Exhibit 4.6


 


[Execution
Copy]


 


AFFYMETRIX,
INC.


 


as
Issuer


 


 


and


 


 


THE
BANK OF NEW YORK


 


as
Trustee


 












 


Indenture


 


Dated
as of December 15, 2003


 












 


0.75%
Senior Convertible Notes Due 2033


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  
	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  
	
   

  	
   

  
	
  Section
  1.01.  Definitions

  	
   

  
	
  Section
  1.02.  Compliance Certificates and Opinions

  	
   

  
	
  Section 1.03.
   Form of Documents Delivered to Trustee

  	
   

  
	
  Section
  1.04.  Acts of Holders; Record Dates

  	
   

  
	
  Section
  1.05.  Notices, Etc., to Trustee and Company

  	
   

  
	
  Section
  1.06.  Notice to Holders; Waiver

  	
   

  
	
  Section
  1.07.  Conflict with Trust Indenture Act

  	
   

  
	
  Section
  1.08.  Effect of Headings and Table of
  Contents

  	
   

  
	
  Section
  1.09.  Successors and Assigns

  	
   

  
	
  Section
  1.10.  Severability Clause

  	
   

  
	
  Section
  1.11.  Benefits of Indenture

  	
   

  
	
  Section
  1.12.  Governing Law

  	
   

  
	
  Section
  1.13.  Legal Holiday

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  
	
  SECURITY
  FORMS

  
	
   

  	
   

  
	
  Section
  2.01.  Forms Generally

  	
   

  
	
  Section 2.02
  . Form
  of Face of Security

  	
   

  
	
  Section
  2.03.  Form of Reverse of Security

  	
   

  
	
  Section
  2.04.  Form of Trustee’s Certificate of
  Authentication

  	
   

  
	
  Section
  2.05.  Legend on Restricted Securities

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  
	
  THE
  SECURITIES

  
	
   

  	
   

  
	
  Section
  3.01.  Title and Terms

  	
   

  
	
  Section
  3.02.  Denominations

  	
   

  
	
  Section
  3.03.  Execution, Authentication, Delivery
  and Dating

  	
   

  
	
  Section
  3.04.  Temporary Securities

  	
   

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

  	
   

  
	
  Section
  3.06.  Mutilated, Destroyed, Lost and Stolen
  Securities

  	
   

  
	
  Section
  3.07.  Persons Deemed Owners

  	
   

  
	
  Section
  3.08.  Book-Entry Provisions for Global
  Securities

  	
   

  
	
  Section
  3.09.  Cancellation and Transfer Provisions

  	
   

  
	
  Section
  3.10.  CUSIP Numbers

  	
   

  



 


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  ARTICLE 4

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  
	
  Section
  4.01.  Satisfaction and Discharge of
  Indenture

  	
   

  
	
  Section
  4.02.  Application of Trust Money

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5

  
	
  REMEDIES

  
	
   

  	
   

  
	
  Section
  5.01.  Events of Default

  	
   

  
	
  Section
  5.02.  Acceleration of Maturity; Rescission
  and Annulment

  	
   

  
	
  Section 5.03.  Collection of Indebtedness and Suits for
  Enforcement by Trustee

  	
   

  
	
  Section
  5.04.  Trustee May File Proofs of Claim

  	
   

  
	
  Section
  5.05.  Application of Money Collected

  	
   

  
	
  Section
  5.06.  Limitation on Suits

  	
   

  
	
  Section
  5.07.  Unconditional Right of Holders to
  Receive Payment

  	
   

  
	
  Section
  5.08.  Restoration of Rights and Remedies

  	
   

  
	
  Section
  5.09.  Rights and Remedies Cumulative

  	
   

  
	
  Section
  5.10.  Delay or Omission Not Waiver

  	
   

  
	
  Section
  5.11.  Control by Holders

  	
   

  
	
  Section
  5.12.  Waiver of Past Defaults

  	
   

  
	
  Section
  5.13.  Undertaking for Costs

  	
   

  
	
  Section
  5.14.  Waiver of Stay or Extension Laws

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  
	
  THE TRUSTEE

  
	
   

  	
   

  
	
  Section 6.01.
   Certain Duties and Responsibilities

  	
   

  
	
  Section
  6.02.  Notice of Defaults

  	
   

  
	
  Section
  6.03.  Certain Rights Of Trustee

  	
   

  
	
  Section
  6.04.  Not Responsible for Recitals

  	
   

  
	
  Section
  6.05.  May Hold Securities

  	
   

  
	
  Section
  6.06.  Money Held in Trust

  	
   

  
	
  Section
  6.07.  Compensation and Reimbursement

  	
   

  
	
  Section
  6.08.  Disqualification; Conflicting
  Interests

  	
   

  
	
  Section
  6.09.  Corporate Trustee Required;
  Eligibility

  	
   

  
	
  Section
  6.10.  Resignation and Removal; Appointment
  of Successor

  	
   

  
	
  Section
  6.11.  Acceptance of Appointment by
  Successor

  	
   

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

  	
   

  
	
  Section
  6.13.  Preferential Collection of Claims
  Against

  	
   

  



 


ii

















 


	
  ARTICLE 7

  
	
  HOLDERS’
  LISTS AND REPORTS BY TRUSTEE

  
	
   

  	
   

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

  	
   

  
	
  Section
  7.02.  Preservation of Information;
  Communications to Holders

  	
   

  
	
  Section
  7.03.  Reports By Trustee

  	
   

  
	
  Section
  7.04.  Reports by Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  
	
  CONSOLIDATION,
  MERGER, CONVEYANCE, TRANSFER OR LEASE

  
	
   

  	
   

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

  	
   

  
	
  Section
  8.02.  Successor Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  
	
  Section
  9.01.  Supplemental Indentures Without
  Consent of Holders

  	
   

  
	
  Section
  9.02.  Supplemental Indentures With Consent
  of Holders

  	
   

  
	
  Section
  9.03.  Execution of Supplemental Indentures

  	
   

  
	
  Section
  9.04.  Effect of Supplemental Indentures

  	
   

  
	
  Section
  9.05.  Conformity with Trust Indenture Act

  	
   

  
	
  Section
  9.06.  Reference in Securities to
  Supplemental Indentures

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  
	
  COVENANTS

  
	
   

  	
   

  
	
  Section
  10.01.  Payments

  	
   

  
	
  Section
  10.02.  Maintenance of Office or Agency

  	
   

  
	
  Section
  10.03.  Money for Security Payments to be
  Held in Trust

  	
   

  
	
  Section
  10.04.  Statement by Officers as to Default

  	
   

  
	
  Section
  10.05.  Existence

  	
   

  
	
  Section
  10.06.  Reports and Delivery of Certain
  Information

  	
   

  
	
  Section
  10.07.  Resale of Certain Securities

  	
   

  
	
  Section
  10.08.  Book-Entry System

  	
   

  
	
  Section
  10.09.  Liquidated Damages Under the
  Registration Rights Agreement

  	
   

  
	
  Section
  10.10.  Information for IRS Filings

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  
	
  REDEMPTION
  AND REPURCHASES

  
	
   

  	
   

  
	
  Section
  11.01.  Right to Redeem; Notices to Trustee

  	
   

  
	
  Section
  11.02.  Selection of Securities to be
  Redeemed

  	
   

  
	
  Section
  11.03.  Notice of Redemption

  	
   

  
	
  Section
  11.04.  Effect of Notice of Redemption

  	
   

  



 


iii

















 


	
  Section
  11.05.  Deposit of Redemption Price

  	
   

  
	
  Section
  11.06.  Securities Redeemed in Part

  	
   

  
	
  Section
  11.07.  Conversion Arrangement on Call for
  Redemption

  	
   

  
	
  Section
  11.08.  Repurchase of Securities at Option of
  the Holder.

  	
   

  
	
  Section
  11.09.  Repurchase of Securities at Option of
  the Holder Upon Fundamental Change.

  	
   

  
	
  Section
  11.10.  Effect of Repurchase Notice or
  Fundamental Change Repurchase Notice

  	
   

  
	
  Section
  11.11.  Deposit of Repurchase Price or
  Fundamental Change Repurchase Price

  	
   

  
	
  Section
  11.12.  Securities Repurchased in Whole or in
  Part

  	
   

  
	
  Section
  11.13.  Covenant to Comply With Securities
  Laws Upon Repurchase of Securities

  	
   

  
	
  Section
  11.14.  Repayment to the Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE 12

  
	
  INTEREST
  PAYMENTS ON THE SECURITIES

  
	
   

  	
   

  
	
  Section 12.01.  Interest Rate

  	
   

  
	
   

  	
   

  
	
  ARTICLE 13

  
	
  CONVERSION

  
	
   

  	
   

  
	
  Section
  13.01.  Conversion Privilege

  	
   

  
	
  Section
  13.02.  Conversion Procedure.

  	
   

  
	
  Section
  13.03.  Fractional Shares

  	
   

  
	
  Section
  13.04.  Taxes on Conversion

  	
   

  
	
  Section
  13.05.  Company to Provide Stock.

  	
   

  
	
  Section
  13.06.  Adjustment of Conversion Rate

  	
   

  
	
  Section
  13.07.  No Adjustment

  	
   

  
	
  Section
  13.08.  Adjustment for Tax Purposes

  	
   

  
	
  Section
  13.09.  Notice of Conversion Rate Adjustment

  	
   

  
	
  Section
  13.10.  Notice of Certain Transactions

  	
   

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

  	
   

  
	
  Section
  13.12.  Trustee’s Disclaimer

  	
   

  
	
  Section
  13.13.  Voluntary Increase

  	
   

  
	
  Section
  13.14.  Company Determination Final

  	
   

  



 


iv

















 


INDENTURE, dated as of December 15, 2003, between
Affymetrix, Inc., a corporation duly organized and existing under the laws of
the State of Delaware, as Issuer (the “Company”), having its principal office at
3380 Central Expressway, Santa Clara, CA 95051 and The Bank of New York, a New
York banking corporation, as Trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly authorized the creation of an
issue of 0.75% Senior Convertible Notes Due 2033 (each a “Security” and collectively,
the “Securities”)
of substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.


 


All things necessary to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid and legally binding obligations of the
Company, and to make this Indenture a valid and legally binding agreement of
the Company, in accordance with the terms of the Securities and the Indenture,
have been done.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE
1

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION


 


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


 


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


 


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


 


(iii)  all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP; and


 


1

















 


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


 


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


 


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


 


“Agent Members” has the meaning specified in
Section 3.08.


 


“Bid Solicitation Agent” means an
independent nationally recognized securities dealer selected by the Company to
solicit market bid quotations for the Securities, which initially shall be the
Trustee and in no event shall it be an Affiliate of the Company.


 


“Board of Directors” means, with respect to
any Person, either the board of directors of such Person or any duly authorized
committee of that board.


 


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


 


“Business Day” means any day other than a
Saturday, a Sunday or a day on which banking institutions in The City of New
York or San Francisco are authorized or obligated by law, or executive order or
governmental decree to be closed.


 


“Capital Stock” means any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, including, without limitation, with respect to partnerships,
partnership interests (whether general or limited) and any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, such partnership.


 


“Change of Control Event” means any
transaction or event (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or sale of all or substantially all of the Company’s assets or
otherwise) in connection with which all or substantially


 


2

















 


all of the Common Stock
is exchanged for, converted into, acquired for or constitutes solely the right
to receive, consideration which is not all or substantially all common stock or
American Depositary Shares that (i) is listed on, or immediately after the
transaction or event will be listed on, a United States national securities
exchange, or (ii) is approved, or immediately after the transaction or event
will be approved, for quotation on the Nasdaq National Market or any similar
United States system of automated dissemination of quotations of securities
prices.


 


“Closing Price” with respect to the
Company’s Common Stock on any date means the closing price on such date as
reported on the National Association of Securities Dealers Automated Quotation
System or the principal U.S. securities exchange on which the Company’s Common
Stock is then listed, or, if the Company’s Common Stock is not quoted on the
National Association of Securities Dealers Automated Quotation System and is
not listed on a U.S. national or regional exchange or, as reported on the
principal other market on which the Company’s Common Stock is then traded.  In the absence of such quotations, the Board
of Directors of the Company will make a good faith determination of the sale
price.


 


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


 


“Common Stock” means the shares of Common
Stock, par value $0.01 per share, of the Company as it exists on the date of
this Indenture or any other shares of Capital Stock of the Company into which
the Common Stock shall be reclassified or changed 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.


 


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


 


“Company Notice” has the meaning specified
in Section 11.08.


 


“Company Notice Date” has the meaning
specified in Section 11.08.


 


3

















 


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


 


“Conversion Agent” means the Trustee or such
other office or agency designated by the Company where Securities may be
presented for conversion.


 


“Conversion Date” has the meaning specified
in Section 13.02(a).


 


“Conversion Period” means the period from
and including the eleventh trading day in any of the Company’s fiscal quarters
(beginning with the quarter ending March 31, 2004) up to but not including the
eleventh trading day of the following fiscal quarter.


 


“Conversion Price” has the meaning specified
in Section 13.01(c).


 


“Conversion Rate” has the meaning specified
in Section 13.01(c).


 


“Corporate Trust Office” means the office of
the Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the date of
this Indenture, located at 101 Barclay Street, Floor 8 West, New York, NY
10286.


 


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


 


“Current Market Price” has the meaning
specified in Section 13.06(f).


 


“Default” means any event that is or with
the passage of time or the giving of notice or both would become an Event of
Default.


 


“Depositary” means The Depository Trust
Company until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Depositary” shall mean
such successor Depositary.


 


“Event of Default” has the meaning specified
in Section 5.01.


 


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


 


“Fundamental Change” means any transaction
or event resulting in either a Change of Control Event or a Termination of
Trading.


 


4

















 


“Fundamental Change Company Notice” has the
meaning specified in Section 11.09.


 


“Fundamental Change Repurchase Date” has the
meaning specified in Section 11.09.


 


“Fundamental Change Repurchase Notice” has
the meaning specified in Section 11.09.


 


“Fundamental Change Repurchase Price” has
the meaning specified in the Securities.


 


 “GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, in
each case, as in effect in the United States on the date hereof.


 


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


 


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


 


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


 


“Initial Purchasers” means J.P. Morgan
Securities Inc. and UBS Securities LLC.


 


“Interest Payment
Date” means June 15 and December 15 of each year, commencing June
15, 2004.


 


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


 


“Issue Date” means the date the Securities
are originally issued as set forth on the face of the Security under this
Indenture.


 


5

















 


“Liquidated Damages” shall mean the
Liquidated Damages as defined in the Registration Rights Agreement.


 


“Maturity”, when used with respect to any
Security, means the date on which the principal, Repurchase Price or
Fundamental Change Repurchase Price of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity, on a Redemption
Date, Repurchase Date or Fundamental Change Repurchase Date, or by declaration
of acceleration or otherwise.


 


“Notice of Default” has the meaning
specified in Section 5.01.


 


“Officers’ Certificate” means a certificate
signed by the Chairman of the Board, the President or any Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.  One of the officers signing an Officers’
Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Company.


 


“Opinion of Counsel” means a written opinion
of counsel, who may be external or in-house counsel for the Company.


 


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


 


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


 


(ii)           Securities, or portions thereof, for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Securities; provided
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given to the Holders as herein
provided, or provision satisfactory to a Responsible Officer of the Trustee
shall have been made for giving such notice; and


 


(iii)          Securities that have been paid or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture;


 


provided,
however, that, in determining whether the Holders of the
requisite Principal Amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the


 


6

















 


Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded.  Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.


 


“Paying Agent” means any Person (including
the Company) authorized by the Company to pay the principal of, interest and
Liquidated Damages on, Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price of, any Securities on behalf of the Company.  The Trustee shall initially be the Paying
Agent.


 


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


 


“Physical Securities” means permanent
certificated Securities in registered form issued in denomination of $1,000
Principal Amount and integral multiples thereof.


 


“Principal Amount” of a Security means the
Principal Amount as set forth on the face of the Security.


 


“Principal Value Conversion” has the meaning
specified in clause (a)(ii) of Section 13.01.


 


“Purchase Agreement” means the Purchase
Agreement, dated December 10, 2003, entered into by the Company and the Initial
Purchasers in connection with the sale of the Securities.


 


“Qualified
Institutional Buyer” or “QIB” shall have the meaning specified in
Rule 144A.


 


“Record Date” for the interest payable on
any Interest Payment Date means each June 1 and December 1 (whether or not a
Business Day) next preceding such Interest Payment Date.


 


“Redemption Date” shall mean the date
specified for redemption of the Securities in accordance with the terms of the
Securities and Article 11 hereof.


 


“Redemption Price” has the meaning specified
in the Securities.


 


7

















 


“Registration Rights Agreement” means the
Registration Rights Agreement, dated as of December 15, 2003, between the
Company and the Initial Purchasers, for the benefit of themselves and the
Holders, as the same may be amended or modified from time to time in accordance
with the terms thereof.


 


 “Repurchase
Date” has the meaning specified in Section 11.08.


 


“Repurchase Notice” has the meaning specified
in Section 11.08.


 


“Repurchase Price” has the meaning specified
in the Securities.


 


“Resale Registration Statement” means a
registration statement under the Securities Act registering the Securities for
resale pursuant to the terms of the Registration Rights Agreement.


 


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


 


“Restricted Global Security” means a Global
Security representing Restricted Securities.


 


“Restricted Security” or “Restricted
Securities” has the meaning specified in Section 2.05.


 


“Rule 144” means Rule 144 under the
Securities Act (including any successor rule thereto), as the same may be
amended from time to time.


 


“Rule 144A” means Rule 144A under the
Securities Act (including any successor rule thereto), as the same may be
amended from time to time.


 


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


 


“Securities Act” means the U.S. Securities
Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.


 


“Security” or “Securities” has the meaning
specified in the first paragraph of the Recitals of the Company.


 


“Security Register” and “Security
Registrar” have the respective meanings specified in Section 3.05.


 


“Stated Maturity,” when used with respect to
any Security, means the date specified in such Security as the fixed date on
which an amount equal to the


 


8

















 


principal amount of such
Security together with accrued and unpaid interest and Liquidated Damages, if
any, is due and payable.


 


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


 


“Surviving Entity” has the meaning specified
in Section 8.01.


 


“Termination of Trading” means that the
Company’s Common Stock or other common stock into which the Securities are
convertible is neither listed for trading on a United States national
securities exchange nor approved for listing on the Nasdaq National Market or
any similar United States system of automated dissemination of quotations of
securities prices, and no America depositary shares or similar instruments for
such common stock are so listed or approved for listing in the United States.


 


“Trading Day” means (x) if the applicable
security is quoted on the Nasdaq National Market System or Nasdaq SmallCap
Market, a day on which trades may be made on thereon or (y) if the applicable
security is listed or admitted for trading on the New York Stock Exchange or
another national security exchange, a day on which the New York Stock Exchange
or such other national security exchange is open for business or (z) if the applicable
security is not so listed, admitted for trading or quoted, any Business Day.


 


“Trading Price” has the meaning specified in
clause (a)(ii) of Section 13.01.


 


“Trading Price Condition” has the meaning
set forth in clause (a)(ii) of Section 13.01.


 


“Transfer Restricted Security” means a
Security required to bear the restricted legend set forth in the form of
Security in Section 2.02.


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939 as in effect on the date as of which this Indenture was
executed; provided,
however, that in the event the Trust Indenture Act of 1939 is
amended after such date, “Trust Indenture Act” means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Trustee” means the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to


 


9

















 


the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.


 


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


 


Section 1.02.  Compliance
Certificates and Opinions.  Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under the Trust Indenture
Act.  Each such certificate or opinion
shall be given in the form of an Officers’ Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.


 


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


 


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


 


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


 


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


 


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


 


Section 1.03.  Form of
Documents Delivered to Trustee.  In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of


 


10

















 


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


 


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


 


Section 1.04.  Acts of
Holders; Record Dates.  (a)  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company.  Such
instrument or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as an “Act” of the Holders signing such instrument
or instruments.  Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


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


 


(c)           The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by
Holders.  If not set by the Company
prior to the 


 


11

















 


first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. 
With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.


 


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


 


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


 


Section 1.05.  Notices,
Etc., to Trustee and Company.  Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:


 


(i)            the Trustee by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office; or


 


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


 


Section 1.06.  Notice to
Holders; Waiver.  Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder’s address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. 
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.  Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such


 


12

















 


waiver shall be the
equivalent of such notice.  Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.


 


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


 


Whenever under this Indenture the Trustee is required
to provide any notice by mail, in all cases the Trustee may alternatively
provide notice by overnight courier or by telefacsimile, with confirmation of
transmission.


 


Section 1.07.  Conflict
with Trust Indenture Act.  If
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required hereunder to be a part of and govern this
Indenture, the latter provision shall control. 
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


Section 1.08.  Effect of
Headings and Table of Contents.  The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof, and all Article
and Section references are to Articles and Sections, respectively, of this
Indenture unless otherwise expressly stated.


 


Section 1.09.  Successors
and Assigns.  All covenants
and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


 


Section 1.10. 
Severability Clause.  In
case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


Section 1.11.  Benefits of
Indenture.  Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their respective successors hereunder and the
Holders of Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.


 


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


 


Section 1.13.  Legal
Holiday.  In any case where
any Interest Payment Date or Stated Maturity of any Security shall not be a
Business Day, then


 


13

















 


(notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or at the Stated Maturity; provided,
that no interest shall accrue with respect to such payment for the period from
and after such Interest Payment Date or Stated Maturity, as the case may be.


 


ARTICLE
2

SECURITY FORMS


 


Section 2.01.  Forms
Generally.  The Securities
and the Trustee’s certificates of authentication shall be in substantially the
forms set forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor, the Internal
Revenue Code of 1986, as amended, and regulations thereunder, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.


 


The Securities shall initially be issued in the form
of permanent Global Securities in registered form in substantially the form set
forth in this Article.  The aggregate
Principal Amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided.


 


Section 2.02. Form of Face of Security.  [INCLUDE IF SECURITY IS A RESTRICTED SECURITY
— THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE
UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
AFFYMETRIX, INC. THAT (A) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THIS SECURITY UNDER


 


14

















 


RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THIS SECURITY AND THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY TO (I) AFFYMETRIX, INC. OR ANY SUBSIDIARY THEREOF,
(II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO IN
CLAUSE (A) ABOVE.  THIS LEGEND WILL
BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE
(A)(IV) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). 
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER THE TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTION.  IN ADDITION, THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS
WITH REGARD TO THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON THE CONVERSION
HEREOF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT (OR ANY SUCCESSOR ACT).


 


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


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION,
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. 


 


15

















 


OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


16

















 


Affymetrix,
Inc.


 


0.75% Senior Convertible
Notes Due 2033


 


	
  No. [   ]

  	
  CUSIP NO. 00826T AE 8

  	
  U.S.
  $[          ]

  



 


 


Affymetrix, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware (herein called the “Company”),
which term includes any successor corporation under the Indenture referred to
on the reverse hereof), for value received hereby promises to pay to
[        ], or registered assigns, the
principal sum of [               ]
United States Dollars ($     ) [INCLUDE IF SECURITY IS A GLOBAL SECURITY
— (which amount may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary, in
accordance with the rules and procedures of the Depositary)] on December 15,
2033 and to pay interest on said principal sum semi-annually on June 15 and
December 15 of each year, commencing June 15, 2004 at the rate of 0.75% per
annum to holders of record on the immediately preceding June 1 and December 1,
respectively.  Interest on this Security
shall accrue from the most recent date to which interest has been paid, or if
no interest has been paid, from December 15, 2003 until the Principal Amount is
paid or duly made available for payment. 
Except as otherwise provided in the Indenture, the interest payable on this
Security pursuant to the Indenture on any June 15 or December 15 will be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date, which
shall be June 1 and December 1 (whether or not a Business Day) next preceding
such June 15 or December 15, respectively. 
Payment of the principal of and interest accrued on this Security shall
be made by check mailed to the address of the Holder of this Security specified
in the register of Securities, or, upon written application by a Holder of an
aggregate Principal Amount of greater than U.S. $2 million to the Security
Registrar setting forth wire instructions not later than ten days prior to the
relevant payment date, such Holder may receive payment by wire transfer in
immediately available funds, in such lawful money of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.


 


The Issue Date of this Security is December 15, 2003.


 


Reference is made to the further provisions of this
Security set forth on the reverse hereof, including, without limitation,
provisions giving the Company the right to repurchase this Security commencing
December 15, 2008, the right to convert this Security into Common Stock of the
Company subject to the occurrence of certain events and the right of the Holder
of this Security to require the Company to repurchase this Security on certain
dates and upon certain events, in each case, on the terms and subject to the
limitations referred to on the reverse hereof and as more fully specified in
the Indenture.  Such further provisions
shall


 


17

















 


for all purposes have the
same effect as though fully set forth at this place. Capitalized terms used but
not defined herein shall have such meanings as are ascribed to such terms in
the Indenture.


 


This Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.


 


This Security shall not
be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly
authorized authenticating agent under the Indenture. IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.


 


	
   

  	
  AFFYMETRIX, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  



 


18

















 


Section 2.03.  Form of
Reverse of Security.  This
Security is one of a duly authorized issue of Securities of the Company,
designated as its 0.75% Senior Convertible Notes Due 2033 (the “Securities”),
all issued or to be issued under and pursuant to an Indenture, dated as of
December 15, 2003 (the “Indenture”), between the Company and The
Bank of New York (the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.


 


The indebtedness evidenced by the Securities is
unsecured and unsubordinated senior indebtedness of the Company and ranks
equally with the Company’s other unsecured and unsubordinated senior
indebtedness.


 


Redemption at the Option of the Company.  No sinking fund is provided for the
Securities.  The Securities are
redeemable as a whole, or from time to time in part, at any time commencing on
December 15, 2008 at the option of the Company at a redemption price (the “Redemption
Price”) equal to 100%, expressed as a percentage of the Principal
Amount of Securities to be redeemed, together with accrued and unpaid interest
and Liquidated Damages, if any, to, but excluding, the Redemption Date.


 


Repurchase by the Company at the Option of the Holder.  Subject to the terms and conditions of the
Indenture, the Company shall become obligated to repurchase, at the option of
the Holder, the Securities held by such Holder on December 15, 2008, December
15, 2013, December 15, 2018, December 15, 2023 and December 15, 2028 (each a “Repurchase Date”) at a price equal to 100%,
expressed as a percentage of the Principal Amount of Securities to be
repurchased, plus accrued and unpaid interest and Liquidated Damages, if any,
to, but excluding, the Repurchase Date (the “Repurchase Price”), upon
delivery of a Repurchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 30 days
prior to such Repurchase Date until the close of business on the Business Day
prior to such Repurchase Date and upon delivery of the Securities to the Paying
Agent by the Holder as set forth in the Indenture.  The Repurchase Price will be paid in cash.


 


Repurchase by the Company at the Option of the Holder
Upon a Fundamental Change. 
Subject to the terms and conditions of the Indenture, the Company shall
become obligated, at the option of the Holder, to repurchase the Securities if
a Fundamental Change occurs at any time prior to the Stated Maturity at 100% of
the Principal Amount plus accrued and unpaid interest and Liquidated Damages,
if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental
Change Repurchase Price”), which Fundamental Change Repurchase Price
will be paid in cash; provided that if a Fundamental Change
results from a Change of Control Event, the Company may elect, subject to the
satisfaction of certain conditions described in the Indenture, to


 


19

















 


pay all or a portion of
the Fundamental Change Repurchase Price in Common Stock or a combination of
cash and Common Stock.  The number of
shares of Common Stock a Holder will receive will equal the quotient obtained
by dividing (i) the portion of the Fundamental Change Repurchase Price to be
paid in shares of Common Stock by (ii) 97% of the average Closing Price of the
shares of Common Stock for the five Trading Day period ending on the second
Business Day immediately preceding the Fundamental Change Repurchase Date,
subject to adjustment as described in the Indenture.  Notwithstanding the foregoing, a Holder will not have the right
to require the Company to repurchase the Securities upon a Change of Control Event
constituting a Fundamental Change if the Closing Price per share of the
Company’s Common Stock for any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the Change of
Control Event and the public announcement of the Change of Control Event
exceeds 105% of the Conversion Price of the Securities in effect on each of
those five Trading Days.


 


Withdrawal of Repurchase Notice and Fundamental Change
Repurchase Notice. 
Holders have the right to withdraw, in whole or in part, any Repurchase
Notice or Fundamental Change Repurchase Notice, as the case may be, by
delivering to the Paying Agent a written notice of withdrawal in accordance
with the provisions of the Indenture.


 


Payment of Redemption Price, Repurchase Price and
Fundamental Change Repurchase Price.  If cash (and/or Common Stock, if permitted
under the Indenture) sufficient to pay the Redemption Price, Repurchase Price
or Fundamental Change Repurchase Price, as the case may be, of all Securities or
portions thereof to be redeemed or repurchased on a Redemption Date, Repurchase
Date or on a Fundamental Change Repurchase Date, as the case may be, is
deposited with the Paying Agent on the Business Day following the Redemption
Date, Repurchase Date or the Fundamental Change Repurchase Date, as the case
may be, the Securities to be redeemed or repurchased will cease to be
outstanding and interest and Liquidated Damages, if any, will cease to accrue
on such Securities (or portions thereof) immediately after such Redemption
Date, Repurchase Date or Fundamental Change Repurchase Date, as the case may
be, and the Holder thereof shall have no other rights as such (other than the
right to receive the Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price, as the case may be) upon surrender of such Security.


 


Conversion.  Subject to the terms and conditions of the
Indenture, a Holder may convert each of its Securities into shares of the
Company’s common stock at an initial conversion rate of 32.2431 shares per
$1,000 Principal Amount of Securities (the “Conversion Rate”), at any
time prior to the close of business on December 14, 2033.  The Conversion Rate in effect at any given
time is subject to adjustment.  A Holder
may convert fewer than all of such Holder’s Securities so long as the
Securities converted are an integral multiple of $1,000


 


20

















 


principal amount.  Holders will not receive any cash payment
representing accrued and unpaid interest or Liquidated Damages, if any, upon
conversion of a Security.  Accrued and
unpaid interest and Liquidated Damages, if any, will be deemed paid in full
rather than canceled, extinguished or forfeited;  provided, that if
this Security shall be surrendered for conversion during the period from close
of business on any Record Date for the payment of interest through the close of
business on the Business Day next preceding the following Interest Payment
Date, such Security (or portion thereof being converted) must be accompanied by
an amount, in funds acceptable to the Company, equal to the interest payable on
such Interest Payment Date on the Principal Amount being converted; provided,
however, that no such payment shall be required if there shall exist at the time
of conversion a default in the payment of interest on the Securities.


 


Holders may surrender their Securities for conversion,
in whole or in part, into shares of the Company’s Common Stock under the
following circumstances (in each case, as more fully described in the
Indenture): (A) (i)  during any Conversion Period prior to December
15, 2028 if the Closing Price of the Company’s Common Stock for at least 20
Trading Days in the 30 Trading Day period ending on the first day of such
Conversion Period exceeds 130% of the Conversion Price of the Securities on the
first day of such Conversion Period or (ii)  during anytime on or after
December 15, 2028 through the close of business on the Business Day prior to
the Stated Maturity if the Closing Price of the Company’s Common Stock is more
than 130% of the Conversion Price of the Company’s Common Stock; (B) during the
five consecutive Business Day period following any five consecutive Trading Day
period in which the average Trading Price for the Securities was less than 98%
of the product of the average Closing Price of the Company’s Common Stock
during such five Trading Day period and the Conversion Rate; provided
that if on the date of any conversion pursuant to a Trading Price Condition
that is on or after December 15, 2028, the Closing Price of the Company’s
Common Stock on the Trading Day prior to the Conversion Date is greater than
100% of the Conversion Price, Holders surrendering Securities for conversion
will receive, in lieu of shares of Common Stock based on the Conversion Rate,
shares of Common Stock with a value equal to the Principal Amount of Securities
being converted; (C) if a Security is called for redemption, at any time prior
to the close of business on the Business Day prior to the Redemption Date, even
if the Securities are not otherwise convertible at such time; or (D) if the
Company elects to (i) distribute to all or substantially all holders of the
Company’s Common Stock certain rights entitling them to purchase shares of the
Company’s Common Stock at less than the Closing Price of a share of the
Company’s Common Stock on the trading day preceding the declaration date for
such distribution or (ii) distribute to all or substantially all holders of the
Company’s Common Stock its assets, debt securities or certain rights to
purchase its securities, which distribution has a per share value as determined
by the Company’s Board of Directors exceeding 5% of the Closing


 


21

















 


Price of the Company’s
Common Stock on the Trading Day preceding the declaration date for such
distribution.


 


[INCLUDE IF SECURITY IS A GLOBAL SECURITY —
In the event of a deposit or withdrawal of an interest in this Security,
including an exchange, transfer, repurchase or conversion of this Security in
part only, the Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance
with the rules and procedures of the Depositary.]


 


[INCLUDE IF SECURITY IS A RESTRICTED SECURITY
— Subject to certain limitations in the Indenture, at any time when the Company
is not subject to Section 13 or 15(d) of the United States Securities Exchange
Act of 1934, as amended, upon the request of a Holder of a Restricted Security,
the Company will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder, to
the extent required to permit compliance by any such Holder with Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”).  “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).]


 


If an Event of Default shall occur and be continuing,
the Principal Amount plus accrued and unpaid interest and Liquidated Damages,
if any, through such date on all the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.


 


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 not less than a majority in aggregate Principal Amount of the
Outstanding Securities.  The Indenture
also contains provisions permitting the Holders of specified percentages in aggregate
Principal Amount of the Outstanding Securities, 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 any provision of or applicable to this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.


 


As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to


 


22

















 


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


 


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 Amount,
Repurchase Price or Fundamental Change Repurchase Price of or interest and
Liquidated Damages, if any, on, this Security at the times, place and rate, and
in the coin or currency, herein prescribed.


 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee or transferees.


 


The Securities are issuable only in registered form in
denominations of $1,000 and any integral multiple of $1,000 above that amount,
as provided in the Indenture and subject to certain limitations therein set
forth.  Securities are exchangeable for
a like aggregate Principal Amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.


 


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


 


Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all


 


23

















 


purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


This
Security shall be governed by and construed in accordance with the laws of the
State of New York.


 


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


 


24

















 


ASSIGNMENT FORM


 


If you want to assign this Security, fill in the form
below and have your signature guaranteed:


 


I or we assign and transfer this Security to:


 


 


 


 


(Print or type name, address
and zip code and social security or tax ID number of assignee)


 


and irrevocably appoint
                                                                          
agent to transfer this Security on the books of the Company.  The agent may substitute another to act for
him.


 


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
								



 


Note:  Signatures must be guaranteed by an
“eligible guarantor institution” meeting the requirements of the Security
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


25

















 


In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration statement
under the Securities Act, as amended (the “Securities
Act”), covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii) the
second anniversary of the Issue Date set forth on the face of this Security,
the undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that this Security is
being transferred:


 


[Check One]


 




	
  (1)

  	
  o

  	
  to
  the Company or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  to
  a “Qualified Institutional Buyer” pursuant to and in compliance with Rule
  144A under the Securities Act; or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  pursuant to the exemption
  from registration provided by Rule 144 under the Securities Act.

  






 


Unless one of the above
boxes is checked, the Trustee will refuse to register any of the Securities
evidenced by this certificate in the name of any Person other than the
registered Holder thereof, provided
that if box (3) is checked, the Company may require, prior to registering any such
transfer of the Securities, in its sole discretion, such legal opinions,
certifications and other information as the Company may reasonably request to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act.


 


If none of the foregoing boxes is checked, the Trustee
or Security Registrar shall not be obligated to register this Security in the
name of any Person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 3.09 of
the Indenture shall have been satisfied.


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
								



 


26

















 


Note:  Signatures must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Security Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


27

















 


TO BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED


 


The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  
	
  NOTICE:  To be executed by an executive officer.

  



 


28

















 


CONVERSION NOTICE


 


If you want to convert this Security into Common Stock
of the Company, check the box: o


 


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


 


$                                                                  


 


If you want the stock certificate made out in another
person’s name, fill in the form below:


 


 


 


(Insert
other person’s social security or tax ID no.)


 


 


 


 


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


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
								



 


 


Note:  Signatures must be
guaranteed by an “eligible guarantor institution” meeting the requirements of
the Security Registrar, which requirements include membership or participation
in the Security Transfer Agent Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.


 


29

















 


Section 2.04.  Form of
Trustee’s Certificate of Authentication. 
This is one of the Securities referred to in the
within-mentioned Indenture.


 


	
  Dated:

  	
  THE BANK OF NEW YORK, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   Authorized
  Signatory

  



 


 


Section 2.05.  Legend on
Restricted Securities.  During
the period beginning on the Issue Date and ending on the date two years from
such date, any Security, including any Security issued in exchange therefor or
in lieu thereof, shall be deemed a “Restricted Security” and shall be subject
to the restrictions on transfer provided in the legends set forth on the face
of the form of Security in Section 2.02; provided, however, that the term “Restricted
Security” shall not include any Securities as to which restrictions
have been terminated in accordance with Section 3.05.  All Securities shall bear the applicable legends set forth on the
face of the form of Security in Section 2.02. 
Except as provided in Section 3.05 and Section 3.09, the Trustee shall
not issue any unlegended Security until it has received an Officers’
Certificate from the Company directing it to do so.


 


ARTICLE 3

THE SECURITIES


 


Section 3.01.  Title and
Terms.  The aggregate
Principal Amount of Securities that may be authenticated and delivered under
this Indenture is initially limited to $100,000,000 (subject to increase by up
to $20,000,000 in the event the Initial Purchasers exercise the option granted
to them in the Purchase Agreement), except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.06 or 11.12.


 


The Securities shall be known and designated as the
“0.75% Senior Convertible Notes Due 2033” of the Company.  The Principal Amount shall be payable at the
Stated Maturity.


 


The Principal Amount and accrued interest and
Liquidated Damages, if any, on the Securities shall be payable at the office or
agency of the Company in The City of New York maintained for such purpose and
at any other office or agency maintained by the Company for such purpose; provided,
however, that at the option of the Company payments may be made by
wire transfer or by check


 


30

















 


mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.


 


The Securities shall not have the benefit of a sinking
fund.


 


The Securities shall not be superior in right of payment
to, and shall rank pari passu with, all other unsecured and
unsubordinated indebtedness of the Company.


 


Section 3.02. 
Denominations.  The
Securities shall be issuable only in registered form without coupons and in
denominations of $1,000 and any integral multiple of $1,000 above that amount.


 


Section 3.03.  Execution,
Authentication, Delivery and Dating.  The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents.


 


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


 


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities.  The Company Order shall specify the amount
of Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical Securities.  The Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.


 


Each Security shall be dated the date of its
authentication.


 


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


 


Section 3.04.  Temporary
Securities.  Pending the
preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of


 


31

















 


which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.


 


If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay.  After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any office or agency
of the Company designated pursuant to Section 10.02, without charge to the
Holder.  Upon surrender for cancellation
of any one or more temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like Principal
Amount of definitive Securities of authorized denominations.  Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.


 


Section 3.05. 
Registration; Registration of Transfer and Exchange; Restrictions on
Transfer.  (a)  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities.  The Trustee is
hereby appointed “Security Registrar” (the “Security Registrar”) for the
purpose of registering Securities and transfers of Securities as herein
provided.


 


Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated pursuant to Section
10.02 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of
a like aggregate Principal Amount and tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including Sections
2.02, 2.05 and 3.09).


 


At the option of the Holder and subject to the other
provisions of this Section 3.05 and to Section 3.09, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate Principal Amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.


 


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


 


32

















 


Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.  As a condition to the registration of
transfer of any Restricted Securities, the Company or the Trustee may require
evidence satisfactory to them as to the compliance with the restrictions set
forth in the legend on such securities.


 


Except as provided in the following sentence and in
Section 3.09, all Securities originally issued hereunder and all Securities
issued upon registration of transfer or exchange or replacement thereof shall
be Restricted Securities and shall bear the legend required by Sections 2.02
and 2.05, unless the Company shall have delivered to the Trustee (and the
Security Registrar, if other than the Trustee) a Company Order stating that the
Security is not a Restricted Security and may be issued without such legend
thereon.  Securities which are issued upon
registration of transfer of, or in exchange for, Securities which are not
Restricted Securities shall not be Restricted Securities and shall not bear
such legend.


 


No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04 not involving any
transfer.


 


The Company shall not be required to exchange or
register a transfer of any Security (i) during the 15-day period immediately
preceding the mailing of any notice of redemption of any Security, (ii) after
any notice of redemption has been given to Holders, except, where such notice
provides that such Security is to be redeemed only in part, the Company shall
be required to exchange or register a transfer of the portion thereof not to be
redeemed, (iii) that has been surrendered for conversion or (iv) as to which a
Repurchase Notice or Fundamental Change Repurchase Notice has been delivered
and not withdrawn, except, where such Repurchase Notice or Fundamental Change
Repurchase Notice provides that such Security is to be purchased only in part,
the Company shall be required to exchange or register a transfer of the portion
thereof not to be purchased.


 


(b)      Beneficial ownership of every Restricted
Security shall be subject to the restrictions on transfer provided in the
legends required to be set forth on the face of each Restricted Security
pursuant to Sections 2.02 and 2.05, unless such restrictions on transfer shall
be terminated in accordance with this Section 3.05(b) or Section 3.09.  The Holder of each Restricted Security, by
such Holder’s acceptance thereof, agrees to be bound by such restrictions on
transfer.


 


33

















 


The restrictions imposed by this Section 3.05 and by
Sections 2.02, 2.05 and 3.09 upon the transferability of any particular Restricted
Security shall cease and terminate upon delivery by the Company to the Trustee
of an Officers’ Certificate stating that such Restricted Security has been sold
pursuant to an effective Resale Registration Statement under the Securities Act
or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto).  Any
Restricted Security as to which the Company has delivered to the Trustee an
Officers’ Certificate that such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of
such Restricted Security for exchange to the Security Registrar in accordance
with the provisions of this Section 3.05, be exchanged for a new Security, of
like tenor and aggregate Principal Amount, which shall not bear the restrictive
legends required by Sections 2.02 and 2.05. 
The Company shall inform the Trustee in writing of the effective date of
any Resale Registration Statement registering the Securities under the Securities
Act.  The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the aforementioned Resale Registration Statement.


 


As used in the preceding two paragraphs, the term “transfer”
encompasses any sale, pledge, transfer or other disposition of any Restricted
Security.


 


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


 


Section 3.06.  Mutilated,
Destroyed, Lost and Stolen Securities.  If
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and Principal Amount and bearing a number not
contemporaneously outstanding.


 


If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount and bearing a
number not contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable or has been called
for redemption in full,


 


34

















 


the Company in its
discretion may, instead of issuing a new Security, pay such Security.


 


Upon the issuance of any new Security under this
Section 3.06, the Company may require payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


 


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


 


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


 


Section 3.07.  Persons
Deemed Owners.  Prior to due
presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal of and interest and Liquidated
Damages, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


Section 3.08.  Book-Entry
Provisions for Global Securities.  (a)  The Global Securities initially shall (i) be
registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear
legends as set forth on the face of the form of Security in Section 2.02.


 


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


 


35

















 


Members, the
operation of customary practices governing the exercise of the rights of any
Holder.


 


(b)      Transfers of the Global Securities shall
be limited to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. 
Interests of beneficial owners in a Global Security may be transferred
or exchanged, in whole or in part, for Physical Securities in accordance with
the rules and procedures of the Depositary and the provisions of Section
3.09.  In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Securities if (A) such Depositary has notified the
Company (or the Company becomes aware) that the Depositary (i) is unwilling or
unable to continue as Depositary for such Global Security or (ii) has ceased to
be a clearing agency registered under the Exchange Act when the Depositary is
required to be so registered to act as such Depositary and, in either such
case, no successor Depositary shall have been appointed within 90 days of such
notification or of the Company becoming aware of such event; or (B) there shall
have occurred and be continuing an Event of Default with respect to such Global
Security and the Outstanding Securities shall have become due and payable
pursuant to Section 5.02 and the Trustee requests that Physical Securities be
issued; provided
that Holders of Physical Securities offered and sold in reliance on Rule 144A
shall have the right, subject to applicable law, to request that such
Securities be exchanged for interests in the applicable Global Security.


 


(c)       In connection with any transfer or
exchange of a portion of the beneficial interest in the Global Security to
beneficial owners pursuant to clause (b) 
of this Section 3.08, the Security Registrar shall (if one or more
Physical Securities are to be issued) reflect on its books and records the date
and a decrease in the Principal Amount of the Global Security in an amount
equal to the Principal Amount of the beneficial interest in the Global Security
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities of like tenor and
amount.


 


(d)      In connection with the transfer of the
entire Global Security to beneficial owners pursuant to clause (b) of this
Section 3.08, the Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Security, an equal
aggregate Principal Amount of Physical Securities of authorized denominations
and the same tenor.


 


(e)       Any Physical Security constituting a
Restricted Security delivered in exchange for an interest in the Global
Security pursuant to clause (c) or (d) of this Section 3.08 shall, except
as otherwise provided by clause (c) of Section 3.09, bear the legend regarding
transfer restrictions applicable to the Physical Securities set forth on the
face of the form of Security in Section 2.02.


 


36

















 


(f)       The Holder of the Global Securities may
grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.


 


Section 3.09. 
Cancellation and Transfer Provisions. 
The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold.  The Trustee shall cancel and dispose of all Securities
surrendered for registration of transfer, exchange, payment, purchase,
repurchase, redemption, conversion (pursuant to Article 13 hereof) or
cancellation in accordance with its customary practices.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation. 
The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.


 


(a)       Transfers to QIBs.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB:


 


(i)                the Security Registrar shall
register the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Security Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Security Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A; and


 


(ii)               if the proposed transferee is an
Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Global Security, upon receipt by the Security Registrar of instructions given
in accordance with


 


37

















 


the Depositary’s
and the Security Registrar’s procedures, the Security Registrar shall reflect
on its books and records the date and an increase in the Principal Amount of
the Global Security in an amount equal to the Principal Amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.


 


(b)      Private Placement Legend.  Upon the registration of transfer, exchange
or replacement of Securities not bearing the legends required by Sections 2.02
and 2.05, the Security Registrar shall deliver Securities that do not bear such
legends.  Upon the registration of
transfer, exchange or replacement of Securities bearing the legends required by
Sections 2.02 and 2.05, the Security Registrar shall deliver only Securities
that bear such legends unless there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.


 


(c)       General. 
By its acceptance of any Security bearing the legends required by
Sections 2.02 and 2.05, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
such legends and agrees that it will transfer such Security only as provided in
this Indenture.


 


The Security Registrar
shall retain, in accordance with its customary procedures, copies of all
letters, notices and other written communications received pursuant to this
Section 3.09.  The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.


 


Section 3.10.  CUSIP
Numbers.  In issuing the
Securities, the Company 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 identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.  The Company
will promptly notify the Trustee of any change in the “CUSIP” numbers.


 


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ARTICLE 4

SATISFACTION AND DISCHARGE


 


Section 4.01. 
Satisfaction and Discharge of Indenture.  This Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


(a)      either


 


(i)    all Securities theretofore authenticated and
delivered (other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and (B)
Securities for whose payment money has theretofore been deposited with the
Trustee in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust as provided in Section
10.03) have been delivered to the Trustee for cancellation; or


 


(ii)   all such Securities not theretofore delivered
to the Trustee for cancellation have become due and payable and the Company has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness evidenced by such Securities not theretofore delivered to the
Trustee for cancellation;


 


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


 


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


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07
and, if money shall have been deposited with the Trustee pursuant to clause
(a)(ii) of Section 4.01, the obligations of the Trustee under Section 4.02 and
the last paragraph of Section 10.03 shall survive such satisfaction and
discharge.


 


Section 4.02.  Application
of Trust Money.  Subject to
the provisions of the last paragraph of Section 10.03, all money deposited with
the Trustee pursuant to Section 4.01 shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying


 


39

















 


Agent)
as the Trustee may determine, to the Persons entitled thereto, of the
principal, interest and Liquidated Damages, if any, for whose payment such
money has been deposited with the Trustee.


 


ARTICLE 5

REMEDIES


 


Section 5.01.  Events of
Default.  “Event of
Default”, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(a)      default in the payment of interest or Liquidated Damages, if any, on any
Securities when due and payable and such default continues for a period of 30
days; or


 


(b)      default in the payment of the Principal
Amount, Redemption Price, Repurchase Price or Fundamental Change Repurchase
Price on any Security when it becomes due and payable; or


 


(c)      default in the performance of any
covenant, agreement or condition of the Company in this Indenture or the
Securities (other than a default specified in clause (a) or (b) above),
and such default continues for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities a written notice specifying such default
and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or


 


(d)      default in the Company’s obligation to convert the Securities into
shares of its Common Stock upon exercise of a Holder’s conversion rights in accordance with Article 13 hereof and such default continues
for a period of 10 days; or


 


(e)      default by the Company or any Subsidiary in the payment of the
principal or interest on any loan agreement or other instrument under which
there may be outstanding, or by which there may be evidenced, any debt for
money borrowed in excess of $10.0 million in the aggregate of the Company and Subsidiary (other than indebtedness
for borrowed money secured only by the real property to which the indebtedness
relates and which is non-recourse to the Company or to such Subsidiary),
whether such debt now exists or shall hereafter be created, resulting in such
debt becoming or being declared due and payable prior to its stated maturity,
and such acceleration shall not have been rescinded or


 


40

















 


annulled within 30 days after written notice has been received by the
Company or such Subsidiary from the Trustee or by the Trustee, the Company and
such Subsidiary by the Holders of at least 25% in Principal Amount of
Outstanding Securities; provided that if any time before a
judgment or decree has been obtained by the Trustee as hereinafter provided,
such default is remedied or cured by the Company within the applicable cure
period, or is waived by the holders of such indebtedness, default under this
clause (e) shall be deemed to have been remedied, cured or waived, as the case
may be; or


 


(f)       failure by the Company to give the
Fundamental Change Company Notice; or


 


(g)      the entry by a court having jurisdiction
in the premises of (i) a decree or order for relief in respect of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State law or
(iii) appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days; or


 


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


 


Section 5.02. 
Acceleration of Maturity; Rescission and Annulment.  (a)   If an Event of Default (other than those specified in clauses (g)
and (h) of Section 5.01) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate Principal Amount
of the Outstanding


 


41

















 


Securities
may declare the Principal Amount plus accrued and unpaid interest and
Liquidated Damages, if any, on all the Outstanding Securities to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such Principal Amount plus
accrued and unpaid interest and Liquidated Damages, if any, shall become immediately
due and payable.


 


Notwithstanding the foregoing, in the case of an Event
of Default specified in clauses (g) and (h) of Section 5.01, the Principal
Amount plus accrued and unpaid interest and Liquidated Damages, if any, on all
Outstanding Securities will ipso facto become due and payable without
any declaration or other Act on the part of the Trustee or any Holder.


 


(b)      At any time after such a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article 5
provided, the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if such rescission and
annulment will not conflict with any judgment or decree of a court of competent
jurisdiction and


 


(i)     the Company has paid or
deposited with the Trusteee a sum sufficient to pay


 


(A)               all overdue interest on the
Securities,


 


(B)               the Principal Amount plus accrued
and unpaid interest and Liquidated Damages, if any, Redemption Price,
Repurchase Price or Fundamental Change Repurchase Price, as applicable, on any
Securities which have become due otherwise than by such declaration of
acceleration, and


 


(C)               all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.07; and


 


(ii)    all Events of Default,
other than the non-payment of the Principal Amount plus accrued and unpaid
interest and Liquidated Damages, if any, on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as provided
in Section 5.12.


 


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


 


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Section 5.03. 
Collection
of Indebtedness and Suits for Enforcement by Trustee.  The Company covenants that if a default is made in the
payment of the Principal Amount plus accrued and unpaid interest and Liquidated
Damages, if any, at the Maturity thereof or in the payment of the Redemption
Price, the Repurchase Price or the Fundamental Change Repurchase Price in
respect of any Security, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


If an Event of Default occurs and is continuing, the
Trustee may, but shall not be obligated to, pursue any available remedy to
collect the payment of the principal amount plus accrued but unpaid interest
and Liquidated Damages, if any, on the Securities or to enforce the performance
of any provision of the Securities or this Indenture.  The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding.  A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver
of, or acquiescence in, the Event of Default. 
No remedy is exclusive of any other remedy.  All available remedies are cumulative.


 


Section 5.04.  Trustee May
File Proofs of Claim.  In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.07.


 


No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


43

















 


Section 5.05. 
Application of Money Collected.  Any
money collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money to Holders, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:


 


FIRST:  To the payment of all amounts due the
Trustee under Section 6.07;


 


SECOND:  To the payment of the amounts then due and
unpaid on the Securities for the Principal Amount, Redemption Price, Repurchase
Price, Fundamental Change Repurchase Price or interest and Liquidated Damages,
if any, as the case may be, 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; and


 


THIRD:  To the Company.


 


Section 5.06.  Limitation
on Suits.  No Holder of any
Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder (other than in the case of an
Event of Default specified in clause (a) or (b) of Section 5.01(a)), unless:


 


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


 


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


 


(iii)  such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;


 


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


 


(v)   no direction, in the opinion of the Trustee,
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in aggregate Principal Amount
of the Outstanding Securities;


 


44

















 


it being understood and intended that no one or more Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.


 


Section 5.07. 
Unconditional Right of Holders to Receive Payment.  Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the
Principal Amount, Redemption Price, Repurchase Price, Fundamental Change
Repurchase Price or interest and Liquidated Damages, if any, in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities or any Redemption Date, Repurchase Date or Fundamental Change
Repurchase Date, as applicable, and to convert the Securities in accordance
with Article 13, or to bring suit for the enforcement of any such payment on or
after such respective dates or the right to convert, shall not be impaired or
affected adversely without the consent of such Holder.


 


Section 5.08. 
Restoration of Rights and Remedies. 
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.


 


Section 5.09.  Rights and
Remedies Cumulative.  Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.


 


Section 5.10.  Delay or
Omission Not Waiver.  No
delay or omission of the Trustee or of any Holder of any Security to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the


 


45

















 


Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


Section 5.11.  Control by
Holders.  The Holders of a
majority in Principal Amount of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that:


 


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


 


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


 


Section 5.12.  Waiver of
Past Defaults.  The Holders
of not less than a majority in Principal Amount of the Outstanding Securities
may on behalf of the Holders of all the Securities waive any past Default
hereunder and its consequences, except a Default:


 


(i)    Described in clause (a) or (b) of Section
5.01(a); or


 


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


 


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


 


Section 5.13.  Undertaking
for Costs.  In any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in either
case in respect of the Securities, a court may require any party litigant in
such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorney’s fees,  and expenses, against any party litigant in
the suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant; but the provisions of this Section 5.13
shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in Principal Amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the Principal Amount or interest or Liquidated Damages on any
Security on or after Maturity of such Security, the Redemption Price, the
Repurchase Price or the Fundamental Change Repurchase Price.


 


46

















 


Section 5.14.  Waiver of
Stay or Extension Laws.  The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.


 


ARTICLE 6

THE TRUSTEE


 


Section 6.01.  Certain
Duties and Responsibilities.  The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act.  Except during the
continuance of an Event of Default, the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee.  In case an Event
of Default with respect to the Securities has occurred (which has not been
cured or waived), the Trustee shall exercise the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs. 
Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers. 
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.01.


 


Section 6.02.  Notice of
Defaults.  The Trustee shall
give the Holders notice of any Default hereunder within 60 days after the
occurrence thereof; provided, that (except in the case of any Default in the
payment of Principal Amount or interest and Liquidated Damages, if any, on any
of the Securities, Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price), the Trustee shall be protected in withholding such notice if
and so long as a trust committee of directors or trustees and/or a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of Securities.


 


Section 6.03.  Certain
Rights Of Trustee.  Subject
to the provisions of Section 6.01:


 


47

















 


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


 


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


 


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


 


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


 


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


 


(f)       the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit; and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.


 


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


 


48

















 


(h)      the Trustee shall not be charged with
knowledge of any Default or Event of Default with respect to the Securities
unless either (i) a Responsible Officer shall have actual knowledge of such
Default or Event of Default or (ii) written notice of such Default or Event of
Default shall have been given to the Trustee by the Company or any other
obligor on such Securities or by any Holder of such Securities;


 


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


 


(j)        the rights, privileges, protections,
immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian,
director, officer, employee and other Person employed to act hereunder; and


 


(k)       the Trustee may request that the Company
deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.


 


(l)        The permissive rights of the Trustee to
take certain actions under this Indenture shall not be construed as a duty
unless so specified herein.


 


Section 6.04.  Not
Responsible for Recitals.  The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity, sufficiency or priority of this Indenture or of the
Securities.  The Trustee shall not be
accountable for the use or application by the Company of Securities or the proceeds
thereof.


 


Section 6.05. 
May Hold Securities.  The
Trustee, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.


 


Section 6.06.  Money Held
in Trust.  Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required


 


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by
law.  The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.


 


Section 6.07. 
Compensation
and Reimbursement.  The
Company agrees:


 


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


 


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


 


(iii)  to indemnify the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or expense
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself
against any claim (whether assessed by the Company, by any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.


 


The obligations of the Company under this Section 6.07
shall survive the resignation or removal of the Trustee and the satisfaction
and discharge of this Indenture.  To
secure the Company’s payment obligations in this Section 6.07, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal, interest
and Liquidated Damages, if any, on the Securities.  Such lien shall survive the resignation or removal of the Trustee
and the satisfaction and discharge of this Indenture.  When the Trustee incurs expenses or renders services after a
Default or an Event of Default specified in clauses (g) or (h) of
Section 5.01occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under U.S. Code, Title 11 or any other
similar foreign, federal or state law for the relief of debtors.


 


Section 6.08. 
Disqualification; Conflicting Interests.  If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act,


 


50

















 


the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.


 


Section 6.09.  Corporate
Trustee Required; Eligibility.  There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has, or whose
parent banking company has, a combined capital and surplus of at least
$50,000,000.  If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published.  If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


 


Section 6.10.  Resignation
and Removal; Appointment of Successor.  (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article 6 shall become effective until the acceptance
of appointment by the successor Trustee under Section 6.11.


 


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


 


(c)       The Trustee may be removed at any time by
Act of the Holders of majority in Principal Amount of the Outstanding
Securities, delivered to the Trustee and to the Company.  If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities.


 


(d)      If at any time:


 


(i)    the Trustee shall fail to comply with
Section 6.08 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or


 


(ii)   the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request therefor by the
Company or by any such Holder, or


 


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(iii)  the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent, or


 


(iv)  a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,


 


then, in any such case, (A) the Company by a Company Order may remove
the Trustee, or (B) subject to Section 5.13, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of such Holder
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.


 


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


 


(f)       The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.06.  Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.


 


Section 6.11.  Acceptance
of Appointment by Successor.  Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.  Upon


 


52

















 


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


 


No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article 6.


 


Section 6.12.  Merger,
Conversion, Consolidation or Succession to Business.  Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee by sale or otherwise, shall be the successor of
the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article 6, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.  In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


Section 6.13. 
Preferential Collection of Claims Against.  If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).


 


ARTICLE
7

HOLDERS’ LISTS AND REPORTS BY TRUSTEE


 


Section 7.01.  Company to
Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be furnished to
the Trustee:


 


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


 


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


 


53

















 


excluding
from any such list names and addresses received by the Trustee in its capacity
as Security Registrar; provided, however, that no such list need
be furnished so long as the Trustee is acting as Security Registrar.


 


Section 7.02. 
Preservation of Information; Communications to Holders.  (a)  The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and addresses
of Holders received by the Trustee in its capacity as Security Registrar.  The Trustee may destroy any list furnished
to it as provided in Section 7.01 upon receipt of a new list so furnished.


 


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


 


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


 


Section 7.03.  Reports By
Trustee.  (a)  The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.  Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than July 15 in each calendar year, commencing in July
15, 2004.  Each such report shall be
dated as of a date not more than 60 days prior to the date of transmission.


 


(b)       A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company.  The Company will
notify the Trustee when the Securities are listed on any stock exchange or of
any delisting thereof.


 


Section 7.04.  Reports by
Company.  The Company shall
file with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission. 
In the event the Company is not


 


54

















 


subject
to Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.  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). 
It is expressly understood that materials transmitted electronically by
the Company to the Trustee shall be deemed filed with the Trustee for purposes
of this Section 7.04.


 


ARTICLE 8

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.01.  Company May
Consolidate, etc., Only on Certain Terms. 
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:


 


(a)       either (i) the Company shall be the
continuing Person or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the “Surviving
Entity”), (1) shall be either (a) organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia, or (b) organized under the laws of a jurisdiction outside
the United States and has common stock traded on a national securities exchange
in the United States and a worldwide total market capitalization of its equity
securities before giving effect to the consolidation or merger of at least US$2
billion, and (2) the Surviving Entity shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, all of the
obligations of the Company under the Securities and this Indenture;


 


(b)       immediately 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; and


 


(c)       the Company or the Surviving Entity has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article 8 and Article
9, respectively.


 


55

















 


Section 8.02.  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 the properties and assets of the
Company substantially as an entirety in accordance with Section 8.01, 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, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 9

SUPPLEMENTAL INDENTURES


 


Section 9.01. 
Supplemental Indentures Without Consent of Holders.  Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:


 


(i)    to evidence the succession of another Person
to the Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or


 


(ii)   to add to the covenants of the Company for
the benefit of the Holders, or to surrender any right or power herein conferred
upon the Company; or


 


(iii)  to provide for a successor Trustee with
respect to the Securities; or


 


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


 


(v)   to add any additional Events of Default for
the benefit of the Holders; or


 


56

















 


(vi)       to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities any property or assets; or


 


(vii)      to
increase the Conversion Rate of the Securities; provided, however, that such
increase shall be in accordance with the terms of this Indenture or shall not
adversely affect the interests of the Holders of the Securities; or


 


(viii)     to
supplement any provision of this Indenture to such extent as shall be necessary
to permit or facilitate the discharge of the Securities; provided that such change or
modification does not adversely affect the interests of the Holders of the
Securities; or


 


(ix)        to
make any change or modification necessary in connection with the registration
of the Securities under the Securities Act as contemplated in the Registration
Rights Agreement; provided that such change or modification does not adversely
affect the interests of the Holders of Securities; or


 


(x)         to
add or modify any other provision herein with respect to matters or questions
arising hereunder which the Company and the Trustee may deem necessary or
desirable and which would not reasonably be expected to adversely affect the
interests of the Holders of Securities in any material respect.


 


Section 9.02. 
Supplemental Indentures With Consent of Holders.  With the consent of the Holders
of not less than a majority in Principal Amount of the Outstanding Securities,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,


 


(i)          reduce
the rate of or extend the time for payment of interest, if any, on the
Security; or


 


(ii)         reduce
the Principal Amount of, or extend the Stated Maturity of, any Security; or


 


(iii)        make
any change that impairs or adversely affects the conversion rights of any
Securities; or


 


57

















 


(iv)       reduce
the Redemption Price, the Repurchase Price or Fundamental Change Repurchase
Price of any Security or amend or modify in any manner adverse to the Holders
of Securities the Company’s obligation to make such payments, whether through
an amendment or waiver of provisions in the covenants, definitions or
otherwise; or


 


(v)        modify
the provisions with respect to the right of Holders to cause the Company to
repurchase Securities upon a Fundamental Change in a manner adverse to Holders
of Securities; or


 


(vi)       make
any interest or principal on a Security payable in money other than that stated
in the Security or other than in accordance with the provisions of this
Indenture; or


 


(vii)      impair
the right of any Holder to receive payment of the Principal Amount of or
interest or Liquidated Damages, if any, on a Holder’s Securities on or after
the due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder’s Securities; or


 


(viii)     reduce
the quorum or voting requirements under this Indenture; or


 


(ix)        change
the ranking of the Securities in a manner adverse to the Holders of the
Securities; or


 


(x)         make
any change in the amendment provisions which require each Holder’s consent or
in the waiver provisions; or


 


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


 


(xii)       modify
any of the provisions of this Section 9.02 or Section 5.12, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.


 


It shall not be necessary for any Act of Holders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.


 


58

















 


Section 9.03.  Execution
of Supplemental Indentures.  In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article 9 or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, and
(subject to Section 6.01) shall be fully protected in relying upon, in addition
to the documents required by Section 1.02, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.  Subject to the preceding
sentence, the Trustee shall sign such supplemental indenture if the same does
not adversely affect the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.  The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that adversely affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


Section 9.04.  Effect of
Supplemental Indentures.  Upon
the execution of any supplemental indenture under this Article 9, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.


 


Section 9.05.  Conformity
with Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.


 


Section 9.06.  Reference
in Securities to Supplemental Indentures. 
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article 9 shall bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
indenture.  If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.


 


ARTICLE 10

COVENANTS


 


Section 10.01. 
Payments.  The Company
shall duly and punctually make all payments in respect of the Securities in
accordance with the terms of the Securities and this Indenture.


 


Any payments made or due pursuant to this Indenture
shall be considered paid on the applicable date due if by 10:00 a.m., New York
City time, on such date the Paying Agent holds, in accordance with this
Indenture, cash sufficient to pay all such amounts then due.  Payment of the principal, interest and
Liquidated Damages, if any, on the Securities shall be in such coin or currency
of the United 


 


59

















 


States of America
as at the time of payment is legal tender for payment of public and private
debts.


 


Section 10.02.  Maintenance
of Office or Agency.  The
Company shall maintain in the Borough of Manhattan, 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
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served, which shall initially be the
Corporate Trust Office of the Trustee. 
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


The Company may also from time to time designate one
or more other offices or agencies (in or outside the Borough of Manhattan, The
City of New York) where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.  The Company shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


Section 10.03.  Money for
Security Payments to be Held in Trust.  If
the Company shall at any time act as its own Paying Agent, it shall, on or
before each due date of any payment in respect of any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to make the payment so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of its action or failure so to act.


 


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


 


The Company shall cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 10.03, that such


 


60

















 


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


 


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


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the making of payments in
respect of any Security and remaining unclaimed for two years after such
payment has become due shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York or San Francisco, California, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.  In the absence of a written request from the
Company to return funds remaining unclaimed for two years after such payment
has become due to the Company, the Trustee shall from time to time deliver all
unclaimed payments to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with the
customary practices and procedures of the Trustee.  Any such unclaimed funds held by the Trustee pursuant to this
Section 10.03 shall be held uninvested and without any liability for interest.


 


Section 10.04.  Statement
by Officers as to Default.  The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in Default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice


 


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provided
hereunder) and, if the Company shall be in Default, specifying all such
Defaults and the nature and status thereof of which they may have knowledge.


 


The Company shall deliver to the Trustee, as soon as
possible and in any event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers’ Certificate
setting forth the details of such Event of Default or default and the action
which the Company is taking or proposes to take with respect thereto.


 


Section 10.05. 
Existence.  Subject to
Article 8, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.


 


Section 10.06.  Reports and
Delivery of Certain Information.  Whether
or not required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall promptly furnish to the Trustee
(i) all quarterly and annual financial information that is substantially
equivalent to that which would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” section and, with respect to the annual information
only, a report thereon by the Company’s certified independent accountants and
(ii) all reports that are substantially equivalent to that which would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports; provided that in each case the delivery of
materials to the Trustee by electronic means shall be deemed to be “furnished”
to the Trustee for purposes of this Section 10.06.  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).  In addition, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of all
such information with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available
to investors who request it in writing. 
So long as any of the Securities remain Outstanding, the Company shall
make available to any prospective purchaser of Securities or beneficial owner
of Securities in connection with any sale thereof the information required by
Rule 144A(d)(4) under the Securities Act, until the earlier of (a) such time as
the Holders thereof have disposed of such


 


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Securities
pursuant to an effective Resale Registration Statement or Rule 144 under the
Securities Act and (b) the date that is two years from the Issue Date.


 


Section 10.07.  Resale of
Certain Securities.  During
the period beginning on the Issue Date and ending on the date that is two years
from the Issue Date, the Company shall not, and shall not permit any of its “affiliates”
(as defined under Rule 144 under the Securities Act or any successor provision
thereto) to, resell any Securities which constitute “restricted securities” under
Rule 144 that have been reacquired by any of them.  The Trustee shall have no responsibility in respect of the
Company’s performance of its agreement in the preceding sentence.


 


Section 10.08.  Book-Entry
System.  If the Securities
cease to trade in the Depositary’s book-entry settlement system, the Company
covenants and agrees that it shall use reasonable efforts to make such other
book entry arrangements that it determines are reasonable for the Securities.


 


Section 10.09.  Liquidated
Damages Under the Registration Rights Agreement.  If at any time Liquidated Damages become payable by
the Company pursuant to the Registration Rights Agreement, the Company shall
promptly deliver to the Trustee a certificate to that effect and stating (i)
the amount of such Liquidated Damages that are payable and (ii) the date on
which such Liquidated Damages are payable pursuant to the terms of the
Registration Rights Agreement.  Unless
and until a Responsible Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no Liquidated Damages are payable.  If the Company has paid Liquidated Damages
directly to the Persons entitled to such Liquidated Damages, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.


 


Section 10.10.  Information
for IRS Filings.  The Company
shall provide to the Trustee on a timely basis such information as the Trustee
requires to enable the Trustee to prepare and file any form required to be
submitted by the Company with the Internal Revenue Service and the Holders of
the Securities.


 


ARTICLE 11

REDEMPTION AND REPURCHASES


 


Section 11.01.  Right to
Redeem; Notices to Trustee.  Prior
to December 15, 2008, the Securities are not redeemable.  At any time commencing on December 15, 2008,
the Securities are redeemable as a whole, or from time to time in part, at the
option of the Company at the Redemption Price equal to 100% expressed as a
percentage of the Principal Amount of Securities to be redeemed, together with
accrued and unpaid interest and Liquidated Damages, if any, to, but excluding,
the Redemption Date.


 


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The Company shall give the notice to the Trustee
provided for in this Section 11.01 by a Company Order, at least 45 days but not
more than 60 days before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee).


 


Section 11.02.  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 pro rata or by lot or by any other method the Trustee
considers fair and appropriate (so long as such method is not prohibited by the
rules of any stock exchange on which the Securities are then listed).  The Trustee shall make the selection within
seven days from its receipt of the notice from the Company delivered pursuant
to the second paragraph of Section 11.01 from Outstanding Securities not
previously called for redemption.


 


Securities and portions of them the Trustee selects
shall be in Principal Amounts of $1,000 or integral multiples of $1,000.  Provisions of this Indenture that apply to
Securities called for redemption in whole also apply to Securities called for
redemption in part. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be redeemed.


 


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


 


Section 11.03.  Notice of
Redemption.  At least 30 days
but not more than 60 days before a Redemption Date, the Company shall mail a
notice of redemption by first-class mail, postage prepaid, to each Holder of
Securities to be redeemed.


 


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


 


(i)    the Redemption Date;


 


(ii)   the Redemption Price;


 


(iii)  the Conversion Price;


 


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


 


(v)   that Securities called for redemption may be
converted at any time before the close of business on the Business Day
immediately preceding the Redemption Date;


 


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(vi)     that
Holders who want to convert Securities must satisfy the requirements set forth
therein and in this Indenture;


 


(vii)    that
Securities called for redemption must be surrendered to the Paying Agent for
cancellation to collect the Redemption Price;


 


(viii)   if fewer
than all the outstanding Securities are to be redeemed, the certificate number
(if such Securities are held other than in global form) and Principal Amounts
of the particular Securities to be redeemed;


 


(ix)      that,
unless the Company defaults in making payment of such Redemption Price,
interest and Liquidated Damages, if any, will cease to accrue on and after the
Redemption Date; and


 


(x)       the
CUSIP number of the Securities.


 


At the Company’s written request delivered at least 30
days prior to the date such notice is to be given (unless a shorter time period
shall be acceptable to the Trustee), the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s expense.


 


Section 11.04.  Effect of
Notice of Redemption.  Once
notice of redemption is given, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the notice
except for Securities which are converted in accordance with the terms of this
Indenture.  Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption Price stated in the
notice.


 


Section 11.05.  Deposit of
Redemption Price.  Prior to
10:00 a.m. (New York City time) on a Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of
either of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption
which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. 
The Paying Agent shall as promptly as practicable return to the Company
any money not required for that purpose because of conversion of Securities
pursuant to Article 13.  If such money
is then held by the Company in trust and is not required for such purpose it
shall be discharged from such trust.


 


Section 11.06.  Securities
Redeemed in Part.  Upon
surrender of a Security that is redeemed in part, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder a new Security in an
authorized denomination equal in principal amount to the unredeemed portion of
the Security


 


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surrendered.
The Company shall not be required to (i) issue, register the transfer of, or
exchange any Securities during a period of 15 days before the Redemption Date
or (ii) register the transfer of, or exchange any, Securities so selected for
redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.


 


Section 11.07.  Conversion
Arrangement on Call for Redemption.  In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of such
Securities.  Notwithstanding anything to
the contrary contained in this Article 11, the obligation of the Company to pay
the Redemption Price of such Securities shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers.  If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 13) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Business Day prior to the Redemption Date, subject to payment of the above
amount as aforesaid. The Trustee shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it for purchase
and conversion in the same manner as it would moneys deposited with it by the
Company for the redemption of Securities. 
Without the Trustee’s prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any Securities
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture, except in the case of the Trustee’s
negligence or willful misconduct.


 


Section 11.08.  Repurchase
of Securities at Option of the Holder.


 


(a)           General. 
Securities shall be repurchased by the Company pursuant to the terms
thereof on December 15, 2008, December 15, 2013, December 15, 2018, December
15, 2023 and December 15, 2028 (each, a “Repurchase Date”),


 


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at the Repurchase
Price, at the option of the Holder thereof, in accordance with the following
procedures.


 


(b)      Company Notice.  The Company shall deliver a notice (the “Company Notice”) to Holders
(and to beneficial owners as required by applicable law) not less than 30 days
prior to such Repurchase Date (the “Company Notice Date”).  The Company Notice shall include a form of
Repurchase Notice to be completed by a Securityholder and shall state:


 


(i)        the
Repurchase Price and the Conversion Price applicable on the Company Notice
Date;


 


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


 


(iii)      that
Securities as to which a Repurchase Notice has been given by the Holder may be
converted pursuant to Article 13 only if the applicable Repurchase Notice has
been withdrawn in accordance with the terms of this Indenture;


 


(iv)      that
Securities must be surrendered to the Paying Agent for cancellation to collect
payment;


 


(v)       that
the Repurchase Price for any security as to which a Repurchase Notice has been
given and not withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such Security as described in
clause (iv) above;


 


(vi)      the
procedures the Holder must follow to exercise rights under this Section 11.08
and a brief description of those rights;


 


(vii)     the
conversion rights of the Securities;


 


(viii)    the
procedures for withdrawing a Repurchase Notice;


 


(ix)       that,
unless the Company defaults in making payment of the Repurchase Price, interest
and Liquidated Damages, if any, on Securities covered by the Repurchase Notice,
will cease to accrue on and after the Repurchase Date; and


 


(x)        the
CUSIP number of the Securities.


 


At least three Business Days before the Company Notice
Date, the Company shall deliver an Officers’ Certificate to the Trustee
specifying whether the Company desires the Trustee to give the Company
Notice.  At the Company’s request, the
Trustee shall give such Company Notice in the Company’s name and


 


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at the Company’s
expense; provided
that in all cases the text of such Company Notice shall be prepared by the
Company. On or before the
Company Notice Date, the Company shall publish a notice containing
substantially the same information that is required in the Company Notice in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in The City of New York, or publish
such information on the Company’s website or through such other public medium
as the Company may use at such time.


 


(c)       Repurchase Notice.  Holders must deliver to the Paying Agent:


 


(1)           a written notice of repurchase (a “Repurchase
Notice”), substantially in the form of Exhibit A hereto, at
any time from the opening of business on the date that is 30 days prior to a
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date stating:


 


(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;


 


(B)               the portion of the Principal
Amount of the Security which the Holder will deliver to be repurchased, which
portion must be in a Principal Amount of $1,000 or integral multiples thereof;
and


 


(C)               that such Security shall be
repurchased as of the Repurchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture; and


 


(2)           the Security (if such Security is
held in other than global form) to the Paying Agent for cancellation prior to,
on or after the Repurchase Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Repurchase Price therefor; provided that such
Repurchase Price shall be so paid pursuant to this Section 11.08 only if the
Security so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Repurchase Notice.


 


The Company shall purchase from the Holder thereof,
pursuant to this Section 11.08, a portion of a Security if the Principal Amount
of such portion is $1,000 or an integral multiple of $1,000 if so requested by
the Holder.  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.


 


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Any repurchase by the Company contemplated pursuant to
the provisions of this Section 11.08 shall be consummated by the delivery to
the Paying Agent of the consideration to be received by the Holder promptly
following the later of the Repurchase Date and the time of delivery of the
Security.


 


Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Repurchase Notice contemplated by
this clause (c) shall have the right to withdraw such Repurchase Notice at any
time prior to the close of business on the Business Day prior to the Repurchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 11.10.


 


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


 


(d)           Payment of Repurchase Price.  The Securities to be repurchased pursuant to
clause (a) of Section 11.08 shall be paid for in cash in an amount equal to
100% of the Principal Amount on the Repurchase Date, plus accrued and unpaid
interest and Liquidated Damages, if any, to but excluding the Repurchase
Date.  If the applicable Repurchase Date
is an Interest Payment Date, interest will be paid on the Interest Payment Date
to the Holder as of the relevant Record Date. 
Otherwise, interest will be paid to the Holder that receives the
principal payment on the applicable Repurchase Date.


 


(e)           Procedures Upon Repurchase.  The Company shall deposit cash at the time
and in the manner as provided in Section 11.11, sufficient to pay the aggregate
Repurchase Price of all Securities to be purchased pursuant to this Section
11.08.


 


Section 11.09.  Repurchase
of Securities at Option of the Holder Upon Fundamental Change.


 


(a)           General. 
If prior to the Stated Maturity there shall have occurred a Fundamental
Change, Securities shall be repurchased by the Company at the Fundamental
Change Repurchase Price on a date specified by the Company that is not less
than 25 days nor more than 35 days after the date of the mailing of a
Fundamental Change Company Notice pursuant to clause (b) of this Section 11.09
(the “Fundamental
Change Repurchase Date”), at the option of the Holder thereof, in
accordance with the following procedures; provided that the Company shall not be
required to repurchase the Securities pursuant to this Section 11.09 if the
Sale Price per share of Common Stock for any five Trading Days within the
period of ten consecutive Trading Days ending immediately after the later of
the Fundamental Change and the public announcement of the Fundamental Change
equals or exceeds 105% of the Conversion Price of the Securities in effect on
each of those five Trading Days.


 


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(b)           Company Notice of Fundamental Change.  Within 15 days after the occurrence of a
Fundamental Change, the Company shall, if Holders have the right to require the
Company to repurchase Securities hereunder, deliver a written notice of
Fundamental Change (the “Fundamental Change Company Notice”) by
first-class mail or by overnight courier to the Trustee and to each Holder (and
to beneficial owners as required by applicable law).  The notice shall include a form of Fundamental Change Repurchase
Notice to be completed by the Securityholder and shall state:


 


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


 


(ii)      the
date by which a Holder must deliver a Fundamental Change Repurchase Notice to
elect the repurchase option pursuant to this Section 11.09;


 


(iii)     the
Fundamental Change Repurchase Date;


 


(iv)     the
Fundamental Change Repurchase Price;


 


(v)      whether
the Fundamental Change Repurchase Price will be paid in cash, shares of Common
Stock or a combination thereof, specifying the percentages of each;


 


(vi)     if
shares of Common Stock will be used to pay all or part of the Fundamental
Change Repurchase Price, state:


 


(a) the method for
valuing the shares of Common Stock to be delivered in connection with the
repurchase; and


 


(b) that holders of the
Securities will bear the market risk with respect to the value of the shares of
Common Stock to be delivered from the date the number of shares is determined;


 


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


 


(viii)   the
Conversion Rate applicable on the date of the Fundamental Change Company
Notice;


 


(ix)     that
Securities as to which a Fundamental Change Repurchase Notice has been given
may be converted pursuant to Article 13 hereof only if the Fundamental Change
Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


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(x)      that
Securities must be surrendered to the Paying Agent for cancellation to collect payment;


 


(xi)     that the
Fundamental Change Repurchase Price for any Security as to which a Fundamental
Change Repurchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Fundamental Change Repurchase Date and the
time of surrender of such Security as described in clause (viii) above;


 


(xii)    the
procedures the Holder must follow to exercise rights under this Section 11.09;


 


(xiii)   the
conversion rights of the Securities;


 


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


 


(xv)    that,
unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, Securities covered by any Fundamental Change Repurchase
Notice will cease to be outstanding and interest and Liquidated Damages, if
any, will cease to accrue on and after the Fundamental Change Repurchase Date;
and


 


(xvi)   the CUSIP
number of the Securities.


 


At the Company’s
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 text of such Fundamental Change Company Notice shall be prepared by the
Company.  In connection with delivery of the
Fundamental Change Company Notice to the Holders, the Company shall publish a
notice containing substantially the same information that is required in the
Fundamental Change Company Notice in a newspaper published in the English
language, customarily published each Business Day and of general circulation in
The City of New York, or publish such information on the Company’s website or
through such other public medium as the Company may use at such time.


 


(c)       Fundamental Change Repurchase Notice.  Holders must deliver to the Paying Agent:


 


(1)           a written notice of repurchase (a “Fundamental
Change Repurchase Notice”), substantially in the form of Exhibit
B hereto, at any time from the opening of business on the date of the
Fundamental Change Company Notice until the close of business on Business Day
prior to the Fundamental Change Repurchase Date stating:


 


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(A)               the certificate number (if such
Security is held other than in global form) of the Security which the Holder
will deliver to be purchased;


 


(B)               the portion of the Principal
Amount of the Security which the Holder will deliver to be purchased, which
portion must be in a Principal Amount of $1,000 or integral multiples thereof;
and


 


(C)               that such Security shall be
purchased as of the Fundamental Change Repurchase Date pursuant to the terms
and conditions specified in the Securities and in this Indenture; and


 


(2)           the Security (if such Security is
held other than in global form) to the Paying Agent for cancellation prior to,
on or after the Fundamental Change Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor; provided
that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 11.09 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Fundamental
Change Repurchase Notice.


 


The Company shall purchase from the Holder thereof,
pursuant to this Section 11.09, a portion of a Security if the Principal Amount
of such portion is $1,000 or an integral multiple of $1,000 if so requested by
the Holder.  Provisions of this
Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 11.09 shall be consummated by the delivery to
the Paying Agent of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of
delivery of the Security.


 


Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice
contemplated by this Section 11.09(c) shall have the right to withdraw such
Fundamental Change Repurchase Notice at any time prior to the close of business
on the Business Day prior to the Fundamental Change Repurchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with
Section 11.10.


 


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


 


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(d)      Payment of Fundamental Change Repurchase Price.  The Securities to be repurchased pursuant to
this Section 11.09 shall be paid for in cash; provided that if a
Fundamental Change occurs as a result of a Change of Control Event, the
Securities to be repurchased may be paid for, in whole or in part, at the
election of the Company, in cash or Common Stock or any combination of cash and
Common Stock, subject to the conditions set forth in clause (e) of this Section
11.09.


 


(e)       Conditions for Election to Pay Fundamental Change
Repurchase Price in Common Stock. 
If the Company elects to pay all or any portion of the Fundamental
Change Repurchase Price in Common Stock, the number of shares of Common Stock
to be paid will equal the quotient obtained by dividing (i) the portion of the
Fundamental Change Repurchase Price to be paid in shares of Common Stock by
(ii) 97% of the average Closing Price of the shares of Common Stock for the
five Trading Day period ending on the second Business Day immediately preceding
the Fundamental Change Repurchase Date, appropriately adjusted to take into
account the occurrence, during the period commencing on the first of the
Trading Days during the five Trading Day period and ending on the Fundamental
Change Repurchase Date, of any event described in Section 13.06, subject to the
next succeeding paragraph.  The Company
shall designate, in the Fundamental Change Company Notice delivered pursuant to
clause (b) of Section 11.09, whether it will repurchase the Securities for cash
or shares of Common Stock, or, if a combination thereof, the percentages of the
Fundamental Change Repurchase Price of Securities in respect of which it will
pay in cash or shares of Common Stock; provided that the Company will pay cash
for fractional interests in shares of Common Stock.  For purposes of determining the existence of potential fractional
interests, all Securities subject to repurchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to
be presented).  Each holder whose
Securities are repurchased pursuant to this Section 11.09 shall receive the
same percentage of cash or shares of Common Stock in payment of the Fundamental
Change Repurchase Price for such Securities, except with regard to the payment
of cash in lieu of fractional shares of Common Stock.  The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Company has given its Fundamental Change Company Notice to holders
except as set forth in the next succeeding paragraph in the event of a failure
to satisfy, prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, any condition to the payment of the Fundamental
Change Repurchase Price, in whole or in part, in shares of Common Stock.


 


The Company shall, at least three Business Days prior
to delivering the Fundamental Change Company Notice, deliver an Officers’
Certificate to the Trustee specifying:


 


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(i)        the
manner of payment selected by the Company,


 


(ii)       the
information required by the Company Repurchase Notice pursuant to clause (b) of
Section 11.09,


 


(iii)      if the
Company elects to pay the Fundamental Change Repurchase Price, or a specified
percentage thereof, in shares of Common Stock, that the conditions to such
manner of payment set forth in this clause (e) have been or will be complied
with, and


 


(iv)      whether
the Company desires the Trustee to give the Fundamental Change Company Notice
required by clause (b) of Section 11.09.


 


The Company’s right to exercise its election to
repurchase Securities through the issuance of shares of Common Stock shall be
conditioned upon:


 


(v)       the
Company’s giving a timely Fundamental Change Company Notice containing an
election to purchase all or a specified percentage of the Securities with
shares of Common Stock as provided herein;


 


(vi)      the
registration of such shares of Common Stock under the Securities Act and, if
required, the Exchange Act;


 


(vii)     the
listing of such shares of Common Stock on a United States national securities
exchange or the quotation of such shares of Common Stock in an inter-dealer
quotation system of any registered United States national securities association,
in each case, if the Common Stock is then listed on a national securities
exchange or quoted in an inter-dealer quotation system;


 


(viii)    any
necessary qualification or registration of such shares of Common Stock under
applicable state securities laws or the availability of an exemption from such
qualification and registration; and


 


(ix)       the
receipt by the Trustee of an (A) Officers’ Certificate stating that the
terms of the issuance of the shares of Common Stock are in conformity with this
Indenture, (B) an Opinion of Counsel to the effect that the shares of
Common Stock to be issued by the Company in payment of the Fundamental Change
Repurchase Price in respect of the Securities have been duly authorized and,
when issued and delivered pursuant to the terms of this Indenture in payment of
the Fundamental Change Repurchase Price in respect of the Securities, will be
validly issued, fully paid and non-assessable and (c) an Officer’s
Certificate, stating that the


 


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conditions to the
issuance of the shares of Common Stock have been satisfied.


 


Such Officers’ Certificate shall also set forth the
number of shares of Common Stock to be issued for each $1,000 principal amount
of Securities upon their Stated Maturity and the Closing Price of a share of
Common Stock on each Trading Day during the period commencing on the fifth
Trading Day immediately preceding but ending on the third Business Day prior to
the applicable Fundamental Change Repurchase Date.  If the foregoing conditions are not satisfied prior to the close
of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date and the Company has elected to repurchase the Securities
through the issuance of shares of Common Stock, the Company shall pay the
entire Fundamental Change Repurchase Price of the Securities in cash.


 


Promptly after determination of the actual number of
shares of Common Stock to be issued upon repurchase of Securities, the Company
shall be required to disseminate a press release through Dow Jones &
Company, Inc. or Bloomberg Business News containing this information or publish
the information on the Company’s web site or through such other public medium
as the Company may use at that time.


 


All shares of
Common Stock delivered upon repurchase of the Securities shall be duly
authorized, validly issued, fully paid and nonassessable.


 


If a holder of a
repurchased Security is paid in shares of Common Stock, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on such issue of
Common Stock.  However, the holder shall
pay any such tax which is due because the holder requests the Common Stock to
be issued in a name other than the holder’s name.  The Trustee (or other paying agent appointed by the Company) may
refuse to deliver the certificates representing the shares of Common Stock
being issued in a name other than the holder’s name until the Trustee (or other
paying agent appointed by the Company) receives a sum sufficient to pay any tax
which will be due because the shares of Common Stock are to be issued in a name
other than the holder’s name.  Nothing
herein shall preclude any income tax withholding required by law or
regulations.


 


(f)       Procedure Upon Repurchase.  The Company shall deposit cash or Common
Stock, if permitted hereunder, at the time and in the manner as provided in
Section 11.11, sufficient to pay the aggregate Fundamental Change Repurchase
Price of all Securities to be purchased pursuant to this Section 11.09.


 


Section 11.10.  Effect of
Repurchase Notice or Fundamental Change Repurchase Notice.  Upon receipt by the Paying Agent
of the Repurchase Notice or Fundamental Change Repurchase Notice specified in
clause (b) of Section


 


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11.08
or clause (b) of Section 11.09, as applicable, the Holder of the Security in
respect of which such Repurchase Notice or Fundamental Change Repurchase
Notice, as the case may be, was given shall (unless such Repurchase Notice or
Fundamental Change Repurchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Repurchase Price
or Fundamental Change Repurchase Price, as the case may be, with respect to
such Security. Such Repurchase Price or Fundamental Change Repurchase Price
shall be paid to such Holder, subject to receipt of funds by the Paying Agent,
promptly following the later of (x) the Repurchase Date or the Fundamental
Change Repurchase Date, as the case may be, with respect to such Security
(provided the conditions in clause (b) of Section 11.08 or clause (b) of
Section 11.09, as applicable, have been satisfied) and (y) the time of delivery
of such Security to the Paying Agent by the Holder thereof in the manner
required by clause (b) of Section 11.08 or clause (b) of Section 11.09, as
applicable. Securities in respect of which a Repurchase Notice or Fundamental
Change Repurchase Notice, as the case may be, has been given by the Holder
thereof may not be converted pursuant to Article 13 on or after the date of the
delivery of such Repurchase Notice or Fundamental Change Repurchase Notice, as
the case may be, unless such Repurchase Notice or Fundamental Change Repurchase
Notice, as the case may be, has first been validly withdrawn as specified in
the following two paragraphs.


 


A Repurchase Notice or Fundamental Change Repurchase
Notice, as the case may be, may be withdrawn only by means of a written notice
of withdrawal delivered to the office of the Paying Agent in accordance with
the procedures set forth in the Company Notice or Fundamental Change Company
Notice, as the case may be, at any time prior to the close of business on the
Business Day prior to the Repurchase Date or the Fundamental Change Repurchase
Date, as the case may be, specifying:


 


(i)    the Principal Amount of the Security with
respect to which such notice of withdrawal is being submitted; and


 


(ii)   the certificate number (if such Security is
held in other than global form) of the Security in respect of which such notice
of withdrawal is being submitted; and


 


(iii)  the Principal Amount, if any, of such Security
which remains subject to the original Repurchase Notice or Fundamental Change
Repurchase Notice, as the case may be, and which has been or will be delivered for
purchase or repurchase by the Company.


 


There shall be no repurchase of any Securities
pursuant to Section 11.08 or 11.09 if there has occurred (prior to, on or
after, as the case may be, the giving, by the Holders of such Securities, of
the required Repurchase Notice or


 


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Fundamental Change
Repurchase Notice, as the case may be) and is continuing an Event of Default
(other than a default in the payment of the Repurchase Price or Fundamental
Change Repurchase Price, as the case may be, with respect to such
Securities).  The Paying Agent will
promptly return to the respective Holders thereof any Securities (x) with
respect to which a Repurchase Notice or Fundamental Change Repurchase Notice,
as the case may be, has been withdrawn in compliance with this Indenture, or
(y) held by it during the continuance of an Event of Default (other than a
default in the payment of the Repurchase Price or Fundamental Change Repurchase
Price, as the case may be, with respect to such Securities) in which case, upon
such return, the Repurchase Notice or Fundamental Change Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.


 


Section 11.11.  Deposit of
Repurchase Price or Fundamental Change Repurchase Price.  Prior to 10:00 a.m. (local time
in The City of New York) on the Business Day following the Repurchase Date or
the Fundamental Change Repurchase Date, as the case may be, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided herein) an amount of money (in
immediately available funds if deposited on such Business Day) or Common Stock,
if permitted hereunder, sufficient to pay the Repurchase Price or the
Fundamental Change Repurchase Price, as the case may be, of all the Securities
or portions thereof which are to be repurchased as of the Repurchase Date or
the Fundamental Change Repurchase Date, as applicable.  The Company shall promptly notify the
Trustee in writing of the amount of any deposits of cash or Common Stock made
pursuant to Section 11.11


 


Section 11.12.  Securities
Repurchased in Whole or in Part.  Any
Security which is to be repurchased, whether in whole or in part, shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate Principal Amount equal
to, and in exchange for, the portion of the Principal Amount of the Security so
surrendered which is not repurchased.


 


Section 11.13.  Covenant to
Comply With Securities Laws Upon Repurchase of Securities.  In connection with any offer to
repurchase Securities under Section 11.08 or 11.09 (provided that such offer or
repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4
(which term, as used herein, includes any successor provision thereto) under
the Exchange Act at the time of


 


77

















 


such
offer or repurchase), the Company shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii)  otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under Section 11.08
or 11.09 to be exercised in the time and in the manner specified in Section
11.08 or 11.09, as applicable.


 


Section 11.14.  Repayment
to the Company.  The Trustee
and the Paying Agent shall return to the Company any cash that remains
unclaimed, together with interest or dividends, if any, thereon, held by them
for the payment of the Repurchase Price or Fundamental Change Repurchase Price,
as the case may be; provided that to the extent that the
aggregate amount of cash or Common Stock deposited by the Company pursuant to
Section 11.11 exceeds the aggregate Repurchase Price or Fundamental Change
Repurchase Price, as the case may be, of the Securities or portions thereof
which the Company is obligated to repurchase as of the Repurchase Date or
Fundamental Change Repurchase Date, as the case may be, then as soon as
practicable following the Repurchase Date or Fundamental Change Repurchase
Date, as the case may be, the Trustee or the Paying Agent, as the case may be,
shall return any such excess to the Company.


 


ARTICLE 12

INTEREST PAYMENTS ON THE SECURITIES


 


Section
12.01. Interest Rate.  (a) Interest on the Securities shall accrue at a rate of 0.75%
per annum and shall be payable semi-annually in arrears on each Interest
Payment Date to holders of record on the Record Date immediately preceding such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. 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 December 15, 2003, until the Principal Amount is paid or duly
made available for payment.


 


(b)           Interest on any Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security is registered at
the close of business on the Record Date for such interest at the office or
agency of the Company maintained for such purpose. Each installment of interest
on any Security shall be made by check mailed to the address of the Holder
specified in the register of Securities,; provided, however, that, with respect
to any Holder of Securities with an aggregate principal amount in excess of
$2,000,000, at the request of such Holder in writing to the Company, interest
on such Holder’s Securities shall be paid by wire transfer in immediately
available funds in accordance with the written wire transfer instruction
supplied by such Holder from time to time to the Trustee and Paying Agent (if
different from the Trustee) at least ten days prior to the


 


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applicable
Interest Payment Date. In the case of a permanent Global Security, interest
payable on any Interest Payment Date will be paid to the Depositary, with
respect to that portion of such permanent Global Security held for its account
by Cede & Co. for the purpose of permitting such party to credit the
interest received by it in respect of such permanent Global Security to the
accounts of the beneficial owners thereof.


 


ARTICLE 13

CONVERSION


 


Section 13.01.  Conversion
Privilege.  (a)  Subject
to the further provisions of this Article 13, a Holder of a Security may
convert the Principal Amount of such Security (or a portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into Common Stock
at any time prior to the close of business at the Stated Maturity only as
follows:


 


(i)    (A) during any Conversion Period prior to
December 15, 2028 if the Closing Price of the Company’s Common Stock for at
least 20 Trading Days in a period of 30 consecutive Trading Days ending on the
first day of such Conversion Period was more than 130% of the applicable
Conversion Price on the first day of the Conversion Period or (B) at any time
on or after December 15, 2028 through the close of business on the Business Day
prior to Stated Maturity if the Closing Price of the Company’s Common Stock is
more than 130% of the applicable Conversion Price;


 


(ii)   during the five consecutive Business Day
period following any five consecutive Trading Day period in which the average
Trading Price for the Securities for such five Trading Day period was less than
98% of the average Closing Price of the Company’s Common Stock during that five
Trading Day period multiplied by the Conversion Rate (the “Trading Price Condition”); provided,
however,
that if on the date of any conversion pursuant to the Trading Price Condition
that is on or after December 15, 2028, the Closing Price of the Company’s
Common Stock on the Trading Day immediately prior to the Conversion Date is
greater than the Conversion Price, Holders surrendering Securities for
conversion will receive, in lieu of shares of the Company’s Common Stock based
on the Conversion Rate, shares of the Company’s Common Stock with a value equal
to the Principal Amount of Securities being converted (a “Principal Value Conversion”).  Shares of the Company’s Common Stock
delivered upon a Principal Value Conversion will be valued at the greater of
the effective Conversion Price as of the date eight Trading Days prior to the
Conversion Date and the Closing Price as of the 


 


79

















 


Conversion Date
and will be delivered no later than the third Business Day following the
determination of the Closing Price;


 


“Trading Price” of the
Securities on any date of determination means the average of the secondary
market bid quotations per Security obtained by the Trustee for $2,000,000
Principal Amount of Securities at approximately 3:30 p.m., New York City
time, on such determination date from two Bid Solicitation Agents; provided
that if at least two such bids cannot reasonably be obtained by the Trustee,
but one such bid can reasonably be obtained, this one bid will be used.  If the Trustee cannot reasonably obtain at
least one bid for $2,000,000 Principal Amount of Securities from a Bid
Solicitation Agent or, in the reasonable judgment of the Company, the bid
quotations are not indicative of the secondary market value of the Securities,
the trading price of the Securities will be deemed to be less than 98% of the
product of the applicable Conversion Rate of the Securities and the Closing
Price of the Company’s Common Stock on such date of determination.


 


(iii)  in the event that the Company calls the
Securities for redemption, at any time prior to the close of business on the
Business Day immediately preceding the Redemption Date;


 


(iv)  if the Company becomes a party to a
consolidation, merger or binding share exchange pursuant to which all or
substantially all of the Common Stock would be converted into cash, securities
or other property, in which case a Holder may surrender Securities for
conversion at any time from and after the date which is 15 days prior to the
anticipated effective date for the transaction until 15 days after the actual
effective date of such transaction; provided, however, that on the effective
date of such transaction, the right of a Holder to convert a Security into
Common Stock will change into a right to convert such Security into the kind
and amount of cash, securities or other property that such Holder would have
received if such Holder had converted such Security immediately prior to the
transaction; or


 


(v)   if the Company elects to (i) distribute to
all or substantially all holders of Common Stock assets, debt securities or
Capital Stock of the Company, which distribution has a per share value as
determined by the Board of Directors exceeding 5% of the Closing Price of a
share of Common Stock on the Trading Day immediately preceding the declaration
date for such distribution or (ii) distribute to all or substantially all
holders of Common Stock rights, options or warrants entitling them to purchase
shares of Common Stock at less than the Closing Price of Common Stock on the
Trading Day immediately preceding the declaration date of the
distribution.  In the case of the foregoing
clauses (i) and (ii), the Company


 


80

















 


must notify the
Holders at least 20 days immediately prior to the ex-dividend date for such distribution.  Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time thereafter
until the earlier of the close of business on the Business Day immediately
prior to the ex-dividend date or the Company’s announcement that such
distribution will not take place even if the Securities are not convertible at
such time; provided however, that
a Holder may not exercise this right to convert if the Holder may participate
in the distribution without conversion. 
As used herein, the term “ex dividend date” or “ex-date” when used with respect
to any issuance or distribution, shall mean the first date upon which a sale of
shares of Common Stock does not automatically transfer the right to receive the
relevant dividend from the seller of such Common Stock to its buyer.


 


The Conversion
Agent shall, on behalf of the Company, determine on a daily basis whether the
Securities shall be convertible as a result of the occurrence of an event
specified in clause (i) above and, if the Securities shall be so convertible,
the Conversion Agent shall promptly deliver to the Company and the Trustee
written notice thereof.  Whenever the
Securities shall become convertible pursuant to this Section 13.01, the
Company or, at the Company’s request, the Trustee in the name and at the
expense of the Company, shall notify the Holders of the event triggering such
convertibility in the manner provided in Section 1.06.  In addition, the Company shall publish a
notice containing substantially the same information in a newspaper published
in the English language, customarily published each Business Day and of general
circulation in The City of New York, or publish such information on the
Company’s website or through such other public medium as the Company may use at
such time.


 


The Conversion Agent shall have no obligation to
determine the Trading Price under this Section 13.01 unless the Company has
requested such a determination; and the Company shall have no obligation to
make such request unless a Holder provides the Company with reasonable evidence
that the Trading Price per $1,000 Principal Amount of Securities would be less
than 98% of the product of the Closing Price of the Common Stock and the number
of shares of Common Stock issuable upon conversion of $1,000 Principal Amount
of Securities.  If such evidence is
provided, the Company shall instruct the Conversion Agent to determine the
Trading Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the average Trading Price per $1,000 Principal
Amount of Debentures for five consecutive Trading Days is greater than or equal
to 98% of the product of the Closing Price and the number of shares issuable
upon conversion of $1,000 Principal Amount of Securities.


 


(b)      Conversion Period.  Notwithstanding the foregoing, if such
Security is submitted or presented for repurchase pursuant to Article 11,
such conversion


 


81

















 


right shall terminate at
the close of business on the Business Day prior to the Repurchase Date or
Fundamental Change Repurchase Date, as the case may be, for such Security or
such earlier date as the Holder presents such Security for repurchase (unless
the Company shall default when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured and such
Security is repurchased).


 


(c)       Conversion Rate; Conversion Price.  The conversion rate per Security (the “Conversion
Rate”) shall be that set forth in paragraph 8 in the
Securities, subject to adjustment as herein set forth.  The initial Conversion Rate is 32.2431
shares of Common Stock per $1,000 principal amount of Securities.  The “Conversion Price” at any particular time is
determined by dividing $1,000 by the then-applicable Conversion Rate.


 


(d)      Delivery of Officers’ Certificate.  If any of the Securities is convertible by
the Holders into Common Stock, the Company shall deliver to the Trustee an
Officers’ Certificate to that effect stating (i) the fact that such Securities
are so convertible, (ii) the date as of which the Securities are convertible,
(iii) the reason why the Securities are convertible and (iv) the Conversion
Rate at which the Securities are convertible. 
Unless and until a Trust Officer of the Trustee receives such Officers’
Certificate, the Trustee may assume without inquiry that the Securities are not
convertible.  Whenever any fact set
forth in an Officers’ Certificate delivered pursuant to this Section 13.01
changes, the Company shall deliver to the Trustee a new Officers’ Certificate
setting forth the correct information. 
Unless and until a Trust Officer receives such a correcting Officers’
Certificate, the Trustee may assume without inquiry that the last Officers’
Certificate delivered to it remains in full force and effect and is correct is
every respect.


 


(e)       Securities Converted in Whole or in Part.  Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


 


(f)       Rights of Holders.  A Holder of Securities is not entitled to
any rights of a holder of Common Stock until such Holder has converted its
Securities to Common Stock, and only to the extent such Securities are deemed
to have been converted into Common Stock pursuant to this Article 13.


 


Section 13.02.  Conversion
Procedure.


 


(a)       To convert a Security, a Holder must
(i) complete and manually sign the conversion notice on the back of the
Security or facsimile of the conversion notice and deliver such notice to a
Conversion Agent, (ii) surrender the Security to a Conversion Agent,
(iii) furnish appropriate endorsements and transfer documents if required
by a Registrar or a Conversion Agent and (iv) pay any


 


82

















 


transfer or
similar tax, if required.  Such notice
is hereinafter referred to as a “Notice of Conversion.”  A Security shall be deemed to have been
converted as of the close of business on the date (the “Conversion Date”) on which
the Holder has complied with the immediately preceding sentence of this clause
(a) of Section 13.02.  Anything herein
to the contrary notwithstanding, in the case of Global Securities, a Notice of
Conversion shall be delivered and such Securities shall be surrendered for
conversion in accordance with the rules and procedures of DTC as in effect from
time to time.


 


(b)           The Company will, as soon as
practicable after the Conversion Date, issue, or cause to be issued, and
deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates for the number of full shares of Common Stock, if any,
to which such Holder shall be entitled. 
The Person or Persons entitled to receive such Common Stock upon such
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock, as of the close of business on the applicable Conversion
Date; provided,
however, that no surrender of a Security on any 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 such
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 otherwise provided in Section
13.06, no payment or adjustment will be made for dividends or distributions on
shares of Common Stock issued upon conversion of a Security.


 


All Securities or portions thereof surrendered for
conversion during the period from the close of business on the Record Date for
any Interest Payment Date to the close of business on the Business Day next
preceding the following Interest Payment Date shall (unless such Securities or
portion thereof being converted shall have been called for redemption on a
Redemption Date which occurs during the period from the close of business on
such Record Date to the close of business on the Business Day next preceding
the following Interest Payment Date) be accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such Interest Payment Date on the Principal Amount being converted;
provided, however, that no such payment need be made if there shall exist at
the time of conversion a default in the payment of interest on the Securities.


 


83

















 


(c)       If a Holder converts more than one
Security at the same time, the number of shares of Common Stock issuable upon
the conversion shall be based on the aggregate Principal Amount of Securities
converted.


 


(d)      Upon surrender of a Security that is
converted in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Security equal in principal
amount to the unconverted portion of the Security surrendered.


 


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


 


(f)       Holders that have already delivered a
Repurchase Notice or Fundamental Change Repurchase Notice with respect to a
Security may not surrender such Security for conversion until the Repurchase
Notice or Fundamental Change Repurchase Notice, as the case may be, has been
withdrawn in accordance with the procedures set forth in Section 11.10.


 


Section 13.03.  Fractional
Shares. The Company will not issue fractional shares of Common Stock
upon conversion of Securities.  In lieu
thereof, the Company will pay an amount in cash for the current market value of
the fractional shares.  The current
market value of a fractional share shall be determined, (calculated to the
nearest 1/1000th of a share) by multiplying the Closing Price of the Common
Stock on the Trading Day immediately prior to the Conversion Date by such
fractional share and rounding the product to the nearest whole cent.


 


Section 13.04.  Taxes on
Conversion.  If a Holder
converts a Security, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issuance of shares of Common Stock upon such
conversion.  However, the Holder shall
pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder’s name. 
The Conversion Agent may refuse to deliver the certificate representing
the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax
withholding required by law or regulation.


 


Section 13.05.  Company to
Provide 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 


 


84

















 


(including after
taking into account any adjustments to the Conversion Rate pursuant to Section
13.06).


 


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 rights and free of any lien or adverse claim.


 


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, if any, and will list or
cause to have quoted such shares of Common Stock on each national securities
exchange or on the New York Stock Exchange, the Nasdaq National Market or other
over-the-counter market or such other market on which the Common Stock is then
listed or quoted; provided, however, that if rules of such automated quotation
system or exchange permit the Company to defer the listing of such Common Stock
until the first conversion of the Securities into Common Stock in accordance
with the provisions of this Indenture, the Company covenants to list such
Common Stock issuable upon conversion of the Notes in accordance with the
requirements of such automated quotation system or exchange at such time.  Any Common Stock issued upon conversion of a
Security hereunder which at the time of conversion was a Transfer Restricted
Security will also be a Transfer Restricted Security.


 


Section 13.06.  Adjustment
of Conversion Rate.  The
Conversion Rate shall be adjusted from time to time by the Company as follows:


 


(a)      In case the Company shall (i) pay a
dividend on its Common Stock in shares of Common Stock, (ii) make a
distribution on its Common Stock in shares of Common Stock, (iii) subdivide its
outstanding Common Stock into a greater number of shares, or (iv) combine its
outstanding Common Stock into a smaller number of shares, the Conversion Rate
in effect immediately prior thereto shall be adjusted so that the Holder of any
Security thereafter surrendered for conversion shall be entitled to receive
that number of shares of Common Stock which it would have owned had such
Security been converted immediately prior to the happening of such event.  An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.


 


(b)      In case the Company shall issue rights or
warrants (other than pursuant to a stockholder rights plan) to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not
more than 60 days after such record date) to subscribe for or purchase shares
of Common Stock (or securities convertible into Common Stock) at a price per
share (or having a conversion price


 


85

















 


per share) less
than the Closing Price per share of Common Stock on the Business Day
immediately prior to the date of announcement of such issuance, the Conversion
Rate in effect shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
such announcement by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date of
announcement plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible), and the
denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on the date of announcement plus the number of shares
which the aggregate offering price of the total number of shares of Common
Stock so offered (or the aggregate conversion price of the convertible
securities so offered, which shall be determined by multiplying the number of
shares of Common Stock issuable upon conversion of such convertible securities
by the conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the Current Market Price per share of
Common Stock on the Business Day immediately preceding the date of announcement
of such issuance.  Such adjustment shall
be made successively whenever any such rights or warrants are issued, and shall
become effective on the day following the date of announcement of such
issuance.  If at the end of the period
during which such rights or warrants are exercisable not all rights or warrants
shall have been exercised, the adjusted Conversion Rate shall be immediately
readjusted to what it would have been based upon the number of additional
shares of Common Stock actually issued (or the number of shares of Common Stock
issuable upon conversion of convertible securities actually issued).


 


(c)       In case the Company shall distribute to
all or substantially all holders of its Common Stock any shares of capital
stock of the Company (other than Common Stock), evidences of indebtedness or
other non-cash assets (including securities of any person other than the
Company but excluding (1) dividends or distributions paid exclusively in
cash or (2) dividends or distributions referred to in subsection (a)
of this Section 13.06), or shall distribute to all or substantially all holders
of its Common Stock rights or warrants to subscribe for or purchase any of its
securities (excluding those rights and warrants referred to in
subsection (b) of this Section 13.06 and also excluding the distribution
of rights to all holders of Common Stock pursuant to a Rights Plan (as defined
below) or the detachment of such rights to the extent set forth in the second
following paragraph), then in each such case the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by multiplying the current
Conversion Rate by a fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on the record date mentioned below
and the denominator shall be the Current Market Price per share of the Common
Stock on such record date less the fair market value on such record date (as
determined by the Board of Directors, whose determination shall be conclusive


 


86

















 


evidence of such
fair market value and which shall be evidenced by an Officers’ Certificate
delivered to the Trustee) of the portion of the capital stock, evidences of
indebtedness or other non-cash assets so distributed or of such rights or
warrants applicable to one share of Common Stock (determined on the basis of
the number of shares of Common Stock outstanding on the record date).  Such adjustment shall be made successively
whenever any such distribution is made and shall become effective immediately
after the record date for the determination of shareholders entitled to receive
such distribution.


 


In the event the then fair market value (as
so determined) of the portion of the Capital Stock, evidences of indebtedness
or other non-cash assets so distributed or of such rights or warrants
applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on such record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of a
Security shall have the right to receive upon conversion the amount of Capital
Stock, evidences of indebtedness or other non-cash assets so distributed or of
such rights or warrants such holder would have received had such holder
converted each Security on 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 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 13.06 by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common Stock.


 


In the event that the Company has in effect a
preferred shares rights plan (“Rights Plan”), upon conversion of the
Securities into Common Stock, to the extent that the Rights Plan is still in
effect upon such conversion, the holders of Securities will receive, in
addition to the Common Stock, the rights described therein (whether or not the
rights have separated from the Common Stock at the time of conversion), subject
to the limitations set forth in the Rights Plan.  If the Rights Plan provides that upon separation of rights
under such plan from the Company’s Common Stock that the Holders would not be
entitled to receive any such rights in respect of the Common Stock issuable
upon conversion of the Securities, the Conversion Rate will be adjusted as
provided in this Section 13.06(c) (with such separation deemed to be the
distribution of such rights), subject to readjustment in the event of the
expiration, termination or redemption of the rights.  Any distribution of rights or warrants
pursuant to a Rights Plan that would allow a Holder to receive upon conversion,
in addition to the Common Stock, the rights described therein (whether or not
the rights have separated from the Common Stock at the time of conversion),
shall not constitute a distribution of rights or warrants pursuant to this
Article 13.


 


87

















 


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 13.06 (and no adjustment
to the Conversion Rate under this Section 13.06 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Rate shall be made under this clause (c) of Section 13.06. 
If any such right or warrant, including any such existing rights or
warrants distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to
be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders 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 was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 13.06
was made, (1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect
to such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or warrants
which shall have expired or been terminated without exercise by any holders
thereof, the Conversion Rate shall be readjusted as if such rights and warrants
had not been issued.


 


(d)      In case the Company shall, by dividend or
otherwise, at any time distribute (a “Triggering Distribution”) to all or
substantially all holders of its Common Stock cash, the Conversion Rate shall
be increased so that the same shall equal the rate determined by multiplying
such Conversion Rate in effect on the Business Day (the “Determination Date”)
immediately preceding the day on which such Triggering Distribution is declared
by the Company by a fraction of which the numerator shall be the Current Market
Price per share of the Common Stock on the Determination Date, and the
denominator shall be the Current Market Price per share of the Common Stock on
the Determination Date less the


 


88

















 


aggregate amount
of cash so distributed applicable to one share of Common Stock (determined on
the basis of the number of shares of Common Stock outstanding on the
Determination Date), such increase to become effective immediately prior to the
opening of business on the day following the date on which the Triggering
Distribution is paid.  It is expressly
understood that a stock buyback, repurchase or similar transaction or program
shall in no event be considered a Triggering Distribution for purposes of this
clause (d) or (e) of Section 13.06.


 


(e)       In case the Company or any of its
Subsidiaries shall purchase any shares of the Company’s Common Stock by means
of a tender offer, then, effective immediately prior to the opening of business
on the day after the last date (the “Expiration Date”) tenders could have been
made pursuant to such tender offer (as it may be amended) (the last time at
which such tenders could have been made on the Expiration Date is hereinafter
sometimes called the “Expiration Time”), 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 the
Expiration Date by a fraction of which the numerator shall be the sum of
(x) the aggregate consideration (determined as set forth below) payable to
stockholders of the Company based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any 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 and excluding any shares held in the treasury of the
Company) immediately prior to the Expiration Time and the Current Market Price
per share of Common Stock (as determined in accordance with clause (f) of  Section 13.06), and the denominator shall be
the product of the number of shares of Common Stock outstanding (including
Purchased Shares but excluding any shares held in the treasury of the Company)
immediately prior to the Expiration Time multiplied by the Current Market Price
per share of the Common Stock (as determined in accordance with clause (f) of
Section 13.06).  For purposes of this
clause (e) of Section 13.06, the aggregate consideration in any such tender
offer shall equal the sum of the aggregate amount of cash consideration and the
aggregate fair market value (as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be evidenced by an
Officers’ Certificate delivered to the Trustee) of any other consideration
payable in such tender offer.  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 or all such purchases or any or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the Conversion Rate which
would have been in effect based upon the number of shares actually
purchased.  If the application of this
clause (e) of Section 13.06 to any tender offer would result in a decrease in
the Conversion Rate, no adjustment shall be made for such tender offer under this
Section 13.06(e).  For purposes of this
clause (e) of Section 13.06, the term


 


89

















 


“tender offer”
shall mean and include both tender offers and exchange offers, all references
to “purchases” of shares in tender offers (and all similar references) shall
mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to
“tendered shares” (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.


 


(f)       For the purpose of any computation under
clauses (b), (c) and (d) of Section 13.06, the current market price (the “Current
Market Price”) per share of Common Stock on any date shall be deemed
to be the average of the daily Closing Prices for the ten consecutive Trading
Days commencing 11 Trading Days before (i) the Determination Date, with
respect to distributions under subsection (c) of this Section 13.06 or
(ii) the record date with respect to distributions, issuances or other
events requiring such computation under subsection (b) or (d) of this
Section 13.06.  For purposes of any
computation under subsection (e) of this Section 13.06, the Current Market
Price per share of Common Stock shall be deemed to be the average of the daily
Closing Prices for the ten consecutive Trading Days commencing on the Trading
Day next succeeding the Expiration Date.


 


(g)      In any case in which this Section 13.06
shall require that an adjustment be made following a record date, an
announcement date or a Determination Date or Expiration Date, as the case may
be, established for purposes of this Section 13.06, 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 13.09) issuing to the
Holder of any Security converted after such record date or announcement date or
Determination Date or Expiration Date 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 issuable upon
such conversion only on the basis of the Conversion Rate prior to adjustment;
and, in lieu of the shares 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
shares.  If any distribution in respect
of which an adjustment to the Conversion Rate is required to be made as of the
record date or announcement date or Determination Date or Expiration Date
therefor 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 announcement date or
effective date or Determination Date or Expiration Date had not occurred.


 


Section 13.07.  No
Adjustment.  (a)  No
adjustment need be made 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.


 


90

















 


(b)           To
the extent that the Securities become convertible into the right to receive
cash, no adjustment need be made thereafter as to the cash.  Interest will not accrue on the cash due.


 


(c)           No
adjustment in the Conversion Rate shall be made pursuant to this Section 13.06
if the Holders may participate in the transaction that would otherwise give
rise to an adjustment pursuant to Section 13.06.


 


(d)           No adjustment in
the Conversion Rate shall be required pursuant to Section 13.06 unless such
adjustment would require an increase or decrease of at least 1.0% in the
Conversion Rate; provided, however, that any adjustments which by reason of
this clause (d) of Section 13.07 are not required to be made, shall be carried
forward and taken into account in any subsequent adjustment.


 


(e)           Other
than as described above in Section 13.06, no adjustment to the Conversion Rate
shall be required for any issuance of Common Stock or convertible or
exchangeable securities or rights to purchase Common Stock or convertible or
exchangeable securities.


 


Section 13.08.  Adjustment
for Tax Purposes.  The
Company shall be entitled to make such increases in the Conversion Rate, in
addition to those required by Section 13.06, as it in its discretion shall
determine to be advisable in order that any stock dividends, subdivisions of
shares, distributions of rights to purchase stock or securities or
distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.


 


Section 13.09.  Notice of
Conversion Rate Adjustment.  Whenever
the Conversion Rate or conversion privilege is adjusted, the Company shall
promptly mail to Securityholders a notice of the adjustment and file with the
Trustee an Officers’ Certificate briefly stating the facts requiring the
adjustment and the manner of computing it. 
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 13.10. 
Notice
of Certain Transactions.  In
the event that:


 


(a)           the Company takes any action which
would require an adjustment in the Conversion Rate;


 


(b)           the Company consolidates or merges with,
or transfers all or substantially all of its property and assets to, another
corporation and shareholders of the Company must approve the transaction; or


 


(c)           there is a dissolution or liquidation
of the Company,


 


91

















 


the Company shall mail to Holders and file
with the Trustee a notice stating the proposed record or effective date, as the
case may be.  The Company shall mail the
notice at least ten days before such date. 
Failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (a), (b) or (c) of this
Section 13.10.


 


Section 13.11.  Effect of
Reclassification, Consolidation, Merger or Sale on Conversion Privilege.  If any of the following shall
occur, namely:  (a) any reclassification
or change of shares of Common Stock issuable upon conversion of the Securities
(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, or
any other change for which an adjustment is provided in Section 13.06); (b) any
consolidation or merger or combination to which the Company is a party other
than a merger in which the Company is the continuing corporation and which does
not result in any reclassification of, or change (other than 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) in, outstanding shares of Common Stock;
or (c) any sale or conveyance as an entirety or substantially as an entirety of
the property and assets of the Company, directly or indirectly, to any Person,
then the Company, or such successor, purchasing or transferee corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, combination, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, combination,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock deliverable upon conversion of such Security immediately prior
to such reclassification, change, combination, consolidation, merger, sale or
conveyance.  Such supplemental indenture
shall provide for adjustments of the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Rate
provided for in this Article 13. 
If, in the case of any such consolidation, merger, combination, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock include shares of stock or
other securities and property of a person other than the successor, purchasing
or transferee corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing.  The provisions of this Section 13.11
shall similarly apply to successive reclassifications, changes, combinations,
consolidations, mergers, sales or conveyances.


 


92

















 


In the event the Company shall execute a
supplemental indenture pursuant to this Section 13.11, the Company shall
promptly file with the Trustee (x) an Officers’ Certificate briefly
stating the reasons therefor, the kind or amount of shares of stock or other
securities or property (including cash) receivable by Holders of the Securities
upon the conversion of their Securities after any such reclassification,
change, combination, consolidation, merger, sale or conveyance, any adjustment
to be made with respect thereto and that all conditions precedent have been
complied with and (y) an Opinion of Counsel that all conditions precedent
have been complied with, and shall promptly mail notice thereof to all Holders.


 


Section 13.12.  Trustee’s
Disclaimer.  The Trustee shall
have no duty to determine when an adjustment under this Article 13 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
including the Officers’ Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 13.09.  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 13.


 


The Trustee shall not be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture executed pursuant to Section 13.11, but may accept
as conclusive evidence of the correctness thereof, and shall be fully protected
in relying upon, the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 13.11.


 


Section 13.13.  Voluntary
Increase.  The Company from
time to time may increase the Conversion Rate by any amount for any period of
time if the period is at least 20 days and if the increase is irrevocable
during the period if the Board of Directors determines that such increase would
be in the best interest of the Company or the Board of Directors deems it
advisable to avoid or diminish income tax to holders of shares of our Common
Stock in connection with any stock or rights dividend or distribution or
similar event, and the Company provides 15 days prior notice of any increase in
the Conversion Rate.


 


Section 13.14.  Company
Determination Final.  Any
determination that the Company or the Board of Directors must make pursuant to
this Article 13 shall be conclusive if made in good faith and in accordance
with the provisions of this Article 13, absent manifest error, and set forth in
a resolution of the Board of Directors.


 


93

















 


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


 


	
   

  	
  AFFYMETRIX, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Trustee Signature Follows]

  



 

















 


	
   

  	
  THE BANK OF NEW YORK, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 

















 


EXHIBIT A


 


Form of Repurchase
Notice


 


 


 


The Bank of New York


101 Barclay Street, Floor 8 West


New York, NY 10286.


Attention:  [Institutional Trust
Services]


 


Re:                               Affymetrix,
Inc. (the “Company”) 

0.75% Senior Convertible Notes Due 2033


 


This is a Repurchase Notice as defined in Section
11.08 of the Indenture dated as of December 15, 2003 (the “Indenture”) between the
Company and The Bank of New York, as Trustee. 
Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.


 


Certificate No(s). of Securities:                                                                    


 


I intend to deliver the following aggregate Principal
Amount Securities for purchase by the Company pursuant to Section 11.08 of the
Indenture


 


(in multiples of $1,000):


 


$                                                                    


 


I hereby agree that the Securities will be purchased
as of the Repurchase Date pursuant to the terms and conditions thereof and of
the Indenture.


 


	
   

  	
  Signed:

  	
   

  



 


A-1

















 


EXHIBIT B


 


Form of
Fundamental Change Repurchase Notice


 


 


 


The Bank of New York


101 Barclay Street, Floor 8 West


New York, NY 10286


Attention:  [Institutional Trust
Services]


 


Re:                               Affymetrix,
Inc. (the “Company”) 

0.75% Senior Convertible Notes Due 2033


 


This is a Fundamental Change Repurchase Notice as
defined in Section 11.09 of the Indenture dated as of December 15, 2003 (the
“Indenture”) between the Company and The Bank of New York, as Trustee.  Terms used but not defined herein shall have
the meanings ascribed to them in the Indenture.


 


Certificate No(s). of Securities:                                                                    


 


I intend to deliver the following aggregate Principal
Amount of Securities for purchase by the Company pursuant to Section 11.09 of
the Indenture (in multiples of $1,000):


 


$                                                                    


 


I hereby agree that the Securities will be purchased
as of the Fundamental Change Repurchase Date pursuant to the terms and
conditions thereof and of the Indenture.


 


	
   

  	
  Signed:

  	
   

  



 


B-1

















 


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


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture
Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
  6.09

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  6.08

  
	
   

  	
   

  	
  6.10

  
	
  § 311(a)

  	
   

  	
  6.13

  
	
  (b)

  	
   

  	
  6.13

  
	
  § 312(a)

  	
   

  	
  7.01

  
	
   

  	
   

  	
  7.02(a)

  
	
  (b)

  	
   

  	
  7.02(b)

  
	
  (c)

  	
   

  	
  7.02(c)

  
	
  § 313(a)

  	
   

  	
  7.03(a)

  
	
  (b)

  	
   

  	
  7.03(a)

  
	
  (c)

  	
   

  	
  7.03(a)

  
	
  (d)

  	
   

  	
  7.03(b)

  
	
  § 314(a)

  	
   

  	
  7.04

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  1.02

  
	
  (c)(2)

  	
   

  	
  1.02

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  1.02

  
	
  § 315(a)

  	
   

  	
  6.01

  
	
  (b)

  	
   

  	
  6.02

  
	
  (c)

  	
   

  	
  6.01

  
	
  (d)

  	
   

  	
  6.01

  
	
  (e)

  	
   

  	
  5.14

  
	
  § 316(a)(1)(A)

  	
   

  	
  5.12

  
	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  5.08

  
	
  (c)

  	
   

  	
  1.04(c)

  
	
  § 317(a)(1)

  	
   

  	
  5.03

  
	
  (a)(2)

  	
   

  	
  5.04

  
	
  (b)

  	
   

  	
  10.03

  
	
  § 318(a)

  	
   

  	
  1.07

  



 











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


 


i