Exhibit 4.2


 


FIRST SUPPLEMENTAL INDENTURE


 


BETWEEN


 


VERTEX PHARMACEUTICALS INCORPORATED,


 


AS ISSUER


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,


 


AS TRUSTEE


 


DATED AS OF SEPTEMBER 28, 2010


 


ESTABLISHING THE SERIES OF SECURITIES DESIGNATED AS


 


3.35% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2015


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  2

  
	
  Section 1.02

  	
  Other
  Definitions

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Designation,
  Form and Dating

  	
  10

  
	
  Section 2.02

  	
  Final
  Maturity Date; Interest

  	
  11

  
	
  Section 2.03

  	
  Denominations;
  Provisions for Payment

  	
  11

  
	
  Section 2.04

  	
  Conversion
  Agent

  	
  11

  
	
  Section 2.05

  	
  Conversion
  Agent to Hold Shares in Trust

  	
  13

  
	
  Section 2.06

  	
  Global
  Securities

  	
  13

  
	
  Section 2.07

  	
  References
  to Interest and Premium

  	
  14

  
	
  Section 2.08

  	
  Outstanding
  Securities

  	
  14

  
	
  Section 2.09

  	
  Treasury
  Securities

  	
  15

  
	
  Section 2.10

  	
  CUSIP
  Numbers

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND REPURCHASE
  OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Company’s
  Right to Redeem

  	
  15

  
	
  Section 3.02

  	
  Notices
  to Trustee

  	
  16

  
	
  Section 3.03

  	
  Selection
  of Securities To Be Redeemed

  	
  16

  
	
  Section 3.04

  	
  Notice
  of Redemption

  	
  17

  
	
  Section 3.05

  	
  Effect
  of Notice of Redemption

  	
  18

  
	
  Section 3.06

  	
  Deposit
  and Payment of Redemption Price

  	
  19

  
	
  Section 3.07

  	
  Repurchase
  of Securities at Option of the Holder upon a Fundamental Change

  	
  19

  
	
  Section 3.08

  	
  Effect
  of Fundamental Change Repurchase Notice

  	
  22

  
	
  Section 3.09

  	
  Deposit
  of Fundamental Change Repurchase Price

  	
  22

  
	
  Section 3.10

  	
  Repayment
  to the Company

  	
  22

  
	
  Section 3.11

  	
  Securities
  Purchased in Part

  	
  23

  
	
  Section 3.12

  	
  Compliance
  with Securities Laws upon Purchase of Securities

  	
  23

  
	
  Section 3.13

  	
  Purchase
  of Securities in Open Market

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Conversion
  Privilege and Conversion Rate

  	
  23

  
	
  Section 4.02

  	
  Conversion
  Procedure

  	
  26

  
	
  Section 4.03

  	
  Fractional
  Shares

  	
  27

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.04

  	
  Taxes
  on Conversion

  	
  27

  
	
  Section 4.05

  	
  Company
  to Provide Common Stock

  	
  28

  
	
  Section 4.06

  	
  Adjustment
  of Conversion Rate

  	
  28

  
	
  Section 4.07

  	
  No
  Adjustment

  	
  36

  
	
  Section 4.08

  	
  Notice
  of Adjustment

  	
  37

  
	
  Section 4.09

  	
  Notice
  of Certain Transactions

  	
  37

  
	
  Section 4.10

  	
  Effect
  of Reclassification, Consolidation, Merger or Sale on Conversion Privilege

  	
  37

  
	
  Section 4.11

  	
  Trustee’s
  Disclaimer

  	
  38

  
	
  Section 4.12

  	
  Voluntary
  Increase

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUBORDINATION

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Securities
  Subordinated to Senior Debt

  	
  39

  
	
  Section 5.02

  	
  Subrogation

  	
  40

  
	
  Section 5.03

  	
  Obligation
  of the Company Is Absolute and Unconditional

  	
  41

  
	
  Section 5.04

  	
  Maturity
  of or Default on Senior Debt

  	
  41

  
	
  Section 5.05

  	
  Payments
  on Securities Permitted

  	
  41

  
	
  Section 5.06

  	
  Effectuation
  of Subordination by Trustee

  	
  41

  
	
  Section 5.07

  	
  Knowledge
  of Trustee

  	
  42

  
	
  Section 5.08

  	
  Trustee’s
  Relation to Senior Debt

  	
  42

  
	
  Section 5.09

  	
  Rights
  of Holders of Senior Debt Not Impaired

  	
  43

  
	
  Section 5.10

  	
  Modification
  of Terms of Senior Debt

  	
  43

  
	
  Section 5.11

  	
  Certain
  Conversions Not Deemed Payment

  	
  43

  
	
  Section 5.12

  	
  No
  Layering of Debt

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Payment
  of Securities

  	
  44

  
	
  Section 6.02

  	
  Corporate
  Existence

  	
  45

  
	
  Section 6.03

  	
  Maintenance
  of Properties

  	
  45

  
	
  Section 6.04

  	
  Payment
  of Taxes and Other Claims

  	
  45

  
	
  Section 6.05

  	
  Reports

  	
  45

  
	
  Section 6.06

  	
  Compliance
  Certificate

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  CONSOLIDATION; MERGER;
  CONVEYANCE; TRANSFER OR LEASE

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  46

  
	
  Section 7.02

  	
  Successor
  Substituted

  	
  47

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Events
  of Default

  	
  48

  
	
  Section 8.02

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
  49

  
	
  Section 8.03

  	
  Other
  Remedies

  	
  50

  
	
  Section 8.04

  	
  Waiver
  of Past Defaults

  	
  50

  
	
  Section 8.05

  	
  Control
  by Majority

  	
  51

  
	
  Section 8.06

  	
  Limitation on Suit

  	
  51

  
	
  Section 8.07

  	
  Unconditional
  Rights of Holders to Receive Payment and to Convert

  	
  52

  
	
  Section 8.08

  	
  Collection
  of Indebtedness and Suits for Enforcement by the Trustee

  	
  52

  
	
  Section 8.09

  	
  Trustee
  May File Proofs of Claim

  	
  53

  
	
  Section 8.10

  	
  Restoration
  of Rights and Remedies

  	
  53

  
	
  Section 8.11

  	
  Rights
  and Remedies Cumulative

  	
  54

  
	
  Section 8.12

  	
  Delay
  or Omission Not Waiver

  	
  54

  
	
  Section 8.13

  	
  Application
  of Money Collected

  	
  54

  
	
  Section 8.14

  	
  Undertaking
  for Costs

  	
  54

  
	
  Section 8.15

  	
  Waiver
  of Stay or Extension Laws

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Certain
  Duties and Responsibilities

  	
  55

  
	
  Section 9.02

  	
  Certain
  Rights of Trustee

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  AMENDMENTS; SUPPLEMENTS
  AND WAIVERS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Without
  Consent of Holders

  	
  56

  
	
  Section 10.02

  	
  With
  Consent of Holders

  	
  57

  
	
  Section 10.03

  	
  Revocation
  and Effect of Consents

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Satisfaction
  and Discharge of Indenture

  	
  59

  
	
  Section 11.02

  	
  Deposited
  Cash to be Held in Trust

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  MEETING OF HOLDERS OF
  SECURITIES

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Purposes
  for Which Meetings May Be Called

  	
  60

  
	
  Section 12.02

  	
  Call
  Notice and Place of Meetings

  	
  60

  
	
  Section 12.03

  	
  Persons
  Entitled to Vote at Meetings

  	
  60

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 12.04

  	
  Quorum;
  Action

  	
  61

  
	
  Section 12.05

  	
  Determination
  of Voting Rights; Conduct and Adjournment of Meetings

  	
  61

  
	
  Section 12.06

  	
  Counting
  Votes and Recording Action of Meetings

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Notices

  	
  62

  
	
  Section 13.02

  	
  Acts
  of Holders of Securities

  	
  63

  
	
  Section 13.03

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  64

  
	
  Section 13.04

  	
  Governing
  Law

  	
  64

  
	
  Section 13.05

  	
  Counterparts

  	
  64

  
	
  Section 13.06

  	
  Legal
  Holidays

  	
  64

  
	
  Section 13.07

  	
  Calculations
  in Respect of Securities

  	
  65

  
	
  Section 13.08

  	
  No
  Security Interest Created

  	
  65

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Note

  	
  1

  
				



 


iv
















 


FIRST
SUPPLEMENTAL INDENTURE (the “Supplemental
Indenture”), dated as of September 28, 2010, between VERTEX
PHARMACEUTICALS INCORPORATED, a corporation duly organized and existing under
the laws of the Commonwealth of Massachusetts, having its principal office at
130 Waverly Street, Cambridge, Massachusetts 02139, and U.S. BANK NATIONAL
ASSOCIATION, as trustee, having its principal corporate trust office at One
Federal Street, Boston, Massachusetts 02110, supplementing and amending the
Subordinated Indenture (the “Base
Indenture”) dated as of September 28, 2010 between the Company
and the Trustee.


 


RECITALS


 


WHEREAS,
the Company executed and delivered the Base Indenture to the Trustee to provide
for, among other things, the issuance from time to time of the Company’s debt
securities in one or more series as might be authorized under the Base
Indenture;


 


WHEREAS,
the Base Indenture provides that the Company and the Trustee may enter into an
Indenture supplemental to the Base Indenture to establish the form and terms of
any series of Securities (as defined in Section 1.01 of the Base Indenture) as
provided by Section 2.01 of the Base Indenture;


 


WHEREAS,
the Company desires to enter into this Supplemental Indenture to provide for
the establishment of a series of Securities (as defined in Section 1.01 of the
Base Indenture) to be known as the 3.35% Convertible Senior Subordinated Notes
due 2015, the form, substance, terms, provisions and conditions of which shall
be set forth in Article 2 of the Base Indenture as supplemented by this
Supplemental Indenture, as the same may be further amended and supplemented
from time to time (being hereinafter called this “Indenture”);


 


WHEREAS,
this Supplemental Indenture shall apply only to the 3.35% Convertible Senior
Subordinated Notes due 2015 and not to any other series of Securities (as
defined in Section 1.01 of the Base Indenture) issued under the Base Indenture;


 


WHEREAS,
the Board of Directors of the Company has duly adopted resolutions authorizing
the Company to issue the Securities provided for in this Supplemental
Indenture; and


 


WHEREAS,
the Company has requested that the Trustee execute and deliver this
Supplemental Indenture and has satisfied all requirements necessary to make (i)
this Supplemental Indenture a valid instrument in accordance with its terms and
(ii) the Securities provided for hereby, when executed and delivered by the
Company and authenticated by the Trustee, a series of Securities that are the
valid obligations of the Company.


 


NOW, THEREFORE, THIS INDENTURE
WITNESSETH:


 


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


 

















 


Article 1

Definitions and Incorporation by Reference


 


Section
1.01                  Definitions.  Unless otherwise specified herein or the
context otherwise requires:


 


(a)  a term defined in the Base Indenture has the
same meaning when used in this Supplemental Indenture unless the definition of
such term is amended or supplemented pursuant to this Supplemental Indenture;


 


(b)  the terms defined in this Article and in this
Supplemental Indenture include the plural as well as the singular;


 


(c)  a reference to a Section or Article is to a Section
or Article of this Supplemental Indenture;


 


(d)  Article and Section headings herein and the
table of contents hereof are for convenience only and shall not affect the
construction hereof; and


 


(e)  the following terms have the meanings given to
them in this Section 1.01(e):


 


“5-Day Volume-Weighted Average Price”
means the per share volume-weighted average price as displayed under the
heading “Bloomberg VWAP” on Bloomberg page “VRTX.UQ <equity> AQR” (or its
equivalent successor if such page is not available) in respect of the five
trading day period from the scheduled open of trading on the trading day
immediately following the Notice Date until the scheduled close of trading of
the primary trading session on the last trading day of that five trading day
period (or if such volume-weighted average price is unavailable, the market
value of one share of Common Stock during that five trading day period
determined, using a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for this purpose by the
Company).  The 5-Day Volume-Weighted
Average Price will be determined without regard to after hours trading or any
other trading outside of the regular trading session trading hours.


 


“Affiliate” of any specified person
means any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For the
purposes of this definition, “control” (including, with correlative meanings,
the terms “controlled by” and “under common control with”), as used with
respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such person, whether through the ownership of voting securities or by agreement
or otherwise.


 


“Agent” means any Security Registrar,
Paying Agent, co-agent, co-registrar or Service Agent.


 


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


 


2

















 


“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 as Exhibit A but that does not
include the information called for by footnote 1 thereof or the attached
schedule of exchanges.


 


“Change in Control” means the occurrence
of any of the following events from and after the Issue Date:


 


(i)
any “person” or “group” (as such terms are used in Section 13(d)(3) of the
Exchange Act or any successor provision to the foregoing), including any group
acting for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 13d–5(b)(1) under the Exchange Act, other than the Company,
any of its Subsidiaries or any of its employee benefit plans, is or becomes the
“beneficial owner” (as defined in Rule 13d–3 under the Exchange Act), directly
or indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of 50% or more of the total voting power of all classes
of the Company’s Voting Stock;


 


(ii)
the Company consolidates with, or merges with or into, another person (as such
term is used in Sections 13(d)(3) of the Exchange Act) or any person
consolidates or merges with or into the Company, or the Company conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any person, other than (x) any transaction that (A) does not result
in any reclassification, conversion, exchange or cancellation of outstanding
shares of the Company’s Capital Stock, and (B) pursuant to which holders of the
Company’s Capital Stock immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Voting Stock of the continuing or surviving
entity of such transaction; or (y) any merger solely for the purpose of
changing the Company’s jurisdiction of formation and resulting in a
reclassification, conversion or exchange of outstanding shares of Common Stock
solely into shares of common stock of the surviving entity; notwithstanding
anything to the contrary set forth herein, a Change in Control will be deemed
not to have occurred if, in the case of a merger or consolidation, at least 90%
of the consideration (excluding cash payments for fractional shares and cash
payments made in respect of dissenters’ appraisal rights) in a transaction or
transactions otherwise constituting a Change in Control consists of shares of
common stock traded on a U.S. national securities exchange, or which will be so
traded when issued or exchanged in connection with the transaction or
transactions, and as a result of the transaction or transactions the Securities
become convertible solely into such common stock;


 


(iii)
during any consecutive two-year period, individuals who at the beginning of
that two-year period constituted the Board of Directors (together with any new
directors whose election to such Board of Directors, or whose nomination for
election by stockholders of the Company, was approved by a vote of a majority
of the directors then still in office who were 


 


3

















 


either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason (other than death) to
constitute a majority of the Board of Directors then in office; or


 


(iv)
the Company’s stockholders approve a plan of liquidation or dissolution.


 


“Closing Price” means, on any Trading
Day, the reported last sale price per share of the Common Stock (or the other
security in respect of which the Closing Price is being determined), or if no
last sale price is reported, the average of the bid and ask prices per share
or, if more than one in either case, the average of the average bid and the
average ask prices per share, on such date reported by the Nasdaq Global Select
Market or, if the Common Stock (or the applicable security) is not listed on
the Nasdaq Global Select Market, as reported by the principal national
securities exchange on which the Common Stock (or such other security) is
listed, or if no such prices are available, the Closing Price per share shall
be the fair value of a share of Common Stock (or such other security) as
reasonably determined by the Board of Directors (which determination shall be
conclusive and shall be evidenced by an Officers’ Certificate delivered to the
Trustee).


 


“Common Stock” means the common stock of
the Company, par value $0.01 per share, as it exists on the date of this
Supplemental Indenture and any shares of any class or classes of Capital Stock
of the Company resulting from any reclassification or reclassifications
thereof, or, in the event of a merger, consolidation or other similar
transaction involving the Company that is otherwise permitted hereunder in
which the Company is not the surviving corporation the common stock, common
equity interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its
direct or indirect parent corporation, 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 Order” means a written order
signed in the name of the Company by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal
accounting officer.


 


“Conversion Agent” means any Person
authorized by the Company to convert Securities in accordance with Article 4
hereof.


 


“Conversion Price” per share of Common
Stock as of any day means the result obtained by dividing (i) $1,000 by (ii) the
then applicable Conversion Rate.


 


“Conversion Rate” means the rate at
which shares of Common Stock shall be delivered upon conversion, which rate shall
be initially 20.4794 shares of Common Stock for each $1,000 principal amount of
Securities, as adjusted from time to time pursuant to the provisions of this
Indenture.


 


4

















 


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


 


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


 


“Final Maturity Date” means October 1,
2015.


 


“Final Prospectus” means the prospectus
of the Company dated February 19, 2010 together with the prospectus supplement
thereto with respect to the Securities dated September 23, 2010.


 


“Fundamental Change” means the
occurrence of either a Change in Control or a Termination of Trading.


 


“Fundamental Change Effective Date”
means the date on which any Fundamental Change becomes effective.


 


“Fundamental Change Repurchase Price” of
any Security means 100% of the principal amount of the Security to be
repurchased plus unpaid interest, including Special Interest, if any, accrued
and unpaid to, but excluding, the Fundamental Change Repurchase Date.


 


“GAAP” means generally accepted
accounting principles in the United States of America as in effect from time to
time, 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, and (3) such other statements by such other entity as approved
by a significant segment of the accounting profession.


 


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


 


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


 


“Indebtedness,” when used with respect
to any Person, and without duplication means:


 


(i)
all indebtedness, obligations and other liabilities (contingent or otherwise)
of such Person for borrowed money (including obligations of such person in
respect of overdrafts and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds, notes or
other instruments for the payment of money, or incurred in connection with the
acquisition of any property, services or assets (whether or not the recourse of
the lender is to the whole of the assets of such Person or to only a portion
thereof), other than any account payable or other accrued current liability or
obligation to trade creditors incurred in the ordinary course of business in
connection with the obtaining of materials or services;


 


5

















 


(ii)
all reimbursement obligations and other liabilities (contingent or otherwise)
of such Person with respect to letters of credit, bank guarantees, bankers’
acceptances, surety bonds, performance bonds or other guaranty of contractual
performance;


 


(iii)
all obligations and liabilities (contingent or otherwise) in respect of (a) leases
of such Person required, in conformity with GAAP, to be accounted for as
capitalized lease obligations on the balance sheet of such Person and (b) any
lease or related documents, including a purchase agreement, in connection with
the lease of real property which provides that such Person is contractually
obligated to purchase or cause a third party to purchase the leased property
and thereby guarantee a minimum residual value of the leased property to the
landlord and the obligations of such Person under such lease or related
document to purchase or to cause a third party to purchase the leased property;


 


(iv)
all obligations of such Person (contingent or otherwise) with respect to an
interest rate or other swap, cap or collar agreement or other similar
instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement;


 


(v)
all direct or indirect guaranties or similar agreements by such Person in
respect of, and obligations or liabilities (contingent or otherwise) of such
Person to purchase or otherwise acquire or otherwise assure a creditor against
loss in respect of, indebtedness, obligations or liabilities of another Person
of the kind described in clauses (i) through (iv);


 


(vi)
any indebtedness or other obligations described in clauses (i) through (iv) secured
by any mortgage, pledge, lien or other encumbrance existing on property which
is owned or held by such Person, regardless of whether the indebtedness or
other obligation secured thereby shall have been assumed by such Person; and


 


(vii)
any and all deferrals, renewals, extensions, refinancings, replacements,
restatements and refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described in clauses (i) through
(vi).


 


“Interest Payment Date” means each date
specified as such in Exhibit A.


 


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


 


“Maturity” means the date on which the
principal of such Security becomes due and payable as therein or herein
provided, whether at the Final Maturity Date or by acceleration, conversion,
exercise of a repurchase right or otherwise.


 


“Officer” means the Chief Executive
Officer, any President, any Vice-President, the Treasurer, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.


 


“Regular Record Date” means, with
respect to each Interest Payment Date, March 15 or September 15, as the case
may be, next preceding such Interest Payment Date.


 


6

















 


“Rights” means any common stock or
preferred stock purchase right or warrant, as the case may be, that all or
substantially all shares of Common Stock are entitled to receive under a Rights
Plan.


 


“Rights Plan” means the Company’s
preferred shares rights plan in connection with the Rights Agreement, dated as
of July 1, 1991, as amended, and any preferred shares rights plan or any
similar plan adopted by the Company after the date hereof.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities” means the up to
$400,000,000 aggregate principal amount of 3.35% Convertible Senior
Subordinated Notes due 2015, 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 Debt” means the principal of,
premium, if any, interest (including interest, to the extent allowable,
accruing subsequent to the filing of a petition initiating any proceeding under
any state, federal or foreign bankruptcy law, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and rent
payable on or termination payments with respect to or in connection with, and
all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company, whether outstanding on the date of this
Supplemental Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by the Company (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to,
the foregoing), except for:


 


(i)
Indebtedness that by its terms expressly provides that it shall not be senior
in right of payment to the Securities or expressly provides that such
Indebtedness is equal with or junior to the Securities; and


 


(ii)
Indebtedness between or among the Company or any of the Subsidiaries of the
Company.


 


“Significant Subsidiary” means (i) any
direct or indirect Subsidiary of the Company that would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company
that, taken together as a group, would be a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date hereof.


 


“Special Record Date” for the payment of
any Defaulted Interest means a date fixed by the Company pursuant to Section 2.03
of the Base Indenture.


 


7

















 


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


 


“Stock Price” means the price paid per
share of the Common Stock in connection with a Fundamental Change as determined
pursuant to Section 4.01(e).


 


“Termination of Trading” means the
occurrence of the Common Stock (or other common stock for which the Securities
are then convertible) not being listed for trading on a United States national
securities exchange nor approved for on any United States system of automated
dissemination of quotations of securities prices or approved for trading on an
established automated over-the-counter trading market in the United States.


 


“TIA” means the Trust Indenture Act of
1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this
Supplemental Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act as so amended.


 


“Trading Day” means any day on which the
Nasdaq Global Select Market or, if the Common Stock is not listed on the Nasdaq
Global Select Market, the principal national securities exchange on which the
Common Stock is listed, is open for trading or, if the Common Stock is listed
on the New York Stock Exchange, a day on which trades may be made on such
market or, if the applicable Security is not so listed, admitted for trading or
quoted, any Business Day. A Trading Day only includes those days that have a
scheduled closing time of 4:00 p.m. (New York City time) or the then-standard
closing time for regular trading on the relevant exchange or trading system.


 


“Underwriter” means Merrill Lynch,
Pierce, Fenner & Smith Incorporated.


 


“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 within the control of such person to satisfy) to
vote in the election of directors, managers or trustees thereof.


 


Section
1.02                  Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Additional Payment upon Provisional Redemption”

  	
   

  	
  3.01(a)

  
	
  “Agent Members”

  	
   

  	
  2.06(b)

  
	
  “Bankruptcy Law”

  	
   

  	
  8.01

  
	
  “Base Indenture”

  	
   

  	
  Recitals

  
	
  “Board Resolution”

  	
   

  	
  Base
  Indenture

  
	
  “Business Day”

  	
   

  	
  Base
  Indenture

  



 


8

















 


	
  “Company”

  	
   

  	
  Base
  Indenture

  
	
  “Conversion Agent”

  	
   

  	
  2.04

  
	
  “Conversion Date”

  	
   

  	
  4.02(a)

  
	
  “Current Market Price”

  	
   

  	
  4.06(a)(8)

  
	
  “Defaulted Interest”

  	
   

  	
  Base
  Indenture

  
	
  “Depositary”

  	
   

  	
  Base
  Indenture

  
	
  “Drop Agent’s Office”

  	
   

  	
  2.04

  
	
  “Event of Default”

  	
   

  	
  8.01

  
	
  “Expiration Time”

  	
   

  	
  4.06(a)(7)

  
	
  “Fundamental Change Company Notice”

  	
   

  	
  3.07(b)

  
	
  “Fundamental Change Repurchase Date”

  	
   

  	
  3.07(a)

  
	
  “Fundamental Change Repurchase Notice”

  	
   

  	
  3.07(c)

  
	
  “Indenture”

  	
   

  	
  Recitals

  
	
  “Make-Whole Premium”

  	
   

  	
  4.01(e)

  
	
  “Measurement Period”

  	
   

  	
  4.06(a)(4)

  
	
  “Notice Date”

  	
   

  	
  3.04

  
	
  “Officers’ Certificate”

  	
   

  	
  Base
  Indenture

  
	
  “Opinion of Counsel”

  	
   

  	
  Base
  Indenture

  
	
  “Paying Agent”

  	
   

  	
  2.04

  
	
  “Person”

  	
   

  	
  Base
  Indenture

  
	
  “Purchased Shares”

  	
   

  	
  4.06(a)(7)(i)

  
	
  “record date”

  	
   

  	
  4.06(a)(8)(C)

  
	
  “Receiver”

  	
   

  	
  8.01

  
	
  “Redemption Notice”

  	
   

  	
  3.01

  
	
  “Redemption Price”

  	
   

  	
  3.01

  
	
  “Redemption Date”

  	
   

  	
  3.01

  
	
  “Reference Period”

  	
   

  	
  4.06(a)(4)

  
	
  “Responsible Officer”

  	
   

  	
  Base
  Indenture

  
	
  “Security Registrar”

  	
   

  	
  Base
  Indenture

  
	
  “Service Agent”

  	
   

  	
  2.04

  
	
  “Special Interest”

  	
   

  	
  8.02

  
	
  “Spin-off”

  	
   

  	
  4.06(a)(4)

  



 


9

















 


	
  “Subsidiary”

  	
   

  	
  Base
  Indenture

  
	
  “Supplemental Indenture”

  	
   

  	
  Recitals

  
	
  “Trigger Event”

  	
   

  	
  4.06(a)(4)

  
	
  “Trustee”

  	
   

  	
  Base
  Indenture

  
	
  “Underwriting Agreement”

  	
   

  	
  2.01

  



 


Article 2

The Securities


 


Section 2.01                  Designation, Form and Dating.


 


There
is hereby authorized a series of senior subordinated unsecured Securities
designated as “3.35% Convertible Senior Subordinated Notes due 2015.” The
Securities are being offered and sold pursuant to an Underwriting Agreement,
dated as of September 23, 2010 (the “Underwriting
Agreement”), between the Company and the Underwriter.


 


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


 


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


 


The
Depositary for the Securities shall be The Depository Trust Company.  Subject to Section 2.06 hereof, so long as
the Securities are eligible for book-entry settlement with the Depositary, or
unless otherwise required by law, all of the Securities will be represented by
one or more Global Securities. The transfer and exchange of beneficial
interests in any such Global Security shall be effected through the Depositary
in accordance with this Indenture and the Applicable Procedures.


 


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
principal amount of outstanding Securities from time to time endorsed thereon
and that the aggregate principal 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.


 


10
















 


Section 2.02           Final Maturity Date; Interest.


 


The
Final Maturity Date of the Securities shall be October 1, 2015.


 


The
rate or rates at which the Securities shall bear interest, including Special
Interest, if any, the date or dates from which such interest shall accrue and
the Interest Payment Dates on which such interest shall be payable, in each
case, shall be as set forth in the form of Security set forth as Exhibit A
hereto.


 


Section 2.03           Denominations; Provisions for
Payment.


 


Two Officers shall sign the Securities for the
Company by manual or facsimile signature.


 


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


 


The Trustee shall authenticate Securities for
original issue in the aggregate principal amount up to $400,000,000 aggregate
principal amount upon receipt by the Trustee of a Company Order. Such Company
Order may authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing. Each Security shall
be dated the date of its authentication unless otherwise provided by a Board
Resolution, a supplemental indenture hereto or an Officers’ Certificate.


 


Section 2.04           Conversion Agent.


 


The
Company shall maintain an office or agency where Securities of such Series may
be presented or surrendered for payment (“Paying
Agent”), where the Securities may be surrendered for
registration of transfer or exchange (the Security Registrar) and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served (“Service Agent”).
The Security Registrar shall keep a register with respect to the Securities and
to their transfer and exchange. The Company will give prompt written notice to
the Trustee of the name and address, and any change in the name or address, of
each Security Registrar, Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required Security Registrar, Paying
Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.


 


The
Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligations to maintain a Security Registrar, Paying Agent and Service
Agent in each place for the Securities for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the name or address of any such co-registrar, additional
paying agent or additional service agent. The term 


 


11

















 


“Security
Registrar” includes any co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Service Agent” includes any additional
service agent.


 


The
Company hereby appoints the Trustee the initial Security Registrar, Paying
Agent and Service Agent for the Securities unless another Security Registrar,
Paying Agent or Service Agent, as the case may be, is appointed prior to the
time the Securities are first issued.


 


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


 


The
Company shall maintain an office or agency where Securities may be presented
for conversion (the “Conversion Agent”).
The Company hereby initially designates the Trustee as the Conversion Agent.
The Company further designates the office of the Trustee’s drop agent in New
York City (U.S. Bank National Association, 100 Wall Street, New York, New York
10005) (the “Drop Agent’s Office”)
as its office in The City of New York where Securities may be:


 


(1) presented
or surrendered for payment;


 


(2) surrendered
for registration of transfer or exchange; or


 


(3) surrendered
for conversion;


 


and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served.


 


The
Company may at any time and from time to time vary or terminate the appointment
of any such office or appoint any additional offices for any or all of such
purposes; provided, however, that
until all of the Securities have been delivered to the Trustee for
cancellation, or moneys sufficient to pay the principal of and premium, if any,
and interest, including Special Interest, if any, on the Securities have been
made available for payment and either paid or returned to the Company pursuant
to the provisions of Section 11.05 of the Base Indenture, the Company will
maintain in The City of New York an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and notice to the Holders, of the appointment or
termination of any such agents and of the location and any change in the
location of any such office or agency.


 


If
at any time the Company shall fail to maintain any such required office or
agency in The City of New York, or shall fail to furnish the Trustee with the
address thereof, presentations and surrenders may be made at, and notices and
demands may be served on, the Drop Agent’s Office.


 


The
Company may also from time to time designate one or more Conversion Agents and
from time to time rescind such designations. The Company will give prompt
written notice to the 


 


12

















 


Trustee
of any such designation or rescission and of any change in the name or address
of such Conversion Agent.


 


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


 


Section 2.05           Conversion Agent to Hold Shares in
Trust.


 


The
Company shall require each Conversion Agent other than the Trustee to agree in
writing that the Conversion Agent will hold in trust for the benefit of Holders
or the Trustee all shares of Common Stock held by the Conversion Agent for the
delivery of Common Stock when due upon conversion, and will notify the Trustee
in writing of any default by the Company in making any such delivery. While any
such default continues, the Trustee may require a Conversion Agent to deliver
all shares of Common Stock held by it to the Trustee. The Company at any time
may require a Conversion Agent to pay all money held by it to the Trustee. Upon
such acknowledgement by the Trustee of its receipt of any such payment, the
Conversion Agent (if other than the Company or a Subsidiary) shall have no
further liability for such money. If the Company or a Subsidiary acts as
Conversion Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all shares held by it as Conversion Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Conversion Agent for the Securities.


 


Section 2.06           Global Securities.


 


(a)  Subject to the
provisions of Section 2.06(d), the registered Holder may grant proxies and
otherwise authorize any Person, including Agent Members (as defined in Section 2.06(d))
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.


 


(b)  In the event of
the occurrence of any of the events specified in Section 2.11(c) of
the Base Indenture, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form, without interest coupons.


 


(c)  Neither any
members of, or participants in, the Depositary (collectively, the “Agent
Members”) nor any other Persons
on whose behalf Agent Members may act shall have any rights under this
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 or the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its Agent
Members and any other person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of the
rights of a holder of any Security.


 


13

















 


(d)  At such time as
all interests in a Global Security have been repurchased, converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall,
upon receipt thereof, be cancelled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Securities
Custodian, subject to Section 2.08 of the Base Indenture. At any time
prior to such cancellation, if any interest in a Global Security is
repurchased, converted, cancelled or exchanged for Securities in certificated
form, the principal amount of such Global Security shall, in accordance with
the standing procedures and instructions existing between the Depositary and
the Securities Custodian, be appropriately reduced, and an endorsement shall be
made on such Global Security, by the Trustee or the Securities Custodian, at
the direction of the Trustee, to reflect such reduction.


 


Section 2.07           References to Interest and Premium.


 


For
the avoidance of doubt, references to “interest” in this Indenture include
Special Interest and references to “premium” in this Indenture include any
applicable Additional Payment upon Provisional Redemption, in each case except
as the context otherwise requires.


 


Section 2.08           Outstanding Securities.


 


This
Section 2.08 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, the definition of “Outstanding”
in Section 1.01 of the Base Indenture and applies to use of the word “outstanding”
in this Indenture whether upper-case or lower-case, unless otherwise specified
herein or the context otherwise requires.


 


The
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security effected by
the Trustee in accordance with the provisions hereof and those described in
this Section 2.08 as not outstanding.


 


If
a Security is replaced pursuant to Section 2.07 of the Base Indenture, it
ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.


 


If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds on the Maturity of the Securities money sufficient to pay such
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue.


 


A
Security does not cease to be outstanding because the Company or an Affiliate
holds the Security.


 


In
determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 8.02.


 


14

















 


Section 2.09           Treasury Securities.


 


In
determining whether the Holders of the required principal amount of the
Securities have concurred in any request, demand, authorization, direction,
notice, consent or waiver the Securities owned by the Company or an Affiliate
shall be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver only Securities that the
Trustee knows are so owned shall be so disregarded.


 


Section 2.10           CUSIP Numbers.


 


The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption 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 and that reliance may be placed only on
the other elements of identification printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.


 


Article 3

Redemption and Repurchase of Securities


 


Section 3.01           Company’s Right to Redeem.


 


(a) Provisional Redemption.  Prior to October 1, 2013, the Securities
will be subject to redemption at the option of the Company, in whole or in
part, upon notice to Holders as provided in Section 3.04, at a Redemption
Price equal to 100% of the principal amount of the Securities to be redeemed; provided that such right may be exercised
only if the Closing Price of the Common Stock has exceeded 130% of the
applicable Conversion Price (as determined pursuant to the applicable Conversion
Rate) for at least 20 Trading Days within a period of 30 consecutive Trading
Days ending on the Trading Day prior to the Notice Date.  Upon any redemption pursuant to this Section 3.01(a),
the Company shall make an additional payment (the “Additional
Payment upon Provisional Redemption”)
with respect to the Securities called for redemption to Holders of record
thereof on the Notice Date in an amount equal to $100.50 per $1,000 principal
amount of Securities, less the amount of any interest paid on such Securities
from their issuance.  On the redemption
date (the “Redemption Date”) set forth in the Redemption Notice in respect of any redemption
pursuant to this Section 3.01(a), the Company shall make the Additional
Payment upon Provisional Redemption in respect of all Securities called for
redemption, including any Securities submitted for conversion after the Notice
Date and before the Redemption Date.


 


The
Company may, at its option, pay the Additional Payment upon Provisional
Redemption in shares of Common Stock in lieu of cash, so long as (i) the
Common Stock is then listed on a national securities exchange and (ii) the
Company registers the delivery of such Common Stock as payment under the
Securities Act and applicable state securities laws, in each case to the extent
required in order to deliver unrestricted Common Stock.  The number of shares of Common Stock
deliverable to a Holder in lieu of cash as an Additional Payment upon 


 


15

















 


Provisional
Redemption shall be equal to the cash amount otherwise payable divided by 98%
of the 5-Day Volume-Weighted Average Price of a share of the Common Stock on
the Notice Date.  The Company shall pay
cash in lieu of fractional shares (in an amount determined by multiplying the
number of fractional shares otherwise deliverable by the 5-Day Volume-Weighted
Average Price of the Common Stock on the Notice Date) of Common Stock that
would otherwise be deliverable in the event the Company elects to deliver
Common Stock pursuant to this paragraph. 
If the conditions hereunder to payment of the Additional Payment upon
Provisional Redemption in Common Stock are not satisfied with respect to a
Holder prior to the close of business on the relevant Redemption Date, the
Company shall pay the Additional Payment upon Provisional Redemption in respect
of the Securities of such Holder entirely in cash.  To elect to pay the Additional Payment upon
Provisional Redemption in Common Stock, the Company must include notice of this
election in the Redemption Notice provided in accordance with Section 3.04
hereof, which shall be irrevocable, and may not change such election
thereafter.


 


(b)           Optional Redemption.  On or after October 1, 2013, the
Securities will be subject to redemption at the option of the Company, in whole
or in part, upon notice to Holders as provided in Section 3.04, at a
Redemption Price equal to a percentage
of the principal amount of the Securities to be redeemed set forth below, plus
accrued and unpaid interest, if any, to but excluding the Redemption Date.


 


	
  From and after

  	
   

  	
  Redemption

  Price

  	
   

  
	
  October 1, 2013

  	
   

  	
  101.34

  	
  %

  
	
  October 1, 2014

  	
   

  	
  100.67

  	
  %

  



 


(c)           If a Redemption Date occurs after a Regular Record Date or
a Special Record Date but on or prior to the corresponding Interest Payment
Date or Defaulted Interest payment date, the Company will pay the applicable
interest payment to the record Holder on the Regular Record Date or Special
Record Date corresponding to such Interest Payment Date or Defaulted Interest
payment date (and, in the case of any redemption pursuant to Section 3.01(b),
such payment shall be in lieu of paying interest in connection with such
redemption).


 


Section 3.02           Notices to Trustee.


 


If
the Company elects to redeem Securities pursuant to the provisions of paragraph 5
of the Securities and Section 3.01 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a Redemption Date
(unless a shorter period shall be satisfactory to the Trustee), an Officers’
Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur (ii) the information described in
clauses (1)-(11) of Section 3.04 hereof (which amended and superseded Section 3.02
of the Base Indenture).


 


Section 3.03           Selection of Securities To Be
Redeemed.  If less than all the
Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed on a pro rata basis, by lot or by any other method that the Trustee
considers fair and appropriate. The Trustee shall make the selection not more
than 60 days and not less than 30 days before the Redemption Date 


 


16

















 


from Securities outstanding and not previously
called for redemption. The Trustee may select for redemption a portion of the
principal of any Securities that has a denomination larger than $1,000.
Securities and portions thereof will be redeemed in the amount of $1,000 or
integral multiples of $1,000.


 


Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be called for
redemption.


 


If
any Security selected for partial redemption is converted in part after such
selection, the converted portion of such Security shall be deemed (so far as
possible) to be the portion to be selected for redemption. The Securities (or
portion thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Security is converted in
whole or in part before the mailing of the Redemption Notice. Upon any
redemption of less than all the Securities, the Company and the Trustee may
treat as outstanding any Securities surrendered for conversion during the
period of 15 days immediately preceding the mailing of a notice of redemption
and need not treat as outstanding any Security authenticated and delivered
during such period in exchange for the unconverted portion of any Security
converted in part during such period.


 


In
the event of any redemption of less than all the Securities, the Company will
not be required to (i) issue or register the transfer or exchange of any
Security during a period of 15 days immediately preceding the mailing of a
notice of redemption for such Securities for redemption, or (ii) register
the transfer or exchange of any Security so selected for redemption, in whole
or in part, except the unredeemed portion of any Security being redeemed in
part, in which case the Company will execute and the Trustee will authenticate
and deliver to the Holder a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.


 


Section 3.04           Notice of Redemption.


 


This
Section 3.04 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, Section 3.02 of the
Base Indenture.


 


At
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail by first class mail a notice of redemption (a “Redemption Notice”) to each Holder
whose Securities are to be redeemed, at such Holder’s registered address.


 


The
notice shall identify the Securities to be redeemed and shall state:


 


(1) the
Redemption Date;


 


(2) the
Redemption Price and, if redemption is made pursuant to Section 3.01(b),
the amount of any accrued and unpaid interest payable on the Redemption Date;


 


(3) 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
surrender of such Security, a 


 


17

















 


new
Security or Securities in principal amount equal to the unredeemed portion will
be issued in the name of the Holder thereof;


 


(4) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and, if redemption is made pursuant to Section 3.01(b),
any accrued and unpaid interest;


 


(5) that
interest on Securities called for redemption and for which funds have been set
apart for payment, ceases to accrue on and after the Redemption Date (unless
the Company defaults in the payment of the Redemption Price or (a) if
redemption is made pursuant to Section 3.01(a), the Additional Payment
upon Provisional Redemption or (b) if redemption is made pursuant to Section 3.01(b),
any accrued and unpaid interest);


 


(6) the
aggregate principal amount of Securities (if less than all) that are being
redeemed;


 


(7) the
CUSIP number of the Securities (provided
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP numbers printed in the notice or on the
Securities and that reliance may be placed only on the other identification
numbers printed on the Securities);


 


(8) the
name and address of the Paying Agent;


 


(9) that
Securities called for redemption may be converted at any time prior to the
close of business on the last Trading Day immediately preceding the Redemption
Date and if not converted prior to the close of business on such date, the
right of conversion will be lost;


 


(10) that
in the case of Securities or portions thereof called for redemption on a date
that is also an Interest Payment Date or a Defaulted Interest payment date, the
interest due on such date shall be paid to the Holder of such Security at the
close of business on the relevant Regular Record Date or Special Record Date;
and


 


(11)
if redemption is made pursuant to Section 3.01(a), the amount of the
Additional Payment upon Provisional Redemption and whether the Company will
make payment of the Additional Payment upon Provisional Redemption in cash or
in shares of Common Stock.


 


The
notice, if mailed in the manner herein provided, shall be conclusively presumed
to have been given, whether or not the Holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to any
Holder designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any Security.


 


At
the Company’s request, the Trustee shall give notice of redemption in the
Company’s name and at the Company’s expense.


 


Section 3.05           Effect of Notice of Redemption.  Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price set forth in the Security.


 


18

















 


Section 3.06           Deposit and Payment of Redemption
Price.


 


Section 3.03(a) of
the Base Indenture shall continue in full force and effect; provided, however,
that Section 3.03(a) of the Base Indenture shall not apply to
Securities or portions thereof called for redemption that are submitted for
conversion pursuant to Article 4 of this Indenture prior to the applicable
Redemption Date.


 


On
or before 11:00 a.m. New York City time on the Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent money in
immediately available funds sufficient to pay the Redemption Price of and
accrued interest, if any, on all Securities to be redeemed on that date. The
Trustee or the Paying Agent shall return to the Company any money not required
for that purpose.


 


On
and after the Redemption Date, unless the Company shall default in the payment
of the Redemption Price or, in the case of redemption pursuant to Section 3.01(a),
the Additional Payment upon Provisional Redemption or, in the case of
redemption pursuant to Section 3.01(b), any accrued and unpaid interest,
interest will cease to accrue on the principal amount of the Securities or
portions thereof called for redemption and for which funds have been set apart
for payment, and such Securities shall cease after the close of business on the
Business Day immediately preceding the Redemption Date to be convertible into
Common Stock and, except as provided in this Section 3.06, to be entitled
to any benefit or security under the Indenture, and the Holders thereof shall
have no right in respect of such Securities or portions thereof except the
right to receive the Redemption Price thereof and, in the case of redemption
pursuant to Section 3.01(a), the Additional Payment upon Provisional
Redemption or, in the case of redemption pursuant to Section 3.01(b),
accrued but unpaid interest to (but excluding) the Redemption Date. In the case
of Securities or portions thereof redeemed on a Redemption Date which is after
a Regular Record Date and on or prior to the corresponding Interest Payment
Date, the interest due on such date shall be paid to the Person in whose name
the Security is registered at the close of business on the relevant Regular
Record Date.  For the avoidance of doubt,
the Company shall not be obligated to make duplicative payments in respect of
such interest and, in the case of redemption pursuant to Section 3.01(a),
accrued interest paid to the Holder of a Security on a Regular Record Date
pursuant to the preceding sentence will be excluded in calculating the
Additional Payment upon Provisional Redemption and, in the case of redemption
pursuant to Section 3.01(b), interest paid to the Holder of a Security on
a Regular Record Date pursuant to the preceding sentence shall not also be
payable in respect of such redemption.


 


Section 3.07           Repurchase of Securities at Option
of the Holder upon a Fundamental Change.


 


(a)   If a Fundamental Change occurs prior to the Final Maturity Date, each
Holder of a Security shall have the right, at the option of the Holder, to
require the Company to repurchase for cash all or any portion of the Securities
of such Holder equal to $1,000 principal amount (or an integral multiple
thereof) at the Fundamental Change Repurchase Price, on the date specified by
the Company that is 45 days after the date of the Fundamental Change Company
Notice pursuant to Section 3.07(b) (the “Fundamental
Change Repurchase Date”).


 


(b)  As promptly as
practicable following the date on which the Company publicly announces a
Fundamental Change, but in no event less than 20 days prior to the anticipated
effective date of a Fundamental Change, the Company shall mail a written notice
of the 


 


19

















 


Fundamental Change and of the resulting repurchase
right to the Trustee, Paying Agent and to each Holder (and to beneficial owners
as required by applicable law) (the “Fundamental Change Company Notice”). The Fundamental Change Company Notice shall include the form of a
Fundamental Change Repurchase Notice to be completed by the Holder and shall
state:


 


(1) the
events causing such Fundamental Change;


 


(2) the
date (or expected date) of such Fundamental Change;


 


(3) the
last date by which the Fundamental Change Repurchase Notice must be delivered
to elect the repurchase option pursuant to this Section 3.07;


 


(4) the
Fundamental Change Repurchase Date;


 


(5) the
Fundamental Change Repurchase Price;


 


(6) the
Holder’s right to require the Company to purchase the Securities;


 


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


 


(8) the
then-effective Conversion Rate and any adjustments to the Conversion Rate resulting
from such Fundamental Change;


 


(9) whether
a Make-Whole Premium shall be payable by the Company upon conversion;


 


(10) the
procedures that the Holder must follow to exercise rights under Article 4;


 


(11)
the procedures that the Holder must follow to exercise rights under this Section 3.07;


 


(12)
that, unless the Company fails to pay such Fundamental Change Repurchase Price,
Securities covered by any Fundamental Change Repurchase Notice will cease to be
outstanding and interest, including Special Interest, if any, will cease to
accrue on and after the Fundamental Change Repurchase Date, subject to Section 3.09
hereof; and


 


(13)
the CUSIP number of the Securities.


 


At
the Company’s written request, the Trustee shall give such Fundamental Change
Company Notice in the Company’s name and at the Company’s expense; provided that, in all cases, the Company
makes such request at least three (3) Business Days prior to the date by
which such Fundamental Change Company Notice must be given to the Holders in
accordance with this Section 3.07; provided,
further, that the text of such Fundamental Change Company Notice
shall be prepared by the Company. In connection with the delivery of the
Fundamental Change Company Notice to the Holders, the Company shall disseminate
a press release through Dow Jones & Company, Inc. or Bloomberg
Business News, or publish a notice containing substantially the same
information that is required in the Fundamental Change Company Notice in a
newspaper of general circulation in The City of New York, or publish
information on a website of the Company or through such other public medium the
Company may use at that time. If any of the Securities is in the form of a
Global Security, then the Company shall modify 


 


20

















 


such
notice to the extent necessary to accord with the Applicable Procedures
relating to the purchase of Global Securities.


 


No
failure of the Company to give the foregoing notices or defect therein shall
limit any Holder’s right to exercise its right to cause the Company to
repurchase such Holder’s Securities pursuant to this Section 3.07.


 


(c)  A Holder may
exercise its rights specified in Section 3.07(a) upon delivery of a
written notice (which shall be in substantially the form included in Exhibit A
under the heading “Fundamental Change Repurchase Notice” and which may be
delivered by letter, overnight courier, hand delivery, facsimile transmission
or in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Depositary’s
Applicable Procedures) of the exercise of such rights (a “Fundamental
Change Repurchase Notice”)
to the Paying Agent at any time prior to the close of business on the 30th day
following the date of the Fundamental Change Company Notice, subject to
extension to comply with applicable law.


 


(1) The
Fundamental Change Repurchase Notice shall state: (A) the certificate
number (if such Security is held other than in global form) of the Security which
the Holder will deliver to be repurchased (or, if the Security is held in
global form, any other items required to comply with the Applicable
Procedures), (B) the portion of the principal amount of the Security which
the Holder will deliver to be repurchased and, (C) that such Security
shall be repurchased as of the Fundamental Change Repurchase Date pursuant to
the terms and conditions specified in the Securities and in this Indenture.


 


(2) The
delivery of a Security for which a Fundamental Change Repurchase Notice has
been timely delivered to any Paying Agent on or after the Fundamental Change
Repurchase Date (together with all necessary endorsements) at the office of
such Paying Agent shall be a condition to the receipt by the Holder of the
Fundamental Change Repurchase Price therefor.


 


(3) The
Company shall only be obliged to purchase, pursuant to this Section 3.07,
a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple of $1,000 (provisions of this Indenture that apply to the
purchase of all of a Security also apply to the purchase of such portion of
such Security).


 


(4) A
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Notice.


 


(5) Anything
herein to the contrary notwithstanding, in the case of Global Securities, any
Fundamental Change Repurchase Notice may be delivered and such Securities may
be surrendered or delivered for purchase in accordance with the Applicable
Procedures as in effect from time to time.


 


(6) A
Fundamental Change Repurchase Notice shall be irrevocable, except that the
right of the Holder to convert the Securities that are the subject of the
Fundamental Change Repurchase Notice shall continue until the close of business
on the second Business Day immediately preceding the Fundamental Change
Repurchase Date.


 


21
















 


(d)  The Company
shall deposit cash, at the time and in the manner as provided in Section 3.09,
sufficient to pay the aggregate Fundamental Change Repurchase Price of all
Securities to be purchased pursuant to this Section 3.07.


 


Section 3.08           Effect of Fundamental Change
Repurchase Notice.


 


Upon
receipt by any Paying Agent of a properly completed Fundamental Change
Repurchase Notice from a Holder, the Holder of the Security in respect of which
such Fundamental Change Repurchase Notice was given shall thereafter be
entitled to receive the Fundamental Change Repurchase Price with respect to
such Security, subject to the occurrence of the Fundamental Change Effective
Date. Such Fundamental Change Repurchase Price shall be paid to such Holder
promptly, but no later than two Business Days, following the later of (1) the
Fundamental Change Repurchase Date (provided
that the conditions in Section 3.07 have been satisfied), and (2) the
time of delivery of such Security to a Paying Agent by the Holder thereof in
the manner required by Section 3.07(c).


 


Section 3.09           Deposit of Fundamental Change
Repurchase Price.


 


(a)  On or before
10:00 a.m. New York City time on the Business Day following the applicable
Fundamental Change Repurchase Date, the Company shall deposit with the Paying
Agent (or, if the Company or an Affiliate of the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 4.03
of the Base Indenture) an amount of money (in immediately available funds if
deposited on or after such Fundamental Change Repurchase Date) sufficient to
pay the aggregate Fundamental Change Repurchase Price of all the Securities or
portions thereof that are to be purchased as of the Fundamental Change
Repurchase Date.


 


(b)  If a Paying
Agent holds on the Business Day following the Fundamental Change Repurchase
Date, in accordance with the terms hereof, money sufficient to pay the
Fundamental Change Repurchase Price of any Security for which a Fundamental
Change Repurchase Notice has been tendered and not withdrawn in accordance with
this Indenture then, immediately following the applicable Fundamental Change
Repurchase Date, whether or not the Security is delivered to the Paying Agent,
each such Security will cease to be outstanding, interest, including Special
Interest, if any, shall cease to accrue, and the rights of the Holder in
respect of the Security shall terminate (other than the right to receive the
Fundamental Change Repurchase Price upon delivery of the Security as
aforesaid).


 


(c)  If a Fundamental
Change Repurchase Date falls after a Regular Record Date and on or before the
related Interest Payment Date, then interest on the Securities payable on such
Interest Payment Date will be payable to the Holders in whose names the
Securities are registered at the close of business on such Regular Record Date.


 


Section 3.10           Repayment to the Company.


 


To
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.09 exceeds the aggregate Fundamental Change Repurchase Price
of the Securities or 


 


22

















 


portions
thereof that the Company is obligated to purchase, then promptly after the
Fundamental Change Repurchase Date the Paying Agent shall return any such
excess cash to the Company.


 


Section 3.11           Securities Purchased in Part.


 


Any
Security that is to be purchased only in part shall be surrendered at the
office of a Paying Agent, and, promptly after the Fundamental Change Repurchase
Date, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge, a new Security or
Securities, of such authorized denomination or denominations as may be
requested by such Holder (which must be equal to $1,000 principal amount or any
integral thereof), in aggregate principal amount equal to, and in exchange for,
the portion of the principal amount of the Security so surrendered that is not
purchased.


 


Section 3.12           Compliance with Securities Laws
upon Purchase of Securities.


 


In
connection with any offer to purchase Securities under Section 3.07, the
Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any
successor to either such Rule), and any other tender offer rules, if
applicable, under the Exchange Act, (b) file the related Schedule TO (or
any successor or similar schedule, form or report) if required under the
Exchange Act, and (c) otherwise comply with all federal and state
securities laws in connection with such offer to purchase or purchase of
Securities, all so as to permit the rights of the Holders and obligations of
the Company under Sections 3.07 through 3.10 to be exercised in the time and in
the manner specified therein. To the extent that compliance with any such laws,
rules and regulations would result in a conflict with any of the terms
hereof, this Indenture is hereby modified to the extent required for the
Company to comply with such laws, rules and regulations.


 


Section 3.13           Purchase of Securities in Open
Market.


 


The
Company shall surrender any Security repurchased by the Company pursuant to
this Article 3 to the Trustee for cancellation. Any Securities surrendered
to the Trustee for cancellation may not be reissued or resold by the Company
and will be cancelled promptly in accordance with Section 2.08 of the Base
Indenture. The Company may purchase Securities in the open market, by tender at
any price or pursuant to private agreements.


 


Article 4

Conversion


 


Section 4.01           Conversion Privilege and
Conversion Rate.


 


(a)  The conversion
rights pursuant to this Article 4 shall commence on the Issue Date of the
Securities and expire at the close of business on the second Business Day
immediately preceding the Final Maturity Date, subject, in the case of
conversion of any Global Security, to any Applicable Procedures. If a Security
is submitted or presented for purchase or redemption pursuant to Article 3,
such conversion right shall terminate at the close of business on the second
Business Day immediately preceding the Fundamental Change Repurchase Date or Redemption
Date for such Security (unless the Company shall fail to make the Fundamental
Change Repurchase Price or Redemption Price payment when due in accordance with
Article 3, in which 


 


23

















 


case the conversion right shall terminate at the
close of business on the date such failure is cured and such Security is
purchased or redeemed).


 


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


 


(c)  A Holder of
Securities is not entitled to any rights of a holder of Common Stock until such
Holder has converted its Securities into Common Stock, and only to the extent
such Securities are deemed to have been converted into Common Stock pursuant to
this Article 4.


 


(d)  The Conversion
Rate shall be adjusted in certain instances as provided in Section 4.01(e) and
Section 4.06.


 


(e)  If there shall
have occurred a transaction described in clause (i) or (ii) of the
definition of a Change in Control, the Company shall pay a “Make-Whole
Premium” to the Holders of the
Securities who convert their Securities during the period beginning 20 days
before the anticipated Fundamental Change Effective Date until the close of
business on the Business Day immediately preceding the Fundamental Change
Repurchase Date by increasing the Conversion Rate for such Securities. The
number of additional shares of Common Stock per $1,000 principal amount of
Securities constituting the Make-Whole Premium shall be determined by reference
to the table (the “Make-Whole Table”) set forth below in this Section 4.01(e),
based on the Fundamental Change Effective Date of such Fundamental Change and
the Stock Price; provided that if
the Stock Price or Fundamental Change Effective Date are not set forth on the
Make-Whole Table: (i) if the actual Stock Price on the Fundamental Change
Effective Date is between two Stock Prices on the table or the actual
Fundamental Change Effective Date is between two Fundamental Change Effective
Dates on the table, the Make-Whole Premium will be determined by a
straight-line interpolation between the Make-Whole Premiums set forth for the
two Stock Prices and the two Fundamental Change Effective Dates on the
Male-Whole Table based on a 365-day year, as applicable, (ii) if the Stock
Price on the Fundamental Change Effective Date exceeds $180.00 per share,
subject to adjustment as set forth herein, no Make-Whole Premium will be paid,
and (iii) if the Stock Price on the Fundamental Change Effective Date is
less than $36.17 per share, subject to adjustment as set forth herein, no
Make-Whole Premium will be paid. If Holders of the Common Stock receive only
cash in the transaction, the Stock Price shall be the cash amount paid per
share of the Common Stock in connection with the Fundamental Change. Otherwise,
the Stock Price shall be equal to the average Closing Price of the Common Stock
over the 15 Trading Day period ending on the Trading Day immediately preceding,
and excluding, the applicable Fundamental Change Effective Date.


 


Make-Whole Premium Upon a Fundamental Change (Number of Additional
Shares)


 


	
   

  	
   

  	
  Effective Date

  	
   

  
	
  Stock
  Price on

  Effective Date

  	
   

  	
  September 28,

  2010

  	
   

  	
  October 1,

  2011

  	
   

  	
  October 1,

  2012

  	
   

  	
  October 1,

  2013

  	
   

  	
  October 1,

  2014

  	
   

  	
  October 1,

  2015

  	
   

  
	
  $

  	
  36.17

  	
   

  	
  7.1678

  	
   

  	
  7.1678

  	
   

  	
  7.1678

  	
   

  	
  7.1678

  	
   

  	
  7.1678

  	
   

  	
  7.1678

  	
   

  
	
  $

  	
  40.00

  	
   

  	
  5.5972

  	
   

  	
  5.2650

  	
   

  	
  4.8010

  	
   

  	
  4.5206

  	
   

  	
  4.5206

  	
   

  	
  4.5206

  	
   

  
	
  $

  	
  45.00

  	
   

  	
  4.1374

  	
   

  	
  3.6841

  	
   

  	
  3.0411

  	
   

  	
  1.7428

  	
   

  	
  1.7428

  	
   

  	
  1.7428

  	
   

  
	
  $

  	
  48.83

  	
   

  	
  3.3316

  	
   

  	
  2.8316

  	
   

  	
  2.1407

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  60.00

  	
   

  	
  1.9064

  	
   

  	
  1.3715

  	
   

  	
  0.7815

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  70.00

  	
   

  	
  1.3264

  	
   

  	
  0.8946

  	
   

  	
  0.4424

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  80.00

  	
   

  	
  1.0759

  	
   

  	
  0.7263

  	
   

  	
  0.3583

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  100.00

  	
   

  	
  0.7836

  	
   

  	
  0.5411

  	
   

  	
  0.2700

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  140.00

  	
   

  	
  0.5050

  	
   

  	
  0.3561

  	
   

  	
  0.1776

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  $

  	
  180.00

  	
   

  	
  0.3581

  	
   

  	
  0.2561

  	
   

  	
  0.1264

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


24

















 


The
Stock Prices set forth in the first column of the Make-Whole Table will be
adjusted as of any date on which the Conversion Rate of the Securities is
adjusted other than an adjustment pursuant to the Make-Whole Premium pursuant
to this Section 4.01(e). The adjusted Stock Prices will 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 number of additional shares
set forth in the Make-Whole Table will be adjusted in the same manner as the
Conversion Rate as set forth in Section 4.06 hereof.


 


Notwithstanding
the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed 27.6472 per $1,000
principal amount, subject to proportional adjustment in the same manner as the
Conversion Rate as set forth in clauses (1) through (7) of Section 4.06(a) hereof.


 


The
Make-Whole Premium will be in addition to, and not in substitution for, any
cash, securities or other assets otherwise due to Holders of the Securities
upon the conversion of a Security (including any Additional Payment upon
Provisional Redemption, if applicable).


 


(f)  By delivering
the number of shares of Common Stock issuable on conversion to the Trustee plus
a cash payment for a fractional share, the Company will be deemed to have
satisfied its obligation to pay the principal amount of the Securities so
converted and its obligation to pay accrued and unpaid interest, including
Special Interest, if any, attributable to the period from the most recent
Interest Payment Date through the Conversion Date (which amount will be deemed
cancelled, extinguished and forfeited).


 


Additional
shares of Common Stock constituting the Make-Whole Premium will be delivered to
the converting Holder upon the later of (i) the settlement of conversion
pursuant to Section 4.02 and (ii) the Fundamental Change Effective
Date.


 


(g)  A conversion of
the Securities by a Holder will be deemed for purposes of Section 4.01(e) to
be “in connection with” certain Fundamental Change transactions if the
conversion notice is received by the Conversion Agent on or subsequent to the
date 20 calendar days prior to the date announced by the Company as the
anticipated Fundamental Change Effective Date of the related Fundamental Change
but before the close of business on the Business Day immediately preceding the
related Fundamental Repurchase Date. The Company will notify Holders of
Securities of the anticipated Fundamental Change Date as promptly as
practicable following the date the Company publicly announces such Fundamental
Change, but in no event less than 20 days prior to such date.


 


25

















 


Section 4.02           Conversion Procedure.


 


(a)  To convert a
Security, a Holder must (1) complete and manually sign the conversion
notice on the back of the Security and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, which shall
become irrevocable upon receipt by the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Security
Registrar or the Conversion Agent, (4) pay an amount equal to the
interest, including Special Interest, if any, as required by Section 4.02(c),
and (5) pay all transfer or similar taxes, if required pursuant to Section 4.04.
The date on which the Holder satisfies all of those requirements is the “Conversion
Date.” Upon the conversion of
a Security, the Company will deliver the shares of Common Stock, without
service charge, as promptly as practicable after the Conversion Date, but in no
event later than third Business Days after the Conversion Date. Anything herein
to the contrary notwithstanding, in the case of Global Securities, conversion notices
may be delivered and such Securities may be surrendered for conversion in
accordance with clauses (3), (4) and (5) of this Section 4.02(a) and
the Applicable Procedures as in effect from time to time.


 


(b)  The person in
whose name the shares of Common Stock are issuable upon conversion shall be
deemed to be a holder of record of such Common Stock on the Conversion Date; provided, however, that no surrender of a
Security on any Conversion Date when the stock transfer books of the Company
shall be closed shall be effective to constitute the person or persons entitled
to receive the shares of Common Stock upon conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall
be effective to constitute the person or persons entitled to receive such
shares of Common Stock as the record holder or holders thereof for all purposes
at the close of business on the next succeeding day on which such stock
transfer books are open; provided, further,
that such conversion shall be at the Conversion Rate in effect on the
Conversion Date as if the stock transfer books of the Company had not been
closed. Upon conversion of a Security, such person shall no longer be a Holder
of such Security. Except as set forth in this Indenture, no payment or
adjustment will be made for dividends or distributions declared or made on
shares of Common Stock issued upon conversion of a Security prior to the
issuance of such shares.


 


(c)  Holders of
Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date will receive the
semi-annual interest and Special Interest, if any, payable on the principal
amount of such Securities being surrendered for conversion on the corresponding
Interest Payment Date notwithstanding the conversion. Upon surrender of any
such Securities for conversion, such Securities shall also be accompanied by
payment in funds to the Conversion Agent acceptable to the Company of an amount
equal to the interest, including Special Interest, if any, payable on such
corresponding Interest Payment Date (but excluding any overdue interest on the
principal amount of such Security so converted that exists at the time such
Holder surrenders such Security for conversion). Notwithstanding the foregoing,
any such Holder which surrenders for conversion any Security (a) with
respect to which the Company has specified a Fundamental Change Repurchase Date
or a Redemption Date, in either case, that is after such Regular Record Date
and on or prior to the next succeeding Interest Payment Date, or (b) after
the last Regular Record Date prior to the Final Maturity Date, in either case,
need not pay the Company an amount equal to the interest, including Special
Interest, if any, on the 


 


26

















 


principal amount of such Security so converted at
the time such Holder surrenders such Security for conversion. Except as otherwise
provided in this Section 4.02(c), no payment or adjustment will be made
for accrued interest, including Special Interest, if any, on a converted
Security.


 


(d)  Subject to Section 4.02(c),
nothing in this Section shall affect the right of a Holder in whose name
any Security is registered at the close of business on a Regular Record Date to
receive the interest payable on such Security on the related Interest Payment
Date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of shares
of Common Stock issuable upon the conversion (and the amount of any cash in
lieu of fractional shares pursuant to Section 4.03) shall be based on the
aggregate principal amount of all Securities so converted.


 


(e)  In the case of
any Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, without service charge, a new Security or Securities of authorized
denominations in an aggregate principal amount equal to, and in exchange for,
the unconverted portion of the principal amount of such Security. A Security
may be converted in part, but only if the principal amount of such part is an
integral multiple of $1,000 and the principal amount of such Security to remain
outstanding after such conversion is equal to $1,000 or any integral multiple
of $1,000 in excess thereof.


 


Section 4.03           Fractional Shares.


 


No
fractional shares of Common Stock shall be issued upon conversion of any
Security or Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares which
shall be issued upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. In lieu of any fractional share of Common Stock which would
otherwise be issued upon conversion of any Security or Securities (or specified
portions thereof), the Company shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to
the same fraction of the Closing Price of the Common Stock as of the Trading
Day preceding the date of conversion.


 


Section 4.04           Taxes on Conversion.


 


Except
as provided in the next sentence, the Company will pay any and all taxes (other
than taxes on income) and duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant hereto.
A Holder delivering a Security for conversion shall be liable for and will be
required to pay any tax or duty which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name other
than that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless the Person requesting such issue
has paid to the Company the amount of any such tax or duty, or has established
to the satisfaction of the Company that such tax or duty has been paid.


 


27

















 


Section 4.05           Company to Provide Common Stock.


 


(a)  The Company
shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.


 


(b)  All shares of
Common Stock delivered upon conversion of the Securities shall be newly issued
shares, shall be duly authorized, validly issued, fully paid and nonassessable
and shall be free from preemptive or similar rights and free of any lien or
adverse claim as the result of any action by the Company.


 


(c)  The Company will
endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Securities.


 


(d)  The Company will
use its best efforts to ensure that the shares of Common Stock to be issued
upon conversion of the Securities will be registered under the Securities Act
of 1933, as amended. In the event that despite the Company’s best efforts it is
unable to deliver shares that have been so registered, upon conversion of the
Securities, the Company may deliver shares of Common Stock that have not been
registered.


 


Section 4.06           Adjustment of Conversion Rate.


 


(a)  The Conversion
Rate shall be adjusted from time to time by the Company, without duplication,
as follows:


 


(1) If
the Company shall pay a dividend or make a distribution to all holders of
outstanding Common Stock in shares of Common Stock, the Conversion Rate in
effect immediately prior to the record date for the determination of
shareholders entitled to receive such dividend or other distribution shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to such record date by a fraction
of which the numerator shall be the sum of the number of shares of Common Stock
outstanding at the close of business on such record date plus the total number
of shares of Common Stock constituting such dividend or other distribution and
of which the denominator shall be the number of shares of Common Stock
outstanding at the close of business on such record date. Such adjustment shall
be made successively whenever any such dividend or distribution is made and
shall become effective immediately after such record date. For the purpose of
this clause (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on Common Stock held in the
treasury of the Company. If any dividend or distribution of the type described
in this clause is declared but not so paid or made, the Conversion Rate shall
again be adjusted to the Conversion Rate that would then be in effect as if
such dividend or distribution had not been declared.


 


(2) If
the Company shall subdivide its outstanding Common Stock into a greater number
of shares, or combine its outstanding Common Stock into a smaller number of
shares, the Conversion Rate in effect immediately prior to the day upon which
such subdivision or 


 


28

















 


combination
becomes effective shall be, in the case of a subdivision of Common Stock,
proportionately increased and, in the case of a combination of Common Stock,
proportionately reduced. Such adjustment shall be made successively whenever
any such subdivision or combination of the Common Stock occurs and shall become
effective immediately after the date upon which such subdivision or combination
becomes effective.


 


(3) If
the Company shall issue any rights or warrants (other than rights or warrants
referred to in Section 4.06(a)(4)) to all or substantially all holders of
its outstanding Common Stock entitling them to subscribe for or purchase shares
of Common Stock (or securities convertible into or exchangeable for Common
Stock) at a price per share (or having a Conversion Price per share) less than
the Current Market Price per share of Common Stock (as determined in accordance
with clause (8) of this Section 4.06(a)) on the record date for the
determination of shareholders entitled to receive such rights or warrants, the
Conversion Rate in effect immediately prior thereto shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect at the opening of business on the date immediately prior to such record
date by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on such record date plus the
number of additional shares of Common Stock so offered for subscription or
purchase (or into or for which the convertible or exchangeable securities so
offered are convertible or exchangeable) and of which the denominator shall be
the number of shares of Common Stock outstanding at the close of business on
such record date plus the number of shares which the aggregate offering price
of the total number of shares of Common Stock so offered for subscription or
purchase (or the aggregate conversion price of the convertible or exchangeable
securities so offered for subscription or purchase, which shall be determined
by multiplying the number of shares of Common Stock issuable upon conversion or
exchange of such convertible or exchangeable securities by the conversion price
per share of Common Stock pursuant to the terms of such convertible or
exchangeable securities) would purchase at the Current Market Price per share
of Common Stock on such record date. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective immediately
after such record date. To the extent that shares of Common Stock (or
securities convertible into or exchangeable for 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 that would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of delivery of only the number
of shares of Common Stock (or securities convertible into or exchangeable for
Common Stock) actually delivered. If such rights or warrants are not so issued,
the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if the record date for the determination of
shareholders entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the shareholders to
subscribe for or purchase shares of Common Stock at a price less than the
Current Market Price per share of Common Stock and in determining the aggregate
offering price of the total number of shares of Common Stock so offered, there
shall be taken into account any consideration received by the Company for such
rights or warrants and any amount payable on exercise or conversion thereof,
the value of such consideration, if other than cash, to be determined by the
Board of Directors.


 


(4) In
case the Company shall, by dividend or otherwise, distribute to all or
substantially all holders of its Common Stock shares of any class of Capital
Stock of the Company (other than 


 


29

















 


any
dividends or distributions to which Section 4.06(a)(1) applies) or
evidences of its indebtedness, cash or other assets, including securities, but
excluding (x) any rights or warrants referred to in Section 4.06(a)(3),
(y) any stock, securities or other property or assets (including cash)
distributed in connection with a reclassification, change, merger,
consolidation, statutory share exchange, combination, sale, conveyance or lease
to which Section 4.10 hereof applies, and (z) dividends and
distributions paid exclusively in cash (the securities described in foregoing
clauses (x), (y) and (z) hereinafter in this Section 4.06(a)(4) called
the “securities”), then, in each such case, subject to the third succeeding
paragraph of this Section 4.06(a)(4), 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 (as defined in Section 4.06(a)(8)(C)) with respect to such
distribution by a fraction, the numerator of which shall be the Current Market
Price (determined as provided in Section 4.06(a)(8)) on such date, and the
denominator of which shall be such Current Market Price on such date less the
fair market value (as determined by the Board of Directors (except as set forth
in this Section), whose determination shall be conclusive and set forth in a Board
Resolution) on such date of the portion of the shares of capital stock,
evidences of indebtedness, cash or other assets, including securities, so
distributed applicable to one share of Common Stock (determined on the basis of
the number of shares of the Common Stock outstanding on the record date).


 


Such
increase shall become effective immediately prior to the opening of business on
the day following the record date, or in the case of a Spin-off (as set forth
in this Section), immediately prior to the opening of business on the day
following the last Trading Day of the Measurement Period. However, in the event
that the then fair market value (as so determined) of the portion of the
securities so distributed applicable to one share of Common Stock is equal to
or greater than the Current Market Price on the record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion of a Security (or any portion
thereof) the amount of shares of capital stock, evidences of indebtedness, cash
or other assets, including securities, such Holder would have received had such
Holder converted such Security (or portion thereof) immediately prior to such
record date. 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 as if such dividend or distribution had not been
declared.


 


If
the Board of Directors determines the fair market value of any distribution for
purposes of this Section 4.06(a)(4) by reference to the actual or
when issued trading market for any securities 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 4.06(a)(8) to
the extent possible, unless the Board of Directors in a Board Resolution
determines in good faith that determining the fair market value during the
Reference Period would not be in the best interest of the Holder.


 


In
the event the Company distributes shares of capital stock of a Subsidiary or
other business unit of the Company, the Conversion Rate will be adjusted, if at
all, 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 (as defined in Section 4.06(a)(8)) with respect to such
distribution by a fraction, (i) the numerator of which shall be the
Current Market Price (determined as set forth in this Section) on such date
plus the fair market value on such date of 


 


30

















 


the
portion of the shares of capital stock of such Subsidiary or other business
unit of the Company so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of the Common Stock
outstanding on the record date), and (ii) the denominator of which shall
be such Current Market Price on such date (determined as set forth in this
Section).


 


In
respect of a dividend or other distribution of shares of capital stock of a
class or series, or similar equity interest, of or relating to a Subsidiary or
other business unit of the Company, that are or when issued will be traded or
quoted on any national securities exchange or other market (a “Spin-off”), the fair market value of
the securities to be distributed shall equal the average of the daily Closing
Price of such securities for the 10 consecutive Trading Days commencing on and
including the fifth Trading Day of such securities after the effectiveness of
the Spin-off (the “Measurement Period”)
and the Current Market Price shall be calculated over the same Measurement
Period; provided, however, that
in the event that an underwritten initial public offering of the securities in
the Spin-off occurs simultaneously with the Spin-off, the fair market value of
the securities distributed in the Spin-off shall be the initial public offering
price of such securities and the market price per share of the Common Stock
shall mean the Closing Price for the Common Stock on the same Trading Day.


 


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


 


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


 


(ii) are
not exercisable, and


 


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


 


shall
be deemed not to have been distributed for purposes of this Section 4.06(a)(4) (and
no adjustment to the Conversion Rate under this Section 4.06(a)(4) 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 securities, 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). 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 4.06(a)(4):


 


(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 


 


31

















 


share
redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrants (assuming such holder had retained such rights
or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase; and


 


(B) in the case of such rights or warrants all of 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.


 


For
purposes of this Section 4.06(a)(4) and Sections 4.06(a)(1), 4.06(a)(2) and
4.06(a)(3), any dividend or distribution to which this Section 4.06(a)(4) is
applicable that also includes shares of Common Stock, a subdivision or
combination of Common Stock to which Section 4.06(a)(2) applies, or
rights or warrants to subscribe for or purchase shares of Common Stock to which
Section 4.06(a)(3) 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 to
which Sections 4.06(a)(1), 4.06(a)2 and 4.06(a)(3) apply, respectively
(and any Conversion Rate increase required by this Section 4.06(a)(4) 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 (and any further
Conversion Rate increase required by Sections 4.06(a)(1), 4.06(a)(2) and
4.06(a)(3) with respect to such dividend or distribution shall then be
made); except:


 


(i) 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 determination” and “record date”
within the meaning of Section 4.06(a)(1), (y) “the day upon which
such subdivision becomes effective” and “the day upon which such combination
becomes effective” within the meaning of Section 4.06(a)(2), and (z) “the
record date fixed for the determination of stockholders entitled to receive
such rights or warrants,” such “record date,” “the record date fixed for the
determination of stockholders entitled to receive such rights or warrants” and “such
date fixed for the determination of stockholders entitled to receive such
rights or warrants” within the meaning of Section 4.06(a)(3); and


 


(ii) any shares of Common Stock included in
such dividend or distribution shall not be deemed “outstanding at the close of
business on the record date fixed for such determination” within the meaning of
Section 4.06(a)(1) 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.


 


32
















 


(5) To the extent the Company has a Rights Plan
in effect upon conversion of the Securities pursuant to this Article 4: (i) if
such Rights have not separated from the Common Stock prior to the conversion of
the Securities, each share of Common Stock issued upon conversion of the
Securities pursuant to this Article 4 shall be entitled to receive the
appropriate number of Rights, if any, and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any Rights Plan; or (ii) if
such Rights have separated from the Common Stock prior to the conversion of the
Securities, the Conversion Rate will be adjusted as though the Rights were
being distributed to all 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 corresponding reversing adjustment will be
made to the Conversion Rate on an equitable basis.


 


(6) In case the Company shall, by dividend or
otherwise, distribute to all or substantially all holders of its Common Stock
cash (excluding any cash that is distributed upon a reclassification, change,
merger, consolidation, statutory share exchange, combination, sale, conveyance
or lease to which Section 4.10 hereof applies or as part of a distribution
referred to in Section 4.06(a)(4) hereof), then, and in each such
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 on such record date by a fraction:


 


(i)                         the numerator
of which shall be equal to the Current Market Price on the record date, and


 


(ii)                      the denominator
of which shall be equal to the Current Market Price on such date less an amount
equal to the quotient of (x) the sum of the aggregate amount of cash so
distributed, and (y) the number of shares of Common Stock outstanding on
the record date.


 


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 as if such dividend or
distribution had not been declared.


 


(7) In case a tender or exchange offer made by
the Company or any of its subsidiaries for all or any portion of the Common
Stock shall expire, to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock in such offer
exceeds Closing Price per share of Common Stock on the day after the date of
the last time (the “Expiration Time”)
tenders could have been made pursuant to such tender or exchange offer, the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
close of business on the date of the Expiration Time by a fraction:


 


(i)                         the numerator
of which shall be the sum of (x) the fair market value (determined as set
forth in Section 4.06(a)(8)) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed so accepted, up
to any 


 


33

















 


such maximum, being referred to as the “Purchased Shares”) and (y) the
product of the number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time, and


 


(ii)                      the denominator
shall be (x) the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) at the Expiration Time multiplied by (y) the
Current Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time.


 


Such increase (if any) shall become effective
immediately prior to the opening of business on the day following the
Expiration Time. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect as if such tender or exchange offer had not been made.
If the application of this Section 4.06(a)(7) to any tender or
exchange offer would result in a decrease in the Conversion Rate, no adjustment
shall be made for such tender or exchange offer under this Section 4.06(a)(7).


 


(8) For purposes of this Section 4.06(a),
the following terms shall have the meanings indicated:


 


(A) “Current
Market Price” shall mean the average of the daily Closing Prices
per share of Common Stock for the 10 consecutive Trading Days immediately prior
to the date in question; provided, however,
that if:


 


(i) 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 4.06(a)(1),
(2), (3), (4), (6) or (7) occurs during such 10 consecutive Trading
Days, the Closing Price for each Trading Day prior to the “ex” date for such
other event shall be adjusted by dividing such Closing Price by the same
fraction by which the Conversion Rate is so required to be adjusted as a result
of such other event;


 


(ii) the “ex” date for any event (other than
the issuance or distribution requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to Section 4.06(a)(1), (2),
(3), (4), (6) or (7) occurs on or after the “ex” date for the
issuance or distribution requiring such computation and prior to the day in
question, the Closing Price for each Trading Day on and after the “ex” date for
such other event shall be adjusted by dividing such Closing Price by the
reciprocal of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event; and


 


(iii) the “ex” date for the issuance or
distribution requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (i) or (ii) of
this proviso, the Closing Price for each Trading Day on or after such “ex” date
shall be adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 4.06(a)(4) or
(7), whose determination shall be conclusive and 


 


34

















 


set
forth in a Board Resolution) of the evidences of indebtedness, shares of
capital stock or assets being distributed applicable to one share of Common
Stock as of the close of business on the day before such “ex” date.


 


For purposes of any computation under Section 4.06(a)(7),
the Current Market Price of the Common Stock on any date shall be deemed to be
the average of the daily Closing Prices per share of Common Stock for such day
and the next two succeeding Trading Days; provided,
however, that if the “ex” date for any event (other than the tender
offer requiring such computation) that requires an adjustment to the Conversion
Rate pursuant to Section 4.06(a)(1), (2), (3), (4), (6) or (7) occurs
on or after the Expiration Time for the tender or exchange offer requiring such
computation and prior to the day in question, the Closing Price for each
Trading Day on and after the “ex” date for such other event shall be adjusted
by dividing such Closing Price by the reciprocal of the fraction by which the
Conversion Rate is so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term “ex” date, when used:


 


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


 


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


 


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


 


Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Rate are called for pursuant to this Section 4.06(a),
such adjustments shall be made to the Current Market Price as may be necessary
or appropriate to effectuate the intent of this Section 4.07(a) and
to avoid unjust or inequitable results as determined in good faith by the Board
of Directors.


 


(B) “fair market value” shall mean the amount
which a willing buyer would pay a willing seller in an arm’s length
transaction.


 


(C) For purposes of this Section 4.06, “record date” shall mean, with respect
to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged or converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders entitled to receive
such cash, security or other property (whether or not such date is fixed by the
Board of Directors or by statute, contract or otherwise).


 


(b) 
In any case in which this Section 4.06 shall require that an adjustment be
made following a record date or Expiration Time, as the case may be,
established for the purposes 


 


35

















 


specified in this Section 4.06,
the Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section 4.08)
issuing to the Holder of any Security converted after such record date or
Expiration Time the shares of Common Stock and other Capital Stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other Capital Stock of the Company (or other cash, property or securities,
as applicable) issuable upon such conversion only on the basis of the
Conversion Rate prior to adjustment; and, in lieu of any cash, property or
securities the issuance of which is so deferred, the Company shall issue or
cause its transfer agents to issue due bills or other appropriate evidence
prepared by the Company of the right to receive such cash, property or
securities. If any distribution in respect of which an adjustment to the
Conversion Rate is required to be made as of the record date or Expiration Time
therefore is not thereafter made or paid by the Company for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be
in effect if such record date had not been fixed or such record date or
Expiration Time had not occurred.


 


(c) 
If one or more events occur requiring an adjustment be made to the Conversion
Rate for a particular period, adjustments to the Conversion Rate shall be
determined by the Company’s Board of Directors to reflect the combined impact of
such Conversion Rate adjustment events, as set out in this Section 4.06,
during such period.


 


Section 4.07                                No Adjustment.


 


(a) 
No adjustment in the Conversion Rate shall be required if Holders may
participate in the transactions set forth in Section 4.06 (to the same
extent as if the Securities had been converted into Common Stock immediately
prior to such transactions) without converting the Securities held by such
Holders.


 


(b) 
No adjustment in the Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Conversion Rate as
last adjusted; provided, however, that any adjustments which would
be required to be made but for this Section 4.07(b) shall be carried
forward and taken into account in any subsequent adjustment; provided, further,
that any carry forward amount shall be paid to a Holder of Securities upon
conversion of such Securities, regardless of the 1% threshold. All calculations
under this Article 4 shall be made to the nearest cent or to the nearest
one-ten thousandth of a share, as the case may be, with one half cent and
0.00005 of a share, respectively, being rounded upward.


 


(c) 
No adjustment in the Conversion Rate shall be required for issuances of Common
Stock pursuant to a Company plan for reinvestment of dividends or interest or
for a change in the par value or a change to no par value of the Common Stock.


 


(d) 
To the extent that the Securities become convertible into the right to receive
cash, no adjustment need be made thereafter as to the cash.


 


(e) 
No adjustment in the Conversion Rate shall be required with respect to accrued
and unpaid interest, including Special Interest, on the Securities.


 


36

















 


Section 4.08                                Notice of Adjustment.


 


Whenever the Conversion Rate or conversion privilege
is required to be adjusted pursuant to this Indenture, the Company shall
promptly mail to Holders a notice of the adjustment and file with the Trustee
an Officers’ Certificate briefly stating the facts requiring the adjustment,
the adjusted Conversion Rate and the manner of computing it. Failure to mail
such notice or any defect therein shall not affect the validity of any such
adjustment. Unless and until the Trustee shall receive an Officers’ Certificate
setting forth an adjustment of the Conversion Rate, the Trustee may assume
without inquiry that the Conversion Rate has not been adjusted and that the
last Conversion Rate of which it has knowledge remains in effect.


 


Section 4.09                                Notice of Certain Transactions.


 


In the event that there is a dissolution or
liquidation of the Company, the Company shall mail to Holders and file with the
Trustee a notice stating the proposed effective date. The Company shall mail
such notice at least 20 days before such proposed effective date. Failure to
mail such notice or any defect therein shall not affect the validity of any
transaction referred to in this Section 4.09.


 


Section 4.10                                Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.


 


If any of the following events occur:


 


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


 


(ii) any merger, consolidation, statutory share
exchange or combination of the Company with another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock;


 


(iii) any sale, conveyance or lease of the
properties and assets of the Company as, or substantially as, an entirety to
any other corporation; or


 


(iv) any statutory share exchange,


 


in
each case, as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, the Company or the successor
or purchasing corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the 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 each Security shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) which such Holder would have been entitled to receive
upon such recapitalization, reclassification, change, merger, consolidation,
statutory share exchange, combination, sale, conveyance or lease. In the event
holders of the Common Stock have the opportunity to elect the form of
consideration to be 


 


37

















 


received
in such business combination, the Securities will be convertible into the
weighted average of the kind and amount of consideration received by the
holders of the Common Stock that affirmatively make such an election. The
Company may not become a party to any such transaction unless its terms are
consistent with the preceding. None of the foregoing provisions shall affect
the right of a Holder of Securities to convert its Securities into shares of
the Common Stock prior to the effective date of the business combination.


 


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
recapitalization, reclassification, change, merger, consolidation, statutory
share exchange, combination, sale, conveyance or lease, the stock or other
securities and assets receivable thereupon by a holder of shares 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
recapitalization, reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, 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, including to the extent practicable the provisions
providing for the repurchase rights set forth in Article 3 hereof.


 


In the event the Company shall execute a
supplemental indenture pursuant to this Section 4.10, the Company shall
promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or other securities or
property (including cash) that a holder of shares of Common Stock equal to the
Conversion Rate immediately prior to such transaction would have owned or been
entitled to receive after any such transaction, and any adjustment to be made
with respect thereto. 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, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.


 


The provisions of this Section shall similarly
apply to successive recapitalizations, reclassifications, mergers,
consolidations, statutory share exchanges, combinations, sales and conveyances.


 


If this Section 4.10 applies to any event or
occurrence, Section 4.06(a) hereof shall not apply.


 


Section 4.11                                Trustee’s Disclaimer.


 


(a) 
The Trustee shall have no duty to determine when an adjustment under this Article 4
should be made, how it should be made or what such adjustment should be, but
may accept as conclusive evidence of that fact or the correctness of any such
adjustment, and shall be protected in relying upon, an Officers’ Certificate
and Opinion of Counsel, including the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to Section 4.08.
Unless and until the Trustee receives such Officers’ Certificate delivered
pursuant to Section 4.08, the Trustee may assume without inquiry that no
such adjustment has 


 


38

















 


been made and 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, and the Trustee shall not be
responsible for the Company’s failure to comply with any provisions of this Article 4.


 


(b) 
The Trustee shall not be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture executed pursuant to Section 4.10,
but may accept as conclusive evidence of the correctness thereof, and shall be
fully protected in relying upon, the Officers’ Certificate and Opinion of
Counsel with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.10 hereof and Section 9.01 of the Base
Indenture, respectively.


 


Section 4.12                                Voluntary Increase.


 


The Company from time to time may increase the
Conversion Rate, to the extent permitted by law, by any amount for any period
of time if the period is at least 20 Business Days, the increase is irrevocable
during the period and the Board of Directors determines that such increase
would be in the best interests of the Company or to avoid or diminish income
tax to holders of shares of Common Stock in connection with a dividend or
distribution of stock, or rights to acquire stock, or similar event, and the
Company provides 15 days’ prior written notice of any increase in the
Conversion Rate to the Trustee and the Holders; provided, however,
that in no event may the Company increase the Conversion Rate such that it
causes the Conversion Price to be less than the par value of a share of Common
Stock.


 


Article 5

Subordination


 


Section 5.01                                Securities Subordinated to Senior Debt.


 


The Company covenants and agrees, and each Holder of
Securities, by such Holder’s acceptance thereof, likewise covenants and agrees,
that the Indebtedness represented by the Securities and the payment of the
principal of and premium, if any, and interest, including Special Interest, if
any, on each and all of the Securities is hereby expressly subordinated and
junior, to the extent and in the manner set forth in this Section 5.01, in
right of payment to the prior payment in full of all Senior Debt; provided, however,
that the Securities, the Indebtedness represented thereby and the payment of the
principal of and premium, if any, and interest, including Special Interest, if
any, on the Securities in all respects shall rank equally with, or prior to,
all existing and future Indebtedness of the Company that is expressly
subordinated to any Senior Debt.


 


(a) 
In the event of any payment or distribution of assets of the Company upon any
dissolution, winding-up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, reorganization or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, the holders of all Senior
Debt shall first be entitled to receive payment of the full amount due thereon
in respect of all such Senior Debt and all other amounts due or provision shall
be made for such amount in cash, or other payments satisfactory to the holders
of Senior Debt, before the 


 


39

















 


Holders of any of the
Securities are entitled to receive any payment or distribution of any
character, whether in cash, securities or other property, on account of the
principal of or premium, if any, or interest, including Special Interest, if
any, on the Securities.


 


(b) 
In the event of any acceleration of Maturity of the Securities because of an
Event of Default, unless the full amount due in respect of all Senior Debt is
paid in cash or other form of payment satisfactory to the holders of Senior
Debt, no payment shall be made by the Company with respect to the principal of,
premium, if any, or interest, including Special Interest, if any, on the
Securities or to acquire any of the Securities (including any conversion,
redemption or cash repurchase pursuant to the exercise of the Fundamental
Change Repurchase Right or otherwise), and the Company shall give prompt
written notice of such acceleration to such holders of Senior Debt.


 


(c) 
In the event of and during the continuance of any default in payment of the
principal of or premium, if any, or interest on, rent or other payment
obligations in respect of, any Senior Debt, unless all such payments due in
respect of such Senior Debt have been paid in full in cash or other payments
satisfactory to the holders of Senior Debt, no payment shall be made by the
Company with respect to the principal of, premium, if any, or interest,
including Special Interest, if any, on the Securities or to acquire any of the
Securities (including any conversion, redemption, or cash repurchase pursuant
to the exercise of the Fundamental Change Repurchase Right). The Company shall
give prompt written notice to the Trustee of any default under any Senior Debt
or under any agreement pursuant to which Senior Debt may have been issued.


 


(d) 
In the event that, notwithstanding the foregoing provisions of Sections
5.01(a), 5.01(b) and 5.01(c), any payment on account of principal,
premium, if any, or interest, including Special Interest, if any, on the
Securities shall be made by or on behalf of the Company and received by the
Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as
its own Paying Agent, money for any such payment shall be segregated and held
in trust):


 


(1) after the occurrence of an event specified
in Section 5.01(a) or 5.01(b), then, unless all Senior Debt is paid
in full in cash, or provision shall be made therefor; or


 


(2) after the happening of an event of default
of the type specified in Section 5.01(c), then, unless the amount of such
Senior Debt then due shall have been paid in full, or provision made therefor
or such event of default shall have been cured or waived, such payment
(subject, in each case, to the provisions of Section 5.07 hereof) shall be
held in trust for the benefit of, and shall be immediately paid over to, the
holders of Senior Debt or their representative or representatives or the
trustee or trustees under any indenture under which any instruments evidencing
any of the Senior Debt may have been issued, as their interests may appear.


 


Section 5.02                                Subrogation.


 


Subject to the payment in full of all Senior Debt to
which the Indebtedness evidenced by the Securities is in the circumstances
subordinated as provided in Section 5.01 hereof, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior Debt
to receive payments or distributions of cash, property or securities of the
Company applicable to 


 


40

















 


such
Senior Debt until all amounts owing on the Securities shall be paid in full,
and, as between the Company, its creditors other than holders of such Senior
Debt, and the Holders of the Securities, no such payment or distribution made
to the holders of Senior Debt by virtue of this Article 5 which otherwise
would have been made to the holders of the Securities shall be deemed to be a
payment by the Company on account of such Senior Debt; provided, however, that the provisions of
this Article 5 are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of Senior Debt, on the other hand.


 


Section 5.03                                Obligation of the Company Is Absolute and Unconditional.


 


Nothing contained in this Article 5 or
elsewhere in the Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of Senior Debt,
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of and premium, if any, and interest, including Special Interest, if
any, on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt, nor shall anything contained herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under the Indenture, subject
to the rights, if any, under this Article 5 of the holders of Senior Debt
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.


 


Section 5.04                                Maturity of or Default on Senior Debt.


 


Upon the maturity of any Senior Debt by lapse of
time, acceleration or otherwise, all principal of or premium, if any, or
interest on, rent or other payment obligations in respect of all such matured
Senior Debt shall first be paid in full, or such payment shall have been duly
provided for, before any payment on account of principal, or premium, if any,
or interest, including Special Interest, if any, is made upon the Securities.


 


Section 5.05                                Payments on Securities Permitted.


 


Except as expressly provided in this Article 5,
nothing contained in this Article 5 shall affect the obligation of the
Company to make, or prevent the Company from making, payments of the principal
of, or premium, if any, or interest, including Special Interest, if any, on the
Securities in accordance with the provisions hereof and thereof, or shall
prevent the Trustee or any Paying Agent from applying any moneys deposited with
it hereunder to the payment of the principal of, or premium, if any, or
interest, including Special Interest, if any, on the Securities.


 


Section 5.06                                Effectuation of Subordination by Trustee.


 


Each Holder of Securities, by such Holder’s
acceptance thereof, authorizes and directs the Trustee on such Holder’s behalf
to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 5 and appoints the Trustee such
Holder’s attorney-in-fact for any and all such purposes. Upon any payment or
distribution of assets of the 


 


41

















 


Company
referred to in this Article 5, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which any such dissolution, winding-up,
liquidation or reorganization proceeding affecting the affairs of the Company
is pending or upon a certificate of the trustee in bankruptcy, receiver,
assignee for the benefit of creditors, liquidating trustee or agent or other
Person making any payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, and as to other facts pertinent to
the right of such Persons under this Article 5, and, if such evidence is
not furnished, the Trustee may defer any payment to such Persons pending
judicial determination as to the right of such Persons to receive such payment.


 


Section 5.07                                Knowledge of Trustee.


 


Notwithstanding the provisions of this Article 5
or any other provisions 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 Paying Agent
may continue to make payments on the Securities, unless a Responsible Officer
of the Trustee having responsibility for the administration of the trust
established by the Indenture shall have received written notice thereof from
the Company expressly directing the Trustee that such payment cannot be made
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such default or facts exist; provided, however,
that unless on the third Business Day prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose the Trustee shall
have received the notice provided for in this Section 5.07, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such date.


 


Section 5.08                                Trustee’s Relation to Senior Debt.


 


The Trustee shall be entitled to all the rights set
forth in this Article 5 with respect to any Senior Debt at the time held
by it, to the same extent as any other holder of Senior Debt and nothing in the
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing contained in this Article 5 shall apply to claims of or payments
to the Trustee under or pursuant to Section 7.06 of the Base Indenture.
With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically
set forth in this Article 5 (which covenant and obligation is limited
solely to withhold payment to the Holders if the Trustee has actually received
the written notice from the Company described in Section 5.07 to the
effect that a payment should not be made to the Holders), and no implied
covenants or obligations with respect to the holders of Senior Debt shall be
read into the Indenture against the Trustee. The Trustee shall not be deemed to
owe any duties (including, without limitation, any fiduciary duty) to the
holders of Senior Debt and the Trustee shall not be liable to any holder of
Senior Debt if it shall pay over or deliver to Holders, the Company or any
other Person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article 5 or otherwise.


 


42
















 


Section 5.09                                Rights of Holders of Senior Debt Not Impaired.


 


No right of any present or future holder of any
Senior Debt to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of the Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.


 


Section 5.10                                Modification of Terms of Senior Debt.


 


Any renewal or extension of the time of payment of
any Senior Debt or the exercise by the holders of Senior Debt of any of their
rights under any instrument creating or evidencing Senior Debt, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability or
obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior Debt is
outstanding or of such Senior Debt, whether or not such compromise, alteration,
amendment, modification, extension, renewal or other change of, or waiver,
consent or other action is in accordance with the provisions or any applicable
document, shall in any way alter or affect any of the provisions of this Article 5
or of the Securities relating to the subordination thereof.


 


Section 5.11                                Certain Conversions Not Deemed Payment.


 


For the purposes of this Article 5 only:


 


(a) the issuance and delivery of junior
securities upon conversion of Securities in accordance with Article 4
hereof shall not be deemed to constitute a payment or distribution on account
of the principal of, premium, if any, or interest, including Special Interest,
if any, on Securities or on account of the purchase or other acquisition of
Securities; and


 


(b) the payment, issuance or delivery of cash
(except in satisfaction of fractional shares pursuant to Section 4.03
hereof), property or securities (other than junior securities) upon conversion
of a Security shall be deemed to constitute payment on account of the
principal, premium, if any, or interest, including Special Interest, if any, of
such Security. For the purposes of this Section 5.11, the term “junior
securities” means:


 


(1)          shares of any Company Common Stock; or


 


(2)          other securities of the Company that are subordinated in right of payment
to all Senior Debt that may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article 5.
Nothing contained in this Article 5 or elsewhere in the Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors (other than holders of Senior Debt) and the Holders of Securities,
the right, which is absolute and unconditional, of the Holder of any Security
to convert such Security in accordance with Article 4 hereof.


 


43

















 


Section 5.12                                No Layering of Debt.  The Company will not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
contractually subordinate or junior in right of payment to any Senior Debt of
the Company and senior in right of payment to the Securities.


 


Article 6

Covenants


 


Section 6.01                                Payment of Securities.


 


(a) 
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. A
payment of principal or interest, including Special Interest, if any, shall be
considered paid on the date it is due if the Paying Agent (other than the
Company) holds by 10:00 a.m., New York City time, on that date money,
deposited by or on behalf of the Company, sufficient to make the payment.
Subject to Section 4.02 and Section 3.10, accrued and unpaid interest,
including Special Interest, if any, on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security is registered at the close of
business on the Regular Record Date for such interest at the office or agency
of the Company maintained for such purpose. Principal, Redemption Price,
Fundamental Change Repurchase Price, interest and Special Interest, in each
case if payable, shall be considered paid on the applicable date due if on such
date (or, in the case of Fundamental Change Repurchase Price, on the Business
Day following the applicable Fundamental Change Repurchase Date) the Trustee or
the Paying Agent holds, in accordance with this Indenture, money sufficient to
pay all such amounts then due. The Company shall, to the fullest extent
permitted by law, pay interest in immediately available funds on overdue
principal amount and interest, including Special Interest, if any, at the
annual rate borne by the Securities compounded semi-annually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand.


 


(b) 
Payment of the principal of and interest, including Special Interest, if any,
on the Securities shall be made at the office or agency of the Company
maintained for that purpose, which shall initially be at the Drop Agent’s
Office, 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; provided, however,
that the Company may pay principal, interest and Special Interest, in respect
of any Certificated Security by check or wire transfer payable in such money; provided, further, that at the option of
the Company payment of interest and Special Interest may be made by check
mailed to the address of the Person entitled thereto as such address appears in
the register of the Securities; provided,
further, that a Holder with an aggregate principal amount in excess
of $5,000,000 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 Trustee at least 10 Business Days prior to the payment
date. Any wire transfer instructions received by the Trustee will remain in
effect until revoked by the Holder. Notwithstanding the foregoing, so long as
the Securities are registered in the name of a Depositary or its nominee, all
payments thereon shall be made by wire transfer of immediately available funds
to the account of the Depositary or its nominee.


 


44

















 


Section 6.02                                Corporate Existence.


 


Subject to Article 10 of the Base Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided,
however, that the Company shall
not be required to preserve any such right or franchise if the Company
determines that the preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof is not disadvantageous
in any material respect to the Holders.


 


Section 6.03                                Maintenance of Properties.


 


The Company will maintain and keep its properties
and every part thereof in such repair, working order and condition, and make or
cause to be made all such needful and proper repairs, renewals and replacements
thereof, as in the judgment of the Company are necessary in the interests of
the Company; provided, however, that nothing contained in this Section shall
prevent the Company from selling, abandoning or otherwise disposing of any of
its properties or discontinuing a part of its business from time to time if, in
the judgment of the Company, such sale, abandonment, disposition or
discontinuance is advisable and does not materially adversely affect the
interests or business of the Company.


 


Section 6.04                                Payment of Taxes and Other Claims.


 


The Company will, and will cause any Significant
Subsidiary to, promptly pay and discharge or cause to be paid and discharged
all material taxes, assessments and governmental charges or levies lawfully
imposed upon it or upon its income or profits or upon any of its property, real
or personal, or upon any part thereof, as well as all material claims for
labor, materials and supplies which, if unpaid, might by law become a lien or
charge upon its property; provided,
however, that neither the Company
nor any Significant Subsidiary shall be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge, levy or claim if the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings and if the Company or such Significant
Subsidiary, as the case may be, shall have set aside on its books reserves
deemed by it adequate with respect thereto.


 


Section 6.05                                Reports.


 


This Section 6.05 hereby replaces and
supersedes, solely with respect to the 3.35% Convertible Senior Subordinated
Notes due 2015, Section 5.03(a) of the Base Indenture.


 


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, within 15 days after it
is required to file them with the SEC, the Company shall file copies of all
such reports, information and other documents with the Trustee; provided that
any such reports, information and documents filed with the SEC pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system shall be
deemed to be filed with the Trustee. The Company shall inform the Trustee by
electronic mail or other written means that it has filed with the SEC an annual
report on Form 10-K or quarterly report on Form 10-Q. The Company
also shall at all times comply with the provisions of Section 314(a) of
the TIA. In the event the 


 


45

















 


Company
is no longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company shall, if required to do so under rules and
regulations prescribed by the SEC, provide the trustee with such reports
containing such information as would have been required to be filed with the
SEC had we continued to have been subject to such reporting requirements, as
may be prescribed in such rules and regulations. 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 6.06                                Compliance Certificate.


 


This Section 6.06 hereby replaces and
supersedes, solely with respect to the 3.35% Convertible Senior Subordinated
Notes due 2015, Section 13.06(c) of the Base Indenture.


 


The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an Officers’ Certificate
stating whether or not to the knowledge of the signer thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
Default, specifying all such Defaults and the nature and the status thereof of
which the signer may have knowledge. Within five Business Days of an Officer of
the Company coming to have actual knowledge of a Default, regardless of the
date, the Company shall deliver an Officers’ Certificate to the Trustee
specifying such Default and the nature and status thereof.


 


Article 7

Consolidation; Merger; Conveyance; Transfer or Lease


 


This Article 7 hereby replaces and supersedes
in its entirety, solely with respect to the 3.35% Convertible Senior
Subordinated Notes due 2015, Article 10 of the Base Indenture.


 


Section 7.01                                Company May Consolidate, Etc., Only on Certain Terms.


 


(a) 
The Company may not, without the consent of the Holders, consolidate with,
merge into or convey, transfer or lease all or substantially all of the
property and assets of the Company and its Subsidiaries, taken as a whole, to
another Person unless:


 


(1) either (A) the Company shall be the
resulting or surviving corporation, or (B) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged, or
the Person which acquires by transfer or lease all or substantially all of the
properties and assets of the Company, shall (i) be a corporation
incorporated and existing under the laws of the United States of America or any
State thereof or the District of Columbia, and (ii) expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the obligations of the Company under the
Securities, this Indenture and the performance or observance of every covenant
and provision of this Indenture and the Securities required on the part of the
Company to be performed or observed 


 


46

















 


and
the conversion rights shall be provided for in accordance with Article 4,
by supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company’s assets;


 


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


 


(3) if, as a result of such transaction, the
Securities became convertible into Common Stock or other securities issued by a
third party, such third party agrees to deliver such common stock or other
securities upon conversion under the Securities and the Indenture; and


 


(4) if the Company will not be the resulting or
surviving corporation, the Company shall have, at or prior to the effective
date of such consolidation, merger or transfer, delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Article 7 and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture complies with this Article 7, and that all
conditions precedent herein provided for relating to such transaction have been
complied with.


 


(b) 
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries of the
Company (other than to the Company or another Subsidiary of the Company),
which, if such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company and its
Subsidiaries, taken as a whole, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.


 


Section 7.02                                Successor Substituted.


 


Upon any consolidation of the Company with, or
merger of the Company into, any other Person or any conveyance, transfer or
lease of all or substantially all of the properties and assets of the Company
and its Subsidiaries, taken as a whole, in accordance with Section 7.01,
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, and
except for obligations the predecessor Person may have under a supplemental
indenture, the predecessor Person shall be relieved of all obligations and
covenants under the Indenture and the Securities.


 


Article 8

Default and Remedies


 


This Article 8 hereby replaces and supersedes
in its entirety, solely with respect to the 3.35% Convertible Senior
Subordinated Notes due 2015, Article 6 of the Base Indenture.


 


47

















 


Section 8.01                                Events of Default.


 


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


 


(a) 
the Company shall fail to pay when due the principal, Redemption Price or any
Fundamental Change Repurchase Price of any Security, including any Additional
Payment upon Provisional Redemption or Make-Whole Premium, when the same
becomes due and payable whether at the Final Maturity Date, upon redemption,
repurchase, acceleration or otherwise whether or not such payment is prohibited
by Article 5 hereof; or


 


(b) 
the Company shall fail to pay an installment of interest, including Special
Interest, if any, on any of the Securities, which failure continues for 30 days
after the date when due whether or not such payment is prohibited by Article 5
hereof; or


 


(c) 
the Company shall fail to deliver when due all shares of Common Stock, together
with cash in lieu of fractional shares deliverable upon conversion of the
Securities, which failure continues for 10 days; or


 


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


 


(e) 
(i) the Company fails to make any payment by the end of the applicable
grace period, if any, after the maturity of any Indebtedness for borrowed money
in an amount in excess of $5,000,000, or (ii) there is an acceleration of
any Indebtedness for borrowed money in an amount in excess of $5,000,000
because of a default with respect to such Indebtedness without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled, in the case of either (i) or (ii), for a
period of 30 days after written notice to the Company by the Trustee or to the
Company and the Trustee by Holders of at least 25% in aggregate principal
amount of the then-outstanding Securities; or


 


(f) 
the Company fails to provide a Fundamental Change Company Notice in accordance
with Section 3.07; or


 


(g) 
a court having jurisdiction enters (i) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
Bankruptcy Law, or (ii) a decree or order adjudging the Company a bankrupt
or insolvent, or approves as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable U.S. federal or state law, or appoints a Receiver of the Company
or of any substantial part of its property, or orders the winding-up or
liquidation of its affairs, and the 


 


48

















 


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


 


(h) 
the Company pursuant to or within the meaning of any Bankruptcy Law:


 


(1) commences as a debtor a voluntary case or
proceeding;


 


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


 


(3) consents to the appointment of a Receiver
of it or for all or substantially all of its property;


 


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


 


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


 


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


 


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 “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.


 


Section 8.02                                Acceleration of Maturity; Rescission and Annulment.


 


If an Event of Default with respect to outstanding
Securities (other than an Event of Default specified in Section 8.01(g) or
8.01(h) hereof) occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then-outstanding Securities, by
written notice to the Company and the Trustee, may declare due and payable 100%
of the principal amount of all outstanding Securities plus any accrued and
unpaid interest, including Special Interest, if any, to the date of payment.
Upon a declaration of acceleration, such principal and accrued and unpaid
interest to the date of payment shall be immediately due and payable.


 


If an Event of Default specified in Section 8.01(g) or
8.01(h) hereof occurs, all unpaid principal of and accrued and unpaid
interest, including Special Interest, if any, on the outstanding Securities
shall become and be immediately due and payable, without any declaration or
other act on the part of the Trustee or any Holder.


 


Notwithstanding the foregoing or anything to the
contrary set forth in this Indenture, to the extent elected by the Company, the
sole remedy for an Event of Default relating to the failure to comply with the
reporting obligations set forth in Section 5.03 of the Base Indenture (as
amended by Section 6.05 hereof), and for any failure to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act, will
for the first 180 days after the occurrence of such an Event of Default consist
exclusively of the right to receive special interest on the Securities at an
annual rate equal to 1.0% of the principal amount of the Securities (“Special Interest”). The 


 


49

















 


Special
Interest will accrue on all outstanding Securities from and including the date
on which an Event of Default relating to a failure to comply with the reporting
obligations set forth in Section 5.03 of the Base Indenture first occurs
to but not including the 180th day thereafter (or such earlier date on which
the Event of Default shall have been cured or waived).  On such 180th day (or earlier, if the Event
of Default relating to the reporting obligations is cured or waived prior to
such 180th day), such Special Interest will cease to accrue and, if the Event
of Default relating to reporting obligations has not been cured or waived prior
to such 180th day, the Securities will be subject to acceleration as provided
in this Section 8.02.  In the event
the Company does not elect to pay Special Interest upon an Event of Default in
accordance with this paragraph, the Securities will be subject to acceleration
as provided in this Section 8.02. 
If the Company elects to pay Special Interest as the sole remedy for an
Event of Default relating to the failure to comply with the reporting
obligations in Section 5.03 of the Base Indenture (as amended by Section 6.05
hereof) or for any failure to comply with the requirements of Section 314(a)(1) of
the TIA, the Company will notify all Holders, the Trustee and Paying Agent of
such election on or before the close of business on the date on which such
Event of Default first occurs.


 


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


 


(1) all existing Events of Default, other than
the nonpayment of principal of or interest, including Special Interest, if any,
on the Securities which has become due solely because of the acceleration, have
been remedied, cured or waived; and


 


(2) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction;


 


provided, however, that in the event such declaration of acceleration
has been made based on the existence of an Event of Default under Section 8.01(e) hereof
and such Event of Default has been remedied, cured or waived in accordance with
Section 8.01(e) hereof, then, without any further action by the
Holders, such declaration of acceleration shall be rescinded automatically and
the consequences of such declaration shall be annulled. No such rescission or
annulment shall affect any subsequent Default or impair any right consequent
thereon.


 


Section 8.03                                Other Remedies.


 


If an Event of Default with respect to outstanding
Securities occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of
or interest, including Special Interest, if any, on the Securities or to
enforce the performance of any provision of the Securities.


 


Section 8.04                                Waiver of Past Defaults.


 


The Holders, either (a) through the written
consent of not less than a majority in aggregate principal amount of the
then-outstanding Securities, or (b) by the adoption of a resolution, at a
meeting of Holders of the then-outstanding Securities at which a quorum is
present, by the Holders of at least a majority in aggregate principal amount of
the outstanding 


 


50

















 


Securities
represented at such meeting, may, on behalf of the Holders of all of the
Securities, waive an existing Default or Event of Default, except a Default or
Event of Default:


 


(1) in the payment of the principal of or
premium, if any, or interest, including Special Interest, if any, on any
Security (provided, however, that subject to Section 8.07
hereof, the Holders of a majority in aggregate principal amount of the
then-outstanding Securities may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration);


 


(2) in respect of the right to convert any
Security in accordance with Article 4; or


 


(3) in respect of a covenant or provision
hereof which, under Section 10.02 hereof, cannot be modified or amended
without the consent of the Holder of each outstanding Security affected.


 


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


 


Section 8.05                                Control by Majority.


 


The Holders, either (a) through the written
consent of not less than a majority in aggregate principal amount of the
Securities then outstanding, or (b) by the adoption of a resolution, at a
meeting of Holders of the Securities then outstanding at which a quorum is
present, by the Holders of at least a majority in aggregate principal amount of
the outstanding Securities represented at such meeting, shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that:


 


(a) 
conflicts with any law or with this Indenture;


 


(b) 
the Trustee determines may be unduly prejudicial to the rights of the Holders
not joining therein; or


 


(c) 
in the Trustee’s reasonable judgment may expose the Trustee to personal
liability.


 


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


 


Section 8.06                                Limitation on Suit.


 


No Holder of any Security shall have any right to
pursue any remedy with respect to this Indenture or the Securities (including
instituting any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee) unless:


 


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


 


51

















 


(b) 
the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding shall have made written request to the Trustee to pursue the
remedy;


 


(c) 
such Holder or Holders have offered to the Trustee indemnity satisfactory to it
against any costs, expenses and liabilities incurred in complying with such
request;


 


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


 


(e) 
during such 60-day period, no direction inconsistent with such written request
has been given to the Trustee by the Holders of a majority in aggregate
principal amount of the Securities then outstanding (or such amount as shall
have acted at a meeting pursuant to the provisions of this Indenture).


 


Section 8.07                                Unconditional Rights of Holders to Receive Payment and to Convert.


 


Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal amount, Redemption
Price, Fundamental Change Repurchase Price, interest, including Special
Interest, if any, or Make-Whole Premium, if any, in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities and this Indenture, and 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 due dates or for the right to convert in accordance with Article 4,
and shall not be impaired or affected without the consent of such Holder.


 


Section 8.08                                Collection of Indebtedness and Suits for Enforcement by the Trustee.


 


The Company covenants that if:


 


(a) 
a Default or Event of Default occurs in the payment of any interest, including
Special Interest, on any Security when such interest becomes due and payable
and such Default or Event of Default continues for a period of 30 days; or


 


(b) 
a Default or Event of Default occurs in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof, the Company shall,
upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable (as expressed therein or as a
result of any acceleration effected pursuant to Section 8.02 hereof) on
such Securities for principal and premium, if any, and interest, including
Special Interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium, if any, and
on any overdue interest, including Special Interest, in each case at the
Interest Rate, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


 


If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and 


 


52

















 


may
enforce the same against the Company and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
wherever situated.


 


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


 


Section 8.09                                Trustee May File Proofs of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or the
property of the Company or its creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest, including Special Interest, if any) shall be entitled
and empowered, by intervention in such proceeding or otherwise, (1) to
file and prove a claim for the whole amount of principal and premium, if any,
and interest, including Special Interest, if any, owing and unpaid in respect
of the Securities and to file such 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 any other amounts due to the
Trustee hereunder) and of the Holders of Securities allowed in such judicial
proceeding, and (2) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceedings is hereby authorized by each
Holder of Securities to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 7.06
of the Base Indenture.


 


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


 


Section 8.10                                Restoration of Rights and Remedies.


 


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


 


53
















 


Section 8.11           Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.07 of the Base
Indenture, no right or remedy conferred in this Indenture upon or reserved to
the Trustee or to the Holders of Securities is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 8.12           Delay or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Security to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article 8 or by
law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities, as the case may be.


 


Section 8.13           Application of Money Collected.


 


Subject
to Article 5, any money and property collected by the Trustee pursuant to
this Article 8 shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money and
property on account of principal or premium, if any, or interest, including
Special Interest, if any, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


FIRST:
To the payment of all amounts due the Trustee;


 


SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by Article 5;


 


THIRD:
To the payment of the amounts then due and unpaid for principal of and premium,
if any, and interest, including Special Interest, if any, on the Securities and
coupons in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and premium, if any,
and interest, including Special Interest, if any, respectively; and


 


FOURTH:
Any remaining amounts shall be repaid to the Company in accordance with the
provisions of Article 11.


 


Section 8.14           Undertaking for Costs.


 


All
parties to this Indenture agree, and each Holder of any Security by such Holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against 


 


54

















 


the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the Securities then
outstanding, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the principal of or premium, if any, or interest,
including Special Interest, if any, on any Security on or after the Stated
Maturity expressed in such Security (or, in the case of exercise of a
repurchase right in connection with a Fundamental Change, on or after the
Fundamental Change Repurchase Date) or for the enforcement of the right to
convert any Security in accordance with Article 4.


 


Section 8.15           Waiver of Stay or Extension Laws.


 


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


 


Article 9

The Trustee


 


Section 9.01           Certain Duties and
Responsibilities.


 


(a) Whether
or not herein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 9.01 and Section 7.01
of the Base Indenture.


 


(b) The
Trustee shall not be deemed to have notice or actual knowledge of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact a Default is received by
the Trustee pursuant to Section 13.02 hereof, and such notice references
the Securities and this Indenture.


 


(c) The
rights, privileges, protections, immunities and benefits given to the Trustee
hereunder, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each Paying Agent, authenticating agent, Conversion Agent or Registrar
acting hereunder.


 


Section 9.02           Certain Rights of Trustee.


 


Subject
to the provisions of Section 7.01 of the Base Indenture and subject to
Sections 315(a) through (d) of the TIA:


 


55

















 


(a) The
Trustee may rely 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) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


 


(c) The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty unless so specified herein.


 


Article 10

Amendments; Supplements and Waivers


 


Section 10.01         Without Consent of Holders.


 


This
Section 10.01 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, Section 9.01 of the
Base Indenture.


 


The
Company and the Trustee may amend or supplement this Indenture or the
Securities without notice to or consent of any Holder of a Security for any of
the following purposes:


 


(a)  add to the
covenants of the Company for the benefit of the Holders of Securities;


 


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


 


(c)  make provision
with respect to the conversion rights of Holders of Securities pursuant to Section 4.10
hereof;


 


(d)  provide for the
assumption of the Company’s obligations to the Holders of Securities in the
case of a merger, consolidation, conveyance, transfer or lease pursuant to Article 10
of the Base Indenture;


 


(e)  increase the
Conversion Rate; provided, however, that such increase in the
Conversion Rate shall not adversely affect the interest of the Holders of
Securities (after taking into account tax and other consequences of such
increase) in any material respect;


 


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


 


(g)  cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein or which is otherwise defective; provided, however,
that such action pursuant to this clause (g) does not, in the good faith
opinion of the Board of Directors and the Trustee, adversely affect the
interests of the Holders of Securities in any material respect; and provided, further,
that no modification or amendment made to conform this Indenture or the
Securities to the section of the Final Prospectus entitled “Description of the
Notes” shall be deemed to adversely affect the interests of the Holders of the
Securities;


 


56

















 


(h)  add or modify
any other provisions with respect to matters or questions arising under this
Indenture which the Company and the Trustee may deem necessary or desirable and
which shall not be inconsistent with the provisions of this Indenture, provided, however;
that such action pursuant to this clause (h) does not adversely affect the
interests of the Holders of Securities in any material respect;


 


(i) to comply with Article 10
of the Base Indenture;


 


(j) to provide for
uncertificated Securities in addition to or in place of Certificated
Securities;


 


(k) to provide for
the issuance of and establish the form and terms and conditions of additional
series of Securities;


 


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


 


(m) to provide for
the addition of a guaranty of the Securities by any other entity.


 


Section 10.02         With Consent of Holders.


 


This
Section 10.02 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, Section 9.02 of the
Base Indenture.


 


Except
as provided in this Section 10.02, this Indenture or the Securities may be
amended or supplemented, and noncompliance by the Company in any particular
instance with any provision of this Indenture or the Securities may be waived,
in each case (i) with the written consent of the Holders of at least a
majority in aggregate principal amount of the then-outstanding Securities, or (ii) by
the adoption of a resolution, at a meeting of Holders of the Securities then
outstanding at which a quorum is present, by the Holders of a majority in
aggregate principal amount of the then-outstanding Securities represented at
such meeting.


 


Without
the written consent or the affirmative vote of each Holder of Securities
affected, an amendment or waiver under this Section 10.02 may not:


 


(a)  change the
Stated Maturity of the principal of, or any installment of interest, including
Special Interest, on, any Security;


 


(b)  impair the right
of any Holder to receive payment of principal, premium, if any, the Fundamental
Change Repurchase Price, the Redemption Price or interest, in respect of the
Securities held by that Holder on or after the respective due dates;


 


(c)  reduce the
interest rate or interest, including Special Interest, on any Security;


 


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


 


57

















 


(e)  impair the right
of any Holder to institute suit for the enforcement of any payment on or with
respect to, or the conversion of, any Security;


 


(f)  modify the
obligation of the Company to maintain an office or agency in The City of New
York pursuant to Section 2.04 hereof;


 


(g)  except as
permitted by Section 4.10 hereof, adversely affect the right to convert
any Security as provided in Article 4 hereof;


 


(h)  adversely affect
the right of Holders to require the Company to repurchase the Securities in the
event of a Fundamental Change;


 


(i)  modify the
subordination provisions of the Securities in a manner adverse to the Holders
of Securities;


 


(j)  modify any of
the provisions of this Section, Section 8.04 or Section 8.11, except
to increase any percentage contained herein or therein or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby; or


 


(k)  reduce the
requirements of Section 12.04 hereof for quorum or voting, or reduce the
percentage in aggregate principal amount of the outstanding Securities the
consent of whose Holders is required for any such amendment or the consent of
whose Holders is required for any waiver provided for in this Indenture.


 


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


 


After
an amendment, supplement or waiver under this Section 10.02 becomes
effective, the Company shall promptly 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.


 


Section 10.03         Revocation and Effect of Consents.


 


Until
an amendment or waiver becomes effective, a consent to it by a Holder of a
Security 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 his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.


 


Any
amendment or waiver once effective shall bind every Holder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses
(a) through (k) of Section 10.02. In that case, the amendment or
waiver shall bind each Holder of a Security 


 


58

















 


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.


 


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other
action set forth in this Section or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date.


 


Article 11

Satisfaction and Discharge


 


Section 11.01         Satisfaction and Discharge of
Indenture.


 


This
Section 11.01 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, Sections 11.01 and 11.02
of the Base Indenture.


 


If
at any time:  (a) the Company shall have delivered to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.07 of the Base Indenture); or (b) all
such Securities not theretofore delivered to the Trustee for cancellation shall
have become due and payable or been submitted for conversion pursuant to Article 4,
and the Company shall deposit or cause to be deposited with the Trustee as
trust funds the entire amount in cash, or, in the case of conversions, Common
Stock, sufficient (after giving effect to the provisions of Article 5) to
pay all amounts due and payable to the Holders of all Securities not
theretofore delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest, including Special Interest, if any, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to the Securities by the Company, then this Indenture
shall thereupon cease to be of further effect with respect to the Securities
except for Sections 7.06 and 11.05 of the Base Indenture, that shall survive to
such date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.


 


Section 11.02         Deposited Cash to be Held in Trust.


 


Subject
to Section 11.05 of the Base Indenture and Article 5 hereof, all cash
(or in the case of conversions, Common Stock) deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it
to the payment, notwithstanding the provisions of Article 5 hereof, either
directly or through any Paying Agent (including the Company if acting as its
own Paying Agent), to the Holders of the particular Securities for the payment,
redemption, conversion or repurchase of which such cash (or in the case of
conversions, Common Stock) has been deposited with the Trustee, of all sums due
thereon for principal, premium, if any and interest, including Special
Interest, if any.


 


59

















 


Article 12

Meeting of Holders of Securities


 


Section 12.01         Purposes for Which Meetings May Be
Called.


 


A
meeting of Holders of Securities may be called at any time and from time to
time pursuant to this Article 12 to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities.


 


Notwithstanding
anything contained in this Article 12, the Trustee may, during the
pendency of a Default or an Event of Default, call a meeting of Holders of
Securities in accordance with its standard practices.


 


Section 12.02         Call Notice and Place of Meetings.


 


The
Trustee may at any time call a meeting of Holders of Securities for any purpose
specified in Section 12.01 hereof, to be held at such time and at such
place in The City of New York. Notice of every meeting of Holders of
Securities, setting forth the time and the place of such meeting, in general
terms the action proposed to be taken at such meeting and the percentage of the
principal amount of the then-outstanding Securities which shall constitute a quorum
at such meeting, shall be given, in the manner provided in the Indenture
hereof, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.


 


In
case at any time the Company, pursuant to a resolution of the Board of
Directors, or the Holders of at least 10% in principal amount of the Securities
then outstanding shall have requested the Trustee to call a meeting of the
Holders of Securities for any purpose specified in Section 12.01 hereof,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities in the amount specified,
as the case may be, may determine the time and the place in The City of New
York for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in the first paragraph of this Section.


 


Section 12.03         Persons Entitled to Vote at Meetings.


 


To
be entitled to vote at any meeting of Holders of Securities, a Person shall be (a) a
Holder of one or more outstanding Securities, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more
outstanding Securities by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


 


60

















 


Section 12.04         Quorum; Action.


 


The
Persons entitled to vote a majority in principal amount of the then-outstanding
Securities shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 12.02 hereof, except that such
notice need be given only once and not less than five days prior to the date on
which the meeting is scheduled to be reconvened.


 


At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid, any resolution and all matters (except as limited by the third
paragraph of Section 9.02 hereof and Section 7.02 of the Base
Indenture) shall be effectively passed and decided if passed or decided by the
Persons entitled to vote not less than a majority in principal amount of
Securities then outstanding represented and voting at such meeting.


 


Any
resolution passed or decisions taken at any meeting of Holders of Securities
duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.


 


Section 12.05         Determination of Voting Rights;
Conduct and Adjournment of Meetings.


 


Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.


 


The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which
may be the Trustee) of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 12.02
hereof, in which case the Company or the Holders of Securities calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
outstanding Securities represented at the meeting.


 


At
any meeting, each Holder of a Security or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.


 


61
















 


Any
meeting of Holders of Securities duly called pursuant to Section 12.02
hereof at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the then-outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.


 


Section 12.06       Counting Votes and Recording Action of
Meetings.


 


The
vote upon any resolution submitted to any meeting of Holders of Securities
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amounts and serial numbers of the outstanding Securities held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record,
at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 12.02 hereof
and, if applicable, Section 12.04 hereof. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.


 


Article 13

Miscellaneous


 


Section 13.01       Notices.


 


This
Section 13.01 hereby replaces and supersedes, solely with respect to the
3.35% Convertible Senior Subordinated Notes due 2015, Section 13.03 of the
Base Indenture.


 


Any
notice or communication to the Company or the Trustee is duly given if in
writing and delivered in person or mailed by first-class mail to the address
set forth below:


 


if
to the Company:


 


Vertex
Pharmaceuticals Incorporated


130
Waverly Street


Cambridge,
MA  02139


Attention:  General Counsel


 


with
a copy to:


 


Mintz,
Levin, Cohn, Ferris, Glovsky


and
Popeo, P.C.


One Financial Center


Boston, MA 
02111


 


62

















 


Attention: 
Michael L. Fantozzi, Esq.


 


if
to the Trustee:


 


U.S.
Bank National Association


Corporate
Trust Department


One
Federal Street, Boston, MA 02110


Attention:
Karen R. Beard


 


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 to a Holder shall be mailed by first-class mail to his
address shown on the Register kept by the Security Registrar.  Failure to mail a notice or communication to
a Holder or any defect in such notice or communication shall not affect its
sufficiency with respect to other Holders.


 


If
a notice or communication is mailed or sent in the manner provided in this Section within
the time prescribed, it is duly given as of the date it is mailed, whether or
not the addressee receives it, except that notice to the Trustee shall only be
effective upon receipt thereof by the Trustee.


 


If
the Company mails a notice or communication to Holders, it shall mail a copy to
the Trustee at the same time.


 


Section 13.02       Acts of Holders of Securities.


 


(a)  Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities may be
embodied in and evidenced by:


 


(1)                                 one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent or proxy duly appointed in writing;


 


(2)                                 the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article 11; or


 


(3)                                 a combination
of such instruments and any such record.


 


Except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.  Such instrument or instruments and record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders of Securities signing such instrument
or instruments and so voting at such meeting. 
Proof of execution of any such instrument or of a writing appointing any
such agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture 


 


63

















 


and
(subject to Section 7.01 of the Base Indenture) conclusive in favor of the
Trustee and the Company if made in the manner provided in this Section.  The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 12.06 hereof.


 


(b)  The fact and
date of the execution by any Person of any such instrument or writing may be
provided in any manner which the Trustee reasonably deems sufficient.


 


(c)  The principal
amount and serial numbers of Securities held by any Person, and the date of
such Person holding the same, shall be proved by the Register.


 


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


 


Section 13.03       Certificate and Opinion as to
Conditions Precedent.


 


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


 


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


 


Section 13.04       Governing Law.


 


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


 


Section 13.05       Counterparts.


 


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


 


Section 13.06       Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date or Stated Maturity of
any Security or the last day on which a Holder of a Security has a right to
convert such Security shall 


 


64

















 


not
be a Business Day at any Place of Payment or place of conversion, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest
or principal or premium, if any, or conversion of the Securities, need not be
made at such place of payment or place of conversion on such day, but may be
made on the next succeeding Business Day at such place of payment or place of
conversion with the same force and effect as if made on the Interest Payment
Date or redemption date or at the Stated Maturity or on such last day for
conversion, provided, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.


 


Section 13.07       Calculations in Respect of Securities.


 


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


 


Section 13.08       No Security Interest Created.


 


Nothing
in this Indenture or in the Securities, express or implied, shall be construed
to constitute a security interest under the Uniform Commercial Code or similar
legislation, now in effect or hereafter enacted and made effective, in any
jurisdiction.


 


[SIGNATURE PAGE FOLLOWS]


 


65

















 


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


 


	
   

  	
  VERTEX PHARMACEUTICALS INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ian F. Smith

  
	
   

  	
   

  	
  Name:
  Ian F. Smith

  
	
   

  	
   

  	
  Title:
  Executive Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Karen R. Beard

  
	
   

  	
   

  	
  Name:
  Karen R. Beard

  
	
   

  	
   

  	
  Title:
  Vice President

  



 

















 


EXHIBIT A

FORM OF SECURITY


 


[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)


 






(1)           This paragraph should be included
only if the Security is a Global Security.


 


1

















 


VERTEX PHARMACEUTICALS INCORPORATED


 


3.35% Convertible Senior Subordinated Notes due 2015


 


CUSIP NO. 92532F AN0


 


	
  No.

  	
  $

  



 


VERTEX
PHARMACEUTICALS INCORPORATED, a Massachusetts corporation (the “Company”, which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede &
Co., or its registered assigns, the principal sum of   U.S.
Dollars ($) on October 1, 2015.


 


Interest Payment Dates:  April 1
and October 1, commencing April 1, 2011.


 


Regular Record Dates:  March 15
and September 15.


 


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


 


[SIGNATURE PAGE FOLLOWS]


 


2

















 


IN
WITNESS WHEREOF, the Company has caused this Security to be duly executed
manually or by facsimile by its duly authorized officers.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  VERTEX
  PHARMACEUTICALS INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


Trustee’s
Certificate of Authentication


 


This
is one of the 3.35% Convertible Senior Subordinated Notes due 2015 described in
the within-named Indenture.


 


	
  U.S. BANK NATIONAL ASSOCIATION,

  	
   

  
	
  as Trustee

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


3
















 


[FORM OF REVERSE SIDE OF SECURITY]


 


VERTEX PHARMACEUTICALS INCORPORATED


 


3.35% Convertible Senior Subordinated Notes due 2015


 


1.                                      INTEREST


 


The
Company promises to pay interest on the principal amount of this Security at
the rate of 3.35% per annum. The Company shall pay interest semi-annually in
arrears on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing on April 1,
2011. Interest on the Securities shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from April 1,
2011. Interest will be computed on the basis of a 360-day year composed of
twelve 30-day months.


 


If
the Company redeems this Security pursuant to Section 5 of this Security,
on a date that is after the Regular Record Date and prior to the corresponding
Interest Payment Date, interest, including Special Interest, if any, accrued
and unpaid hereon to, but not including, the applicable Redemption Date, will
be paid to the Holder in whose name the Securities are registered as of the
close of business on the Regular Record Date immediately preceding the
applicable Redemption Date.


 


If
the Holder elects to require the Company to repurchase this Security pursuant
to Section 6 of this Security, on a date that is after the Regular Record
Date and prior to the corresponding Interest Payment Date, interest, including
Special Interest, if any, accrued and unpaid hereon to, but not including, the
applicable Fundamental Change Repurchase Date, will be paid to the Holder in
whose name the Securities are registered as of the close of business on the
Regular Record Date immediately preceding the applicable Fundamental Change
Repurchase Date.


 


A
Holder of any Security at the close of business on a Regular Record Date shall
be entitled to receive interest, including Special Interest, if any, on such
Security on the corresponding Interest Payment Date. A Holder of any Security
which is converted after the close of business on a Regular Record Date and
prior to the corresponding Interest Payment Date (other than any Security whose
Maturity is prior to such Interest Payment Date) shall be entitled to receive
interest, including Special Interest, if any, on the principal amount of such
Security, notwithstanding the conversion of such Security prior to such
Interest Payment Date. However, any such Holder which surrenders any such
Security for conversion during the period between the close of business on such
Regular Record Date and ending with the opening of business on the
corresponding Interest Payment Date shall be required to pay the Company an
amount equal to the interest, including Special Interest, if any, on the
principal amount of such Security so converted (but excluding any overdue
interest, including Special Interest, if any, on the principal amount of such
Security so converted that exists at the time such Holder surrenders such
Security for conversion), which is payable by the Company to such Holder on
such Interest Payment Date, at the time such Holder surrenders such Security for
conversion. Notwithstanding the foregoing, any such Holder which surrenders for
conversion any Security (a) with respect to 


 


4

















 


which
the Company has specified a Fundamental Change Repurchase Date or a Redemption
Date, in either case, that is after such Regular Record Date and on or prior to
the next succeeding Interest Payment Date, or (b) after the last Regular
Record Date prior to the Final Maturity Date, in either case, shall be entitled
to receive (and retain) such interest, including Special Interest, if any, and
need not pay the Company an amount equal to the interest, including Special
Interest, if any, on the principal amount of such Security so converted at the
time such Holder surrenders such Security for conversion.


 


2.                                      METHOD OF
PAYMENT


 


The
Company shall pay interest, including Special Interest, if any, on this
Security (except defaulted interest) to the person who is the Holder of this
Security at the close of business on March 15 and September 15, as
the case may be (each, a “Regular Record
Date”) immediately preceding the related Interest Payment Date.
The Holder must surrender this Security to a Paying Agent to collect payment of
principal. The Company will pay principal and interest and Special 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 may pay principal and
interest, including Special Interest, if any, in respect of any Certificated
Security by check or wire transfer payable in such money; provided, however,
that a Holder with an aggregate principal amount in excess of $5,000,000 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 Trustee at
least 10 Business Days prior to the Interest Payment Date. The Company may mail
an interest check to the Holder’s registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary
or its nominee, all payments hereon shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.


 


Any
wire transfer instructions received by the Trustee will remain in effect until
revoked by the Holder.


 


3.                                      PAYING AGENT,
REGISTRAR AND CONVERSION AGENT


 


Initially,
U.S. Bank National Association (the “Trustee,”
which term shall include any successor trustee under the Indenture hereinafter
referred to) will act as Paying Agent, Security Registrar and Conversion Agent.
The Company may change any Paying Agent, Security Registrar 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 Security Registrar.


 


4.                                      INDENTURE,
LIMITATIONS


 


This
Security is one of a duly authorized issue of Securities of the Company
designated as its 3.35% Convertible Senior Subordinated Notes Due 2015 (the “Securities”), issued under the Subordinated
Indenture dated as of September 28, 2010 (the “Base Indenture” and, as supplemented,
the “Indenture”), between
the Company and the Trustee as supplemented by the First Supplemental Indenture
thereto dated as of September 28, 2010 between the Company and the
Trustee. The terms of this Security include those stated in the Indenture and
those required by 


 


5

















 


or
made part of the Indenture by reference to the TIA, as in effect on the date of
the Indenture. This Security is subject to all such terms, and the Holder of
this Security is referred to the Indenture and TIA for a statement of them.


 


The
Securities are a series of senior subordinated unsecured obligations of the
Company limited to $400,000,000 in aggregate principal amount at maturity. The
Indenture does not limit the incurrence of other debt of the Company or its
existing or future Subsidiaries, secured or unsecured.


 


5                                         REDEMPTION.


 


Provisional Redemption.  Prior
to October 1, 2013, the Company may, at its option, redeem the
Securities in whole or in part on any date from time to time, upon notice to the Holders as
provided in the Indenture, at a
Redemption Price equal to 100% of the principal amount of the notes to be
redeemed; provided that
such right may be exercised only if the Closing Price of the Common Stock has
exceeded 130% of the applicable
Conversion Price for at least 20 Trading Days within a period of 30 consecutive
Trading Days. If the Company elects to redeem the Securities during this
period, it shall make an Additional Payment upon Provisional Redemption in an
amount equal to $100.50 per $1,000 principal amount, less the amount of any
interest paid on such Securities from issuance.


 


Optional Redemption.  The Company may, on or after October 1,
2013, at its option, redeem the Securities in whole or in part on any date from
time to time, upon notice to the Holders as provided in the Indenture, at a
Redemption Price equal to a percentage
of the principal amount of the Securities to be redeemed set forth below, plus
accrued and unpaid interest, if any, to but excluding the Redemption Date.


 


	
  From and After

  	
   

  	
  Redemption

  Price

  	
   

  
	
  October 1,
  2013

  	
   

  	
  101.34

  	
  %

  
	
  October 1,
  2014

  	
   

  	
  100.67

  	
  %

  



 


On
and after the Redemption Date, interest ceases to accrue on Securities or
portions of Securities called for redemption, unless the Company defaults in
the payment of the redemption price and accrued and unpaid interest.


 


6.                                      PURCHASE OF
SECURITIES AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE


 


If
a Fundamental Change occurs, at the option of the Holder and subject to the
terms and conditions of the Indenture, the Company shall become obligated to
purchase for cash, subject to certain exceptions described in the Indenture all
or any part specified by the Holder (so long as the principal amount of such
part is $1,000 or an integral multiple of $1,000) of the Securities held by
such Holder on a date specified by the Company that is no later than 30 days
after the date of the Fundamental Change Company Notice, at a purchase price
equal to 100% of the principal amount thereof together with unpaid interest,
including Special Interest, if any, accrued to, but excluding, the Fundamental
Change Repurchase Date. A Fundamental Change Company 


 


6

















 


Notice
shall be given by the Company to the Holders as provided in the Indenture. To
exercise such repurchase right, a Holder must deliver to the Trustee a
Fundamental Change Repurchase Notice as provided in the Indenture.


 


7.                                      CONVERSION


 


Subject
to and upon compliance with the provisions of the Indenture, a Holder may
surrender for conversion any Security that is $1,000 principal amount or
integral multiples thereof.


 


Subject
to certain conditions provided for in the Indenture, in certain circumstances,
a Holder may receive an amount in Common Stock equal to the Make-Whole Premium,
in addition to the shares of Common Stock issuable upon conversion of such
Security.


 


The
Conversion Rate shall be initially equal to 20.4794 shares of Common Stock per
$1,000 principal amount of Securities. The Conversion Rate shall be adjusted
under certain circumstances as provided in the Indenture.


 


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


 


8.                                      SUBORDINATION


 


The
Indebtedness evidenced by this Security is, to the extent and in the manner
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all amounts then due on all Senior Debt of the
Company; provided, however, that the Securities, the
Indebtedness represented thereby and the payment of the principal of and
premium, if any, and interest on the Securities in all respects shall rank
equally with, or prior to, all existing and future Indebtedness of the Company
that is expressly subordinated to any Senior Debt, and this Security is issued
subject to such provisions of the Indenture with respect thereto. Each Holder
of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on such Holder’s
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided, and (c) appoints the Trustee such Holder’s
attorney-in-fact for any and all such purposes.


 


9.                                      DENOMINATIONS,
TRANSFER, EXCHANGE


 


The
Securities are in registered form, without coupons, in denominations of $1,000
principal amount and integral multiples of $1,000 principal amount. A Holder
may register the transfer of or exchange Securities in accordance with the
Indenture. The Security 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.


 


10.                               PERSONS DEEMED
OWNERS


 


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


 


7

















 


11.                               UNCLAIMED MONEY


 


If
money for the payment of principal or interest, including Special Interest, if
any, remains unclaimed for two years, the Trustee and any Paying Agent will pay
the money back to the Company at its written request, subject to applicable
unclaimed property law and the provisions of the Indenture. 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.


 


12.                               DISCHARGE PRIOR
TO MATURITY.


 


Subject
to certain conditions contained in the Indenture, the Company may discharge its
obligations under the Securities and the Indenture if (1) all of the
Securities then outstanding shall become due and payable or been submitted for
conversion, and (2) the Company shall have deposited with the Trustee cash
sufficient to pay the principal of, and premium, if any, and interest,
including Special Interest, if any, on all of the outstanding Securities.


 


13.                               AMENDMENT,
SUPPLEMENT AND WAIVER


 


The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding (or such lesser
amount as shall have acted at a meeting pursuant to the provisions of the
Indenture). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities at the time
outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security or
such other Security.


 


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


 


14.                               SUCCESSOR
ENTITY


 


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


 


8

















 


15.                               DEFAULTS AND
REMEDIES


 


Under
the Indenture, an Event of Default shall occur if:


 


(a) 
the Company shall fail to pay when due the principal, Redemption Price or any
Fundamental Change Repurchase Price of any Security, including any Make-Whole
Premium, when the same becomes due and payable whether at the Final Maturity
Date, upon repurchase, redemption, acceleration or otherwise whether or not
such payment is prohibited by Article 5 of the Indenture; or


 


(b) 
the Company shall fail to pay an installment of interest, including Special
Interest, if any, on any of the Securities, which failure continues for 30 days
after the date when due whether or not such payment is prohibited by Article 5
hereof; or


 


(c) 
the Company shall fail to deliver when due all shares of Common Stock, together
with cash in lieu of fractional shares deliverable upon conversion of the
Securities, which failure continues for 10 days; or


 


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


 


(e) 
(i) the Company fails to make any payment by the end of the applicable
grace period, if any, after the maturity of any Indebtedness for borrowed money
in an amount in excess of $5,000,000, or (ii) there is an acceleration of
any Indebtedness for borrowed money in an amount in excess of $5,000,000
because of a default with respect to such Indebtedness without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled, in the case of either (i) or (ii), for a
period of 30 days after written notice to the Company by the Trustee or to the
Company and the Trustee by Holders of at least 25% in aggregate principal
amount of the then-outstanding Securities; or


 


(f) 
the Company fails to provide a Fundamental Change Company Notice in accordance
with Section 3.07 of the Indenture; or


 


(g) 
certain events of bankruptcy, insolvency or reorganization as specified in the
Indenture.


 


If
an Event of Default shall occur and be continuing, the principal of all the
Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.


 


Notwithstanding
the foregoing or anything to the contrary set forth in the Indenture, to the
extent elected by the Company, the sole remedy for an Event of Default relating
to the failure to comply with the reporting obligations set forth in Section 5.03
of the Base Indenture and for any failure to comply with the requirements of Section 314(a)(1) of
the Trust Indenture Act will for the first 180 days after the occurrence of
such an Event of Default consist exclusively of the right to receive special
interest on the Securities at an annual rate equal to 1.0% of the principal
amount of the Securities (“Special
Interest”). The Special Interest will accrue on all outstanding
Securities from and including the date on which an Event of Default relating to
a failure to 


 


9

















 


comply
with the reporting obligations set forth in Section 5.03 of the Base Indenture
first occurs to but not including the 180th day thereafter (or such earlier
date on which the Event of Default shall have been cured or waived). On such
180th day (or earlier, if the Event of Default relating to the reporting
obligations is cured or waived prior to such 180th day), such Special Interest
will cease to accrue and, if the Event of Default relating to reporting
obligations has not been cured or waived prior to such 180th day, the
Securities will be subject to acceleration as provided for in Section 8.02
of the Indenture. In the event the Company does not elect to pay Special
Interest upon an Event of Default in accordance with this paragraph, the
Securities will be subject to acceleration as provided for above. If the
Company elects to pay Special Interest as the sole remedy for an Event of
Default relating to the failure to comply with reporting obligations in Section 5.03
of the Base Indenture or for any failure to comply with the requirements of Section 314(a)(1) of
the TIA in, the Company will notify all Holders, the Trustee and Paying Agent
of such election on or before the close of business on the date on which such
Event of Default first occurs.


 


16.                               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 Securities 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 Security by accepting this Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.


 


17.                               AUTHENTICATION


 


This
Security shall not be valid until the Trustee or an Authenticating Agent
manually signs the certificate of authentication on the other side of this
Security.


 


18.                               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 Security but not specifically
defined herein are defined in the Indenture and are used herein as so defined.


 


19.                               CUSIP NUMBERS.


 


Pursuant
to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on this Security. No representation is made as to the accuracy of such numbers
either as printed on this Security and reliance may be placed only on the other
identification numbers placed thereon.


 


10

















 


20.                               INDENTURE TO
CONTROL; GOVERNING LAW


 


In
the case of any conflict between the provisions of this Security and the
Indenture, the provisions of the Indenture shall control. This Security and the
Indenture shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


The
Company will furnish to any Holder, upon written request and without charge, a
copy of the Indenture. Requests may be made to: Vertex Pharmaceuticals
Incorporated, 130 Waverly Street, Cambridge, MA 
02139 Attention:  Investor
Relations.


 


11

















 


ASSIGNMENT FORM


 


To
assign this Security, fill in the form below:


 


	
  I
  or we assign and transfer this Security 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 Security on the books of the Company. The Agent may
  substitute another to act for him or her.

  



 


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  



 


 


*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.


 


12

















 


CONVERSION NOTICE


 


To
convert this Security, check the box:


o


 


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


 


If
you want the cash paid to another person or the stock certificate 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) and irrevocably appoint

  
	
   

  
	
   

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

  



 


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

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

  



 


 


*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.


 


13

















 


FUNDAMENTAL CHANGE REPURCHASE NOTICE


 


TO:  VERTEX
PHARMACEUTICALS INCORPORATED


130
Waverly Street


Cambridge,
Massachusetts  02139


 


The
undersigned registered owner of this Security hereby irrevocably acknowledges
receipt of a notice from VERTEX
PHARMACEUTICALS INCORPORATED (the “Company”) as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to purchase
the entire principal amount of this Security, or the portion thereof (which is
$1,000 or an integral multiple thereof) below designated, in accordance with
the terms of the Indenture referred to in this Security at the Fundamental
Change Repurchase Price to the registered Holder hereof.


 


 


	
  Date:

  	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


Signature(s) must
be guaranteed by a qualified guarantor institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.


 


	
   

  
	
  Signature
  Guaranty

  



 


 


Principal
amount to be repurchased (in an integral multiple of $1,000, if less than all):


 


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


 


14

















 


SCHEDULE OF EXCHANGES OF SECURITIES


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of 

  Decrease in 

  Principal 

  Amount of this 

  Security

  	
   

  	
  Amount of 

  Increase in 

  Principal 

  Amount of this 

  Security

  	
   

  	
  Principal 

  Amount of this 

  Global Security 

  following Each 

  Increase of 

  Decrease

  	
   

  	
  Signature of 

  Authorized 

  Officer of 

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


15