such person in connection with any letters of credit and acceptances
issued under letter of credit facilities, acceptance facilities or other similar facilities; (b)
all obligations of such person evidenced by bonds, notes, debentures or other similar instruments;
(c) indebtedness of such person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such person (even if the rights and
remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade payables arising in the ordinary course
of business; (d) all capitalized lease obligations of such person; (e) all obligations of such
person under or in respect of interest rate agreements or currency agreements; (f) all indebtedness
referred to in (but not excluded from) the preceding clauses of other persons and all dividends of
other persons, the payment of which is secured by (or for which the holder of such


3









 







           indebtedness has an existing right, contingent or otherwise, to be secured by) any lien or
with respect to property (including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for the payment of such
indebtedness (the amount of such obligation being deemed to be the lesser of the value of such
property or asset or the amount of the obligation so secured); (g) all guarantees by such person of
indebtedness referred to in this definition of any other person; (h) all Redeemable Capital Stock
of such person valued at the greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends; and (i) the present value of the obligation of such person as
lessee for net rental payments (excluding all amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water, utilities and similar charges to the extent
included in such rental payments) during the remaining term of the lease included in any sale and
leaseback transaction including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined in accordance with
accounting principles generally accepted in the United States of America.




          “Indenture” means this Indenture as amended or supplemented from time to time pursuant
to the terms of this Indenture.




          “Initial Purchaser” means UBS Securities LLC.




          “Interest Payment Date” has the meaning specified in Paragraph 1 of the Security.




          “Issuance Date” means the date on which any of the Securities are first authenticated
and issued.




          “Market Price” means with respect to Securities, as of any date of determination, the
average of the secondary market bid quotations per $1,000 principal amount of Securities obtained
by the Bid Solicitation Agent for $5,000,000 principal amount of Securities at approximately 4:00
p.m., New York City time, on such date of determination from three nationally recognized securities
dealers (none of which shall be an Affiliate of the Company) selected by the Company, which may
include any Initial Purchaser, provided, that if at least three such bids cannot be reasonably
obtained by the Bid Solicitation Agent, but two bids are obtained, then the average of the two bids
shall be used, and if only one such bid can be reasonably obtained by the Bid Solicitation Agent,
this one bid will be used; provided, however, if (a) the Bid Solicitation Agent, through the
exercise of reasonable efforts, is unable to obtain at least one such bid from a securities dealer,
or (b) in the Company’s Board of Directors’ reasonable, good faith judgment, the bid quotations are
not indicative of the secondary market value of the Securities as of such date of determination,
then the Market Price of a Security for such date of determination shall be equal to 97% of the
product of (1) the Conversion Rate in effect as of such date of determination multiplied by (2) the
Closing Sale Price of a share of Common Stock on such date of determination.




          “Measurement Period” means the last 30 consecutive Trading Days in a fiscal quarter.




          “Officer” means the Chairman or any Co-Chairman of the Board, any Vice Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer,
the Controller, the Secretary or any Assistant Controller or Assistant Secretary of the Company.





4









 








          “Officers’ Certificate” means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and by one other
Officer.




          “Opinion of Counsel” means a written opinion from legal counsel experienced in such
matters as are covered by the opinion. The counsel may be an employee of, or counsel to, the
Company.




          “Permitted Junior Securities” shall mean equity securities or subordinated securities
of the Company or any successor obligor that, in the case of any such subordinated securities, are
subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding to
at least the same extent as the Securities are so subordinated.




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




          “Principal” or “principal” of a debt security, including the Securities, means
the principal of the security.




          “Redeemable Capital Stock” means any class of the Company’s capital stock that, either
by its terms, by the terms of any securities into which it is convertible or exchangeable or by
contract or otherwise, is, or upon the happening of an event or passage of time would be, required
to be redeemed (whether by sinking fund or otherwise) prior to the date that is 91 days after the
Final Maturity Date or is redeemable at the option of the holder thereof at any time prior to such
date, or is convertible into or exchangeable for debt securities at any time prior to such date
(unless it is convertible or exchangeable solely at the Company’s option).




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




          “Redemption Price” when used with respect to any Security to be redeemed, means the
price fixed for such redemption pursuant to this Indenture, as set forth in the form of Security
annexed as Exhibit A hereto.




          “Registration Rights Agreement” means the Registration Rights Agreement dated, as of
December 21, 2005, between the Company and the Initial Purchasers.




          “Regular Record Date” has the meaning specified in Paragraph 1 of the Security.




          “Relevant Average Price Per Share” means the average of the VWAP per share of the
Common Stock during the Cash Settlement Averaging Period.




          “Rule 144” means Rule 144 under the Securities Act or any successor to such Rule.




          “Rule 144A” means Rule 144A under the Securities Act or any successor to such Rule.





5









 








          “SEC” means the Securities and Exchange Commission.




          “Securities” means the 2% Convertible Senior Subordinated Notes due 2025 or any of
them (each, a “Security”), as amended or supplemented from time to time, that are issued
under this Indenture.




          “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.




          “Securities Custodian” means the Trustee, as custodian with respect to the Securities
in global form, or any successor thereto.




          “Senior Indebtedness” means:





     (a) all Indebtedness of the Company, now or hereafter existing, under or in respect of
the documents and instruments executed in connection therewith, whether for principal,
premium, if any, interest (including interest accruing after the filing of, or which would
have accrued but for the filing of, a petition by or against the Company under bankruptcy
law, whether or not such interest is allowed as a claim after such filing in any proceeding
under such law) and other amounts due in connection therewith (including, without
limitation, any fees, premiums, expenses, reimbursement obligations with respect to letters
of credit and indemnities), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed; and




     (b) the principal of, premium, if any, and interest on all other Indebtedness of the
Company (other than the Securities), whether outstanding on the date of this Indenture or
thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of payment to the
Securities.



          Notwithstanding the foregoing, “Senior Indebtedness” shall not include:





     (a) Indebtedness evidenced by the Securities;




     (b) Indebtedness of the Company that is expressly subordinated in right of payment to
Senior Indebtedness;




     (c) Indebtedness or other obligations of the Company that by its terms ranks equal or
junior in right of payment to the Securities;




     (d) Indebtedness of the Company that, by operation of law, is subordinate to any
general unsecured obligations of the Company;




     (e) any liability for federal, state or local taxes or other taxes, owed or owing by
the Company;



6









 






     (f) accounts payable or other liabilities owed or owing by the Company to trade
creditors (including Guarantees thereof or instruments evidencing such liabilities);




     (g) amounts owed by the Company for compensation to employees or for services rendered
to the Company;




     (h) Indebtedness of the Company to any Subsidiary or any other Affiliate of the Company
or any of such Affiliate’s subsidiaries;




     (i) Capital Stock of the Company;




     (j) Indebtedness evidenced by any Guarantee of any Indebtedness ranking equal or junior
in right of payment to the Securities; and




     (k) Indebtedness which, when incurred and without respect to any election under Section
1111(b) of Title 11 of the United States Code, is without recourse to the Company.



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




          “Subsidiary” means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person;
(ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person.




          “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except as provided in Section 11.3, and
except to the extent any amendment to the Trust Indenture Act expressly provides for application of
the Trust Indenture Act as in effect on another date.




          “Trading Day” means, with respect to any security, each Monday, Tuesday, Wednesday,
Thursday and Friday, other than any day on which securities are not generally traded on the
principal exchange or market in which such security is traded.




          “Transfer Restricted Global Security” means a Global Security that is a Transfer
Restricted Security.




          “Transfer Restricted Security” means a Security required to bear the restricted legend
set forth in the form of Security set forth in Exhibit A of this Indenture.




          “Trustee” means the party named as such in the first paragraph of this Indenture until
a successor replaces it in accordance with the provisions of this Indenture, and thereafter means
the successor.







7









 








          “Trust Officer” means, with respect to the Trustee, any officer assigned to the
Corporate Trust Office, and also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.




          “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.”




          “Voting Stock” of a Person means all classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and normally entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.




          “VWAP,” with respect to a Trading Day, means the volume-weighted average price per
share as displayed on Bloomberg Page “AQR” (or any successor thereto) in respect of the period from
9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or if such price is not available,
the market value per share of the Common Stock on such Trading Day as determined by a nationally
recognized independent investment banking firm retained for this purpose by the Company.




          Section 1.2 Other Definitions.




	 	 	 
	Term	 	Defined in Section
	“Agent Members”
	 	 2.1(b)
	“Bankruptcy Law”
	 	 8.1
	“Cash Amount”
	 	 4.2(b)
	“Cash Settlement Averaging Period”
	 	 4.2(b)
	“Cash Settlement Notice Period”
	 	 4.2(b)
	“Change in Control”
	 	 3.9(a)(i)
	“Company Order”
	 	 2.2
	“Conversion Agent”
	 	 2.3
	“Conversion Date”
	 	 4.2(b)
	“Conversion Notice”
	 	 4.2(a)
	“Conversion Obligation”
	 	 4.1
	“Conversion Retraction Period”
	 	 4.2(b)
	“Conversion Settlement Distribution”
	 	 4.2(b)
	“Current Market Price”
	 	 4.3(g)
	“Custodian”
	 	  8.1
	“DTC”
	 	 2.1
	“Depositary”
	 	 2.1
	“Disposition Event”
	 	 4.4
	“distributed assets”
	 	 4.3(d)
	“Effective Date”
	 	 4.13(b)
	“Election Amount”
	 	 4.2(b)
	“Election Date”
	 	 4.2(b)
	“Event of Default”
	 	 8.1






8









 






	 	 	 
	Term	 	Defined in Section
	“ ‘ex’ date”
	 	 4.3(g)
	“Expiration Date”
	 	 4.3(f)
	“Expiration Time”
	 	 4.3(f)
	“Fair Market Value”
	 	 4.3(g)
	“Final Notice Date”
	 	 4.2(b)
	“Fundamental Change”
	 	 3.9(a)(i)
	“Fundamental Change Company Notice”
	 	 3.9(a)(ii)
	“Fundamental Change Repurchase Date”
	 	 3.9(a)(i)
	“Fundamental Change Repurchase Notice”
	 	 3.9(a)(ii)
	“Fundamental Change Repurchase Price”
	 	 3.9(a)(ii)
	“Fundamental Change Repurchase Right”
	 	 3.9(a)(i)
	“Legal Holiday”
	 	 13.7
	“Legend”
	 	 2.12
	“Make-Whole Fundamental Change”
	 	 4.13(a)
	“Note Measurement Period”
	 	 4.1(a)(ii)
	“Notice of Default”
	 	 8.1
	“Paying Agent”
	 	 2.3
	“Primary Registrar”
	 	 2.3
	“Public Acquirer Common Stock”
	 	 4.13(d)
	“Public Acquirer Fundamental Change”
	 	 4.13(d)
	“Purchase Agreement”
	 	 2.1
	“Purchase Offer”
	 	 3.8(a)(ii)
	“Purchased Shares”
	 	 4.3(f)
	“QIB”
	 	 2.1
	“Record Date”
	 	 4.3(g)
	“Reference Period”
	 	 4.3(d)(ii)(1)
	“Reference Property”
	 	 4.4(c)
	“Registrar”
	 	 2.3
	“Regular Record Date”
	 	 3.4
	“Repurchase Date”
	 	 3.8(a)(i)
	“Repurchase Notice”
	 	 3.8(a)(ii)
	“Repurchase Price”
	 	 3.8(a)(i)
	“Spin-Off”
	 	 4.3(d)(ii)(2)
	“Stock Price”
	 	 4.13(b)
	“Trigger Event”
	 	 4.3(d)(ii)(3)






          Section 1.3 Trust Indenture Act Provisions.




          Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by
reference in and made a part of this Indenture. The Indenture shall also include those provisions
of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act of
1990. The following TIA terms used in this Indenture have the following meanings:




9









 









     (a) “indenture securities” means the Securities;




     (b) “indenture security holder” means a Securityholder;




     (c) “indenture to be qualified” means this Indenture;




     (d) “indenture trustee” or “institutional trustee” means the Trustee; and




     (e) “obligor” on the indenture securities means the Company or any other obligor on the
Securities.



          All other terms used in this Indenture that are defined in the TIA, defined by TIA reference
to another statute or defined by any SEC rule and not otherwise defined herein have the meanings
assigned to them therein.




          Section 1.4 Rules of Construction.




          Unless the context otherwise requires:





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




     (b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (c) words in the singular include the plural, and words in the plural include the
singular;




     (d) provisions apply to successive events and transactions;




     (e) the term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;




     (f) the masculine gender includes the feminine and the neuter;




     (g) references to agreements and other instruments include subsequent amendments
thereto; and




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



ARTICLE II




THE SECURITIES




          Section 2.1 Form And Dating.




          The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of
this Indenture. The Securities may have notations, legends or endorsements required by law,


10









 







stock
exchange rule or usage. The Company shall provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated the date of its authentication. The
Securities are being offered and sold by the Company pursuant to a Purchase Agreement, dated
December 15, 2005 (the “Purchase Agreement”), between the Company and the Initial
Purchaser, in transactions exempt from, or not subject to, the registration requirements of the
Securities Act.




          (a) Restricted Global Securities. All of the Securities are initially being offered
and sold to qualified institutional buyers as defined in Rule 144A (collectively, “QIBs” or
individually, each a “QIB”) in reliance on Rule 144A under the Securities Act and shall be
issued initially in the form of one or more Restricted Global Securities, which shall be deposited
on behalf of the purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the depositary, The Depository Trust Company
(“DTC”) (such depositary, or any successor thereto, being hereinafter referred to as the
“Depositary”), and registered in the name of its nominee, Cede & Co., duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount
of the Restricted Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Securities Custodian as hereinafter provided, subject in each case to
compliance with the Applicable Procedures.




          (b) Global Securities in General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any adjustment of the aggregate principal amount of a Global Security to reflect the
amount of any increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 and shall be made on the records of the Trustee and the Depositary.




          Members of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary or
under the Global Security, and the Depositary (including, for this purpose, its nominee) may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (A) prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or (B) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Security.




          (c) Book Entry Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(c), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary, (ii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instructions and (iii) shall bear
legends substantially to the following effect:




11









 









“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.”



     Section 2.2 Execution and Authentication.



     An Officer shall sign the Securities for the Company by manual or facsimile signature.
Typographic and other minor errors or defects in any such facsimile signature shall not affect the
validity or enforceability of any Security which has been authenticated and delivered by the
Trustee.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.



     A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.



     The Trustee shall authenticate and make available for delivery Securities for original issue
in the aggregate principal amount of up to $115,000,000 upon receipt of a written order or orders
of the Company signed by an Officer of the Company (a “Company Order”). The Company Order
shall specify the amount of Securities to be authenticated, shall provide that all such Securities
will be represented by a Restricted Global Security and the date on which each original issue of
Securities is to be authenticated. The aggregate principal amount of



12









 







Securities outstanding at any
time may not exceed $115,000,000 except as provided in Section 2.7.



     The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.



     The Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 principal amount and any integral multiple thereof.



     Section 2.3 Registrar, Paying Agent and Conversion Agent.



     The Company shall maintain one or more offices or agencies where Securities may be presented
for registration of transfer or for exchange (each, a “Registrar”), one or more offices or
agencies where Securities may be presented for payment (each, a “Paying Agent”), one or
more offices or agencies where Securities may be presented for conversion (each, a “Conversion
Agent”) and one or more offices or agencies where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will at all times maintain
a Paying Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served in the Borough of
Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”) shall
keep a register of the Securities and of their transfer and exchange.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and address of any
Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or
any Affiliate of the Company may act as Paying Agent (except for the purposes of Section 6.1 and
Article 10).



     The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian, Bid Solicitation Agent and Conversion Agent, and each of the Corporate Trust Office of
the Trustee and the office or agency of the Trustee in the Borough of Manhattan, The City of New
York (located at •, Attention: Corporate Trust Department), one such office or agency of the
Company for each of the aforesaid purposes.



     Section 2.4 Paying Agent to Hold Money in Trust.



     Prior to 11:00 a.m., New York City time, on each date on which the principal of or interest,
if any, on any Securities is due and payable, the Company shall deposit with a Paying Agent a sum
sufficient to pay such principal or interest, if any, so becoming due. A Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest, if any, on the Securities, and shall notify



13









 







the Trustee of
any default by the Company (or any other obligor on the Securities) in making any such payment. If
the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 11:00 a.m., New
York City time, on each date on which a payment of the principal of or interest on any Securities
is due and payable, segregate the money and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at
any time during the continuance of any default, upon written request to a Paying Agent, require
such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent.
Upon doing so, the Paying Agent (other than the Company) shall have no further liability for the
money.



     Section 2.5 Securityholder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders. If the Trustee is not the
Primary Registrar, the Company shall furnish to the Trustee on or before each semiannual interest
payment date, and at such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and addresses of
Securityholders.



     Section 2.6 Transfer and Exchange.



     Subject to compliance with any applicable additional requirements contained in Section 2.12,
when a Security is presented to a Registrar with a request to register a transfer thereof or to
exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form included in Exhibit
A, and in form satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers and exchanges, upon
surrender of any Security for registration of transfer or exchange at an office or agency
maintained pursuant to Section 2.3, the Company shall execute and the Trustee shall authenticate
Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or
transfer shall be without charge, except that the Company or the Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto, and provided, that this sentence shall not apply to any exchange pursuant to Section 2.10,
2.12(a), 3.6, or 11.5 not involving any transfer.



     Neither the Company, any Registrar nor the Trustee shall be required to (i) register the
transfer of or exchange any Security for a period of 15 days before selecting Securities to be
redeemed; (ii) register the transfer of or exchange any Security during the period beginning at the
opening of business 15 days before the mailing of a notice of redemption of Securities selected for
redemption and ending at 5:00 p.m. New York City time on the day of the mailing; or (iii) register
the transfer of or exchange any Security that has been selected for redemption or for which the
Holder is delivered, and not validly withdrawn, a purchase notice or fundamental change repurchase
notice, except, in the case of a partial redemption, purchase or repurchase, that portion of the
Securities not being redeemed, purchase or repurchased.



14









 





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



     Any Registrar appointed pursuant to Section 2.3 shall provide to the Trustee such information
as the Trustee may reasonably require in connection with the delivery by such Registrar of
Securities upon transfer or exchange of Securities.



     Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holder’s Security in
violation of any provision of this Indenture and/or applicable United States federal or state
securities law.



     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among Agent
Members or other beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.



     Section 2.7 Replacement Securities.



     If any mutilated Security is surrendered to the Company, a Registrar or the Trustee, or the
Company, a Registrar and the Trustee receive evidence to their satisfaction of the destruction,
loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and
the Trustee such security or indemnity as will be required by them to save each of them harmless,
then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute, and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount,
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, or is about to be redeemed or purchased by the Company pursuant to Article
3, the Company in its discretion may, instead of issuing a new Security, pay, redeem or purchase
such Security, as the case may be.



     Upon the issuance of any new Securities under this Section 2.7, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable fees and expenses of
the Trustee or the Registrar) in connection therewith.



     Every new Security issued pursuant to this Section 2.7 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



15









 







enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.



     The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.



     Section 2.8 Outstanding Securities.



     Securities outstanding at any time are all Securities authenticated by the Trustee, except for
those canceled by it, those converted pursuant to Article 4, those delivered to it for cancellation
or surrendered for transfer or exchange and those described in this Section 2.8 as not outstanding.



     If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the
Company receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.



     If a Paying Agent holds at 11:00 a.m., New York City time, on the Final Maturity Date Cash
sufficient to pay the principal of and accrued interest on Securities payable on that date, then on
and after the Final Maturity Date, such Securities shall cease to be outstanding and interest on
them shall cease to accrue.



     Subject to the restrictions contained in Section 2.9, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Security.



     Section 2.9 Treasury Securities.



     In determining whether the Holders of the required principal amount of Securities have
concurred in any notice, direction, waiver or consent, Securities owned by the Company or any other
obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be
disregarded, except that, for purposes of determining whether the Trustee shall be protected in
relying on any such notice, direction, waiver or consent, only Securities which a Trust Officer of
the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to the Securities and that the pledgee is
not the Company or any other obligor on the Securities or any Affiliate of the Company or of such
other obligor.



     Section 2.10 Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary Securities.



16









 





     Section 2.11 Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any
Securities surrendered to them for transfer, exchange, redemption, payment or conversion. The
Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities
surrendered for transfer, exchange, redemption, payment, conversion
or cancellation and shall deliver the canceled Securities to the Company. Without limitation
to the foregoing, any Securities acquired by any investment bankers or other purchasers pursuant to
Section 3.7 shall be surrendered for conversion and thereafter cancelled, and may not be reoffered,
sold or otherwise transferred.



     Section 2.12 Legend; Additional Transfer and Exchange Requirements.



     (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Securities attached
hereto as Exhibit A (collectively, the “Legend”), or if a request is made to remove
the Legend on a Security, the Securities so issued shall bear the Legend, or the Legend shall not
be removed, as the case may be, unless there is delivered to the Company and the Registrar such
satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or
such Registrar, as may be reasonably required by the Company and the Registrar, that neither the
Legend nor the restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act or that such
Securities are not “restricted” within the meaning of Rule 144 under the Securities Act; provided,
that no such evidence need be supplied in connection with the sale of such Security pursuant to a
registration statement that is effective at the time of such sale. Upon (i) provision of such
satisfactory evidence if requested, or (ii) written notification by the Company to the Trustee and
Registrar of the sale of such Security pursuant to a registration statement that is effective at
the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and
deliver a Security that does not bear the Legend. If the Legend is removed from the face of a
Security and the Security is subsequently held by an Affiliate of the Company, the Legend shall be
reinstated.



     (b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided, that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person. Notwithstanding any other provisions
of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be
made only in accordance with this Section 2.12.



     (c) Subject to the succeeding paragraph, every Security shall be subject to the restrictions
on transfer provided in the Legend other than a Restricted Global Security. Whenever any Transfer
Restricted Security other than a Restricted Global Security is presented or surrendered for
registration of transfer or for exchange for a Security registered in a name other than that of the
Holder, such Security must be accompanied by a certificate in substantially



17









 







the form set forth in
Exhibit B, dated the date of such surrender and signed by the Holder of such Security, as
to compliance with such restrictions on transfer. The Registrar shall not be required to accept
for such registration of transfer or exchange any Security not so accompanied by a properly
completed certificate.



     (d) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested, an Opinion of Counsel reasonably
acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the
effect that the transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and aggregate principal
amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under the Securities Act.
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned Opinion of Counsel or registration statement.



     (e) As used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security.



     (f) The provisions of clauses (i), (ii), (iii) and (iv) below shall apply only to Global
Securities:




     (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name of
any Person other than the Depositary or one or more nominees thereof, provided, that a
Global Security may be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (A) the Depositary has notified the Company
that it is unwilling or unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, or (B) an Event of
Default has occurred and is continuing with respect to the Securities. Any Global Security
exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and
any Global Security exchanged pursuant to clause (B) above may be exchanged in whole or from
time to time in part as directed by the Depositary. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security; provided, that any such
Security so issued that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.



18









 






     (ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully-registered book-entry form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global Security or portion thereof
to be so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable legends
provided for herein. Any Global Security to be exchanged in whole shall be surrendered
by the Depositary to the Trustee, as Registrar. With regard to any Global Security to
be exchanged in part, either such Global Security shall be so surrendered for exchange or,
if the Trustee is acting as custodian for the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.




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




     (iv) In the event of the occurrence of any of the events specified in clause (i) above,
the Company will promptly make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest coupons.




     (v) Neither Agent Members nor any other Persons on whose behalf Agent Members may act
shall have any rights under this Indenture with respect to any Global Security registered in
the name of the Depositary or any nominee thereof, or under any such Global Security, and
the Depositary or such nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights of a holder of any
Security.



          Section 2.13 CUSIP Numbers.




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




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ARTICLE III


REDEMPTION AND PURCHASES


          Section 3.1 Right to Redeem; Notice to Trustee.




          The Securities may be redeemed at the election of the Company, as a whole or from time to time
in part, at any time on or after December 15, 2010, at the Redemption Price in cash specified in
Paragraph 6 of the form of Security attached hereto as Exhibit A, together with accrued and
unpaid interest (including Additional Interest, if any) up to, but not including, the Redemption
Date.




          If the Company elects to redeem Securities pursuant to this Section 3.1 and Paragraph 6 of the
Securities, it shall notify the Trustee at least 45 days prior to the Redemption Date, as fixed by
the Company, (unless a shorter notice shall be satisfactory to the Trustee) of the Redemption Date
and the principal amount of Securities to be redeemed. If fewer than all of the Securities are to
be redeemed, the record date relating to such redemption shall be selected by the Company and given
to the Trustee, which record date shall not be less than 10 days after the date of notice to the
Trustee.




          Section 3.2 Selection of Securities to Be Redeemed.




          If less than all of the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall, at least 30 days but not more than 60 days prior to the
Redemption Date, select the Securities to be redeemed. The Trustee shall make the selection from
the Securities outstanding and not previously called for redemption, by lot, on a pro rata basis or
in accordance with any other method the Trustee considers fair and appropriate. Securities in
denominations of $1,000 may only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for redemption.




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




          Section 3.3 Notice of Redemption.




          At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or
cause to be mailed a notice of redemption to each Holder of Securities to be redeemed at such
Holder’s address as it appears on the Primary Registrar’s books.




          The notice shall identify the Securities (including CUSIP numbers) to be redeemed and shall
state:





     (i) the Redemption Date;



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     (ii) the Redemption Price;




     (iii) the then current Conversion Rate;




     (iv) the name and address of each Paying Agent and Conversion Agent;




     (v) that Securities called for redemption must be presented and surrendered to a Paying
Agent to collect the Redemption Price;




     (vi) that Holders who wish to convert Securities must surrender such Securities for
conversion no later than the close of business on the Business Day immediately preceding the
Redemption Date and must satisfy the other requirements set forth in Paragraph 9 of the
Securities;




     (vii) that, unless the Company defaults in making the payment of the Redemption Price,
interest on Securities called for redemption shall cease accruing on and after the
Redemption Date and subject to the provisions of Sections 3.1 and 3.4, the only remaining
right of the Holder shall be to receive payment of the Redemption Price plus accrued
interest, if any, upon presentation and surrender to a Paying Agent of the Securities; and




     (viii) if any Security is being redeemed in part, the portion of the principal amount
of such Security to be redeemed and that, after the Redemption Date, upon presentation and
surrender of such Security, a new Security or Securities in aggregate principal amount equal
to the unredeemed portion thereof will be issued.



          If any of the Securities to be redeemed is in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to accord with the procedures of the Depositary
applicable to redemptions. At the Company’s written request, which request shall (i) be
irrevocable once given and (ii) set forth all relevant information required by clauses (i) through
(viii) of the preceding paragraph, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense.




          Section 3.4 Effect of Notice of Redemption.




          Once notice of redemption is mailed, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the notice, together
with accrued and unpaid interest (including Additional Interest, if any) except for Securities
that are converted in accordance with the provisions of Article 4. Upon presentation and surrender
to a Paying Agent, Securities called for redemption shall be paid in cash at the Redemption Price,
plus accrued and unpaid interest (including Additional Interest, if any) up to but not including
the Redemption Date. If the Redemption Date is after the Regular Record Date and prior to the
corresponding Interest Payment Date, interest (including Additional Interest, if any) accrued and
unpaid hereon to, but not including, the applicable Redemption Date will be paid to the same Holder
to whom the Company pays the principal of such Securities regardless of whether such Holder was the
registered Holder on the Regular Record Date immediately preceding the applicable Redemption Date.
However, if the Company redeems Securities on a Redemption Date that is an Interest Payment Date,
the Company will pay the accrued and unpaid interest


21









 







(including Additional Interest, if any) due on
that Interest Payment Date instead to the registered Holder of the Securities at the close of
business on the Regular Record Date for that Interest Payment Date, and the Redemption Price will
not be accompanied by the amount of such interest payment. The Company shall make at least 10
semi-annual interest payments on the Securities before it can redeem the Securities under this
Article 3.




          Section 3.5 Deposit of Redemption Price.




          Prior to 11:00 a.m. New York City time, on the Redemption Date, the Company shall deposit with
a Paying Agent (or, if the Company acts as Paying Agent, shall segregate and hold in trust) an
amount of money (in immediately available funds if deposited on such Redemption Date) sufficient to
pay the Redemption Price of and accrued and unpaid interest (including Additional Interest, if any)
on all Securities to be redeemed on that date, other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to the Company any
money not required for that purpose or, if such money is then held by the Company in trust and is
not required for such purpose, it shall be discharged from the trust.




          If a Paying Agent holds on a Redemption Date Cash sufficient to pay the principal of and
accrued interest on Securities (or portions thereof) payable on that date, then on and after such
Redemption Date, such Securities (or portions thereof, as the case may be) shall cease to be
outstanding and interest on them shall cease to accrue; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made.




          Section 3.6 Securities Redeemed in Part.




          Upon presentation and surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder, without charge, a new
Security or Securities of authorized denominations as requested by such Holder in aggregate
principal amount equal to the unredeemed portion of the Security surrendered.




          Section 3.7 Other Arrangement on Call for Redemption.




          In lieu of a redemption of the Securities, the Company may arrange for the purchase of any
Securities called for redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to a Paying Agent (other than the Company or any
of its Affiliates) in trust for the Holders, on or before 11:00 a.m. New York City time on the
Redemption Date, an amount that, together with any amounts deposited with such Paying Agent by the
Company for the redemption of such Securities, is not less than the aggregate Redemption Price of
such Securities. Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Securities shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such purchasers; provided,
however, that nothing in this Section 3.7 shall relieve the Company of its obligation to pay the
Redemption Price on Securities called for redemption. If such an agreement with one or more
investment banks or other purchasers is entered into, any Securities


22









 







called for redemption and not
surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the
option of the Company upon written notice to the Trustee, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders as of 11:00 a.m. New York City time
on the Redemption Date, subject to payment of the above amount as aforesaid. The Paying Agent
shall hold and pay to the Holders whose Securities are selected for redemption any such amount paid
to it for purchase in the same manner as it would money deposited with it by the Company for the
redemption of Securities. Without the Paying Agent’s prior written consent, no arrangement between
the Company and such purchasers for the purchase of any Securities shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Paying Agent from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any such arrangement
for the purchase of any Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.




          Section 3.8 Repurchase of Securities at The Option Of Holders.




          (a) Optional Put. (i) Securities shall be repurchased by the Company, at the option
of the Holder thereof, on December 15, 2010, December 15, 2015 and December 15, 2020 (each, a
“Repurchase Date”), at a repurchase price in Cash equal to 100% of the principal amount of
the Securities to be repurchased plus accrued and unpaid interest (including Additional Interest,
if any) to, but not including, such Repurchase Date (the “Repurchase Price”), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.8(a)(iii).




          (ii) No later than 20 Business Days prior to each Repurchase Date, the Company shall mail a
written notice of the repurchase right under Section 3.8(a)(i)
(a “Purchase Offer”) by first class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The notice shall include a form of notice to be completed
by the Holder and returned to the Company in the event that the Holder elects such right to such
repurchase (the “Repurchase Notice”) and shall briefly state, as applicable:





     (1) the date by which the Repurchase Notice must be delivered to the Paying Agent in
order for a Holder to exercise the repurchase right;




     (2) the Repurchase Date;




     (3) the Repurchase Price;




     (4) the name and address of the Paying Agent and the Conversion Agent;




     (5) the Conversion Rate;




     (6) that the Securities as to which a Repurchase Notice has been given may be converted
if they are otherwise convertible pursuant to Article 4 only if the Repurchase Notice has
been withdrawn in accordance with the terms of this Indenture;



23









 






     (7) that the Securities must be surrendered to the Paying Agent to collect payment;




     (8) that the Repurchase Price for any Security as to which a Repurchase Notice has been
duly given and not withdrawn will be paid promptly following the later of the Repurchase
Date and the time of surrender of such Security;




     (9) the procedures the Holder must follow to exercise its put right under this Section
3.8(a);




     (10) the conversion rights, if any, of the Securities;




     (11) the procedures for withdrawing a Repurchase Notice;




     (12) that, unless the Company defaults in making payment of such Repurchase Price,
interest (including Additional Interest, if any) on Securities surrendered for repurchase by
the Company will cease to accrue on and after the Repurchase Date; and




     (13) the CUSIP number(s) of the Securities.



          At the Company’s request, the Trustee shall give the Purchase Offer in the Company’s name and
at the Company’s expense; provided, however, that the Company makes such request at
least three Business Days (unless a shorter period shall be satisfactory to the Trustee) prior to
the date by which such Purchase Offer must be given to the Holder in accordance with this Section
3.8(a)(ii); provided, further, that the text of the notice of repurchase right
shall be prepared by the Company.




          (iii) A Holder may exercise its right specified in Section 3.8(a)(i) upon delivery of a
properly completed Repurchase Notice to the Paying Agent at any time during the period beginning at
9:00 a.m., New York City time, on the date that is 20 Business Days immediately preceding the
relevant Repurchase Date until 5:00 p.m., New York City time, on the Business Day immediately
preceding such Repurchase Date, stating:





     (1) the certificate number (if in certificated form) of the Security which the Holder
will deliver to be repurchased or the appropriate Depositary procedures if Certificated
Securities have not been issued;




     (2) the portion of the principal amount of the Security which the Holder will deliver
to be repurchased, which portion must be in principal amounts of $1,000 or an integral
multiple of $1,000; and




     (3) that such Security shall be repurchased by the Company as of the Repurchase Date
pursuant to the terms and conditions specified in the Securities and in this Indenture.



          The delivery of such Security to the Paying Agent with, or at any time after delivery of, the
Repurchase Notice (together with all necessary endorsements) at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Repurchase Price


24









 







therefor; provided,
however, that such Repurchase Price shall be so paid pursuant to this Section 3.8(a) only if the
Security so delivered to the Paying Agent shall conform in all respects to the description thereof
in the related Repurchase Notice.




          The Company shall repurchase from the Holder thereof, pursuant to this Section 3.8(a), a
portion of a Security, so long as the principal amount of such portion is $1,000 or an integral
multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Security
also apply to the repurchase of such portion of such Security.




          Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.8(a)
shall be consummated by the delivery of the consideration to be received by the Holder promptly but
in no event more than five (5) Business Days following the later of the Repurchase Date
(provided the conditions in Section 3.8(a)(iii) have been satisfied) and the time of
delivery of the Security with the necessary endorsements.




          Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Repurchase Notice contemplated by this Section 3.8(a)(iii) shall have the right to
withdraw such Repurchase Notice at any applicable time prior to 5:00 p.m., New York City time, on
the Business Day immediately preceding the Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.8(b).




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




          (b) Effect of Repurchase Notice. Upon receipt by the Paying Agent of the Repurchase
Notice specified in Section 3.8(a)(iii), the Holder of the Security in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is withdrawn as
specified in the following paragraph) thereafter be entitled to receive solely the Repurchase
Price with respect to such Security. Such Repurchase Price shall be paid to such Holder, subject
to receipt of Cash by the Paying Agent, promptly but in no event more than five (5) Business Days
following the later of (a) the Repurchase Date with respect to such Security (provided the
conditions in Section 3.8(a)(iii) have been satisfied) and (b) the time of delivery of such
Security to the Paying Agent by the Holder thereof in the manner required by Section 3.8(a)(iii).
Securities in respect of which a Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article IV on or after the date of the delivery of such Repurchase Notice
unless such Repurchase Notice has first been validly withdrawn as specified in the following
paragraph.




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





     (i) the Holder’s name and an election to withdraw such Repurchase Notice;




     (ii) the certificate number (if in certificated form) or the appropriate Depositary
procedures, if applicable, of the Security in respect of which such notice of withdrawal is
being submitted;



25









 






     (iii) the principal amount of the Security (which must be in an integral multiple of
$1,000) with respect to which such notice of withdrawal is being submitted; and




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



          (c) Deposit of Repurchase Price. Prior to 11:00 a.m., New York City time, on the
applicable Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall segregate and hold
in trust as provided in Section 2.4) an amount of Cash (in immediately available funds if deposited
on such Business Day) sufficient to pay the aggregate Repurchase Price of all the Securities or
portions thereof which are to be repurchased on such Repurchase Date.




          If the Paying Agent (other than the Company or an Affiliate of the Company) holds, in
accordance with the terms hereof, at 11:00 a.m., New York City time, on the applicable Repurchase
Date, Cash sufficient to pay the Repurchase Price of any Securities for which a Repurchase Notice
has been tendered and not withdrawn pursuant to Section 3.8(b), then, on and after such Repurchase
Date, such Securities will cease to be outstanding and interest (including Additional Interest, if
any) on such Securities will cease to accrue, whether or not such Securities are delivered to the
Paying Agent, and the rights of the Holders in respect thereof shall terminate (other than the
right to receive the Repurchase Price upon delivery of such Securities, together with any necessary
endorsement) and the repurchased Securities shall be cancelled.




          (d) Securities Repurchased in Part. Any Certificated Security which is to be
repurchased only in part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not repurchased.




          (e) Covenant to Comply with Securities Laws upon Repurchase of Securities. When
complying with the provisions of Section 3.8(a) hereof (provided, that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions available under applicable law, the Company shall:





     (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, as applicable;




     (ii) file the related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, as applicable; and



26









 






     (iii) otherwise comply with all federal and state securities laws so as to permit the
rights and obligations under Section 3.8 to be exercised in the time and in the manner
specified therein.



          To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 3.8, the Company’s compliance with such laws and regulations shall not
in and of itself cause a breach of its obligations under this Section 3.8.




          (f) Repayment to the Company. The Paying Agent shall return to the Company any Cash
that remains unclaimed for two years, together with interest, if any, thereon, held by it for the
payment of the Repurchase Price; provided, however, to the extent that the aggregate amount of Cash
deposited by the Company pursuant to Section 3.8(c) exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Company is obligated to repurchase on the Repurchase Date,
then, promptly after the Repurchase Date, the Paying Agent shall return any such excess to the
Company.




          Section 3.9 Repurchase of Securities at Option of the Holder upon Fundamental Change.




          (a) Fundamental Change Put. (i) General. In the event any Fundamental
Change (as defined below) shall occur, each Holder of Securities shall have the right (the
“Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company to
repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “Fundamental Change
Repurchase Date”), which Fundamental Change Repurchase Date shall be no later than thirty (30)
Trading Days, and no earlier than twenty (20) Trading Days, after the date the Fundamental Change
Notice (as defined below) is mailed in accordance with Section 3.9(a)(ii), and no earlier than the
date such Fundamental Change occurs, at a price, payable in Cash equal to 100% of the principal
amount of the Securities (or portions thereof) to be so repurchased (the “Fundamental Change
Repurchase Price”), plus accrued and unpaid interest (including Additional Interest, if any)
to, but excluding, the Fundamental Change Repurchase Date.




          A “Fundamental Change” shall be deemed to have occurred upon the occurrence of either
a “Change in Control” or a “Termination of Trading.”




          A “Change in Control” shall be deemed to have occurred if any of the following occurs
after the date hereof:





     (1) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act) other than the Company, a Subsidiary of the Company or one of the
Company’s employee benefits plans is or becomes the “beneficial owner” (as such term is used
in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or
more of the Company’s Voting Stock;




     (2) at any time the following persons cease for any reason to constitute a majority of
the Company’s Board of Directors:



27









 






     (A) individuals who on the Issuance Date constituted the Company’s Board of
Directors; and




     (B) any new directors whose appointment to the Company’s Board of Directors or
whose nomination for election by the Company’s shareholders was approved by at least
a majority of the directors of the Company then still in office either who were
directors of the Company on the Issuance Date or whose appointment or nomination for
election was previously so approved;




     (3) the Company consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company, in any such event other than
pursuant to a transaction in which either:




     (A) the persons that “beneficially owned” (as such term is used in Rule 13d-3
under the Exchange Act), directly or indirectly, the shares of the Company’s Voting
Stock immediately prior to such transaction, “beneficially own” (as such term is
used in Rule 13d-3 under the Exchange Act), directly or indirectly, immediately
after such transaction, shares of the surviving or continuing corporation’s Voting
Stock representing at least a majority of the total voting power of all outstanding
classes of the Voting Stock of the surviving or continuing corporation, and in
substantially the same proportion to each other as such ownership immediately prior
to the transaction; or




     (B) at least ninety percent (90%) of the consideration (other than Cash
payments for fractional shares or pursuant to statutory appraisal rights) in such
transaction consists of common stock and any associated rights traded on a U.S.
national securities exchange or quoted on the Nasdaq National Market or another
established over-the-counter trading market in the United States (or which shall be
so traded or quoted when issued or exchanged in connection with such transaction),
and, as a result of such transaction, the Securities become convertible solely into
the same consideration which a Holder would have received if the Holder had
converted such Securities immediately prior to the effective date of such
transaction, as provided in Section 4.4;




     (4) the sale, transfer, lease, conveyance or other disposition of all or substantially
all of the property or assets of the Company to any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the
purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act; or




     (5) the Company is liquidated or dissolved or holders of the Company’s Capital Stock
approve any plan for the Company’s liquidation or dissolution.



          A “Termination of Trading” shall be deemed to have occurred if, after the date hereof,
the Common Stock (or other common stock into which the Securities are then convertible) is not
listed for trading on a U.S. national securities exchange, quoted on the Nasdaq


28









 







          National Market,
the Nasdaq SmallCap Market or approved for trading on an established automated over-the-counter
trading market in the United States.




          (ii) Notice of Fundamental Change. No later than 20 Business Days after the
occurrence of a Fundamental Change the Company shall mail a written notice of such occurrence (the
“Fundamental Change Company Notice”) by first class mail to the Trustee and to each Holder
(and to beneficial owners as required by applicable law), shall publish such Fundamental Change
Company Notice on the Company’s website and shall publicly announce the occurrence of such
Fundamental Change through a reputable newswire service. The notice shall include a form of notice
to be completed by the Holder in the event the Holder elects such right to repurchase pursuant to
this Section 3.9 (the “Fundamental Change Repurchase Notice”) and shall briefly state, as
applicable:





     (1) the events causing a Fundamental Change and the date of such Fundamental Change;




     (2) that the Holder has a right to require the Company to repurchase the Holder’s
Securities;




     (3) the date by which the Fundamental Change Repurchase Notice must be delivered to the
Paying Agent in order for a Holder to exercise the Fundamental Change Repurchase Right;




     (4) the Fundamental Change Repurchase Date;




     (5) the Fundamental Change Repurchase Price;




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




     (7) the Conversion Rate applicable on the date of the Fundamental Change Company Notice
and any adjustments to the Conversion Rate that will result from the Fundamental Change,
including whether the Company has exercised its right under Section 4.13(c);




     (8) that the Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to Article 4 only if the
Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture;




     (9) that the Securities must be surrendered to the Paying Agent to collect payment;




     (10) that the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been duly given and not withdrawn will be paid
promptly but in no event more than five (5) Business Days following the later of the
Fundamental Change Repurchase Date and the time of surrender of such Security with the
necessary endorsements;



29









 






     (11) the procedures the Holder must follow to exercise its put right under this Section
3.9(a);




     (12) the conversion rights, if any, of the Securities;




     (13) the procedures for withdrawing a Fundamental Change Repurchase Notice;




     (14) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, interest (including Additional Interest, if any) on Securities surrendered
for repurchase by the Company will cease to accrue on and after the Fundamental Change
Repurchase Date; and




     (15) the CUSIP number(s) of the Securities.



          At the Company’s request, the Trustee shall give the Fundamental Change Company Notice in the
Company’s name and at the Company’s expense; provided, however, the Company makes
such request at least three Business Days (unless a shorter period shall be satisfactory to the
Trustee) prior to the date by which such Fundamental Change Company Notice must be given to the
Holders in accordance with this Section 3.9(a)(ii); provided, further, that the
text of the Fundamental Change Company Notice shall be prepared by the Company.




          (iii) Fundamental Change Repurchase Notice. A Holder may exercise its right specified
in Section 3.9(a)(i) upon delivery of a properly completed Fundamental Change Repurchase Notice to
the Paying Agent at any time from the opening of business on the date of
the Fundamental Change Company Notice until 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Repurchase Date, stating:





     (1) the certificate number of the Security which the Holder will deliver to be
repurchased or the appropriate depositary procedures if Certificated Securities have not
been issued;




     (2) the portion of the principal amount of the Security which the Holder will deliver
to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and




     (3) that such Security shall be repurchased on the Fundamental Change Repurchase Date
pursuant to the terms and conditions specified in the Securities and in this Indenture.



          The delivery of such Security to the Paying Agent with, or at any time after delivery of, the
Fundamental Change Repurchase Notice (together with all necessary endorsements) at the offices of
the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change
Repurchase Price therefor; provided, however, that such Fundamental Change Repurchase Price shall
be so paid pursuant to this Section 3.9(a) only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof set forth in the related Fundamental
Change Repurchase Notice.





30










 






          The Company shall repurchase from the Holder thereof, pursuant to this Section 3.9(a), a
portion of a Security, so long as the principal amount of such portion is $1,000 or an integral
multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Security
also apply to the repurchase of such portion of such Security.




          Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.9(a)
shall be consummated by the delivery of the consideration to be received by the Holder promptly but
in no event more than five (5) Business Days following the later of the Fundamental Change
Repurchase Date and the time of delivery of the Security with the necessary endorsements.




          Notwithstanding anything contained herein to the contrary, any Holder delivering to the Paying
Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.9(a)(iii) shall have
the right to withdraw such Fundamental Change Repurchase Notice at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9(b).




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




          (b) Effect of Fundamental Change Repurchase Notice. Upon receipt by the Paying Agent
of the Fundamental Change Repurchase Notice specified in Section 3.9(a)(iii), the Holder of the
Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in the following paragraph)
thereafter be entitled to receive solely the Fundamental Change Repurchase Price with respect to
such Security. Such Fundamental Change Repurchase Price shall be paid to such Holder, subject to
receipt of Cash by the Paying Agent, promptly but in no event more then five (5) Business Days
following the later of (a) the Fundamental Change Repurchase Date with respect to such Security
(provided the conditions in Section 3.9(a)(iii) have been satisfied) and (b) the time of delivery
of such Security to the Paying Agent by the Holder thereof in the manner required by Section
3.9(a)(iii). Securities in respect of which a Fundamental Change Repurchase Notice has been given
by the Holder thereof may not be converted pursuant to Article 4 on or after the date of the
delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase
Notice has first been validly withdrawn as specified in the following paragraph.




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





     (i) the Holder’s name and election to withdraw such Fundamental Change Repurchase
Notice;




     (ii) the principal amount of the Security (which must be in an integral multiple of
$1,000) with respect to which such notice of withdrawal is being submitted;



31









 






     (iii) the certificate number (if in certificated form) or the appropriate Depository
procedures, if applicable, of the Security in respect of which such notice of withdrawal is
being submitted; and




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



          (c) Deposit of Fundamental Change Repurchase Price. Prior to 11:00 a.m., New York
City time, on the applicable Fundamental Change Repurchase Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of any of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of Cash (in
immediately available funds if deposited on such Business Day) sufficient to pay the aggregate
Fundamental Change Repurchase Price of and accrued and unpaid interest (including Additional
Interest, if any) on all the Securities or portions thereof which are to be repurchased on such
Fundamental Change Repurchase Date.




          If the Paying Agent holds, in accordance with the terms hereof, at 11:00 a.m., New York City
time, on the applicable Fundamental Change Repurchase Date, Cash sufficient to pay the Fundamental
Change Repurchase Price of and accrued and unpaid interest (including Additional Interest, if any)
on any Securities for which a Fundamental Change Repurchase Notice has been tendered and not
withdrawn pursuant to Section 3.9(b), then, on and after such Fundamental Change Repurchase Date,
such Securities will cease to be outstanding and interest (including Additional Interest, if any)
on such Securities will cease to accrue, whether or not such Securities are delivered to the Paying
Agent, and the rights of the Holders in respect thereof shall terminate (other than the right to
receive the Fundamental Change Repurchase Price upon delivery of such Securities, together with
necessary endorsements) and the repurchased Securities will be cancelled.




          (d) Securities Repurchased in Part. Any Certificated Security which is to be
repurchased only in part shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not repurchased.




          (e) Covenant to Comply With Securities Laws upon Repurchase of Securities. When
complying with the provisions of Section 3.9(a) hereof (provided, that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions available under applicable law, the Company shall:






32









 









     (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, as applicable;




     (ii) file the related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, as applicable; and




     (iii) otherwise comply with all federal and state securities laws so as to permit the
rights and obligations under this Section 3.9 to be exercised in the time and in the manner
specified therein.



          To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 3.9, the Company’s compliance with such laws and regulations shall not
in and of itself cause a breach of its obligations under this Section 3.9.




          (f) Repayment to the Company. The Paying Agent shall return to the Company any Cash
that remains unclaimed for two years, together with interest, if any, thereon, held by it for the
payment of the Fundamental Change Repurchase Price; provided, however, to the extent that the
aggregate amount of Cash deposited by the Company pursuant to Section 3.9(c) exceeds the aggregate
Fundamental Change Repurchase Price of the Securities or portions thereof which the Company is
obligated to repurchase as of the Fundamental Change Repurchase Date then, promptly after the
Fundamental Change Repurchase Date, the Paying Agent shall return any such excess to the Company.




ARTICLE IV




CONVERSION




          Section 4.1 Conversion Privilege.




          (a) Subject to and upon compliance with the provisions of this Article 4, a Holder of a
Security shall have the right, at such Holder’s option, to convert all or any portion (if the
portion to be converted is $1,000 or an integral multiple of $1,000) of such Security into shares
of Common Stock (the “Conversion Obligation”) or at the Company’s election as described in
this Article 4, into Cash or a combination of shares of Common Stock and Cash, only as follows:





     (i) prior to December 15, 2020, during any fiscal quarter (beginning with the quarter
ending after March 31, 2006) if the Closing Sale Price of the Common Stock for at least 20
Trading Days in the Measurement Period of the immediately preceding fiscal quarter exceeds
120% of the Conversion Price in effect on the last Trading Day of such Measurement Period
(and in the event that (1) the Conversion Price on such last Trading Day of such Measurement
Period is not the same as the Conversion Price in effect for each of the Trading Days in
such Measurement Period, or (2) any event occurs requiring an adjustment to the Conversion
Rate where the ‘ex’ date of the event occurs during such Measurement Period, the Company’s
Board of Directors shall make such adjustments as it, in its good faith determination, deems
appropriate in determining whether the foregoing condition has been met);



33









 






     (ii) prior to December 15, 2020, during any five consecutive Business Day period
immediately following any five consecutive Trading Day period (the “Note Measurement
Period”) in which the average Market Price per $1,000 principal amount of Securities
during such Note Measurement Period was equal to or less than 97% of the average Conversion
Value during such Note Measurement Period;




     (iii) at any time prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Redemption Date (or, if later, at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the date on which the Company
satisfies its obligation to deposit Cash in accordance with Section 3.5 hereof), if such
Security has been called for redemption pursuant to Article 3 hereof;




     (iv) at any time on or after December 15, 2020.



          The Conversion Agent shall, on behalf of the Company, determine at the end of each applicable
period whether the Securities shall be convertible as a result of the occurrence of an event
specified in clause (i) or (ii) above and, if the Securities shall be so convertible, the
Conversion Agent shall promptly deliver to the Company and the Trustee written notice thereof.
Whenever the Securities shall become convertible pursuant to Section 4.1, the Company or, at the
Company’s request, the Trustee in the name and at the expense of the Company, shall notify the
Holders in writing of the event triggering such convertibility in the manner provided in Section
4.2, and the Company shall also publicly announce such information and publish it on the Company’s
website. Any notice so given shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice.




          (b) In addition,




          (i) if the Company takes any action or becomes aware of any event that would require an
adjustment to the Conversion Rate:





     (A) pursuant to Section 4.3(c); or




     (B) pursuant to Section 4.3(d); or




     (C) pursuant to Section 4.3(e); or




     (D) pursuant to Section 4.3(f);




then, in each case, the Company must notify, in writing, Holders of Securities of the
occurrence of such an action or event (i) in respect of clauses (A) and (B) above, at least
20 days prior to the record date, effective date or expiration date, as the case may be, for
any such distribution, and (ii) in respect of clauses (C) and (D) above, as soon as
practicable. Once the Company has mailed (or, if earlier, is required hereunder to mail)
such notice, Holders may surrender their Securities for conversion at any time until the
earlier of the close of business on the Business Day immediately preceding the “ex” date of
the transaction or the date of announcement by the Company that the transaction will not
take place. No adjustment shall be made to the ability of a Holder of Securities to convert
if such Holder may participate in the distribution without conversion.



34









 





          (c) If:




          (i) the Company is party to a consolidation, merger or binding share exchange pursuant to
which all of its Common Stock would be converted into cash, or




          (ii) a Fundamental Change occurs,




          then a Holder may surrender the Securities for conversion at any time on or before the date
that is thirty (30) days after the Company announces that such consolidation, merger, binding share
exchange or Fundamental Change has occurred.




          Section 4.2 Conversion Procedure; Conversion Rate; Fractional Shares; Settlement in Cash
in Lieu of Common Stock.




          (a) To convert a Security, a Holder must satisfy the requirements of Paragraph 9 of the
Securities. Each Security shall be convertible at the office of the Conversion Agent into fully
paid and nonassessable shares (calculated to the nearest 1/100th of a share) of Common Stock.
Subject to the Company’s rights pursuant to Section 4.2(b), the Security will be converted into
shares of Common Stock at the Conversion Rate therefor.




          Notwithstanding any other provision of this Indenture or the Securities, all Holders’ rights
with respect to the conversion of the Securities and the Company’s Conversion Obligation are
subject, in their entirety, to the Company’s right, in its sole discretion, to elect to satisfy its
Conversion Obligation as provided in Section 4.2(b).




          The Company shall not issue any fraction of a share of Common Stock in connection with any
conversion of Securities, but instead shall, subject to Section 4.2(b), make a Cash payment equal
to such fraction multiplied by the Relevant Average Price per Share of the Common Stock.




          On conversion by a Holder, the Company shall ensure that such Holder will also receive the
rights under the Company’s stockholder rights plan, whether or not the rights are separated from
the Company’s Common Stock prior to conversion.




          Before any Holder of a Security shall be entitled to convert the same into Common Stock, such
Holder shall, in the case of Securities issued in global form, comply with the procedures of the
Depositary in effect at that time, and in the case of Certificated Securities, surrender such
Securities, duly endorsed to the Company or in blank, at the office of the Conversion Agent, and
shall give written notice to the Company at said office or place in the form of the Conversion
Notice attached to the Security (the “Conversion Notice”) that such Holder elects to
convert the same and shall state in writing therein the principal amount of Security to be
converted and the name or names (with addresses) in which such Holder wishes the certificate or
certificates for Common Stock to be issued. Before any such conversion, a Holder also shall pay
all funds required, if any, relating to interest on the Securities, as provided in Section 4.9, and
all taxes or duties, if any, as provided in Section 4.8. A Security shall be deemed to have been
converted immediately before the close of business on the date on which all of the foregoing
requirements have been satisfied (such date, the “Conversion Date”).





35









 








          (b) If a Holder elects to convert all or any portion of a Security into shares of Common Stock
as set forth in Section 4.2(a) and the Company receives such Holder’s Conversion Notice on or prior
to the day that is 10 days prior to the Final Maturity Date, or with respect to Securities called
for redemption pursuant to Article 3 hereof, the applicable Redemption Date (the “Final Notice
Date”), the Company may choose to satisfy all or any portion of the Conversion Obligation in
Cash. Upon such election, the Company shall notify such Holder through the Trustee of the dollar
amount to be satisfied in Cash (which must be expressed either as 100% of the Conversion Obligation
or as a fixed dollar amount) at any time on or before the date that is two Business Days following
the Conversion Agent’s receipt of the Conversion Notice (such period, the “Cash Settlement
Notice Period”). If the Company elects to pay Cash for any portion of the shares of Common
Stock otherwise issuable to the Holder (other than after an irrevocable election as described in
4.2(b)(v) hereof), the Holder may retract the Conversion Notice at any time during the two Business
Day period beginning on the day after the final day of the Cash Settlement Notice Period (the
“Conversion Retraction Period”); no such retraction can be made (and a Conversion Notice
shall be irrevocable) if the Company does not elect to deliver Cash in lieu of shares of Common
Stock (other than Cash in lieu of fractional shares). If the Company elects to satisfy all or a
portion of its Conversion Obligation in Cash and the Notice of Conversion has not been retracted,
then settlement (in Cash or a combination of Cash and shares of Common Stock) will occur on the
third Business Day following the Cash Settlement Averaging Period. If the Company elects to
satisfy the entire Conversion Obligation in shares of Common Stock, then settlement will occur on
the third Business Day following the Conversion Date. With respect to any Conversion Notice
received by the Company prior to the Final Notice Date and not retracted pursuant to this Section
4.2(b), the “Conversion Settlement Distribution” for any Security subject to such
Conversion Notice shall consist of Cash, Common Stock or a combination thereof, as selected by the
Company as set forth below:





     (i) if the Company elects to satisfy the entire Conversion Obligation in shares of
Common Stock, the Conversion Settlement Distribution shall be a number of shares of Common
Stock for each $1,000 principal amount of the Securities to be converted equal to the
Conversation Rate, plus Cash for any fractional shares pursuant to Section 4.2(a);




     (ii) if the Company elects to satisfy the entire Conversion Obligation in Cash, the
Conversion Settlement Distribution shall be Cash for each $1,000 principal amount of the
Securities in an amount equal to the product of:




     (1) the applicable Conversion Rate, and




     (2) the average of the Applicable Cash-Settlement Stock Price of the Common Stock for
the 10 Trading Days beginning on the Trading Day immediately following the final day of the
Conversion Retraction Period (the “Cash Settlement Averaging Period”); and




     (iii) if the Company elects to satisfy a fixed portion (other than 100%) of the
Conversion Obligation in Cash, the Conversion Settlement Distribution shall consist of such
Cash amount (“Cash Amount”) and a number of shares, for each $1,000 principal amount
of the Securities, equal to the applicable Conversion Rate minus the number of shares of
Common Stock equal to the Cash Amount divided by the average of the



36









 






Applicable
Cash-Settlement Stock Price of the Common Stock during the Cash Settlement Averaging Period
(plus Cash for any fractional shares pursuant to
Section 4.2(a)); provided, however, the
number of shares of Common Stock shall not be less than zero; provided, further,
that the Company shall pay Cash for any fractional shares pursuant to Section 4.2(a).




     (iv) At any time on or before any Final Notice Date, the Company will notify the
Trustee in writing whether it intends to satisfy all or any portion of the Conversion
Obligation with respect to all conversions of Securities for which the Company receives a
Conversion Notice after such Final Notice Date and the dollar amount to be satisfied in Cash
(which must be expressed either as 100% or as a fixed dollar amount). In such case, the
applicable Conversion Settlement Distribution will be computed in the same manner as set
forth above in this Section 4.2(b) except that the Cash Settlement Averaging Period shall be
the 10 Trading Days beginning on the Trading Day following the Company’s receipt of the
Conversion Notice, and settlement (in Cash or a combination of Cash and shares of Common
Stock) will occur on the third Business Day following the final day of such Cash Settlement
Averaging Period (which date could be after the Final Maturity Date).




     (v) Notwithstanding anything to the contrary in the Indenture, at any time prior to the
Final Maturity Date, the Company may irrevocably elect, in its sole discretion without the
consent of the Holders of the Securities, by written notice to the Trustee and the Holders
of the Securities, to satisfy a portion of the Conversion Obligation for all Securities for
conversion after the date of such election (the “Election Date”) by paying in Cash
up to 100% of the principal amount of the Securities so converted. After making such an
election, the Company shall satisfy the remainder of the Conversion Obligation in Common
Stock, to the extent the Conversion Obligation exceeds the principal amount or the portion
of the principal amount of the Securities the Company elects to pay in Cash. In the event
that the Company receives a Conversion Notice after the Election Date:




     (1) the Notice of Conversion will not be retractable;




     (2) the Cash Settlement Averaging Period shall be the 10 Trading Day period beginning
on the day after the Company’s receipt of the Conversion Notice;




     (3) the Conversion Settlement Distribution for each $1,000 principal amount of the
Securities shall consist of (A) such Cash amount (“Election Amount”) equal to the
applicable Conversion Rate multiplied by the average of the Applicable Cash-Settlement Stock
Price of the Common Stock during the Cash Settlement Averaging Period (provided, however,
that the Election Amount will not be more than 100% of the principal amount of a Security)
and (B) a number of shares of Common Stock equal to the applicable Conversation Rate minus
the Election Amount divided by the average Applicable Cash-Settlement Stock Price of the
Common Stock during the Cash Settlement Averaging Period; and



37









 






     (4) settlement (in Cash or a combination of Cash and shares of Common Stock) will occur
on the Business Day following the final day of the Cash Settlement Averaging Period.



          (c) From and after the close of business on the Conversion Date of a Security, the person in
whose name any certificate representing Common Stock issued pursuant to this Section 4.2, if any,
is to be registered shall be treated as a stockholder of record of the Company, and all rights of
the Holder of such Security shall terminate, other than the right to receive the consideration
deliverable upon conversion of such Security as provided herein. A Holder of Securities is not
entitled, as such, to any rights of a holder of Common Stock until such Holder has converted its
Securities into shares of Common Stock (to the extent such Securities are convertible into shares
of Common Stock) or is deemed to be a stockholder of record of the Company, as provided in this
Section 4.2(c).




          (d) If a Holder converts more than one Security at a time, the number of full shares of Common
Stock issuable upon such conversion, if any, shall be based on the aggregate principal amount of
the Securities converted.




          (e) In case any Certificated Security shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall, upon the written order of the Company, authenticate and
deliver to the Holder of the Security so surrendered, without charge to such Holder (subject to the
provisions of Section 4.8 hereof), a new Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered Certificated
Securities.




          (f) If the last day on which a Security may be converted is a Legal Holiday in a place where a
Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next
succeeding day that is not a Legal Holiday.




          (g) If shares of Common Stock to be issued upon conversion of a Restricted Security are to be
issued in the name of a Person other than the Holder of such Restricted Security, such Holder must
deliver to the Conversion Agent a certification in substantially the form set forth in a Transfer
Certificate attached to the Security (the “Transfer Certificate”) dated the date of surrender of
such Restricted Security and signed by such Holder, as to compliance with the restrictions on
transfer applicable to such Restricted Security. The Company shall not be required to issue Common
Stock upon conversion of any such Restricted Security to a Person other than the Holder if such
Restricted Security is not so accompanied by a properly completed Transfer Certificate, and the
Registrar shall not be required to register Common Stock upon conversion of any such Restricted
Security in the name of a Person other than the Holder if such Restricted Security is not so
accompanied by a properly completed Transfer Certificate.




          (h) Delivery of shares of Common Stock and Cash in respect of conversion to a Holder of a
Security upon conversion of such Security shall be accompanied by delivery to the Conversion Agent
of certificates for the relevant number of shares, other than in the case of Holders of Securities
in book-entry form with the Depositary, which shares shall be delivered in accordance with the
Depositary’s customary practices and delivery of Cash in respect of conversion to the Conversion
Agent or the Depositary, as applicable, for delivery to the Holder.




38









 








          (i) If a Holder exercises its right to require the Company to repurchase the Securities as
described in Article 3, such Holder may convert its Securities as provided above only if it
withdraws its applicable Repurchase Notice or Fundamental Change Repurchase Notice and converts its
Securities prior to the close of business on the Business Day immediately preceding the applicable
Repurchase Date or Fundamental Change Repurchase Date.




          (j) Whenever any event described in Section 4.1 shall occur which shall cause the Securities
to become convertible as provided in this Article 4, the Company shall promptly deliver, in
accordance with Section 13.2, written notice of the convertibility of the Securities to the Trustee
and each Holder and to the Conversion Agent for the benefit of the Holders, and shall, as soon
practicable publicly announce that the Securities have become convertible. Such written notice and
public announcement shall include:





     (i) a description of such event;




     (ii) a description of the periods during which the Securities shall be convertible as
provided in this Article 4 as a result of such event;




     (iii) a statement of whether an adjustment to the Conversion Rate shall take effect in
respect of such event pursuant to Section 4.13 and whether the Company has elected to change
the Conversion Obligation in respect of such event pursuant to Section 4.13; and




     (iv) the procedures Holders must follow to convert their notes in accordance with this
Article 4, including the name and address of the Conversion Agent.



          Section 4.3 Adjustment of Conversion Rate for Common Stock.




          The Conversion Rate shall be adjusted from time to time as follows:




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





     (i) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on such Record Date fixed for such determination and
the total number of shares constituting such dividend or other distribution; and




     (ii) the denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on such Record Date fixed for such determination.



          Such increase shall become effective immediately after the opening of business on the day
following the Record Date fixed for such determination.






39









 








          If any dividend or distribution of the type described in this Section 4.3(a) is declared but
not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared.




          (b) In case the Company shall, at any time or from time to time while any of the Securities
are outstanding, subdivide its outstanding shares of Common Stock into a greater number of shares
of Common Stock, then 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 the Company shall, at any time or from time to time while any of the Securities
are outstanding, combine its outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then 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 decreased. In each
such case, the Conversion Rate shall be adjusted by multiplying such Conversion Rate by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding immediately after
giving effect to such subdivision or combination and the denominator of which shall be the number
of shares of Common Stock outstanding immediately prior to such subdivision or combination. Such
increase or reduction, as the case may be, shall become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination becomes effective.




          (c) In case the Company shall, at any time or from time to time while any of the Securities
are outstanding, issue rights or warrants for a period expiring within 60 days after the record
date of such issuance (other than any rights or warrants referred to in Section 4.3(d) or any
rights or warrants issued pursuant to the Company’s shareholder rights plan), to all or
substantially all holders of its shares of Common Stock entitling them to subscribe for or purchase
shares of Common Stock (or securities convertible into or exchangeable or exercisable for shares of
Common Stock), at a price per share (or having a conversion, exchange or exercise price per share)
less than the Current Market Price of the Common Stock on the record date for such issuance, then
the Conversion Rate shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect at the opening of business on the date after such date of
announcement by a fraction:





     (i) the numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on the date of announcement, plus the total
number of additional shares of Common Stock so offered for subscription or purchase (or into which the
convertible, exchangeable or exercisable securities so offered are convertible, exchangeable
or exercisable); and




     (ii) the denominator of which shall be the number of shares of Common Stock outstanding
on the close of business on the date of announcement, plus the number of shares (or
convertible, exchangeable or exercisable securities) which the aggregate offering price of
the total number of shares (or convertible, exchangeable or exercisable securities) so
offered for subscription or purchase (or the aggregate conversion, exchange or
exercise
price of the convertible securities so offered) would purchase at the Current Market Price
of the Common Stock on the record date for such issuance (determined by multiplying such
total number of shares so offered by the conversion, exchange or



40









 






exercise price of such
rights or warrants and dividing the product so obtained by such Current Market Price).



          Such adjustment shall become effective immediately after the opening of business on the day
following the date of announcement of such issuance.




          To the extent that shares of Common Stock (or securities convertible into or exchangeable or
exercisable for shares of Common Stock) are not delivered pursuant to such rights or warrants, upon
the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of the delivery of only the number of shares of
Common Stock (or securities convertible into or exchangeable or exercisable for shares of Common
Stock) actually delivered. In the event that such rights or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if
the date fixed for the determination of stockholders entitled to receive such rights or warrants
had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such consideration if other
than Cash, to be determined in good faith by the Board of Directors of the Company.




          (d) In case the Company shall, at any time or from time to time while any of the Securities
are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its
shares of Common Stock (including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation and the Common Stock is not changed or
exchanged), shares of its Capital Stock (other than any dividends or distributions to which Section
4.3(a) applies), evidences of its Indebtedness or other assets, including securities, but excluding
(x) any rights or warrants referred to in Section 4.3(c), (y) dividends or distributions of stock
referred to in Section 4.3(a), and (z) dividends and distributions paid exclusively in Cash (such
Capital Stock, evidence of its indebtedness, other non-Cash assets or securities being distributed
hereinafter in this Section 4.3(d) called the “distributed assets”), then, in each such
case, subject to the other provisions of this Section 4.3(d), the Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate
in effect immediately prior to the close of business on the Record Date with respect to such
distribution by a fraction:




          (i) the numerator of which shall be the Current Market Price of the Common Stock; and




          (ii) the denominator of which shall be such Current Market Price of the Common Stock,
less the Fair Market Value on such date of the portion of the distributed assets so
distributed applicable to one share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding on the Record Date) (determined as provided in Section
4.3(g)).




41









 








          Such increase shall become effective immediately prior to the opening of business on the day
following the Record Date for such distribution. In the event that such dividend or distribution
is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such dividend or distribution had not been declared.




          (1) If the Board of Directors determines the Fair Market Value of any distribution for
purposes of this Section 4.3(d) by reference to the actual or when issued trading market for
any distributed assets comprising all or part of such distribution, it must in doing so
consider the prices in such market over the same period (the “Reference Period”)
used in computing the Current Market Price pursuant to Section 4.3(g) to the extent
possible, unless the Board of Directors determines in good faith that determining the Fair
Market Value during the Reference Period would not be in the best interest of the Holders.




          (2) In the event any such distribution consists of shares of capital stock of, or
similar equity interests in, one or more of the Company’s Subsidiaries (a
“Spin-Off”), the Fair Market Value of the securities to be distributed shall equal
the average of the closing sale prices of such securities on the principal securities market
on which such securities are traded for the 10 consecutive Trading Days commencing on and
including the fifth Trading Day after the “ex” date in respect of the Spin-Off. In the
event, however, that an underwritten initial public offering of the securities in the
Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities
distributed in the Spin-Off shall mean the initial public offering price of such securities.




          (3) Rights or warrants distributed by the Company to all holders of its shares of
Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital
Stock (either initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”), (x) are deemed to be
transferred with such shares of Common Stock, (y) are not exercisable and (z) are also
issued in respect of future issuances of shares of Common Stock shall be deemed not to have
been distributed for purposes of this Section 4.3(d) (and no adjustment to the Conversion
Rate under this Section 4.3(d) will be required) until the occurrence of the earliest
Trigger Event. If such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to purchase different
distributed assets, evidences of indebtedness or other assets, or entitle the holder to
purchase a different number or amount of the foregoing or to purchase any of the foregoing
at a different purchase price, then the occurrence of each such event shall be deemed to be
the date of issuance and record date with respect to a new right or warrant (and a
termination or expiration of the existing right or warrant without exercise by the holder
thereof). Pursuant to rights issued under any Company shareholder’s rights plan, if holders
of the Securities exercising the right of conversion after the date the rights separate from
the underlying Common Stock are not entitled to receive the rights that would otherwise be
attributable to the shares of Common Stock received upon conversion, the Conversion Rate
will be adjusted as though the rights were being distributed to holders of Common Stock on
the date of such separation. If such an adjustment is made and the rights are later
redeemed, invalidated or terminated, then a




42









 









corresponding reversing adjustment will be made
to the conversion rate on an equitable basis.




In addition, in the event of any distribution (or deemed distribution) of rights or
warrants, or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under
this Section 4.3(d):




     (A) in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the Conversion Rate
shall be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a Cash
distribution, equal to the per share redemption or repurchase price received by a
holder of shares of Common Stock with respect to such rights or warrants (assuming
such holder had retained such rights or warrants), made to all holders of shares of
Common Stock as of the date of such redemption or repurchase; and




     (B) in the case of such rights or warrants which shall have expired or been
terminated without exercise, the Conversion Rate shall be readjusted as if such
rights and warrants had never been issued.




     (4) For purposes of this Section 4.3(d) and Sections 4.3(a), 4.3(b) and 4.3(c), any
dividend or distribution to which this Section 4.3(d) is applicable that also includes (x) shares of Common Stock, (y) a subdivision or combination of shares of Common Stock to which
Section 4.3(b) applies or (z) rights or warrants to subscribe for or purchase shares of
Common Stock or securities convertible into or exercisable or exchangeable for Common Stock
to which Section 4.3(c) applies (or any combination thereof), shall be deemed instead to be:




     (A) a dividend or distribution of the evidences of indebtedness, assets, shares
of capital stock, rights or warrants, other than such shares of Common Stock, such
subdivision or combination or such rights or warrants or securities convertible into
or exercisable or exchangeable for Common Stock to which Sections 4.3(a), 4.3(b) and
4.3(c) apply, respectively (and any Conversion Rate increase required by this
Section 4.3(d) with respect to such dividend or distribution shall then be made),
immediately followed by




     (B) a dividend or distribution of such shares of Common Stock, such subdivision
or combination or such rights or warrants or securities convertible into or
exercisable or exchangeable for Common Stock (and any further Conversion Rate
increase required by Sections 4.3(a), 4.3(b) and 4.3(c) with respect to such
dividend or distribution shall then be made), except:




     (iii) the Record Date of such dividend or distribution shall be substituted as
(x) “the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution,” “Record Date fixed for such determinations” and
“Record Date” within the meaning of Section 4.3(a), (y) “the day upon which



43









 






such
subdivision becomes effective” and “the day upon which such combination becomes
effective” within the meaning of Section 4.3(b), and (z) as “the date fixed for the
determination of stockholders entitled to receive such rights or warrants,” “the
Record Date fixed for the determination of the stockholders entitled to receive such
rights or warrants” and such “Record Date” within the meaning of Section 4.3(c); and




(iv) any shares of Common Stock included in such dividend or distribution shall
not be deemed “outstanding at the close of business on the date fixed for such
determination” within the meaning of Section 4.3(a) and any reduction or increase in
the number of shares of Common Stock resulting from such subdivision or combination
shall be disregarded in connection with such dividend or distribution.



          (e) In case the Company shall, at any time or from time to time while any of the Securities
are outstanding, by dividend or otherwise, distribute to all or substantially all holders of its
shares of Common Stock, Cash (excluding any Cash that is distributed upon a reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which
Section 4.4 or 4.13 applies, Cash distributed as part of a distribution referred to in Section
4.3(d), or any Cash that is distributed pursuant to a tender offer, to which Section 4.3(f)
applies), then, and in each case, immediately after the close of business on such date, the
Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the close of business of the Record Date for the
determination of holders of Common Stock entitled to such distribution by a fraction:





     (i) the numerator of which shall be equal to the Current Market Price per share of
Common Stock (as determined pursuant to Section 4.3(g) on such Record Date); and




     (ii) the denominator of which shall be equal to (a) the Current Market Price per share
of Common Stock on such date, less the amount of the distribution per share of Common Stock;
provided, however that if such denominator shall be zero, the Conversion Rate shall be
instead adjusted so that the Conversion Price is equal to one cent ($0.01).



          Notwithstanding the foregoing, if the Conversion Rate as adjusted pursuant to this Section
4.3(e) would cause the Conversion Price to be less than one cent ($0.01), then the Conversion Price
shall be one cent ($0.01).




          (f) In case the Company or any of its subsidiaries shall, at any time or from time to time,
while any of the Securities are outstanding, distribute Cash or other consideration in respect of a
tender offer or exchange offer made by the Company or any subsidiary for all or any portion of the
Common Stock (excluding any Cash that is distributed upon a reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance to which Section 4.4
applies or as part of a distribution referred to in Sections 4.3(d) or 4.3(e)), where the sum of
the aggregate amount of such Cash distributed and the aggregate Fair Market Value (as determined in
good faith by the Board of Directors, whose determination shall be




44









 









conclusive and set forth in a
Board Resolution), as of the Expiration Date (as defined below), of such other consideration
distributed (such sum, the “Aggregate Amount”) expressed as an amount per share of Common
Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange
offer as of the Expiration Time (as defined below) (such tendered or exchanged shares of Common
Stock, the “Purchased Shares”) exceeds the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the last date (such last date, the “Expiration
Date”) on which tenders or exchanges could have been made pursuant to such tender offer or
exchange offer (as the same may be amended through the Expiration Date), then, and in each case,
immediately after the close of business on such date, the Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business of such Expiration Date by a fraction:




     (i) the numerator of which is equal to the sum of (I) the Aggregate Amount and (II) the
product of (a) the Current Market Price of Common Stock on the Expiration Date and (b) an
amount equal to (i) the number of shares of Common Stock outstanding as of last time (the
“Expiration Time”) at which tenders or exchanges could have been made pursuant to
such tender offer or exchange offer less (ii) the Purchased Shares; and




     (ii) the denominator of which shall be equal to the product of (I) the number of shares
of Common Stock outstanding as of the Expiration Time (including all Purchased Shares) and
(II) the Current Market Price of Common Stock on the Expiration Date.



          An adjustment, if any, to the Conversion Rate pursuant to this Section 4.3(f) shall become
effective immediately prior to the opening of business on the Business Day following the Expiration
Date. In the event that the Company or a subsidiary is obligated to purchase shares of Common
Stock pursuant to any such tender offer or exchange offer, but the Company or such subsidiary is
permanently prevented by applicable law from effecting any such purchases, or all such purchases
are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such tender offer or exchange offer had not been made. If the
application of this Section 4.3(f) to any tender offer or exchange offer would result in a decrease
in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under
this Section 4.3(f).




          (g) For purposes of this Article 4, the following terms shall have the meanings indicated:





     “Current Market Price” on any date means the average of the daily Closing Sale
Prices per share of the Common Stock for the ten consecutive Trading Days ending on and
including such date; provided, however, that if the “ex” date (as hereinafter defined) for
any event (other than the issuance or distribution requiring such computation) that requires
an adjustment to the Conversion Rate pursuant to Section 4.3(a), (b), (c), (d), (e) or (f)
occurs during such ten consecutive Trading Days, “Current Market Price” means the average of
the daily Closing Sale Prices per share of the Common Stock for the ten consecutive Trading
Days ending on and including the “ex” date.



45









 





          For purposes of this Indenture, the term “ex” date, when used:





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




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




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



          Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are
called for pursuant to this Section 4.3, such adjustments shall be made to the Current Market Price
as may be necessary or appropriate to effectuate the intent of this Section 4.3 and to avoid unjust
or inequitable results as determined in good faith by the Board of Directors.





     “Fair Market Value” shall mean the amount which a willing buyer would pay a
willing seller in an arm’s length transaction (as determined in good faith by the Board of
Directors, whose good faith determination shall be conclusive).




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



          (h) The Company shall be entitled at its election to make such additional increases in the
Conversion Rate, in addition to those required by Sections 4.3(a), (b), (c), (d), (e) or (f), as
shall be necessary in order that any dividend or distribution of Common Stock, any subdivision,
reclassification or combination of shares of Common Stock or any issuance of rights or warrants
referred to above shall not be taxable to the holders of Common Stock for United States federal
income tax purposes.




          (i) To the extent permitted by applicable law, the Company may, from time to time, increase
the Conversion Rate by any amount for any period of time, if such period is at least 20 days, the
Board of Directors determines that the increase in the Conversion Rate is in the best interest of
the Company, and the increase is irrevocable during the period. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall mail to the Trustee and each Holder
at the address of such Holder as it appears in the register of the Securities maintained by the
Registrar, at least 15 days prior to the date the increased Conversion




46









 









Rate takes effect, a notice
of the increase stating the increased Conversion Rate and the period during which it will be in
effect.



          (j) In any case in which this Section 4.3 shall require that any adjustment be made effective
as of or retroactively immediately following a Record Date, the Company may elect to defer (but
only for five Trading Days following the filing of the statement referred to in Section 4.5)
issuing to the Holder of any Securities converted after such Record Date the consideration issuable
upon such conversion over and above the consideration issuable upon such conversion on the basis of
the Conversion Rate prior to adjustment; provided, however, that the Company shall deliver to such
Holder a due bill or other appropriate instrument evidencing such Holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.




          (k) All calculations under this Section 4.3 shall be made to the nearest cent or
one-thousandth of a share, with one-half cent and 0.0005 of a share, respectively, being rounded
upward. Notwithstanding any other provision of this Section 4.3, the Company shall not be required
to make any adjustment of the Conversion Rate unless such adjustment would require an increase or
decrease of at least 1% of such rate; provided that (i) any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall amount to an increase or
decrease of at least 1% in such rate; and provided further that at the end of each
fiscal year of the Company, beginning with the fiscal year ending on December 31, 2005, any
adjustments to the Conversion Rate that have been, and at such time remain, deferred pursuant to
this Section 4.3(k) shall be given effect, and such adjustments, if any, shall no longer be carried
forward and taken into account in any subsequent adjustment to the Conversion Rate. Any
adjustments under this Section 4.3 shall be made successively whenever an event requiring such an
adjustment occurs.




          (l) In the event that at any time, as a result of an adjustment made pursuant to this Section
4.3, the Holder of any Securities thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common Stock into which the
Securities originally were convertible, the Conversion Rate of such other shares so receivable upon
conversion of any such Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained
in subparagraphs (a) through (i) of this Section 4.3, and the provisions of Sections 4.1, 4.2, 4.4
through 4.9 and 4.13 with respect to the Common Stock shall apply on like or similar terms to any
such other shares and the good faith determination of the Board of Directors as to any such
adjustment shall be conclusive.




          (m) No adjustment shall be made pursuant to this Section 4.3 if the Holders of the Securities
may participate, without conversion, and on a basis and with notice that the Company’s Board of
Directors determines in good faith to be fair and appropriate, in the transaction that would
otherwise give rise to an adjustment pursuant to this Section 4.3.




          Section 4.4 Consolidation or Merger of The Company.





47









 








          Except as provided in Section 4.13, if any of the following events (any such event, a
“Disposition Event”) occurs, namely:





     (a) any reclassification or change of the outstanding Common Stock into another class
of Capital Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination);




     (b) any merger, consolidation, binding share exchange or combination of the Company
with another corporation as a result of which all of the holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including Cash or any
combination thereof) with respect to or in exchange for all of their Common Stock; or




     (c) any sale, conveyance, transfer, lease or other disposition of the properties and
assets of the Company as, or substantially as, an entirety to any other person as a result
of which all of the holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including Cash or any combination thereof) with respect to or
in exchange for all of their Common Stock;


the Company or the successor or purchasing person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of
execution of such supplemental indenture, if such supplemental indenture is then required to so
comply) providing that, at and after the effective time of such Disposition Event, the Holder of
each Security then outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property (including Cash) (collectively,
“Reference Property”) receivable upon such conversion of such Security had such conversion
occurred immediately prior to such Disposition Event. For purposes of this Section 4.4, the
Conversion Value shall be based on (a) the Conversion Rate in effect immediately prior to such
Disposition Event, (b) the value per share of Common Stock received by holders of Common Stock in
connection with the Disposition Event, and (c) the per unit average value of the Reference Property
as follows: (i) for any shares of common stock included in the Reference Property, the average
closing sale price of such common stock during the ten (10) Trading Days beginning on the third
(3rd) Trading Day following the date that such Security is tendered for conversion, calculated as
set forth in the definition of “Closing Sale Price” in Section 1.1 as if such common stock was
Common Stock, (ii) for any other property (other than Cash) included in the Reference Property, as
determined in good faith by the Board of Directors and (iii) for any Cash, the face amount of such
Cash. In the event that the holders of the Common Stock have the opportunity to elect the form of
the consideration to be received in such Disposition Event, the Company shall make adequate
provision whereby Holders shall have a reasonable opportunity to determine the form of
consideration into which all of the Securities, treated as a single class, shall be convertible
from and after the effective date of such Disposition Event. Such determination shall be based on
the weighted average of elections made by Holders of the Securities who participate in such
determination, shall be subject to any limitations to which all of the holders of Common Stock are
subject, such as pro-rata reductions applicable to any portion of the consideration payable in such
Disposition Event and shall be conducted in such a manner as to be completed by the date which is
the earliest of (a) the deadline for elections to be




48









 







made by holders of Common Stock, and (b) two
Trading Days prior to the anticipated effective date of the Disposition Event. In the event the
effective date of the Disposition Event is delayed beyond the initially anticipated effective date,
Holders of the Securities shall be given the opportunity to make subsequent similar determinations
in regard to such delayed effective date. The Company shall provide notice of the opportunity to
determine the form of such consideration, as well as notice of the determination made by Holders by
issuing a press release and providing a copy of such notice to the Trustee. The Company shall not
become a party to any Disposition Event the terms of which are inconsistent with the foregoing.




          Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article 4. If, in the case of any
such Disposition Event, the stock or other securities and assets receivable thereupon by a holder
of Common Stock includes shares of stock or other securities and assets of a corporation other than
the successor or purchasing corporation, as the case may be, in such Disposition Event, then such
supplemental indenture shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.




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




          The above provisions of this Section 4.4 shall similarly apply to successive Disposition
Events.




          If this Section 4.4 applies to any event or occurrence, Section 4.3 shall not apply.




          Section 4.5 Notice Of Adjustment.




          Whenever an adjustment in the Conversion Rate with respect to the Securities is required:





     (a) the Company shall forthwith place on file with the Trustee and any Conversion Agent
for such Securities a certificate of the Treasurer of the Company (upon which the Trustee
may conclusively rely), stating the adjusted Conversion Rate determined as provided herein
and setting forth in reasonable detail such facts as shall be necessary to show the reason
for and the manner of computing such adjustment; and




     (b) a notice stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate shall forthwith be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company, to each Holder in the
manner provided in Section 4.2 hereof. Any notice so given shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice.



          Section 4.6 Notice In Certain Events.




49









 








          (I) In case:





     (a) of a consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company is required, or of the sale or conveyance to another
Person or entity or group of Persons or entities acting in concert as a partnership, limited
partnership, syndicate or other “group” (as defined in Section 3.9(a)(1)(i)) of all or
substantially all of the property and assets of the Company; or




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




     (c) of any action triggering an adjustment of the Conversion Rate referred to in
clauses (y) or (z) below;


then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent,
and shall cause to be given, to the Holders of the Securities in the manner provided in Section 4.2
hereof, at least 15 days prior to the applicable date hereinafter specified, a notice stating:



     (d) the date on which a record is to be taken for the purpose of any distribution or
grant of rights or warrants or other securities triggering an adjustment to the Conversion
Rate pursuant to this Article 4, or, if a record is not to be taken, the date as of which
the holders of record of Common Stock entitled to such distribution, rights or warrants or
other securities are to be determined, or



     (e) the date on which holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable upon any reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up described
under clauses (a), (b) and (c) of Section 4.4.




          Failure to give such notice or any defect therein shall not affect the legality or validity of
the proceedings described in clause (I)(a), (b) or (c) of this Section 4.6.




          (II) If the Securities become convertible, the Company, as soon as practicable, shall provide
written notice to each Holder and to the Conversion Agent for the benefit of the Holders, and the
Company shall publicly announce, that the Securities have become convertible, stating:




          (a) the event causing the Securities to become convertible;




          (b) the time period during which the Securities will be convertible as a result of that event;




          (c) whether an adjustment to the Conversion Rate will take effect in connection with that
event or whether the Company has elected to change the Conversion Right; and





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          (d) the procedures Holders must follow to convert their securities, including the name and
address of the Conversion Agent.




          Section 4.7 Company to Reserve Stock: Registration; Listing.




          (a) The Company shall from time to time reserve and keep available, free from preemptive
rights, out of its authorized but unissued shares of Common Stock for the purpose of effecting the
conversion of the Securities, such number of its duly authorized shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all Securities then outstanding into
such Common Stock at any time (assuming that, at the time of the computation of such number of
shares or securities, all such Securities would be held by a single Holder). The Company covenants
that all shares of Common Stock which may be issued upon conversion of Securities will upon issue
be fully paid and nonassessable and free from all liens and charges and, except as provided in
Section 4.8, taxes with respect to the issue thereof.




          (b) If any shares of Common Stock which would be issuable upon conversion of Securities
hereunder require registration with or approval of any governmental authority before such shares or
securities may be issued upon such conversion, the Company will use its commercially reasonable
efforts to cause such shares or securities to be duly registered or approved, as the case may be.
The Company further covenants that so long as the Common Stock shall be quoted on the Nasdaq
National Market, the Company will use its commercially reasonable efforts, if permitted by the
rules of the American Stock Exchange, to have and keep approved for quoting on the Nasdaq National
Market (subject to notice of official issuance) all Common Stock issuable upon conversion of the
Securities, and the Company will use its commercially reasonable efforts to list the shares of
Common Stock required to be delivered upon conversion of the Securities prior to such delivery upon
any other national securities exchange upon which the outstanding Common Stock is listed at the
time of such delivery.




          Section 4.8 Taxes on Conversion.




          The issue of stock certificates on conversion of Securities shall be made without charge to
the converting Holder for any documentary, stamp or similar issue or transfer taxes in respect of
the issue thereof, and the Company shall pay any and all documentary, stamp or similar issue or
transfer taxes that may be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any
such tax which may be payable in respect of any transfer involved in the issue or delivery of
shares of Common Stock or the portion, if any, of the Securities which are not so converted in a
name other than that in which the Securities so converted were registered, 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 such tax or has established to the satisfaction of the Company that such tax has been
paid.




          Nothing contained herein shall preclude any income tax withholding required by law or
regulation upon conversion of the Securities, and at the Company’s request, Holders shall be
responsible for satisfying any such withholding.




          Section 4.9 Conversion After Record Date.





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          Except as provided in this Section 4.9, a converting Holder of Securities shall not be
entitled to receive any accrued and unpaid interest (including Additional Interest, if any) on any
such Securities being converted. By delivery to the Holder of the number of shares of Common
Stock, Cash or combination of Common Stock and Cash, or other consideration issuable or payable
upon conversion in accordance with this Article 4, any accrued and unpaid interest (including
Additional Interest, if any) on such Securities will be deemed to have been paid in full. If any
Securities are surrendered for conversion subsequent to the Regular Record Date preceding an
Interest Payment Date but prior to such Interest Payment Date, the Holder of such Securities at the
close of business on such Regular Record Date shall receive the interest payable on such Security
on such Interest Payment Date notwithstanding the conversion thereof. Securities surrendered for
conversion during the period from the close of business on any Regular Record Date preceding any
Interest Payment Date to the opening of business on such Interest Payment Date shall (except in the
case of Securities which have been called for redemption on a Redemption Date within such period)
be accompanied by payment from converting Holders, for the account of the Company, in Cash, or
other funds of an amount equal to the interest payable on such Interest Payment Date (excluding any
overdue interest, if applicable) on the Securities being surrendered for conversion; provided,
however, if the Company elects to redeem Securities on a date that is after the Regular Record Date
but prior to the corresponding Interest Payment Date, and such Holder elects to convert those
Securities, the Holder will not be required to pay the Company, at the time that Holder surrenders
those Securities for conversion, the amount of interest payable by the Company on such Interest
Payment Date.




          Except as provided in this Section 4.9, no adjustments in respect of payments of interest
(including Additional Interest, if any) on Securities surrendered for conversion or any dividends
or distributions or interest on the Common Stock issued upon conversion shall be made upon the
conversion of any Securities.




          Section 4.10 Company Determination Final.




          Any determination that the Company or the Board of Directors must make pursuant to this
Article 4 shall be conclusive if made in good faith and in accordance with the provisions of this
Article, absent manifest error, and set forth in a Board Resolution.




          Section 4.11 Responsibility of Trustee for Conversion Provisions.




          The Trustee has no duty to determine when an adjustment under this Article 4 should be made,
how it should be made or what it should be. Unless and until a Trust Officer of the Trustee
receives a certificate delivered pursuant to Section 4.5 setting forth an adjustment of the
Conversion Rate, the Trustee may assume without inquiry that no such adjustment has been made and
that the last Conversion Rate of which the Trustee has knowledge remains in effect. The Trustee
makes no representation as to the validity or value of any securities or assets issued upon
conversion of Securities. The Trustee shall not be responsible for any failure of the Company to
comply with this Article 4. Each Conversion Agent other than the Company shall have the same
protection under this Section 4.11 as the Trustee.






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




          Section 4.12 Unconditional Right of Holders to Convert.




          Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to convert its Security in accordance with this
Article 4 and to bring an action for the enforcement of any such right to convert, and such rights
shall not be impaired or affected without the consent of such Holder.




          Section 4.13 Adjustment to the Conversion Rate upon Certain Fundamental Changes.




          (a) If a Fundamental Change, as described under clause (3) or (4) of the definition of Change
in Control occurs before December 15, 2010, then the Conversion Rate then in effect will (subject
to the Company’s rights described under paragraph (c) of this Section 4.13) increase, as described
in paragraph (b) of this Section 4.13, with respect to any Securities surrendered for conversion at
any time on or before the 30th day after the date the Company announces that the Fundamental Change
has occurred. Such a Fundamental Change is referred to herein as a “Make-Whole Fundamental
Change.” The Company shall mail notice to Holders, at their addresses appearing in the
Security register, and the Company shall publicly announce, through a reputable national newswire
service, and publish on the Company’s website, that the Make-Whole Fundamental Change has occurred
within 20 Business Days after such Make-Whole Fundamental Change has occurred. If applicable, the
Company shall also state, in the such notice, announcement and publication, whether the Company has
made the election referred to in paragraph (c) of this Section 4.13.




          (b) The increase in the Conversion Rate referred to in paragraph (a) of this Section 4.13 will
be determined by reference to the table below, based on the date on which the Make-Whole
Fundamental Change becomes effective (the “Effective Date”) and the applicable price (the
“Stock Price”) paid per share for Common Stock pursuant to the terms of such Make-Whole
Fundamental Change. If holders of Common Stock receive only Cash (excluding cash payments for
fractional shares or pursuant to statutory appraisal rights) pursuant to the terms of such
Make-Whole Fundamental Change, the Stock Price shall be the Cash amount paid per share. Otherwise,
the Stock Price shall be the average of the Closing Sale Prices for five consecutive Trading Days
immediately prior to, but not including, the Effective Date of such Make-Whole Fundamental Change.
The Board ofDirectors shall make appropriate adjustments, in its good faith determination, to
account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the “ex” date of the event occurs, at any time during those
five consecutive Trading Days. The Stock Prices set forth in the left column of the table below
shall be adjusted as of any date on which the Conversion Rate is adjusted pursuant to Section 4.3.
The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is
the Conversion Rate as so adjusted. The







53









 








          number of additional shares of Common Stock will be
adjusted in the same manner and for the same events as the Conversion Rate pursuant to Section 4.3.
The following table sets forth the hypothetical Stock Price and the number of additional shares of
Common Stock issuable per $1,000 principal amount of Securities that will be added to the
Conversion Rate applicable to the Securities surrendered for conversion during the 30-day period
described in paragraph (a) of this Section 4.13:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Effective Date	 	 	 	 	 	 	 
	Stock Price	 	December 16, 2005	 	 	December 15, 2006	 	 	December 15, 2007	 	 	December 15, 2008	 	 	December 15, 2009	 	 	December 15, 2010	 
	$23.54
	 	 	9.28	 	 	 	9.44	 	 	 	9.50	 	 	 	9.41	 	 	 	8.99	 	 	 	0.00	 
	$25.00
	 	 	8.20	 	 	 	8.28	 	 	 	8.25	 	 	 	8.03	 	 	 	7.40	 	 	 	0.00	 
	$27.50
	 	 	6.70	 	 	 	6.68	 	 	 	6.54	 	 	 	6.18	 	 	 	5.32	 	 	 	0.00	 
	$30.00
	 	 	5.52	 	 	 	5.45	 	 	 	5.24	 	 	 	4.79	 	 	 	3.83	 	 	 	0.00	 
	$32.50
	 	 	4.60	 	 	 	4.48	 	 	 	4.23	 	 	 	3.74	 	 	 	2.77	 	 	 	0.00	 
	$35.00
	 	 	3.85	 	 	 	3.71	 	 	 	3.44	 	 	 	2.94	 	 	 	2.00	 	 	 	0.00	 
	$37.50
	 	 	3.25	 	 	 	3.09	 	 	 	2.81	 	 	 	2.33	 	 	 	1.46	 	 	 	0.00	 
	$40.00
	 	 	2.75	 	 	 	2.59	 	 	 	2.31	 	 	 	1.85	 	 	 	1.06	 	 	 	0.00	 
	$42.50
	 	 	2.34	 	 	 	2.18	 	 	 	1.91	 	 	 	1.48	 	 	 	0.78	 	 	 	0.00	 
	$45.00
	 	 	1.99	 	 	 	1.84	 	 	 	1.58	 	 	 	1.18	 	 	 	0.57	 	 	 	0.00	 
	$47.50
	 	 	1.71	 	 	 	1.55	 	 	 	1.31	 	 	 	0.95	 	 	 	0.42	 	 	 	0.00	 
	$50.00
	 	 	1.46	 	 	 	1.32	 	 	 	1.09	 	 	 	0.76	 	 	 	0.30	 	 	 	0.00	 
	$52.50
	 	 	1.25	 	 	 	1.12	 	 	 	0.91	 	 	 	0.61	 	 	 	0.22	 	 	 	0.00	 
	$55.00
	 	 	1.08	 	 	 	0.95	 	 	 	0.76	 	 	 	0.49	 	 	 	0.16	 	 	 	0.00	 
	$57.50
	 	 	0.93	 	 	 	0.80	 	 	 	0.63	 	 	 	0.39	 	 	 	0.11	 	 	 	0.00	 
	$60.00
	 	 	0.79	 	 	 	0.68	 	 	 	0.52	 	 	 	0.31	 	 	 	0.08	 	 	 	0.00	 
	$62.50
	 	 	0.68	 	 	 	0.58	 	 	 	0.43	 	 	 	0.25	 	 	 	0.05	 	 	 	0.00	 
	$65.00
	 	 	0.58	 	 	 	0.49	 	 	 	0.36	 	 	 	0.19	 	 	 	0.03	 	 	 	0.00	 






          In the event that the applicable Stock Price or Effective Date is not set forth in the table
above, then, if:





     (i) the applicable Stock Price is between two Stock Price amounts on the table or the
applicable Effective Date is between two dates on the table, the adjustment to the
Conversion Rate will be determined by straight-line interpolation between the adjustments
set forth for the higher and lower Stock Price amounts or the two dates, as applicable,
based on a 365 day year;




     (ii) the applicable Stock Price is in excess of $65.00 per share (subject to
adjustment), no adjustment to the Conversion Rate will be made; or




     (iii) the applicable Stock Price is less than $23.54 per share (subject to adjustment),
no adjustment to the Conversion Rate will be made.



          Notwithstanding the foregoing, the Conversion Rate will not be increased above 42.4809 shares
per $1,000 principal amount of Securities pursuant to the events described in this paragraph (b) or
in paragraphs (c), (d), (e) or (f) of Section 4.3, which maximum Conversion





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Rate will be subject to
adjustment in the same manner the Conversion Rate may be adjusted from time to time pursuant to
paragraphs (a) and (b) of Section 4.3.




          In order to comply with the continued listing requirements of the Nasdaq National Market, the
Company shall not issue more than a total of such number of shares of Common Stock (the “Nasdaq
Share Limitation”) in respect of the Securities (subject to adjustment for stock splits, stock
dividends and similar events pursuant to paragraphs (a) and (b) of Section 4.3) than may be issued
without the need for shareholder approval under the continued listing requirements of the Nasdaq
National Market. If adjustments made to the Conversion Rate pursuant to the terms of this
Indenture (including adjustments pursuant to Section 4.3 and this Section 4.13) would cause the
Company to potentially exceed the Nasdaq Share Limitation, the Company shall reduce the number of
shares to be received by Holders of the Securities upon conversion by that amount which is
determined by the Company in good faith to be necessary so that the Nasdaq Share Limitation will
not be exceeded. In the event that the number of shares Holders are entitled to receive is
reduced, Holders shall not receive any substitute or additional consideration as a result. The
Company will make any such reduction in the increase to the Conversion Rate in good faith and, to
the extent practical, pro rata in accordance with the principal amount of the Securities
surrendered for conversion. In accordance with these listing standards, these restrictions will
apply at any time when the Securities are outstanding, regardless of whether the Company then has a
class of securities quoted on the Nasdaq National Market.




          (c) Notwithstanding the foregoing, if the Make-Whole Fundamental Change is a Public Acquirer
Fundamental Change, then the Company may elect to change the conversion right in lieu of increasing
the Conversion Rate pursuant to paragraphs (a) and (b) of this Section 4.13. If the Company makes
this election, then the Company shall adjust the Conversion Rate and the Company’s related
Conversion Obligation such that, from and after the Effective Date of the Public Acquirer
Fundamental Change, the right to convert a Security will be changed into a right to convert such
security into shares of Public Acquirer Common Stock, Cash or an combination of shares of Public
Acquirer Common Stock and Cash. The Conversion Rate adjusted pursuant to this paragraph (c) shall
be a Conversion Rate equal to the Conversion Rate in effect immediately before the Effective Date
for such Public Acquirer Fundamental Change multiplied by a fraction:





          (i) the numerator of which is:




          (1) if the Public Acquirer Fundamental Change is a share exchange, consolidation,
merger or binding share exchange pursuant to which Common Stock is converted into Cash,
securities or other property, the fair market value (as determined in good faith by the
Board of Directors), as of the Effective Date of the Public Acquirer Fundamental Change, of
the Cash, securities and other property paid or payable per share of Common Stock; or




          (2) in the case of any other Public Acquirer Fundamental Change, the average of the
Closing Sale Prices per share of the Common Stock for the five consecutive Trading Days
before, and excluding, the Effective Date of the Public Acquirer



55









 







Fundamental Change (subject
to adjustments to be made in good faith by the Board of Directors); and




          (ii) the denominator of which is the average of the last reported sale prices per share
of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on, and
including, the Trading Day immediately after the Effective Date of the Public Acquirer
Fundamental Change (subject to adjustments to be made in good faith by the Board of
Directors).



          If the Company elects to change the conversion right pursuant to this paragraph (c), the
change in the conversion right will apply to all Holders from and after the Effective Date of the
Public Acquirer Fundamental Change, and not just those Holders, if any, that convert their
Securities during the 30-day period after the Company announces the Public Acquirer Fundamental
Change. If the Public Acquirer Fundamental Change is also an event that requires the Company to
make another adjustment to the Conversion Rate pursuant to Section 4.3, then the Company shall also
give effect to that adjustment. However, if the Company makes the election set forth in this
paragraph (c), then the Company shall not change the Conversion Right in the manner set forth in
Section 4.4.




          (d) “Public Acquirer Fundamental Change” means an acquisition of the Company prior to
December 15, 2010 pursuant to a Fundamental Change described in clause (3) or (4) of the definition
of Change in Control where the acquirer has a class of common stock traded on a U.S. national
securities exchange or quoted on the Nasdaq National Market or that will be so traded or quoted
when issued or exchanged in connection with the Public Acquirer Fundamental Change. Such common
stock is referred to herein as the “Public Acquirer Common Stock.” If an acquirer does not
itself have a class of common stock satisfying the foregoing requirement, it will be deemed to have
Public Acquirer Common Stock if either (i) a direct or indirect Subsidiary of acquirer or (2) a
corporation that directly or indirectly owns at least a majority of the acquirer, has a class of
common stock satisfying the foregoing requirement; in such case, all references to Public Acquirer
Common Stock shall refer to such class of common stock.




          (e) The Company shall state, in the notice, public announcement and publication described
paragraph (a) of this Section 4.13 whether the Company has elected to change the conversion right
in accordance with paragraph (c) of this Section 4.13 in lieu of increasing the Conversion Rate in
accordance with paragraphs (a) and (b) of this Section 4.13. With respect to each Public Acquirer
Fundamental Change, the Company is permitted to make only one election, and the Company is
prohibited from changing that election once the Company has first mailed any such notice or made
any such public announcement or publication. However, if the Company elects to change the
conversion right as described in paragraph (c) of this Section 4.13 in connection with a Public
Acquirer Fundamental Change that is ultimately not consummated, then the Company shall not be
obligated to give effect to that particular election.




56









 








ARTICLE V




SUBORDINATION




          Section 5.1 Agreement to Subordinate. The Company agrees, and each Holder by
accepting a Security agrees, that the Indebtedness, interest and other obligations of any kind
evidenced by the Securities and this Indenture are subordinated in right of payment, to the extent
and in the manner provided in this Article 5, to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the
holders of Senior Indebtedness.




          Section 5.2 Liquidation; Dissolution; Bankruptcy.




          In the event of any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relating
to the Company or to its assets, or any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary, or any assignment for the benefit of creditors or other
marshaling of assets or liabilities of the Company (except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease
of all or substantially all of its properties and assets upon the terms and conditions described in
Article 7), the holders of Senior Indebtedness will be entitled to receive payment in full in cash
or cash equivalents of all Senior Indebtedness, or provision shall be made for such payment in
full, before the Holders will be entitled to receive any payment or distribution of any kind or
character (other than Permitted Junior Securities) on account of principal of or interest on the
Securities; and any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or distribution in the form of
Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article 5 shall be paid by the liquidating trustee or agent
or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.




          Section 5.3 Default on Designated Senior Indebtedness.




          (a) No payment or distribution of any assets of the Company of any kind or character, whether
in cash, property or securities (other than Permitted Junior Securities), may be made by or on
behalf of the Company on account of principal of or interest on the Securities or on account of the
purchase, redemption or other acquisition of Securities upon the occurrence of
any default in payment (whether at scheduled maturity, upon scheduled installment, by
acceleration or otherwise) of principal of or interest on Designated Senior Indebtedness beyond any
applicable grace period (a “Payment Default”) until such Payment Default shall have been cured or
waived in writing or shall have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or paid in full in cash or cash equivalents.
 

57









 









          (b) No payment or distribution of any assets of the Company of any kind or character, whether
in cash, property or securities (other than Permitted Junior Securities), may be made by or on
behalf of the Company on account of principal of or interest on the Securities or on account of the
purchase, redemption or other acquisition of Securities for the period specified below (a “Payment
Blockage Period”) upon the occurrence of any default or event of default with respect to any
Designated Senior Indebtedness other than any Payment Default pursuant to which the maturity of
such Designated Senior Indebtedness may be accelerated (a “Non-Payment Default”) and receipt by the
Trustee of written notice thereof from the Company or the trustee or other representative of
holders of Designated Senior Indebtedness.




          (c) The Payment Blockage Period shall commence upon the date of receipt by the Trustee of
written notice from the Company or such other representative of the holders of the Designated
Senior Indebtedness in respect of which the Non-Payment Default exists and shall end on the
earliest of:





     (i) 179 days thereafter (provided that any Designated Senior Indebtedness as to which
notice was given shall not theretofore have been accelerated);




     (ii) the date on which such Non-Payment Default is cured, waived or ceases to exist;




     (iii) the date on which such Designated Senior Indebtedness is discharged or paid in
full; or




     (iv) the date on which such Payment Blockage Period shall have been terminated by
written notice to the Trustee or the Company from the trustee or such other representative
initiating such Payment Blockage Period,


after which the Company shall resume making any and all required payments in respect of the
Securities, including any missed payments. In any event, not more than one Payment Blockage Period
may be commenced during any period of 365 consecutive days. No Non-Payment Default that existed or
was continuing on the date of the commencement of any Payment Blockage Period will be, or can be
made, the basis for the commencement of a subsequent Payment Blockage Period, unless such
Non-Payment Default has been cured or waived for a period of not less than 90 consecutive days
subsequent to the commencement of such initial Payment Blockage Period.




          Section 5.4 Acceleration of Notes. If payment of the Securities is accelerated
because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.




          Section 5.5 When Distribution Must Be Paid Over.




          (a) In the event that, notwithstanding the provisions of Sections 5.2 and 5.3, any payment or
distribution of any kind or character, whether in cash, property or securities, shall be received
by the Trustee or any Holder which is prohibited by such provisions, then and in such event such
payment shall be held in trust for the benefit of, and shall be paid over and delivered by such
Trustee or Holder to, the trustee or any other representative of holders of

58









 








Senior Indebtedness, as
their interest may appear, for application to Senior Indebtedness remaining unpaid until all such
Senior Indebtedness has been paid in full in cash or cash equivalents after giving effect to any
concurrent distribution to or for the holders of Senior Indebtedness. Until all of the Company’s
Senior Indebtedness is paid in full, Holders shall be subordinated (equally and ratably with all
other indebtedness that is equal in right of payment to the Securities) to the rights of holders of
Senior Indebtedness to receive distributions.




          (b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in this Article 5, and no
implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness, and shall not be liable to any such holders if the Trustee
shall pay over or distribute to or on behalf of Holders or the Company or any other Person money or
assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Article 5,
except if such payment is made as a result of the willful misconduct or gross negligence of the
Trustee.




          Section 5.6 Notice by the Company. The Company shall promptly notify the Trustee and
the Paying Agent of any facts known to the Company that would cause a payment of any obligations
with respect to the Securities to violate this Article 5, but failure to give such notice shall not
affect the subordination of the Securities to the Senior Indebtedness as provided in this Article
5.




          Section 5.7 Subrogation. After all Senior Indebtedness is paid in full and until the
Securities are paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness that is equal in right of payment to the Securities) to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Holders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 5 to holders of Senior Indebtedness that
otherwise would have been made to Holders is not, as between the Company and Holders, a payment by
the Company of the Securities.




          Section 5.8 Relative Rights. This Article 5 defines the relative rights of Holders
and holders of Senior Indebtedness. Nothing in this Indenture shall: (i) impair, as between the
Company and Holders,
the obligation of the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms; (ii) affect the relative rights of
Holders and creditors of the Company other than their rights in relation to holders of Senior
Indebtedness; or (iii) prevent the Trustee or any Holder from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders and owners of Senior
Indebtedness to receive distributions and payments otherwise payable to Holders of Securities. If
the Company fails because of this Article 5 to pay principal of or interest on a Security on the
date on which such payment is otherwise due and payable, the failure is still a Default or Event of
Default.




          Section 5.9 Subordination May Not Be Impaired by the Company.

59









 









          (a) No right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the
Company or any Holder or by the failure of the Company or any Holder to comply with this Indenture.




          (b) Without in any way limiting the generality of this Section 5.9, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Trustee or the Holders and without
impairing or releasing the subordination provided in this Article 5.9 or the obligations hereunder
of the Holders to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (ii) sell, exchange, release, foreclose against or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company, any Subsidiary thereof or any
other Person.




          Section 5.10 Distribution or Notice to Representative.




          (a) Whenever a distribution is to be made or a notice given to holders of any Senior
Indebtedness, the distribution may be made and the notice given to their representative.




          (b) Upon any payment or distribution of assets of the Company referred to in this Article 5,
the Trustee and the Holders of Securities shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction or upon any certificate of such representative(s) or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in such distribution,
all holders of the Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 11.




          Section 5.11 Rights of Trustee and Paying Agent.




          (a) Notwithstanding the provisions of this Article 5 or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Securities, unless a Responsible Officer of the Trustee shall have
received at its Corporate Trust Office at least three Business Days prior to the date of such
payment written notice of facts that would cause the payment of any obligations with respect to the
Securities to violate this Article 5. Only the Company or its duly authorized representative may
give the notice. Nothing in this Article 5 shall impair the claims of, or payments to, the Trustee
under or pursuant to Section 9.7.




          (b) The Trustee in its individual or any other capacity may hold Senior Indebtedness with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee shall not be deemed to owe any fiduciary duty to the holders

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of Senior Indebtedness and
shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to the Holders or to the Company or to any other person cash, property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.




          Section 5.12 Anti-layering. The Company shall not, and shall not permit its
subsidiaries or other business units to, incur, create, assume, guarantee or in any other manner
become directly or indirectly liable with respect to or responsible for, or permit to remain
outstanding (other than if required by law), any indebtedness that is subordinate or junior in
right of payment to Senior Indebtedness unless such indebtedness ranks equal or junior in right of
payment to the Securities.




ARTICLE VI




COVENANTS




          Section 6.1 Payment of Securities.




          The Company shall promptly make all payments in respect of the Securities on the dates and in
the manner provided in the Securities and this Indenture. An installment of principal or interest
(including Additional Interest, if any) shall be considered paid on the date it is due if the
Paying Agent (other than the Company) holds by 11:00 a.m., New York City time, on that date Cash,
deposited by the Company or an Affiliate thereof, sufficient to pay the installment. The Company
shall, (in immediately available funds) to the fullest extent permitted
by law, pay interest on overdue principal (including premium, if any) and overdue installments
of interest at the rate borne by the Securities per annum.




          Payment of the principal of and any interest (including Additional Interest, if any) on the
Securities shall be made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York or at the Corporate Trust Office of the Trustee in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. The Company shall pay principal and interest (including
Additional Interest, if any) in respect of any Security by check mailed to the registered address
of the Holder thereof; provided, however, that a Holder of a Global Security shall be paid by wire
transfer in immediately available funds at the election of such Holder if such Holder has provided
wire transfer instructions to the Company at least 10 Business Days prior to the payment date.




          Section 6.2 SEC and other Reports.




          The Company shall timely file all reports and other information and documents which it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and shall make
such reports and other information and documents available on its website to the extent required by
law. The Company shall deliver any information, documents or reports

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required to be filed with the
SEC pursuant to Section 13 or 14(d) of the Exchange Act to the Trustee within 15 days after the
same is required to be filed with the SEC.




          The Company shall furnish to the Trustee copies of its annual report to stockholders,
containing audited financial statements, and any other financial reports which it furnishes to its
stockholders, in each case within 30 days of the date on which such reports first are made publicly
available.




          Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such 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).




          Section 6.3 Compliance Certificates.




          The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending December 31, 2005), an Officers’ Certificate as
to the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any default or Event of
Default. If such signer knows of such a default or Event of Default, the Officers’ Certificate
shall describe the default or Event of Default and the efforts to remedy the same. For the
purposes of this Section 6.3, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.




          Section 6.4 Further Instruments and Acts.




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




          Section 6.5 Maintenance of Corporate Existence.




          Subject to Article 7, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence.




          Section 6.6 Rule 144A Information Requirement.




          Within the period prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), the Company covenants and
agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, upon the request of any Holder or beneficial holder of the Securities make available
to such Holder or beneficial holder of Securities or any Common Stock issued upon conversion
thereof which continue to be Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of Securities or such Common Stock designated by such Holder or
beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act or
such Common Stock and it will take such further action

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as any Holder or beneficial holder of such
Securities or such Common Stock may reasonably request, all to the extent required from time to
time to enable such Holder or beneficial holder to sell its Securities or Common Stock without
registration under the Securities Act within the limitation of the exemption provided by Rule 144A,
as such Rule may be amended from time to time. Upon the request of any Holder or any beneficial
holder of the Securities or such Common Stock, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.




          Section 6.7 Stay, Extension and Usury Laws.




          The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of, or interest (including Additional Interest, if any) on, the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this Indenture,
and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not, by resort to any such law, 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.




          Section 6.8 Payment of Additional Interest.




          If Additional Interest is payable by the Company pursuant to the Registration Rights
Agreement, the Company shall deliver to the Trustee a certificate to that effect stating (i) the
amount of such Additional Interest that is payable (ii) the reason why such Additional Interest is
payable and (iii) the date on which such Additional Interest is payable. Unless and until a Trust
Officer of the Trustee receives such a certificate, the Trustee may assume without inquiry that no
such Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.




ARTICLE VII




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




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




          The Company shall not consolidate with or merge with or into any other Person or convey, sell,
transfer, lease or otherwise dispose all or substantially all of its properties and assets to any
Person whether in a single transaction or series of related transactions, unless:




          (a) either





               (i) in the case of a consolidation or merger, the Company is the surviving
entity; or



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               (ii) the successor or transferee is a corporation, limited liability company,
partnership or trust organized and existing under the laws of the United States, any
State thereof, or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, all of the
obligations of the Company under the Securities and the Indenture; and




          (b) immediately after giving effect to such transaction, no Default or Event of Default
shall exist; and




          (c) the Company shall have delivered to the Trustee an Officers’ Certificate and, if
requested by the Trustee, an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer, sale, lease or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article 7 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.



          Section 7.2 Successor Substituted.




          Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer, sale, lease or other disposition of the properties and assets of the
Company substantially as an entirety in accordance with Section 7.1, the successor Person formed by
such consolidation or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Securities.




ARTICLE VIII




DEFAULT AND REMEDIES




          Section 8.1 Events of Default.




          An “Event of Default” shall occur if:





          (1) the Company defaults in the payment of the principal amount, with respect to the
Securities, when the same become due and payable, whether on the Final Maturity Date, upon
redemption or otherwise, whether or not such payment is prohibited by Article 5 hereof;




          (2) the Company defaults in the payment of any accrued and unpaid interest (including
Additional Interest, if any) in each case, when due and payable, and continuance of such
default for a period of 30 days, upon redemption or otherwise, whether or not such payment
is prohibited by Article 5 hereof;



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          (3) the Company fails to satisfy its Conversion Obligation with respect to any portion
of the principal amount of any Security following the exercise by the Holder of the right to
convert such Security;




          (4) the Company fails to timely provide a Repurchase Notice or a Fundamental Change
Repurchase Notice pursuant to and in accordance with Section 3.8 or 3.9, as applicable, or
the notice required under Sections 4.13(a) and (e) regarding the adjustment of the
Conversion Rate upon the occurrence of a Make-Whole Fundamental Change;




          (5) the Company defaults in its obligation to pay the Repurchase Price or the
Fundamental Change Repurchase Price, as applicable, with respect to any Security, or any
portion thereof, upon the exercise by the Holder of such Holder’s right to require the
Company to repurchase such Securities pursuant to and in accordance with Section 3.8 or 3.9,
as applicable;




          (6) the Company fails to comply with any of its agreements or covenants in the
Securities or this Indenture (other than those referred to in clauses (1) through (5) above)
and such failure continues for 60 days after receipt by the Company of a Notice of Default
(defined below);




          (7) default by the Company or any of its Subsidiaries in the payment when due, after
the expiration of any applicable grace period, of principal of, premium, if any, or interest
on any Indebtedness in the aggregate principal amount then outstanding of $5,000,000 or more
or acceleration of the Company’s or any of its Subsidiaries’ Indebtedness in such aggregate
outstanding principal amount or more so that such Indebtedness becomes due and payable prior
to the date on which it would otherwise have become due and payable, and such default is not
cured or waived, or such acceleration is not rescinded, within 30 days after receipt by the
Company of a Notice of Default;




          (8) the Company or any of its Subsidiaries fails to pay final and non-appealable
judgments, the aggregate uninsured portion of which is at least five million dollars
($5,000,000), and such judgments are not paid, discharged or fully bonded against within
sixty (60) days;




          (9) the Company or any Significant Subsidiary (or any group of Subsidiaries that,
together, constitute a Significant Subsidiary), pursuant to or under or within the meaning
of any Bankruptcy Law:




               (A) commences a voluntary case or proceeding;




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




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



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




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




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




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




               (A) is for relief against the Company or any Significant Subsidiary (or any
group of Subsidiaries that, together, constitute a Significant Subsidiary), in an
involuntary case or proceeding;




               (B) appoints a Custodian of the Company or any Significant Subsidiary (or any
group of Subsidiaries that, together, constitute a Significant Subsidiary), or for
any substantial part of its property; or




               (C) orders the winding up or liquidation of the Company or any Significant
Subsidiary (or any group of Subsidiaries that, together, constitute a Significant
Subsidiary),




               (D) and in each case the order or decree remains unstayed and in effect for 60
consecutive days.



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




          A default under clauses (6) or (7) above is not an Event of Default until the Trustee notifies
the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding notify the Company and the Trustee, in writing of the default, and the Company does not
cure the default within 60 days after receipt of such notice. The notice given pursuant to this
Section 8.1 must specify the default, demand that it be remedied and state that the notice is a
“Notice of Default.” When any default under this Section 8.1 is cured, it ceases.




          The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by
the Company, a Paying Agent, any Holder or any agent of any Holder.




          Notwithstanding anything else contained herein, if an Event of Default has occurred and is
continuing, then the Company shall not (i) (except in the case of an Event of Default resulting
from a default by the Company in the payment of the Redemption Price with respect to such
Securities) redeem any of the Securities pursuant to Article 3 hereof, (ii) (except in the case of
an Event of Default resulting from a default by the Company in the payment of the


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           Repurchase Price
with respect to such Securities) repurchase any of the Securities pursuant to section 3.8 hereof,
or (iii) (except in the case of an Event of Default resulting from a default by the Company in the
payment of the Fundamental Change Repurchase Price with respect to such Securities) repurchase any
of the Securities pursuant to section 3.9 hereof.




          Section 8.2 Acceleration.




          If an Event of Default occurs, the Company shall promptly notify the Trustee thereof. If an
Event of Default (excluding an Event of Default specified in clause (9) or (10) of
Section 8.1 in respect of the Company, but including such Events of Default in respect of a
Significant Subsidiary or group of Subsidiaries that would, together, constitute a Significant
Subsidiary) occurs and is continuing, the Trustee may, by notice to the Company, or the Holders of
at least 25% in aggregate principal amount of the Securities then outstanding may, by notice to the
Company and the Trustee, declare all unpaid principal to the date of acceleration on the Securities
then outstanding (if not then due and payable) to be due and payable upon any such declaration, and
the same plus any interest (including Additional Interest, if any) on the Securities accrued but
unpaid through the date of such declaration shall become and be immediately due and payable. If an
Event of Default specified in clause (9) or (10) of Section 8.1 occurs in respect of the Company
and not solely in respect of a Significant Subsidiary or group of Subsidiaries that would,
together, constitute a Significant Subsidiary, all unpaid principal of the Securities then
outstanding and such interest (including Additional Interest, if any) shall ipso facto become and
be immediately due and payable without any declaration or other act on the part of the Trustee or
any Holder. The Holders of a majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee may rescind an acceleration and its consequences if (a) all
existing Events of Default, other than the nonpayment of the principal of the Securities which has
become due solely by such declaration of acceleration, have been cured or waived; (b) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and
(c) all payments due to the Trustee and any predecessor Trustee under Section 9.7 have been made.
No such rescission shall affect any subsequent default or impair any right consequent thereto.




          Section 8.3 Other Remedies.




          If an Event of Default occurs and is continuing, the Trustee may, but shall not be obligated
to, pursue any available remedy by proceeding at law or in equity to collect the payment of the
principal of or interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.




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




          Section 8.4 Waiver of Defaults and Events of Default.





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          Subject to Sections 8.7 and 11.2, the Holders of a majority in aggregate principal amount of
the Securities then outstanding by notice to the Trustee may waive any past default or
Event of Default and its consequence, except a default or Event of Default in the payment of
the principal, or interest on any Security, or the payment of the Redemption Price, the Repurchase
Price or Fundamental Change Repurchase Price, a Default or Event of Default arising from the
Company’s failure to convert any Security in accordance with the terms of Article 4 or any default
or Event of Default in respect of any provision of this Indenture or the Securities which, under
Section 11.2, cannot be modified or amended without the consent of the Holder of each Security
affected. When a default or Event of Default is waived, it is cured and ceases.




          Section 8.5 Control by Majority.




          The Holders of a majority in aggregate principal amount of the Securities then outstanding may
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 it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Holder or the Trustee, or that may involve the Trustee
in personal liability unless the Trustee is offered indemnity
satisfactory to it; provided,
however, that the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.




          Section 8.6 Limitations on Suits.




          A Holder may not pursue any remedy with respect to this Indenture or the Securities (except
actions for payment of overdue principal or interest or for the conversion of the Securities
pursuant to Article 4) unless:





     (1) the Holder gives to the Trustee written notice of a continuing Event of Default;




     (2) the Holders of at least 25% in aggregate principal amount of the then outstanding
Securities make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer to the Trustee reasonable indemnity to the Trustee
against any loss, liability or expense;




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal amount of the
Securities then outstanding.



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




          Section 8.7 Rights of Holders to Receive Payment and to Convert.




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          Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of the principal of and interest on the Security, on or after the respective
dates expressed in the Security and this Indenture on which such payments are due and payable, to
convert such Security in accordance with Article 4 and to bring suit for the enforcement of any
such payment on or after such respective dates or the right to convert, is absolute and
unconditional and shall not be impaired or affected without the consent of the Holder.




          Section 8.8 Collection Suit by Trustee.




          If an Event of Default in the payment of principal or interest specified in clause (1) or (2)
of Section 8.1 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or another obligor on the Securities for the whole
amount of principal and accrued interest remaining unpaid, together with, to the extent that
payment of such interest is lawful, interest on overdue principal and on overdue installments of
interest, in each case at the rate per annum borne by the Securities and 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.




          Section 8.9 Trustee May File Proofs of Claim.




          The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims and to distribute the
same, and any Custodian 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, its agents and counsel, and any
other amounts due the Trustee under Section 9.7, and to the extent that such payment of the
reasonable compensation, expenses, disbursements and advances in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other property which the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt any plan of
reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.




          Section 8.10 Priorities.




          If the Trustee collects any money pursuant to this Article 8, it shall pay out the money in
the following order:




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          First, to the Trustee for amounts due under Section 9.7;





     Second, to Holders for amounts due and unpaid on the Securities for principal and
interest (including Additional Interest, if any), ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities for principal and
interest (including Additional Interest, if any), respectively; and



          Third, the balance, if any, to the Company.




          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 8.10.




          Section 8.11 Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 8.11 does not apply to a
suit made by the Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of more
than 10% in aggregate principal amount of the Securities then outstanding.




ARTICLE IX




TRUSTEE




          Section 9.1 Duties of Trustee.




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




          (b) Except during the continuance of an Event of Default:





     (1) the Trustee need perform only those duties as are specifically set forth in this
Indenture and no others; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. The Trustee, however, shall examine any certificates and opinions which by any
provision hereof are specifically required to be delivered to the Trustee to determine
whether or not they conform to the requirements of this Indenture.



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:





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     (1) this paragraph does not limit the effect of subsection (b) of this Section 9.1;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 8.5.



          (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers unless the Trustee shall have received adequate
indemnity in its opinion against potential costs and liabilities incurred by it relating thereto.




          (e) Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 9.1.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




          Section 9.2 Rights of Trustee.




          Subject to Section 9.1:





     (a) The Trustee may rely conclusively on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, which shall conform to Section 13.4(b). The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on
such Officers’ Certificate or Opinion.




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




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




     (e) The Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and protection in
respect of any such action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.



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




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




     (h) Except with respect to Section 6.1, the Trustee shall have no duty to inquire as to
the performance of the Company with respect to the covenants contained in Article 6. In
addition, the Trustee shall not be deemed to have knowledge of an Event of Default except
(i) any Default or Event of Default occurring pursuant to Sections 6.1, 8.1(1) or 8.1(2) or
(ii) any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.




     (i) 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 to each agent,
custodian and other Person employed to act hereunder.




     (j) Delivery of reports, information and documents to the Trustee under Section 6.2 is
for informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).




     (k) 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.



          Section 9.3 Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee is subject to Sections 9.10 and 9.11.




          Section 9.4 Trustee’s Disclaimer.






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          The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its certificate of
authentication.




          Section 9.5 Notice of Default or Events of Default.




          If a default or an Event of Default occurs and is continuing and the Trustee has received
notice thereof, the Trustee shall mail to each Securityholder notice of the default or Event of
Default within 30 days after it occurs or, if later, within 15 Business Days after the Trustee has
received notice thereof. However, the Trustee may withhold the notice if and so long as such
default or Event of Default has been cured or waived, or a committee of its Trust Officers in good
faith determines that withholding notice is in the interests of Securityholders, except in the case
of a default or an Event of Default in payment of the principal of or interest on any Security.




          Section 9.6 Reports by Trustee to Holders.




          If such report is required by TIA Section 313, within 60 days after each December 15,
beginning with the December 15 following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such December 15 that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b)(2) and (c).




          A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Company and filed with the SEC and each stock exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee whenever the Securities become listed on any stock exchange
or listed or admitted to trading on any quotation system and any changes in the stock exchanges or
quotation systems on which the Securities are listed or admitted to trading and of any delisting
thereof.




          Section 9.7 Compensation and Indemnity.




          The Company shall pay to the Trustee from time to time such compensation (as agreed to from
time to time by the Company and the Trustee in writing) for its services (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances incurred or made by it. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.




          The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of this
Section 9.7 shall include its officers, directors, employees and agents) for, and hold it harmless
against, any and all loss, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), (including reasonable legal fees and
expenses) incurred by it in connection with the acceptance or administration of its duties under
this Indenture or any action or failure to act as authorized or within the discretion or rights or
powers conferred upon the Trustee hereunder including the reasonable costs and expenses of the
Trustee and its counsel in defending itself against any claim or liability in




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connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement without its written consent, which shall not be
unreasonably withheld.




          The Company need not reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by it resulting from its gross negligence or bad faith.




          To secure the Company’s payment obligations in this Section 9.7, the Trustee shall have a
senior claim to which the Securities are hereby made subordinate on all money or property held or
collected by the Trustee, except such money or property held in trust to pay the principal of and
interest on the Securities. The obligations of the Company under this Section 9.7 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
clause (7) or (8) of Section 8.1 occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this
Section shall survive the termination of this Indenture.




          Section 9.8 Replacement of Trustee




          The Trustee may resign by so notifying the Company. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may remove the Trustee by so notifying the
Trustee and may, with the Company’s written consent, appoint a successor Trustee. The Company may
remove the Trustee if:





     (1) the Trustee fails to comply with Section 9.10;




     (2) the Trustee is adjudged a bankrupt or an insolvent;




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




     (4) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. The resignation or removal of a
Trustee shall not be effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.




          If a successor Trustee does not take office within 45 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of 10% in principal amount of the
Securities then outstanding may petition any court of competent jurisdiction for the appointment of
a successor Trustee at the expense of the Company.





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          If the Trustee fails to comply with Section 9.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee and be released from its obligations
(exclusive of any liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
A successor Trustee shall mail notice of its succession to each Holder.




          A retiring Trustee shall not be liable for the acts or omissions of any successor Trustee
after its succession.




          Notwithstanding replacement of the Trustee pursuant to this Section 9.8, the Company’s
obligations under Section 9.7 shall continue for the benefit of the retiring Trustee.




          Section 9.9 Successor Trustee by Merger, Etc.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets (including the administration of this Indenture) to, another
corporation, the resulting, surviving or transferee corporation, without any further act, shall be
the successor Trustee, provided such transferee corporation shall qualify and be eligible
under Section 9.10. Such successor Trustee shall promptly mail notice of its succession to the
Company and each Holder.




          Section 9.10 Eligibility; Disqualification.




          The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA
Section 310(a). The Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000. If at any time the Trustee shall cease to satisfy any such
requirements, it shall resign immediately in the manner and with the effect specified in this
Article 9. The Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein
shall prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b).




          Section 9.11 Preferential Collection of Claims Against Company.




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




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ARTICLE X




SATISFACTION AND DISCHARGE OF INDENTURE




          Section 10.1 Satisfaction and Discharge of Indenture.




          This Indenture shall cease to be of further effect if:




          (a) either:





     (i) all outstanding Securities (other than Securities replaced pursuant to
Section 2.7) have been delivered to the Trustee for cancellation or




     (ii) all outstanding Securities have been called for Redemption or have become
due and payable at their scheduled maturity or upon repurchase pursuant to Sections
3.8 or 3.9,




and in any such case the Company irrevocably deposits, prior to the applicable date on which
such payment is due and payable, with the Trustee or the Paying Agent (if the
Paying Agent is not the Company or any of its Affiliates) Cash, and, if applicable as herein
provided and in accordance herewith, such other consideration, sufficient to pay all amounts
due and owing on all outstanding Securities (other than Securities replaced pursuant to
Section 2.7) on the Final Maturity Date or a Repurchase Date, Redemption Date or Fundamental
Change Repurchase Date, as the case may be;




     (b) the Company pays to the Trustee all other sums payable hereunder by the Company;




     (c) no Default or Event of Default with respect to the Securities shall exist on the
date of such deposit;




     (d) such deposit shall not result in a breach or violation of, or constitute a Default
or Event of Default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound; and




     (e) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel (which may rely upon such Officer’s Certificate as to the absence of Defaults and
Events of Default and as to any factual matters), each stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this Indenture have been
complied with.



          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 9.7 shall survive and, if money shall have been deposited with
the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6,
2.7, 2.12, 3.8 and 3.9, Article 4, the last paragraph of Section 6.1 and this Article 10, shall
survive until the Securities have been paid in full.




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          Section 10.2 Application of Trust Money.




          Subject to the provisions of Section 10.3, the Trustee or a Paying Agent shall hold in trust,
for the benefit of the Holders, all money deposited with it pursuant to Section 10.1 and shall
apply the deposited money in accordance with this Indenture and the Securities to the payment of
the principal of and interest on the Securities.




          Section 10.3 Repayment to Company.




          The Trustee and each Paying Agent shall promptly pay to the Company upon request any excess
money (i) deposited with them pursuant to Section 10.1 and (ii) held by them at any time.




          The Trustee and each Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years after a right to such
money has matured; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment, may at the expense of the
Company cause to be mailed to each Holder entitled to such money or publish in a newspaper of
general circulation in the City of New York notice that such money remains unclaimed and that after
a date specified therein, which shall be at least 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another person.




          Section 10.4 Reinstatement.




          If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
10.2 by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 10.1 until such time as the Trustee or such
Paying Agent is permitted to apply all such money in accordance with
Section 10.2; provided,
however, that if the Company has made any payment of the principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive any such payment from the money held by the Trustee or
such Paying Agent.




ARTICLE XI




AMENDMENTS, SUPPLEMENTS AND WAIVERS




          Section 11.1 Without Consent of Holders.




          The Company and the Trustee may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:





     (a) to comply with Sections 4.4, 7.1 and 7.2;



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     (b) to make any changes or modifications to this Indenture necessary in connection with
the registration of the public offer and sale of the Securities under the Securities Act
pursuant to the Registration Rights Agreement or the qualification of this Indenture under
the TIA;




     (c) to secure the obligations of the Company in respect of the Securities;




     (d) to add to the covenants of the Company described in this Indenture for the benefit
of Securityholders or to surrender any right or power conferred upon the Company;




     (e) to make provisions with respect to adjustments to the Conversion Rate as required
by this Indenture or to increase the Conversion Rate in accordance with this Indenture; and




     (f) to cure any ambiguity, defect, omission or inconsistency in this Indenture in a
manner that does not materially adversely affect the rights of any Holder.



          Section 11.2 With Consent of Holders.




          The Company and the Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. The Holders of at least a majority in aggregate principal amount of
the Securities then outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any Securityholder. However,
notwithstanding the foregoing but subject to Section 11.4, without the written consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver pursuant to Section
8.4, may not:





     (a) change the stated maturity of the principal of, or any installment of interest
(including Additional Interest, if any) on, any Security;




     (b) reduce the principal amount of, Redemption Price, Repurchase Price, Fundamental
Change Repurchase Price or any interest (including Additional Interest, if any) on, any
Security;




     (c) alter the manner of calculation or rate of accrual of interest (including
Additional Interest, if any) on or the Redemption Price, the Repurchase Price, or the
Fundamental Change Repurchase Price of any Security or extend the time or payment of any
such amount;




     (d) change the place or currency of payment of principal of, or any interest on
(including Additional Interest, if any), any Security;




     (e) impair the right of any Holder to institute suit for the enforcement of any
repurchase of, payment on or with respect to, or conversion of, any Security on or after the
stated maturity of the Securities, in the case of redemption, on or after the



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Redemption
Date, or in the case of repayment at the option of the Holder, on or after the Repurchase
Date or Fundamental Change Repurchase Date;





     (f) modify the optional redemption provisions of Article 3 in a manner adverse to the
Holders of Securities;




     (g) adversely affect the right of Holders to convert Securities other than as provided
in or under Article 4 of this Indenture;




     (h) adversely affect the right of Holders to require the Company to repurchase the
Security as provided in Sections 3.8 and 3.9;




     (i) reduce the percentage of the aggregate principal amount of the outstanding
Securities whose Holders must consent to a modification or amendment;




     (j) reduce the percentage of the aggregate principal amount of the outstanding
Securities necessary for the waiver of compliance with certain provisions of this Indenture
or the waiver of certain defaults under this Indenture;




     (k) modify any of the provisions of this Section 11.2 or Section 8.4, except to
increase any such percentage or to provide that certain provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each outstanding Security
affected thereby; and




     (l) modify the subordination provisions of the Securities in a manner adverse to the
Holders of the Securities; or .



          It shall not be necessary for the consent of the Holders under this Section 11.2 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.




          After an amendment, supplement or waiver under this Section 11.2 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.




          To the extent that the Company or any of the Subsidiaries hold any Securities, such Securities
shall be disregarded for purposes of voting in connection with any notice, waiver, consent or
direction requiring the vote or concurrence of Securityholders.




          Section 11.3 Compliance with Trust Indenture Act.




          Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA
as in effect at the date of such amendment or supplement.




          Section 11.4 Revocation and Effect of Consents.





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          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment, supplement or waiver becomes
effective.




          After an amendment, supplement or waiver becomes effective, it shall bind every
Securityholder, unless it makes a change described in any of clauses (a) through (k) of Section
11.2. In that case the amendment, supplement or waiver shall bind each Holder of a Security who
has consented to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security.




          Section 11.5 Notation on or Exchange of Securities.




          If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.




          Section 11.6 Trustee to Sign Amendments, Etc.




          The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this
Article 11 if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but
need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be provided with and, subject to Section 9.1, shall be fully protected in relying
upon, an Opinion of Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture. The Company may not sign an amendment or supplement indenture until
the Board of Directors approves it.




          Section 11.7 Effect of Supplemental Indentures.




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




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ARTICLE XII




[RESERVED]




ARTICLE XIII




MISCELLANEOUS




          Section 13.1 Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
any of Sections 310 to 317, inclusive, of the TIA through operation of Section 318(c) thereof, such
imposed duties shall control.




          Section 13.2 Notices.




          Any demand, authorization notice, request, consent or communication shall be given in writing
and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by delivery in person or mail by first-class mail,
postage prepaid, or by guaranteed overnight courier) to the following facsimile numbers:



If to the Company, to:



OSI Pharmaceuticals, Inc.

58 South Service Road, Suite 110

Melville, NY 11747

Attention of: General Counsel

Fax: (631) 752-3880



if to the Trustee, to:



The Bank of New York

101 Barclay Street, Fl. 8W

New York, New York

10286

Fax: (212) 815-5707




          Such notices or communications shall be effective when received.




          The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.




          Any notice or communication mailed to a Securityholder shall be mailed by first-class mail or
delivered by an overnight delivery service to it at its address shown on the register kept by the
Primary Registrar.





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




          Section 13.3 Communications By Holders with Other Holders.




          Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).




          Section 13.4 Certificate and Opinion as to Conditions Precedent.




          (a) Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of the Trustee:




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




          (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent (including any covenants, compliance with which constitutes a condition precedent) have
been complied with.




          (b) Each Officers’ Certificate and Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:




          (i) a statement that the person making such certificate or opinion has read such covenant or
condition;




          (ii) 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;




          (iii) a statement that, in the opinion of such person, 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




          (iv) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with;




          provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.




          Section 13.5 Record Date for Vote or Consent of Securityholders.





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          The Company (or, in the event deposits have been made pursuant to Section 10.1, the Trustee)
may set a record date for purposes of determining the identity of Holders entitled to vote or
consent to any action by vote or consent authorized or permitted under this Indenture, which record
date shall not be more than thirty (30) days prior to the date of the commencement of solicitation
of such action. Notwithstanding the provisions of Section 11.4, if a record date is fixed, those
persons who were Holders of Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to
be Holders after such record date.




          Section 13.6 Rules By Trustee, Paying Agent, Registrar and Conversion Agent.




          The Trustee may make reasonable rules (not inconsistent with the terms of this Indenture) for
action by or at a meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make
reasonable rules for its functions.




          Section 13.7 Legal Holidays.




          A “Legal Holiday” is a Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York and the state in which the Corporate Trust Office is located are
not required to be open. If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period. If a regular record date is a Legal Holiday, the record date shall not be affected.




          Section 13.8 Governing Law.




          This Indenture and the Securities shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to principles of conflicts of laws.




          Section 13.9 No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.




          Section 13.10 Successors.




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




          Section 13.11 Multiple Counterparts.




          The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent the same agreement.




83









 








          Section 13.12 Separability.




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




          Section 13.13 Table of Contents, Headings, Etc.




          The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.




          Section 13.14 No Recourse Against Others.




          No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder, employee, officer or
director, as such, of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.




          Section 13.15 Calculations in Respect of Securities.




          The Company or its agents will be responsible for making all calculations called for under the
Securities including, but not limited to, determination of the Market Price, Current Market Price
and Closing Sale Price of the Common Stock, the number of shares of Common Stock issuable upon
conversion and the amounts of interest (including Additional Interest, if any) on the Securities.
Any calculations made in good faith and without manifest error will be final and binding on Holders
of the Securities. The Company or its agents will be required to deliver to the Trustee a schedule
of its calculations and the Trustee will be entitled to conclusively rely upon the accuracy of such
calculations without independent verification. The Trustee has no duty to determine when such
calculations should be made, how they should be made or what the calculations should be and shall
not suffer any liability as a result thereof.




          Section 13.16 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, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.




          Section 13.17 Force Majeure.




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          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.




[SIGNATURE PAGE FOLLOWS]




85









 





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




	 	 	 	 	 
	 	 	OSI PHARMACEUTICALS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







86









 








EXHIBIT A




[FORM OF FACE OF SECURITY]




          [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]1




          [THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER: (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
‘‘QUALIFIED INSTITUTIONAL BUYER’’ (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES THAT
IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING THIS SECURITY OR
THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT, AND (3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR






 




			
	1	 	These paragraphs should be included only if the Security is a Global Security.




A-1









 









ANY BENEFICIAL INTEREST HEREIN OR THEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT
ONLY: (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]2




          [PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A DULY COMPLETED
AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO
THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS
BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT;]3




          [THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT
(AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE
HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.]4






 




			
	2	 	These paragraphs to be included only if the
Security is a Transfer Restricted Security.
	 
	3	 	These paragraphs to be included only if the
Security is a Transfer Restricted Security.
	 
	4	 	These paragraphs to be included only if the
Security is a Transfer Restricted Security.




A-2









 










OSI PHARMACEUTICALS, INC.




CUSIP No.: •




ISIN: •




2% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025




          OSI Pharmaceuticals, Inc., a Delaware corporation (the “Company,” which term shall include any
successor entity under the Indenture referred to on the reverse hereof), promises to pay to Cede &
Co., or registered assigns, the principal sum of ($ ) on December 15, 2025, or such greater or
lesser amount as is indicated on the Schedule of Exchanges of Notes on the other side of this Note
to reflect exchanges, redemptions, purchases and conversions.




	 	 	 
	Interest Payment Dates:

	 	June 15 and December 15, commencing June 15, 2006
	Record Dates:

	 	June 1 and December 1






          This Note is convertible as specified on the other side of this Note. Additional provisions
of this Note are set forth on the other side of this Note.




SIGNATURE PAGE FOLLOWS




A-3









 





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




	 	 	 	 	 
	 	 	OSI PHARMACEUTICALS, INC.
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






	 	 	 
	 

	 	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	 
	 	 
	 

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

	 	THE BANK OF NEW YORK, as Trustee
	 
	 	 
	 

	 	 
	 

	 	Authorized Signatory







A-4










 






[FORM OF REVERSE SIDE OF SECURITY]




OSI PHARMACEUTICALS, INC.




2% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025




1. INTEREST




          The Company promises to pay interest on the principal amount of this Note at the rate of 2%
per annum. The Company shall pay interest semiannually in arrears on June 15 and December 15 of
each year (each, an “Interest Payment Date”), commencing on June 15, 2006. Interest on
this Note shall accrue from the most recent date to which interest has been paid or provided for
or, if no interest has been paid, from December 21, 2005, to, but excluding, the next Interest
Payment Date or the Final Maturity Date, as the case may be;
provided, however, that if there is
not an existing default in the payment of interest and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. A Holder that surrenders this Note for conversion need not pay any
overdue interest that has accrued on the Note. Notwithstanding the foregoing, if this Note is
redeemed pursuant to Section 6 of this Note on a Redemption Date that is an Interest Payment Date,
the accrued and unpaid interest due on that Interest Payment Date will be paid to the Holder of the
Note at the close of business on the Regular Record Date for that interest payment.




          If this Note is redeemed pursuant to Section 6 of this Note, or the Holder elects to require
the Company to repurchase this Note pursuant to Section 8 of this Note, on a date that is after the
Regular Record Date and prior to the corresponding Interest Payment Date, interest (including
Additional Interest, if any) accrued and unpaid hereon to, but not including, the applicable
Redemption Date, Repurchase Date or Fundamental Change Repurchase Date will be paid to the same
Holder to whom the Company pays the principal of such Note regardless of whether such Holder was
the registered Holder on the Regular Record Date immediately preceding the applicable Redemption
Date, Repurchase Date or Fundamental Change Repurchase Date. A Holder that surrenders this Note
for conversion need not pay any overdue interest that has accrued on the Note. Notwithstanding the
foregoing, if this Note is redeemed pursuant to Section 6 of this Note on a Redemption Date that is
an Interest Payment Date, the accrued and unpaid interest due on that Interest Payment Date will be
paid to the Holder of the Note at the close of business on the Regular Record Date for that
interest payment.




          Interest (including Additional Interest, if any) on Notes converted after the close of
business on a Regular Record Date but prior to the opening of business on the corresponding
Interest Payment Date will be paid to the Holder of the Notes at the close of business on the June
1 or December 1 (whether or not a Business Day), as the case may be, next preceding the
corresponding Interest Payment Date (a “Regular Record Date”) but, upon conversion, the
Holder must pay the Conversion Agent, for the benefit of the Company, the interest (including
Additional Interest, if any) which has accrued and will be paid on such Interest Payment Date. No
such payment need be made with respect to Notes which will be converted after a Regular




1









 







Record Date and prior to the corresponding Interest Payment Date after being called for
redemption by the Company.




          Any reference herein to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable on such date as provided in Paragraph 2 hereof.




2. [REGISTRATION RIGHTS AGREEMENT




          The holder of this Note is entitled to the benefits of a Registration Rights Agreement, dated
as of December 21, 2005, among the Company and the Initial Purchasers (the “Registration Rights
Agreement”). In accordance with the terms of the Registration Rights Agreement, during the
first 90 days following the day on which an Event (as defined in the Registration Rights Agreement)
has occurred and is continuing, additional interest as liquidated damages will accrue on this Note
at the rate of 0.25% of the principal amount thereof per annum. From and after the 91st day
following the day on which an Event has occurred and such Event is continuing, the additional
interest as liquidated damages will accrue on this Note at the rate of 0.5% of the principal amount
thereof per annum. In no event shall the additional interest as liquidated damages accrue on this
Note at a rate exceeding 0.5% of the principal amount thereof per annum. Any amount of such
additional interest (“Additional Interest”) will be payable in cash semiannually, in
arrears, on each Interest Payment Date to Holders of record at the close of business on the
immediately preceding Regular Record Date and will cease to accrue on the date the Event is cured.
This description of certain provisions of the Registration Rights Agreement is qualified by
reference to, and is subject in its entirety to, the provisions of the Registration Rights
Agreement.]5




3. METHOD OF PAYMENT




          Except as provided herein, the Company shall pay interest (including Additional Interest, if
any) on this Note (except defaulted interest) to the person who is the Holder of this Note at the
close of business on the Regular Record Date, next preceding the related Interest Payment Date.
The Holder must surrender this Note to a Paying Agent to collect payment of principal. The Company
will pay principal and interest (including Additional Interest, if any) in money of the United
States that at the time of payment is legal tender for payment of public and private debts. The
Company shall pay principal and interest (including Additional Interest, if any) in respect of any
Security by check mailed to the registered address of the Holder
thereof; provided, however, that a
Holder of a Global Security will be paid by wire transfer in immediately available funds at the
election of such Holder if such Holder has provided wire transfer instructions to the Company at
least 10 Business Days prior to the payment date.




4. PAYING AGENT, REGISTRAR, BID SOLICITATION AGENT AND CONVERSION AGENT




          Initially, The Bank of New York (the “Trustee,” which term shall include any successor
trustee under the Indenture hereinafter referred to) will act as Paying Agent, Registrar,






 




			
	5	 	These paragraphs to be included only if the
Security is a Transfer Restricted Security.




2









 









Bid Solicitation Agent and Conversion Agent. The Company may change any Paying Agent,
Registrar, Bid Solicitation Agent or Conversion Agent without notice to the Holder. The Company or
any of its Subsidiaries may, subject to certain limitations set forth in the Indenture, act as
Paying Agent or Registrar.




5. INDENTURE, LIMITATIONS




          This Note is one of a duly authorized issue of Securities of the Company designated as its 2%
Convertible Senior Notes due 2025 (the “Notes”), issued under an Indenture dated as of
December 21, 2005 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. The terms of this Note include those stated in the Indenture
and those required by or made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended, as in effect on the date of the Indenture. This Note is subject to all such
terms, and the Holder of this Note is referred to the Indenture and said Act for a statement of
them. The Notes are unsecured senior subordinated obligations of the Company limited to
$115,000,000 aggregate principal amount. The Indenture does not limit other debt of the Company,
secured or unsecured.




6. OPTIONAL REDEMPTION




          The Notes are subject to redemption, at any time on or after December 15, 2010, as a whole or
from time to time in part, at the election of the Company. The Redemption Price is 100% of the
principal amount of the Notes to be redeemed, together under the circumstances described in Section
3.1 of the Indenture with accrued and unpaid interest (including Additional Interest, if any)
thereon up to but not including the Redemption Date.




          No sinking fund is provided for the Notes.




7. NOTICE OF REDEMPTION




          Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at its registered address.
Notes in denominations larger than $1,000 may be redeemed in part, but only in whole integral
multiples of $1,000. On and after the Redemption Date, subject to the deposit with the Paying
Agent of funds sufficient to pay the Redemption Price, interest (including Additional Interest, if
any) shall cease to accrue on Notes or portions of them called for redemption.




8. PURCHASE OF NOTES AT OPTION OF HOLDER OR UPON A FUNDAMENTAL CHANGE




          Subject to the terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, all or any portion of the Notes held by such Holder on
December 15, 2010, December 15, 2015 and December 15, 2020 in integral multiples of $1,000 at a
repurchase price equal to 100% of the principal amount of those Notes plus accrued and unpaid
interest (including Additional Interest, if any) to, but not including, such Repurchase Date (the
“Repurchase Price”). To exercise such right, a Holder shall deliver to the Paying Agent a
Repurchase Notice containing the information set forth in the Indenture, at any




3









 







time from 9:00 a.m., New York City time, on the date that is 20 Business Days immediately
preceding such Repurchase Date until 5:00 p.m., New York City time, on the Business Day immediately
preceding such Repurchase Date, and shall deliver the Securities to the Paying Agent as set forth
in the Indenture. The Repurchase Price for Notes to be so repurchased must be paid in Cash.




          Subject to the terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, all or any portion of the Notes held by such Holder upon a
Fundamental Change in integral multiples of $1,000 at the Fundamental Change Repurchase Price. To
exercise such right, a Holder shall deliver to the Paying Agent a Fundamental Change Repurchase
Notice containing the information set forth in the Indenture, at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date,
and shall deliver the Notes to the Paying Agent as set forth in the Indenture. The Fundamental
Change Repurchase Price must be paid in Cash.




          Holders have the right to withdraw any Repurchase Notice or Fundamental Change Repurchase
Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.




          If Cash sufficient to pay the Repurchase Price or Fundamental Change Repurchase Price, as the
case may be, of all Notes or portions thereof to be repurchased with respect to a Repurchase Date
or Fundamental Change Repurchase Date, as the case may be, has been deposited with the Paying
Agent, at 11:00 a.m., New York City time, on the Repurchase Date or Fundamental Change Repurchase
Date, as the case may be, then, on and after the Repurchase Date or Fundamental Change Repurchase
Date, as applicable, such Notes will cease to be outstanding and interest (including Additional
Interest, if any) on such Notes will cease to accrue and the Holder thereof shall have no other
rights as such other than the right to receive the Repurchase Price or Fundamental Change
Repurchase Price upon surrender of such Note.




9. CONVERSION




          Subject to and in compliance with the provisions of the Indenture (including, without
limitation, the conditions to conversion of this Security set forth in Section 4.1 and Section 4.2
thereof), a Holder is entitled, at such Holder’s option, to convert the Holder’s Note (or any
portion of the principal amount thereof that is $1,000 or an integral multiple $1,000), into shares
of Common Stock or, at the Company’s election, into Cash or a combination of shares of Common Stock
and Cash, at the Conversion Rate in effect on the date of conversion in accordance with Article 4
of the Indenture.




          The Company will notify Holders of any event triggering the right to convert the Notes as
specified above in accordance with the Indenture.




          A Note in respect of which a Holder has delivered a Repurchase Notice or Fundamental Change
Repurchase Notice, as the case may be, exercising the right of such Holder to require the Company
to repurchase such Note may be converted only if such Repurchase Notice or Fundamental Change
Repurchase Notice is withdrawn in accordance with the terms of the Indenture.




4









 








          The initial Conversion Rate is 33.9847 shares per $1,000 principal amount of Notes, subject to
adjustment in certain events as described in the Indenture.




          To surrender a Note for conversion, a Holder must, in the case of Global Securities, comply
with the Applicable Procedures of the Depositary in effect at that time, and in the case of
Certificated Notes, (1) surrender the Security to the Conversion Agent, (2) complete and manually
sign the conversion notice below (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, and (3) furnish appropriate endorsements and transfer
documents. Regarding conversions of both Global Securities and Certificated Notes, a Holder must
pay all funds required, if any, relating to interest (including Additional Interest, if any) and
any withholding, transfer or similar tax, if required.




          No fractional share of Common Stock shall be issued upon conversion of any Note. Instead, the
Company shall pay a Cash adjustment as provided in the Indenture.




          No payment or adjustment will be made for accrued and unpaid interest (including Additional
Interest, if any) or dividends on the shares of Common Stock, except as provided in the Indenture.




          The Conversion Rate is subject to adjustment as provided in Sections 4.3 and 4.13 of the
Indenture. As further provided in Section 4.4 of the Indenture and subject to Section 4.13 of the
Indenture, if the Company (i) is a party to a consolidation, merger, statutory share exchange or
combination of the Company with another corporation and as a result of which all the holders of the
outstanding Common Stock shall be entitled to receive stock, securities or other property or assets
(including Cash or a combination thereof) with respect to or in exchange for all of their Common
Stock, (ii) reclassifies or changes the shares of Common Stock into another class of Capital Stock
or (iii) sells, conveys, transfers, leases or otherwise disposes of its properties and assets as,
or substantially as, an entirety to any person, the right to convert a Note into shares of Common
Stock, Cash or a combination of shares of Common Stock and Cash shall be changed as provided in
said Section 4.4. If a Public Acquirer Fundamental Change occurs, the right to convert a Note into
shares of Common Stock, Cash or a combination of shares of Common Stock and Cash may be changed as
provided in Section 4.13(c) of the Indenture at the election of the Company.




10. OTHER ARRANGEMENT ON CALL FOR REDEMPTION




          Any Notes called for redemption, unless surrendered for conversion before the close of
business on the Business Day immediately preceding the Redemption Date, may be deemed to be
purchased from the Holders of such Notes at an amount not less than the Redemption Price, together
with accrued interest (including Additional Interest, if any) to, but not including, the Redemption
Date, by one or more investment bankers or other purchasers who may agree with the Company to
purchase such Notes from the Holders, and to make payment for such Notes to the Paying Agent in
trust for such Holders.




11. SUBORDINATION




          The payment of principal of and interest on the Notes will be subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full in cash or cash equivalents




5









 







of all Senior Indebtedness whether outstanding on the date of the Indenture or thereafter
incurred.




12. DENOMINATIONS, TRANSFER, EXCHANGE




          The Notes are in registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may register the transfer of or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes or other governmental charges that may be
imposed in relation thereto by law or permitted by the Indenture.




13. PERSONS DEEMED OWNERS




          The Holder of a Note may be treated as the owner of it for all purposes.




14. UNCLAIMED MONEY




          If money for the payment of principal or interest (including Additional Interest, if any)
remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company
at its written request, subject to applicable unclaimed property law. After that, Holders entitled
to money must look to the Company for payment as general creditors unless an applicable abandoned
property law designates another person.




15. AMENDMENT, SUPPLEMENT AND WAIVER




          Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, and an existing default or Event of Default and its consequence or compliance with any
provision of the Indenture or the Notes may be waived in a particular instance with the consent of
the Holders of a majority in aggregate principal amount of the Notes then outstanding. Without the
consent of or notice to any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency or make
any other change that does not adversely affect the rights of any Holder in any material respect.




16. SUCCESSOR ENTITY




          When a successor entity assumes all the obligations of its predecessor under the Notes and the
Indenture in accordance with the terms and conditions of the Indenture, the predecessor entity
(except in certain circumstances specified in the Indenture) shall be released from those
obligations.




17. DEFAULTS AND REMEDIES




          Under the Indenture, an Event of Default includes: (i) default for 30 days in payment of any
interest (including Additional Interest, if any) on any Notes; (ii) default in payment of any
principal on the Notes when due; (iii) failure by the Company to satisfy its




6









 







Conversion Obligation following the exercise by the Holder of the right to convert all or a
portion of this Note into shares of Common Stock, Cash or a combination of shares of Common Stock
and Cash; (iv) default in the payment of the Repurchase Price or the Fundamental Change Repurchase
Price when due; (v) failure to deliver a Repurchase Notice, a Fundamental Change Repurchase or a
notice relating to a Make-Whole Fundamental Change; (vi) failure by the Company for 60 days after
notice to it to comply with any of its other agreements contained in the Indenture or the Notes;
(vii) default on the payment or acceleration of the maturity of certain indebtedness of the Company
or a Subsidiary under the circumstances set forth in the Indenture; (vii) default by the Company or
a Subsidiary in the payment of certain judgments under the circumstances set forth in the
Indenture; and (viii) certain events of bankruptcy, insolvency or reorganization of the Company or
any Significant Subsidiary. If an Event of Default (other than as a result of certain events of
bankruptcy, insolvency or reorganization of the Company) occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then outstanding may declare
all unpaid principal to the date of acceleration on the Notes then outstanding to be due and
payable immediately, all as and to the extent provided in the Indenture. If an Event of Default
occurs as a result of certain events of bankruptcy, insolvency or reorganization of the Company,
unpaid principal of the Notes then outstanding shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder, all as and to the extent
provided in the Indenture. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default (except a default
in payment of principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as to the absence of
default.




18. TRUSTEE DEALINGS WITH THE COMPANY




          The Bank of New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the Company or an
Affiliate of the Company, and may otherwise deal with the Company or an Affiliate of the Company,
as if it were not the Trustee.




19. NO RECOURSE AGAINST OTHERS




          A director, officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Notes or the Indenture nor for any claim
based on, in respect of or by reason of such obligations or their creation. The Holder of this
Note by accepting this Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Note.




20. AUTHENTICATION




          This Note shall not be valid until the Trustee or an authenticating agent manually signs the
certificate of authentication on the other side of this Note.




7









 








21. ABBREVIATIONS AND DEFINITIONS




          Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors
Act).




          All terms defined in the Indenture and used in this Note but not specifically defined herein
are defined in the Indenture and are used herein as so defined.




22. INDENTURE TO CONTROL; GOVERNING LAW




          In the case of any conflict between the provisions of this Note and the Indenture, the
provisions of the Indenture shall control. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principals of conflicts of
law.




          The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: OSI Pharmaceuticals, Inc., 58 South Service Road, Suite 110,
Melville, NY 11747, Attention of: General Counsel.





8










 






ASSIGNMENT FORM




     To assign this Note, fill in the form below:



     I or we assign and transfer this Note to                                                             



	 	 	 
	 
	 	 
	 
	(Insert assignee’s soc. sec. or tax I.D. no.)

	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	(Print or type assignee’s name, address and zip code)







and irrevocably appoint




	 	 	 
	 
	agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him or her.






	 	 	 	 	 
	 	 Your Signature:

 	 
	Date:	 	 





	 	 	 	 	 
	 	 (Sign exactly as your name appears on the other side of this Note)

 	 
	*Signature guaranteed by:	 	 





By:






 




			
	* 	The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.	 




9









 










CONVERSION NOTICE





     To convert this Note, check the box:  ̈



     To convert only part of this Note, state the principal amount to be converted (must be $1,000
or a integral multiple of $1,000): $ .



     If you want the Cash paid to another person or the stock certificate, if any, made out in
another person’s name, fill in the form below:



	 	 	 
	 
	 	 
	 
	(Insert assignee’s soc. sec. or tax I.D. no.)

	 
	 	 
	 
	 
	 	 
	 
	 
	 	 
	 
	(Print or type assignee’s name, address and zip code)







	 	 	 	 	 
	 	 Your Signature:

 	 
	Date:	 	 





	 	 	 	 	 
	 	 (Sign exactly as your name appears on the other side of this Note)

 	 
	*Signature guaranteed by:	 	 




By:






 




			
	*	The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.	 




10









 










SCHEDULE
OF EXCHANGES OF NOTES6





     The following exchanges, redemptions, repurchases or conversions of a part of this Global
Security have been made:



	 	 	 	 	 
	Principal Amount of this

Global Security Following

Such Decrease Date of

Exchange (or Increase)

	 	Authorized Signatory of

Securities Custodian
	 	Amount of Decrease in

Principal Amount of this

Global Security








 




			
	6	 	This schedule should be included only if the
Security is a Global Security.




11









 










EXHIBIT B




CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF TRANSFER RESTRICTED SECURITIES7



Re: 2% Convertible Senior Notes due 2025 (the “Notes”) of OSI Pharmaceuticals, Inc.




     This certificate relates to $ principal amount of Notes owned in (check applicable box)



      ̈ book-entry or  ̈ definitive form by (the “Transferor”).



     The Transferor has requested a Registrar or the Trustee to exchange or register the transfer
of such Notes.



     In connection with such request and in respect of each such Note, the Transferor does hereby
certify that the Transferor is familiar with transfer restrictions relating to the Notes as
provided in Section 2.12 of the Indenture dated as of December 21, 2005 between OSI
Pharmaceuticals, Inc. and The Bank of New York, as trustee (the “Indenture”), and the
transfer of such Note is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities Act”) (check applicable box) or the
transfer or exchange, as the case may be, of such Note does not require registration under the
Securities Act because (check applicable box):



      ̈ Such Note is being transferred pursuant to an effective registration statement under
the Securities Act.



      ̈ Such Note is being acquired for the Transferor’s own account, without transfer.



      ̈ Such Note is being transferred to the Company or a Subsidiary (as defined in the
Indenture) of the Company.



      ̈ Such Note is being transferred to a person the Transferor reasonably believes is a
“qualified institutional buyer” (as defined in Rule 144A or any successor provision thereto
(“Rule 144A”) under the Securities Act) that is purchasing for its own account or for the
account of a “qualified institutional buyer,” in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in each case in reliance on Rule 144A.



      ̈ Such Note is being transferred pursuant to and in compliance with an exemption from
the registration requirements under the Securities Act in accordance with Rule 144 (or any
successor thereto) (“Rule 144”) under the Securities Act.





 




			
	7	 	This certificate should only be included if
this Security is a Transfer Restricted Security.




B-1









 










     Such Note is being transferred pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act (other than an exemption referred to above) and as
a result of which such Note will, upon such transfer, cease to be a “restricted security” within
the meaning of Rule 144 under the Securities Act.



     The Transferor acknowledges and agrees that, if the transferee will hold any such Notes in the
form of beneficial interests in a global Note which is a “restricted security” within the meaning
of Rule 144 under the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a “qualified institutional buyer” (as defined
in Rule 144A).



     Date:



	 	 	 	 	 
	 	
(Insert Name of Transferor)

 	 
	 	 	 
	 	 	 
	 	 	 
	 




B-2