exv4w1



 







Exhibit 4.1




EXECUTION COPY




 





HUMAN GENOME SCIENCES, INC.




2 1/4% Convertible Subordinated Notes




Due August 15, 2012




INDENTURE




THE BANK OF NEW YORK




Dated as of August 9, 2005




 














 








CROSS REFERENCE TABLE*




	 	 	 	 	 
	TIA Section	 	Indenture 
Section
	310(a)(1)
	 	 	7.10	 
	(a)(2)
	 	 	N.A.	 
	(a)(3)
	 	 	N.A.	 
	(a)(4)
	 	 	N.A.	 
	(a)(5)
	 	 	N.A.	 
	(b)
	 	 	7.10	 
	(c)
	 	 	N.A.	 
	311(a)
	 	 	7.11	 
	(b)
	 	 	7.11	 
	(c)
	 	 	N.A.	 
	312(a)
	 	 	N.A.	 
	(b)
	 	 	12.03	 
	(c)
	 	 	12.03	 
	313(a)
	 	 	7.06	 
	(b)
	 	 	7.06	 
	(c)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	314(a)
	 	 	4.02	 
	(b)
	 	 	N.A.	 
	(c)(1)
	 	 	N.A.	 
	2(c)(2)
	 	 	N.A.	 
	(c)(3)
	 	 	N.A.	 
	(d)
	 	 	N.A.	 
	(e)
	 	 	N.A.	 
	(f)
	 	 	N.A.	 
	315(a)
	 	 	7.01	 
	(b)
	 	 	7.05	 
	(c)
	 	 	N.A.	 
	(d)(1)
	 	 	7.01	 
	(d)(2)
	 	 	7.01	 
	(d)(3)
	 	 	7.01	 
	(e)
	 	 	6.11	 
	316(a) (last sentence)
	 	 	N.A.	 
	(a)(1)(A)
	 	 	6.05	 
	(a)(1)(B)
	 	 	6.04	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	317(a)(1)
	 	 	N.A.	 
	(a)(2)
	 	 	N.A.	 
	(b)
	 	 	N.A.	 
	318(a)
	 	 	N.A.	 








 




			
	* Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of the
Indenture.












 










Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE 1	 	 	 	 
	 
	 	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	7	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	7	 
	Section 1.04
	 	Rules of Construction	 	 	8	 
	Section 1.05
	 	Acts of Holders	 	 	8	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 2	 	 	 	 
	 
	 	THE SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	9	 
	Section 2.02
	 	Execution and Authentication	 	 	11	 
	Section 2.03
	 	Registrar, Paying Agent and Conversion Agent	 	 	11	 
	Section 2.04
	 	Paying Agent to Hold Money and Securities in Trust	 	 	12	 
	Section 2.05
	 	Holder Lists	 	 	12	 
	Section 2.06
	 	Transfer and Exchange	 	 	12	 
	Section 2.07
	 	Replacement Securities	 	 	14	 
	Section 2.08
	 	Outstanding Securities; Determinations of Holders’ Action	 	 	15	 
	Section 2.09
	 	Temporary Securities	 	 	15	 
	Section 2.10
	 	Cancellation	 	 	16	 
	Section 2.11
	 	Persons Deemed Owners	 	 	16	 
	Section 2.12
	 	Global Securities	 	 	16	 
	Section 2.13
	 	CUSIP Numbers	 	 	21	 
	Section 2.14
	 	Defaulted Interest	 	 	21	 
	Section 2.15
	 	Registration Default	 	 	21	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 3	 	 	 	 
	 
	 	PURCHASE OF SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Purchase of Securities at Option of Holder Upon Change in Control	 	 	21	 
	Section 3.02
	 	Effect of Change in Control Purchase Notice	 	 	24	 
	Section 3.03
	 	Deposit of Change in Control Purchase Price	 	 	25	 
	Section 3.04
	 	Securities Purchased in Part	 	 	25	 
	Section 3.05
	 	Covenant to Comply with Securities Laws upon Purchase of Securities	 	 	25	 
	Section 3.06
	 	Repayment to the Company	 	 	25	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 4	 	 	 	 
	 
	 	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Principal, Premium, Interest on the Securities	 	 	26	 






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	 	 	 	 	Page
	Section 4.02
	 	SEC and Other Reports	 	 	26	 
	Section 4.03
	 	Compliance Certificate and Notice	 	 	27	 
	Section 4.04
	 	Further Instruments and Acts	 	 	27	 
	Section 4.05
	 	Maintenance of Office or Agency	 	 	27	 
	Section 4.06
	 	Delivery of Certain Information	 	 	27	 
	Section 4.07
	 	Additional Interest Amounts Notice	 	 	28	 
	Section 4.08
	 	Corporate Existence	 	 	28	 
	Section 4.09
	 	Maintenance of Properties	 	 	28	 
	Section 4.10
	 	Payment of Taxes and Other Claims	 	 	28	 
	Section 4.11
	 	Resale of Certain Securities	 	 	28	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 5	 	 	 	 
	 
	 	SUCCESSOR CORPORATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	When Company May Merge or Transfer Assets	 	 	29	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 6	 	 	 	 
	 
	 	DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	30	 
	Section 6.02
	 	Acceleration	 	 	31	 
	Section 6.03
	 	Other Remedies	 	 	32	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	32	 
	Section 6.05
	 	Control by Majority	 	 	32	 
	Section 6.06
	 	Limitation on Suits	 	 	32	 
	Section 6.07
	 	Rights of Holders to Receive Payment and to Convert	 	 	33	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	33	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	33	 
	Section 6.10
	 	Priorities	 	 	34	 
	Section 6.11
	 	Undertaking for Costs	 	 	34	 
	Section 6.12
	 	Waiver of Stay, Extension or Usury Laws	 	 	35	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 7	 	 	 	 
	 
	 	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	35	 
	Section 7.02
	 	Rights of Trustee	 	 	36	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	38	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	38	 
	Section 7.05
	 	Notice of Defaults	 	 	38	 
	Section 7.06
	 	Reports by Trustee to Holders	 	 	38	 
	Section 7.07
	 	Compensation and Indemnity	 	 	38	 
	Section 7.08
	 	Replacement of Trustee	 	 	39	 
	Section 7.09
	 	Successor Trustee by Merger	 	 	40	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	40	 
	Section 7.11
	 	Preferential Collection of Claims Against Company	 	 	40	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE 8	 	 	 	 
	 
	 	DISCHARGE OF INDENTURE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Discharge of Liability on Securities	 	 	40	 
	Section 8.02
	 	Repayment to the Company	 	 	41	 
	Section 8.03
	 	Deposited Monies to Be Held in Trust by Trustee	 	 	41	 
	Section 8.04
	 	Reinstatement	 	 	41	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 9	 	 	 	 
	 
	 	AMENDMENTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders	 	 	41	 
	Section 9.02
	 	With Consent of Holders	 	 	42	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	43	 
	Section 9.04
	 	Revocation and Effect of Consents, Waivers and Actions	 	 	43	 
	Section 9.05
	 	Notation on or Exchange of Securities	 	 	43	 
	Section 9.06
	 	Trustee to Sign Supplemental Indentures	 	 	44	 
	Section 9.07
	 	Effect of Supplemental Indentures	 	 	44	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 10	 	 	 	 
	 
	 	CONVERSION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01
	 	Conversion Right and Conversion Rate	 	 	44	 
	Section 10.02
	 	Exercise of Conversion Right	 	 	44	 
	Section 10.03
	 	Fractions of Shares	 	 	46	 
	Section 10.04
	 	Adjustment of Conversion Rate	 	 	46	 
	Section 10.05
	 	Make-Whole Premium Upon Conversion in Connection with a Change in Control 	 	 	53	 
	Section 10.06
	 	Notice of Adjustments of Conversion Rate	 	 	56	 
	Section 10.07
	 	Notice Prior to Certain Actions	 	 	56	 
	Section 10.08
	 	Company to Reserve Common Stock	 	 	57	 
	Section 10.09
	 	Taxes on Conversions	 	 	57	 
	Section 10.10
	 	Covenant as to Common Stock	 	 	57	 
	Section 10.11
	 	Cancellation of Converted Securities	 	 	57	 
	Section 10.12
	 	Effect of Reclassification, Consolidation, Merger or Sale	 	 	57	 
	Section 10.13
	 	Adjustment for Other Distributions	 	 	58	 
	Section 10.14
	 	Responsibility of Trustee for Conversion Provisions	 	 	59	 
	Section 10.15
	 	Rights Issued in Respect of Common Stock Issued Upon Conversion	 	 	60	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE 11	 	 	 	 
	 
	 	SUBORDINATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01
	 	Securities Subordinated to Senior Indebtedness	 	 	60	 
	Section 11.02
	 	Subrogation	 	 	61	 
	Section 11.03
	 	Obligation of the Company Is Absolute and Unconditional	 	 	62	 
	Section 11.04
	 	Maturity of or Default on Senior Indebtedness	 	 	62	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 11.05
	 	Payments on Securities Permitted	 	 	62	 
	Section 11.06
	 	Effectuation of Subordination by Trustee	 	 	62	 
	Section 11.07
	 	Knowledge of Trustee	 	 	63	 
	Section 11.08
	 	Trustee’s Relation to Senior Indebtedness	 	 	63	 
	Section 11.09
	 	Rights of Holders of Senior Indebtedness Not Impaired	 	 	63	 
	Section 11.10
	 	Modification of Terms of Senior Indebtedness	 	 	64	 
	Section 11.11
	 	Certain Conversions Not Deemed Payment	 	 	64	 
	 
	 	 	 	 	 	 
	 
	 	    ARTICLE 12	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act Controls	 	 	65	 
	Section 12.02
	 	Notices	 	 	65	 
	Section 12.03
	 	Communication by Holders with Other Holders	 	 	65	 
	Section 12.04
	 	Certificate and Opinion as to Conditions Precedent	 	 	65	 
	Section 12.05
	 	Statements Required in an Officers’ Certificate or Opinion	 	 	66	 
	Section 12.06
	 	Separability Clause	 	 	66	 
	Section 12.07
	 	Rules by Trustee, Paying Agent, Conversion Agent and Registrar	 	 	66	 
	Section 12.08
	 	Legal Holidays	 	 	66	 
	Section 12.09
	 	GOVERNING LAW; WAIVER OF JURY TRIAL	 	 	66	 
	Section 12.10
	 	No Recourse Against Others	 	 	66	 
	Section 12.11
	 	Successors	 	 	67	 
	Section 12.12
	 	Multiple Originals	 	 	67	 
	Section 12.13
	 	Force Majeure	 	 	67	 






	 	 	 	 	 
	EXHIBITS
Exhibit A
Exhibit B
Exhibit C

	 	
Form of Global Security

Form of Certificated Security

Transfer Certificate
	 	
A-1

B-1

C-1






iv









 






          INDENTURE dated as of August 9, 2005 between HUMAN GENOME SCIENCES, INC., a Delaware
corporation (the “Company”), and THE BANK OF NEW YORK a New York banking corporation, as Trustee
hereunder (the “Trustee”).




RECITALS OF THE COMPANY




          The Company has duly authorized the creation of an issue of its 2 1/4% Convertible Subordinated
Notes Due 2012 (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 the Securities are executed by the Company
and authenticated and delivered hereunder, the valid obligations of the Company, and to make this
Indenture a valid and binding agreement of the Company, in accordance with their and its terms,
have been done. Further, all things necessary to duly authorize the issuance of the Common Stock
of the Company issuable upon the conversion of the Securities, and to duly reserve for issuance the
number of shares of Common Stock issuable upon such conversion, have been done.




          NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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





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




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




     (3) 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.



          “144A Global Security” means a permanent Global Security in the form of the Security attached
hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.












 








          “Additional Interest Amount” means the additional interest amount payable by the Company upon
the occurrence of a Registration Default (as defined in the Registration Rights Agreement), in the
manner and in the amounts provided by the Registration Rights Agreement.




          “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
purposes of this definition, “control” when used with respect to any specified person means the
power to direct or cause the direction of 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.




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




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




          “Bankruptcy Law” means Title 11, United States Code, or any similar federal or state law for
the relief of debtors.




          “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of such board.




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




          “Business Day” means each day of the year other than a Saturday or a Sunday on which banking
institutions are not required or authorized to close in The City of New York or the State of
Maryland.




          “Capital Stock” of any corporation means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock or other equity issued by that corporation.




          “Certificated Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit B.




2









 








          “Closing Sale Price” as of any date means the closing per share sale price (or if no closing
sale price is reported, the average of the bid price and ask prices or, if more than one in either
case, the average of the average bid and average ask prices) on such date as reported by the
National Association of Securities Dealers Automated Quotations System or by the National Quotation
Bureau Incorporated or, if the Common Stock is not so reported, on the New York Stock Exchange or
such other principal United States securities exchange on which the Common Stock is traded. In the
absence of a quotation, the Company will determine the sale price on the basis of such quotations
as the Company considers appropriate.




          “Closing Time” has the meaning specified in the Purchase Agreement.




          “Common Stock” means the Common Stock, $0.01 par value per share, of the Company as it exists
on the date of this Indenture. Subject to the provisions of Section 10.12 and Section 10.15,
shares issuable on conversion of Securities shall include only shares of Common Stock or shares of
any class or classes of common stock resulting from any reclassification or reclassifications
thereof; provided, however, that if at any time there shall be more than one such resulting class,
the shares so issuable on conversion of Securities shall include shares of all such classes, and
the shares of each such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such reclassifications.




          “common stock” means any stock of any class of Capital Stock which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the issuer.




          “Company” means the party named as the “Company” in the first paragraph of this Indenture
until a successor replaces it pursuant to the applicable provisions of this Indenture, and,
thereafter, “Company” shall mean such successor. The foregoing sentence shall likewise apply to
any subsequent such successor or successors.




          “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any two Officers.




          “Conversion Agent” means any person authorized by the Company to convert Securities in
accordance with Article 10 hereof. On the date of this Indenture, the Company hereby appoints the
Trustee as the Conversion Agent.




          “Conversion Price” means $1,000 divided by the applicable Conversion Rate.




          “Conversion Value” for the Securities is equal to the product of (i) the Closing Sale Price
per share of the Common Stock on a given day and (ii) the then current Conversion Rate.




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





3









 







principal corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by written notice to the Holders and the
Company).




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




          “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.




          “Dollar” or “U.S.$” means a dollar or other equivalent unit in such coin or currency of the
United States as at the time shall be legal tender for the payment of public and private debts.




          “GAAP” means United States generally accepted accounting principles as in effect from time to
time.




          “Global Securities” means Securities that are in the form of the Securities attached hereto as
Exhibit A and, to the extent that such Securities are required to bear the Legend required by
Section 2.06, such Securities will be in the form of a 144A Global Security.




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




          “Indebtedness” means (i) any obligation of, or any obligation guaranteed by, the Company for
the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other
written instruments, (ii) all obligations of the Company with respect to interest rate hedging
agreements to hedge interest rates relating to Senior Indebtedness of the Company, (iii) any
deferred payment obligation of, or any such obligation guaranteed by, the Company for the payment
of the purchase price of property or assets evidenced by a note or similar instrument, and (iv) any
obligation of, or any such obligation guaranteed by, the Company for the payment of rent or other
amounts under a lease of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Company under GAAP.




          “Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof, including any provisions of the TIA that are deemed to be a part hereof.




          “Initial Purchasers” mean Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.




          “Interest Payment Date” means the date specified in the Securities as the fixed date on which
an installment of interest on the Securities is due and payable.




          “Interest Rate” means 21/4% per annum.




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




4









 








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




          “Officers’ Certificate” means a written certificate containing the information specified in
Section 12.05, signed in the name of the Company by any two Officers, and delivered to the Trustee.
An Officers’ Certificate given pursuant to Section 4.03 shall be signed by either the Chief
Executive Officer, the President, the Chief Financial Officer or the principal accounting officer
of the Company but need not contain the information specified in Section 12.05.




          “Opinion of Counsel” means a written opinion containing the information specified in Sections
12.04 and 12.05, from legal counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of, or counsel to, the Company or the Trustee.




          “person” or “Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof, including any subdivision or ongoing
business of any such entity or substantially all of the assets of any such entity, subdivision or
business.




          “Principal” of a Security means the principal amount due on the Stated Maturity as set forth
on the face of the Security.




          “Purchase Agreement” means the Purchase Agreement, dated as of August 4, 2005, between the
Company and the Initial Purchasers.




          “Registration Rights Agreement” means the Registration Rights Agreement dated as of August 9,
2005 entered into by the Company and the Initial Purchasers.




          “Regular Record Date” means, with respect to the interest payable on any Interest Payment
Date, the close of business on February 1 or August 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.




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




          “Restricted Security” means a Security required to bear the restrictive legend set forth in
the form of Security set forth in Exhibits A and B of this Indenture.




          “Rule 144” means Rule 144 under the Securities Act (or any successor provision), as it may be
amended from time to time.





5









 








          “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.




          “SEC” means the Securities and Exchange Commission.




          “Securities” has the meaning ascribed to it in the first paragraph under the caption “Recitals
of the Company.”




          “Securities Act” means the United States Securities Act of 1933 (or any successor statute), as
amended from time to time.




          “Senior Indebtedness” means the principal of, premium, if any, and interest on all
Indebtedness of the Company, other than the Securities, whether outstanding on the date of
execution of this Indenture or thereafter created, incurred, guaranteed or assumed, except such
Indebtedness that by the terms of the instrument or instruments by which such Indebtedness was
created or incurred expressly provides that it (i) is junior in right of payment to the Securities
or any other Indebtedness of the Company or (ii) ranks pari passu in right of payment to the
Securities.




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




          “Subsidiary” means, with respect to any person, (1) any corporation of which at least a
majority of the outstanding stock having by the terms thereof voting power for the election of
directors for such corporation under ordinary circumstances is at the time, directly or indirectly,
owned by such person or (2) any other person of which at least a majority of the outstanding voting
interest under ordinary circumstances is at the time, directly or indirectly, owned by such person.




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




          “Trading Day” means a day during which trading in securities generally occurs on the New York
Stock Exchange or, if the Common Stock is not listed on a national or regional securities exchange,
on the National Association of Securities Dealers Automated Quotation System, or, if the Common
Stock is not quoted on the National Association of Securities Dealers Automated Quotation System,
on the principal other market on which the Common Stock is then traded.




          “Trustee” means the party named as the “Trustee” in the first paragraph of this Indenture
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.




          “United States” or “U.S.” means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject to its





6









 







jurisdiction (its “possessions” including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands).




          Section 1.02 Other Definitions.




	 	 	 
	Term	 	Defined in Section
	“Act”
	 	1.05(a)
	“Additional Interest Amount Notice”
	 	4.07
	“Agent Members”
	 	2.12(f)(5)
	“Business Combination”
	 	10.12
	“Change in Control”
	 	10.05
	“Change in Control Purchase Date”
	 	3.01(a)
	“Change in Control Purchase Notice”
	 	3.01(c)
	“Change in Control Purchase Price”
	 	3.01(a)
	“Conversion Date”
	 	10.02
	“Conversion Rate”
	 	10.01
	“Current Market Price”
	 	10.04(g)
	“Depositary”
	 	2.01(a)
	“DTC”
	 	2.01(a)
	“Effective Date”
	 	10.05
	“Event of Default”
	 	6.01
	“Exchange Act”
	 	10.05
	“excluded securities”
	 	10.04(d)
	“Expiration Time”
	 	10.04(f)
	“Ex-Dividend Date”
	 	10.13
	“fair market value”
	 	10.04(g)
	“in connection with”
	 	10.05
	“Legal Holiday”
	 	12.08
	“Legend”
	 	2.06(f)
	“Make-Whole Premium”
	 	10.05
	“Paying Agent”
	 	2.03
	“Post-Distribution Price”
	 	10.13
	“Purchased Shares”
	 	10.04(f)
	“QIBs”
	 	2.01(a)
	“Record Date”
	 	10.04(g)
	“Reference Period”
	 	10.04(d)
	“Registrar”
	 	2.03
	“Rights Plan”
	 	10.15
	“Rule 144A Information”
	 	4.06
	“Stock Price”
	 	10.05
	“transfer”
	 	2.12(e)






          Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made




7









 







a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:




          “Commission” means the SEC.




          “indenture Securities” means the Securities.




          “indenture Security holder” means a Holder.




          “indenture trustee” or “institutional trustee” means the Trustee.




          “obligor” on the indenture Securities means the Company.




          All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions.




          Section 1.04 Rules of Construction. Unless the context otherwise requires:





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




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




     (c) “or” is not exclusive;




     (d) “including” means including, without limitation; and




     (e) words in the singular include the plural, and words in the plural include the
singular.



          Section 1.05 Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by their
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 the “Act” of 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 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




8










 







that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The
fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee deems sufficient.




          (c) The ownership of Securities shall be proved by the register for the Securities or by a
certificate of the Registrar.




          (d) 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.




          (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a resolution of the Board of Directors, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.




ARTICLE 2




THE SECURITIES




          Section 2.01 Form and Dating. The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibits A and B, which are incorporated into
and made a part of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by
usage is in a form acceptable to the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication.





     (a) 144A Global Securities. Securities offered and sold within the United States to
“qualified institutional buyers” as defined in Rule 144A (“QIBs”) in reliance on Rule 144A
shall be issued initially in the form of a 144A Global Security, which shall be



9









 





deposited with the Trustee at its Corporate Trust Office, as custodian for, and registered in the name
of, The Depository Trust Company (“DTC”) or its nominee (such depositary, or any successor
thereto, and any such nominee being hereinafter referred to as the “Depositary”) duly
executed by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the 144A Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary as
hereinafter provided.




     (b) Global Securities in General. Except as provided in Section 2.06 or 2.12, owners
of beneficial interests in Global Securities will not be entitled to receive physical
delivery of Certificated Securities. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to time
endorsed thereon and that the aggregate principal amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and conversions.




     Any adjustment of the aggregate principal amount of a Global Security to reflect the
amount of any increase or decrease in the principal amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions given by
the Holder thereof as required by Section 2.12 hereof and shall be made on the records of
the Trustee and the Depositary.




     (c) Book-Entry Provisions. This Section 2.01(c) shall apply only to a Global Security
deposited with or on behalf of the Depositary.




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



“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.



10









 








TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN
PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2
OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”




     (d) Certificated Securities. Securities not issued as interests in the Global
Securities will be issued in certificated form substantially in the form of Exhibit B
attached hereto.



          Section 2.02 Execution and Authentication. An Officer shall sign the Security for the
Company by manual or facsimile signature.




          Securities bearing the manual or facsimile signatures of individuals who were at the time of
the execution of the Securities 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
authentication of such Securities.




          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 duly executed by the Trustee by manual signature of an authorized
signatory of the Trustee, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered hereunder.




          The Trustee shall authenticate and deliver Securities for issuance in an aggregate principal
amount of up to $230,000,000, upon a Company Order without any further action by the Company. The
aggregate principal amount of Securities outstanding at any time may not exceed the amount set
forth in the foregoing sentence, except as provided in Section 2.07.




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




          Section 2.03 Registrar, Paying Agent and Conversion Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of transfer or for exchange
(“Registrar”), an office or agency where Securities may be presented for purchase or payment
(“Paying Agent”) and an office or agency where Securities may be presented for conversion
(“Conversion Agent”). The Registrar shall keep a register of the Securities and of their transfer
and exchange. The Company may have one or more co-registrars, one or more additional paying agents
and one or more additional conversion agents. The term Paying Agent includes any additional paying
agent, including any named pursuant to Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05.





11









 








          The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent or co-registrar (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall promptly notify the
Trustee in writing of the name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or an
Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.




          The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in
connection with the Securities.




          Section 2.04 Paying Agent to Hold Money and Securities in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on
the due date) sufficient to make such payments when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the making
of payments in respect of the Securities and shall promptly notify the Trustee in writing of any
default by the Company in making any such payment. At any time during the continuance of any such
default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the
Trustee all money so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed by it. Upon doing so, the Paying Agent
shall have no further liability for the money.




          Section 2.05 Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of Holders.
If the Trustee is not the Registrar, the Company shall cause to be furnished to the Trustee at
least semiannually not more than 13 days after each Regular Record Date during the term of the
Securities a listing of Holders dated as of such Regular Record Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders.




          Section 2.06 Transfer and Exchange. Subject to Sections 2.01(b), 2.06(b) and 2.12
hereof,





     (a) (i) upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by the Holder or
such Holder’s attorney duly authorized in writing, at the office or agency of the company
designated as Registrar or co-registrar pursuant to Section 2.03, 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 denomination or denominations, of
a like aggregate principal amount. The Company shall not charge a service charge for any
registration of transfer or exchange, but the Company may require payment of a sum
sufficient to pay all taxes, assessments or other



12









 





governmental charges that may be imposed
in connection with the transfer or exchange of the Securities from the Holder requesting
such transfer or exchange.




     (i) At the option of the Holder, Securities may be exchanged for other Securities of
any authorized denomination or denominations, of a like aggregate principal amount, upon
surrender of the Securities to be exchanged, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Holder or such Holder’s attorney duly
authorized in writing, 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 that the Holder making the exchange is entitled to receive.




     (ii) The Company shall not be required to make, and the Registrar need not register,
transfers or exchanges of Securities in respect of which a Change in Control Purchase Notice
has been given and not withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the portion thereof
not to be purchased).




     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security
remains outstanding and is held by or on behalf of the Depositary, transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section 2.12 and this
Section 2.06(b). Transfers of a Global Security shall be limited to transfers of such
Global Security, in whole or in part, to nominees of the Depositary or to a successor of the
Depositary or such successor’s nominee.




     (c) Successive registrations and registrations of transfers and exchanges as aforesaid
may be made from time to time as desired, and each such registration shall be noted on the
register for the Securities.




     (d) Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the
Trustee such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon transfer or exchange of Securities.




     (e) No Registrar shall be required to make registrations of transfer or exchange of
Securities during any periods designated in the text of the Securities or in this Indenture
as periods during which such registration of transfers and exchanges need not be made.




     (f) If Securities are issued upon the transfer, exchange or replacement of Securities
subject to restrictions on transfer and bearing the legends set forth on the form of
Security attached hereto as Exhibits A and B setting forth such restrictions (collectively,
the “Legend”), or if a request is made to remove the Legend on a Security, the Securities so
issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless
there is delivered to the Company and the Registrar such satisfactory evidence, which shall
include an Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of



13









 





Rule 144A or Rule
144 under the Securities Act or that such Securities are not “restricted” within the meaning
of Rule 144 under the Securities Act. Upon (i) provision of such satisfactory evidence, or
(ii) notification by the Company to the Trustee and Registrar of the sale of such Security
pursuant to a registration statement that is effective at the time of such sale, the
Trustee, at the written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend.




     (g) Any Security or Common Stock issued upon the conversion or exchange of a Security
that is purchased or owned by the Company or any Affiliate thereof may not be resold by the
Company or such Affiliate unless registered under the Securities Act or resold pursuant to
an exemption from the registration requirements of the Securities Act in a transaction which
results in such Securities or Common Stock, as the case may be, no longer being “restricted
securities” (as defined under Rule 144).




     (h) Neither the Trustee nor any agent shall have any responsibility for any actions
taken or not taken by the Depositary.



          Section 2.07 Replacement Securities. If (a) any mutilated Security is surrendered to
the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
such Security or indemnity satisfactory to them to save each of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute and upon its written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.




          In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be purchased by the Company pursuant to Article 3 hereof,
the Company in its discretion may, instead of issuing a new Security, pay or purchase such
Security, as the case may be.




          Upon the issuance of any new Securities under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.




          Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated, 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 benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.




          The provisions of this Section 2.07 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.





14









 








          Section 2.08 Outstanding Securities; Determinations of Holders’ Action. Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those
cancelled by it or delivered to it for cancellation, those paid pursuant to Section 2.07 and those
described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of the outstanding Securities
have given or concurred in 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 Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected in conclusively
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. Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).




          If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.




          If the Paying Agent holds, in accordance with this Indenture, on or prior to the Business Day
following the Change in Control Purchase Date, or on the Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then immediately after such
Change in Control Purchase Date or Stated Maturity, as the case may be, such Securities shall cease
to be outstanding and interest on such Securities shall cease to accrue.




          If a Security is converted in accordance with Article 10, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be outstanding and interest shall
cease to accrue on such Security.




          Section 2.09 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 which they are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as conclusively 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 the office or agency of the Company designated for such purpose pursuant to Section
2.03, 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




15









 







denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.




          Section 2.10 Cancellation. All Securities surrendered for payment, purchase by the
Company pursuant to Article 3, conversion or registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee.
The Company may not reissue, reoffer or resell new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 10.
No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section 2.10, except as expressly permitted by this Indenture. All cancelled
Securities shall be disposed of by the Trustee in accordance with its customary procedures.




          Section 2.11 Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of the Security or the payment of any Change in Control
Purchase Price in respect thereof, and interest thereon, for the purpose of conversion 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 2.12 Global Securities.




          (a) Notwithstanding any other provisions of this Indenture or the Securities, (A) transfers of
a Global Security, in whole or in part, shall be made only in accordance with Sections 2.06 and
2.12(a)(i), (B) transfers of a beneficial interest in a Global Security for a Certificated Security
shall comply with Sections 2.06 and 2.12(a)(ii) below, and (C) transfers of a Certificated Security
shall comply with Section 2.06 and Sections 2.12(a)(iii) and (iv) below.





     (i) Transfer of Global Security. A Global Security may not be transferred, in whole or
in part, to any Person other than the Depositary or a nominee or any successor thereof, and
no such transfer to any such other Person may be registered; provided that this clause (i)
shall not prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any Person shall
be effective under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective (i) any transfer of a beneficial interest in a Global Security effected
in accordance with the other provisions of this Section 2.12(a); and (ii) the transfer and
exchange of beneficial interests in a Global Security effected through the Depositary in
accordance with this Indenture and the procedures of the Depositary.



16









 






     (ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security. A beneficial interest in a Global Security may not be exchanged for
a Certificated Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a transfer of a beneficial interest in a Global Security in
accordance with Applicable Procedures for a Certificated Security in the form satisfactory
to the Trustee, together with:




     (1) so long as the Securities are Restricted Securities, a certification in the
form set forth in Exhibit C;




     (2) written instructions from the Company to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with respect to such
Global Security to reflect a decrease in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such decrease; and




     (3) if the Company or Registrar so requests, an Opinion of Counsel or other
evidence reasonably satisfactory to them as to the compliance with the restrictions
set forth in the Legend,



then the Trustee shall cause, or direct the Registrar to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the Registrar, the
aggregate principal amount of Securities represented by the Global Security to be decreased
by the aggregate principal amount of the Certificated Security to be issued, shall issue
such Certificated Security and shall debit or cause to be debited to the account of the
Person specified in such instructions a beneficial interest in the Global Security equal to
the principal amount of the Certificated Security so issued.




     (iii) Transfer and Exchange of Certificated Securities. When Certificated Securities
are presented to the Registrar with a request:




     (x) to register the transfer of such Certificated Securities; or




     (y) to exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,



the Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided, however, that the
Certificated Securities surrendered for transfer or exchange:




     (1) shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and




     (2) so long as such Securities are Restricted Securities, such Securities are
being transferred or exchanged pursuant to an effective registration statement under
the Securities Act or pursuant to clause (A), (B) or (C) below, and are



17









 





accompanied by the following additional information and documents, as applicable:




     (A) if such Certificated Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect; or




     (B) if such Certificated Securities are being transferred to the
Company, a certification to that effect; or




     (C) if such Certificated Securities are being transferred pursuant to
an exemption from registration, (i) a certification to that effect (in the
form set forth in Exhibit C, if applicable) and (ii) if the Company or
Registrar so requests, an Opinion of Counsel or other evidence reasonably
satisfactory to them as to the compliance with the restrictions set forth in
the Legend.




     (iv) Restrictions on Transfer of a Certificated Security for a Beneficial Interest in a
Global Security. A Certificated Security may not be exchanged for a beneficial interest in
a Global Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form reasonably satisfactory to the Trustee,
together with:




     (1) so long as the Securities are Restricted Securities, certification, in the
form set forth in Exhibit C, that such Certificated Security is being transferred to
a QIB in accordance with Rule 144A; and




     (2) written instructions directing the Trustee to make, or to direct the
Registrar to make, an adjustment on its books and records with respect to such
Global Security to reflect an increase in the aggregate principal amount of the
Securities represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such increase,


then the Trustee shall cancel such Certificated Security and cause, or direct the Registrar to
cause, in accordance with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of Securities represented by the Global Security
to be increased by the aggregate principal amount of the Certificated Security to be exchanged, and
shall credit or cause to be credited to the account of the Person specified in such instructions a
beneficial interest in the Global Security equal to the principal amount of the Certificated
Security so cancelled. If no Global Securities are then outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of an Officers’
Certificate, a new Global Security in the appropriate principal amount.




          (b) Subject to the succeeding paragraph, every Security shall be subject to the restrictions
on transfer provided in the Legend, including the delivery of an Opinion of Counsel, if so
provided. Whenever any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of the Holder, such




18









 







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




          (c) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 or, if earlier, upon
the expiration of the holding period applicable to sales thereof under Rule 144(k). Any Security
as to which such restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon a surrender of such Security for exchange to the Registrar in
accordance with the provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144, by an
Opinion of Counsel having substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form acceptable to the
Company, to the effect that the transfer of such Security has been made in compliance with Rule 144
or such successor provision), be exchanged for a new Security, of like tenor and aggregate
principal amount, which shall not bear the restrictive Legend. The Company shall inform the
Trustee of the effective date of any registration statement registering the Securities under the
Securities Act. The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any Security (including any transfers between
or among DTC participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel or
registration statement.




          (d) In the event that Rule 144(k) as promulgated under the Securities Act is amended to
shorten the two-year restriction period, then restrictions on transfer of the Securities and the
Common Stock will be deemed to refer to the shortened restriction period. The Company undertakes
to inform the Trustee if such change to Rule 144(k) occurs and the effect (if any) on the
restrictions on transfer applicable to the Securities and Common Stock and shall provide additional
information (including an Opinion of Counsel and/or an Officers’ Certificate) if so requested by
the Trustee.




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




          (f) The provisions of clauses (1), (2), (3), (4) and (5) below shall apply only to Global
Securities:




19









 









     (1) Notwithstanding any other provisions of this Indenture or the Securities, except as
provided in Section 2.12(a)(i), a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any Person other than the Depositary or one or more
nominees thereof; provided that a Global Security may be exchanged for Securities registered
in the names of any person designated by the Depositary in the event that (i) the Depositary
has notified the Company that it is unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a “clearing agency” registered under the
Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or
(ii) an Event of Default has occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (i) above shall be so exchanged in whole and
not in part, and any Global Security exchanged pursuant to clause (ii) above may be
exchanged in whole or from time to time in part as directed by the Depositary. Any Security
issued in exchange for a Global Security or any portion thereof shall be a Global Security;
provided that any such Security so issued that is registered in the name of a Person other
than the Depositary or a nominee thereof shall not be a Global Security.




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




     (3) Subject to the provisions of clause (5) below, the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members (as defined below) 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.




     (4) In the event of the occurrence of any of the events specified in clause (1) above,
the Company will promptly make available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest coupons.




     (5) Neither any members of, or participants in, the Depositary (collectively, the
“Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the Depositary
or such nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of



20









 





such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the operation of customary practices
of such Persons governing the exercise of the rights of a Holder of any Security.



          Section 2.13 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP”
numbers; provided that any notice containing reference to such numbers may state that no
representation is made as to the correctness of such numbers as printed on the Securities and that
reliance may be placed only on the other identification numbers printed on the Securities. The
Company will promptly notify the Trustee in writing of any change in the CUSIP numbers.




          Section 2.14 Defaulted Interest. If the Company defaults in a payment of interest on
the Securities, it shall pay, or shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest, plus (to the extent lawful) any interest payable
on the defaulted interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this Section 2.14 with respect to the payment of any defaulted
interest, shall mean the 15th day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder and to the Trustee (or cause
the Trustee to mail to each Holder) a notice that states the subsequent special record date, the payment date and the
amount of defaulted interest to be paid.




          Section 2.15 Registration Default. The Additional Interest Amount shall be payable
upon the Securities in the case of a Registration Default (as defined in the Registration Rights
Agreement). If a Registration Default occurs, the Company shall deliver to the Trustee an
Officers’ Certificate stating (1) the Additional Interest Amount payable, (2) when such Additional
Interest Amount began accruing and (3) when such Additional Interest Amount is payable. Unless and
until a Responsible Officer of the Trustee receives such an Officers’ Certificate, the Trustee
shall assume that no Additional Interest Amount is payable.




ARTICLE 3




PURCHASE OF SECURITIES




          Section 3.01 Purchase of Securities at Option of Holder Upon Change in Control.




          (a) If there shall have occurred a Change in Control, all or any portion of the Securities of
any Holder equal to $1,000 or a whole multiple of $1,000 shall be purchased by the Company in cash,
at the option of such Holder, at a purchase price equal to 100% of the principal amount of the
Securities to be purchased, together with accrued and unpaid interest, if any, to, but not
including, the purchase date (the “Change in Control Purchase Price”), on the date (the “Change in
Control Purchase Date”) that is not later than 30 Business Days after the date the Company provides
notice of a Change in Control in accordance with Section 3.01(b) hereof;




21









 







provided, however, that if the Change in Control Purchase Date is after a Regular Record Date but on or prior to the
corresponding Interest Payment Date, the accrued and unpaid interest becoming due on such Interest
Payment Date shall be payable to the Holders of such Securities, or one or more predecessor
Securities, registered as such on the relevant Regular Record Date according to their terms, and
the Change in Control Purchase Price shall not include such interest payment.




          (b) Prior to or on the 30th day after the occurrence of a Change in Control, the Company, or,
at the written request and expense of the Company prior to or on the 30th day after such
occurrence, the Trustee, shall give to all Holders, in the manner provided in Section 12.02 hereof,
notice of the occurrence of the Change in Control and of the purchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy of such notice of a purchase
right to the Trustee. The notice shall include a form of Change in Control Purchase Notice to be
completed by the Holder and shall state:





     (1) briefly, the events causing a Change in Control and the date of such Change
in Control;




     (2) the date by which the Change in Control Purchase Notice pursuant to this
Section 3.01 must be given;




     (3) the Change in Control Purchase Date;




     (4) the Change in Control Purchase Price;




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




     (6) that Securities as to which a Change in Control Purchase Notice has been
given may be converted pursuant to Article 10 hereof only if the Change in Control
Purchase Notice has been withdrawn in accordance with the terms of this Indenture;




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




     (8) that the Change in Control Purchase Price for any Security as to which a
Change in Control Purchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Change in Control Purchase Date and the time of
surrender of such Security as described in (7) above;




     (9) briefly, the procedures the Holder must follow to exercise rights under
this Section 3.01;




     (10) briefly, the conversion rights of the Securities, including the Conversion
Rate and any adjustments thereto;



22









 






     (11) the procedures for withdrawing a Change in Control Purchase Notice; and




     (12) the CUSIP number of the Securities;




     (13) whether a Make Whole Premium shall be paid by the Company; and




     (14) if a Make Whole Premium is paid by the Company, that a Make Whole Premium
shall be paid by the Company on the Change of Control Purchase Date to Holders of
Securities who have converted their Securities into the Company’s Common Stock on or
after the date the Company has given notice to all Holders in accordance with this
Section 3.01(b) and on or before the Change in Control Purchase Date.



          (c) A Holder may exercise its rights specified in Section 3.01(a) hereof upon delivery of a
written notice of purchase (a “Change in Control Purchase Notice”) to the Paying Agent prior to the
Change in Control Purchase Date, stating:





     (1) the certificate number of the Security, if any, which the Holder will
deliver to be purchased or the appropriate Depositary procedures if the Securities
are not in certificated form;




     (2) the portion of the principal amount of the Security which the Holder will
deliver to be purchased, which portion must be $1,000 or any whole multiple thereof;
and




     (3) that such Security shall be purchased pursuant to the terms and conditions
specified in paragraph 5 on the reverse side of the Securities and in this
Indenture.



          The delivery of such Security to the Paying Agent prior to the Change in Control Purchase Date
(together with all necessary endorsements) at the offices of the Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor; provided, however,
that such Change in Control Purchase Price shall be so paid pursuant to this Section 3.01 only if
the Security so delivered to the Paying Agent shall conform in all respects to the description
thereof set forth in the related Change in Control Purchase Notice.




          The Company shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion
of a Security so delivered for purchase if the principal amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.




          Any purchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall
be consummated by the delivery of the consideration to be received by the Holder promptly following
the later of the Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent in accordance with this Section 3.01.




23









 








          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Change in Control Purchase Notice contemplated by this Section 3.01(c) shall have the right to
withdraw such Change in Control Purchase Notice at any time prior to the close of business on the
Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.02.




          The Paying Agent shall promptly notify the Company of the receipt by it of any Change in
Control Purchase Notice or written withdrawal thereof.




          Section 3.02 Effect of Change in Control Purchase Notice. Upon receipt by the Paying
Agent of the Change in Control Purchase Notice specified in Section 3.01(c), the Holder of the
Security in respect of which such Change in Control Purchase Notice was given shall (unless such
Change in Control Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Purchase Price with respect to such
Security. Such Purchase Price shall be paid to such Holder, subject to receipt of consideration
for the Securities by the Paying Agent, promptly following the later of (x) the Change in control
Purchase Date with respect to such Security (provided the conditions in Section 3.01(c), as the
case may be, 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 Section 3.01(c), as the case may be. Securities in respect of which a Change in
Control Purchase Notice has been given by the Holder thereof may not be converted pursuant to
Article 10 hereof on or after the date of the delivery of such Change in Control Purchase Notice
unless such Change in Control Purchase Notice has first been validly withdrawn as specified in the
following two paragraphs.




          A Change in Control Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the Change in Control
Purchase Notice at any time prior to the close of business on the Business Day immediately
preceding the Change in Control Purchase Date specifying:





     (1) the certificate number of the Security in respect of which such notice of
withdrawal is being submitted or, if not in certificated form, the applicable
Depositary procedures,




     (2) the principal amount of the Security with respect to which such notice of
withdrawal is being submitted, and




     (3) the principal amount, if any, of such Security which remains subject to the
original Change in Control Purchase Notice and which has been or will be delivered
for purchase by the Company.



          There shall be no purchase of any Securities pursuant to Section 3.01 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 Change in Control Purchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Change in Control Purchase Price with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with
respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default





24









 







(other than a default in the payment of the Change in Control Purchase Price with respect to such Securities) in which case,
upon such return, the Change in Control Purchase Notice with respect thereto shall be deemed to
have been withdrawn.




          Section 3.03 Deposit of Change in Control Purchase Price. Prior to 11:00 a.m. (New
York City time) on the Change in Control Purchase Date, 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 in Section 2.04) an
amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay
the aggregate Change in Control Purchase Price of all the Securities or portions thereof which are
to be purchased as of the Change in Control Purchase Date.




          If the Trustee or other Paying Agent appointed by the Company, or the Company or an Affiliate
of the Company (if it or such Affiliate is acting as the Paying Agent) holds cash sufficient to pay
the aggregate Change in Control Purchase Price of all the Securities or portions thereof that are
to be purchased as of the Change in Control Purchase Date, on or after the Change in Control Purchase Date, (i) such Securities will cease to be outstanding, (ii)
interest on such Securities will cease to accrue and (iii) all other rights of the holders of such
Securities will terminate, whether or not book-entry transfer of the Securities has been made or
the Securities have been delivered to the Trustee or Paying Agent, other than the right to receive
the Change in Control Purchase Price upon delivery of the Securities.




          Section 3.04 Securities Purchased in Part. Any Security which is to be purchased only
in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without 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
purchased.




          Section 3.05 Covenant to Comply with Securities Laws upon Purchase of Securities. In
connection with any offer to purchase or purchase of Securities under Section 3.01 hereof (provided
that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the Exchange Act at the time
of such offer or purchase), the Company shall (i) comply with Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act which may then be applicable, (ii) file the related
Schedule TO (or any successor schedule, form or report) or any other schedule required 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 3.01 to be exercised in the time and in the manner
specified in Section 3.01.




          Section 3.06 Repayment to the Company. The Trustee and the Paying Agent shall return
to the Company any cash or shares of Common Stock that remains unclaimed as provided in paragraph
10 of the Securities, together with interest or dividends, if any, thereon, held by them for the
payment of the Change in Control Purchase Price; provided, however, that




25









 







to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.03 exceeds the aggregate
Change in Control Purchase Price of the Securities, or portions thereof which the Company is
obligated to purchase as of the Change in control Purchase Date then promptly after the Business
Day following the Change in control Purchase Date the Trustee shall return any such excess to the
Company together with interest or dividends, if any, thereon.




ARTICLE 4




COVENANTS




          Section 4.01 Payment of Principal, Premium, Interest on the Securities. The Company
will duly and punctually pay the principal of and interest at the Interest Rate in respect of the
Securities in accordance with the terms of the Securities and this Indenture. The Company will
deposit or cause to be deposited with the Trustee as directed by the Trustee, no later than 11:00
a.m. (New York City time) on the day of the Stated Maturity of any Security or on any Interest
Payment Date, all payments so due on such date. Principal amount at stated maturity, Change in
Control Purchase Price, and cash interest shall be considered paid on the applicable date due if at
11:00 a.m. (New York City time) on such date the Trustee or the Paying Agent holds, in accordance
with this Indenture, money or securities, if permitted hereunder, sufficient to pay all such
amounts then due. Except as otherwise noted, all references to the payment of interest include the
payment of Additional Interest Amounts.




          The Company shall, to the extent permitted by law, pay cash interest on overdue amounts at the
rate per annum set forth in paragraph 1 on the reverse side of the Securities, compounded
semiannually, which interest shall accrue from the date such overdue amount was originally due to
the date payment of such amount, including interest thereon, has been made or duly provided for.
All such overdue interest shall be payable on demand.




          Section 4.02 SEC and Other Reports. The Company shall file with the Trustee, within
15 days after it files such annual and quarterly reports, information, documents and other reports
with the SEC, copies of its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, provided, however, that any such reports that are available on the SEC’s EDGAR system need not
be filed with the Trustee. If at any time the Company is not subject to Section 13 or 15(d) of the
Exchange Act, such reports shall be provided at the times the Company would have been required to
provide reports had it continued to have been subject to such reporting requirements. The Company
also shall comply with the other provisions of TIA Section 314(a).




          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).




26









 








          Section 4.03 Compliance Certificate and Notice. The Company shall deliver to the
Trustee within 90 days after the end of each fiscal year of the Company (beginning with the fiscal
year ending on December 31, 2005) an Officers’ Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have knowledge.




          The Company shall, so long as any Securities are outstanding, file with the Trustee a written
notice of the occurrence of any Default or Event of Default within five Business Days of the
Company becoming aware of the occurrence of any Default or Event of Default.




          Section 4.04 Further Instruments and Acts. Upon request of the Trustee or as
necessary, the Company will execute and deliver such further instruments and do such further acts
as may be reasonably necessary or proper to carry out more effectively the purposes of this
Indenture.




          Section 4.05 Maintenance of Office or Agency. The Company will maintain in The
Borough of Manhattan, the City of New York, an office or agency of the Trustee, Registrar, Paying
Agent and Conversion Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange, purchase or conversion and
where notices and demands to or upon the Company in respect of the Securities and this Indenture
may be served. The New York branch office of the Corporate Trust Office of the Trustee, shall
initially be such office or agency for all of the aforesaid purposes. The Corporate Trust Office
of the Trustee shall provide appropriate contact information therefor upon request. The Company
shall give prompt written notice to the Trustee of the location, and of any change in the location,
of any such office or agency (other than a change in the location of the office of the Trustee).
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 address of the Trustee set forth in Section 12.02.




          The Company may also from time to time designate one or more other offices or agencies 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.




          Section 4.06 Delivery of Certain Information. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial
Holder of Securities or shares of Common Stock issued upon conversion thereof, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder
or any beneficial holder of Securities or holder of shares of Common Stock issued upon conversion
of Securities, or to a prospective purchaser of any such security designated by any such holder, as
the case may be, to the extent required to permit compliance





27









 







by such Holder or holder with Rule
144A under the Securities Act in connection with the resale of any such security. “Rule 144A
Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.




          Section 4.07 Additional Interest Amounts Notice. In the event that the Company is required to pay Additional Interest Amounts to Holders
pursuant to the Registration Rights Agreement, the Company will provide written notice (“Additional
Interest Amount Notice”) to the Trustee of its obligation to pay Additional Interest Amounts no
later than fifteen (15) days prior to the proposed payment date for the Additional Interest
Amounts, and the Additional Interest Amounts Notice shall set forth the amount of Additional
Interest Amounts to be paid by the Company on such payment date. The Trustee shall not at any time
be under any duty or responsibility to any Holder to determine the Additional Interest Amounts, or
with respect to the nature, extent or calculation of the amount of Additional Interest Amounts when
made, or with respect to the method employed in such calculation of the Additional Interest
Amounts.




          Section 4.08 Corporate Existence. Subject to Article 5 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Company determines that the
preservation thereof is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.




          Section 4.09 Maintenance of Properties. The Company will maintain and keep its
properties and every part thereof in such repair, working order and condition, and make or cause to
be made all such needful and proper repairs, renewals and replacements thereof, as in the judgment
of the Company are necessary and in the interests of the Company; provided, however, that nothing
contained in this Section shall prevent the Company from selling, abandoning or otherwise disposing
of any of its properties or discontinuing a part of its business from time to time if, in the
judgment of the Company, such sale, abandonment, disposition or discontinuance is advisable and
does not materially adversely affect the interests or business of the Company.




          Section 4.10 Payment of Taxes and Other Claims. The Company will promptly pay and
discharge or cause to be paid and discharged all material taxes, assessments and governmental
charges or levies lawfully imposed upon it or upon its income or profits or upon any of its
property, real or personal, or upon any part thereof, as well as all material claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge upon its property;
provided, however, that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge, levy or claim if the amount, applicability or
validity thereof shall currently be contested in good faith by appropriate proceedings and if the
Company shall have set aside on its books reserves deemed by it adequate with respect thereto.




          Section 4.11 Resale of Certain Securities. During the period of two years after the
last date of original issuance of any Securities, the Company shall not, and shall not permit

28









 






any of its Affiliates to, resell any Securities, or shares of Common Stock issuable upon conversion of
the Securities, that constitute “restricted securities” under Rule 144 except pursuant to an effective registration statement
under the Securities Act or an applicable exemption therefrom. The Trustee shall have no
responsibility or liability in respect of the Company’s performance of its agreement in the
preceding sentence.




ARTICLE 5




SUCCESSOR CORPORATION




            Section 5.01 When Company May Merge or Transfer Assets. The Company shall not
consolidate with, merge with or into any other person or convey, transfer or lease its properties
and assets substantially as an entirety to any person, unless:






     (a) the Person formed by such consolidation or into which the Company is merged, or the
person which acquires by conveyance, transfer or lease all or substantially all of the
properties and assets of the Company substantially as an entirety, is a corporation, limited
liability company, partnership or trust that (i) shall be organized and validly existing
under the laws of (x) the United States or any political subdivision of the United States or
(y) a jurisdiction outside of the United States if the Person has common stock or American
Depositary Shares representing common stock traded on a United States national securities
exchange or quoted on The Nasdaq National Market and a worldwide total market capitalization
of its equity securities of at least U.S.$5 billion before giving effect to such
consolidation, merger, conveyance, transfer or lease of substantially all of the Company’s
properties and assets and (ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company under the Securities and this Indenture;




     (b) at the time of such transaction, no Event of Default and no event which, after
notice or lapse of time, would become an Event of Default, shall have occurred and be
continuing; and




     (c) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel 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 5 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.



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




          The successor person formed by such consolidation or into which the Company is merged or the
successor person to which such conveyance, transfer or lease is made shall




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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 had been named as the Company herein; and thereafter, except
in the case of a lease and obligations the Company may have under a supplemental indenture pursuant
to Section 10.12, the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities. Subject to Section 9.06, the Company, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the succession and substitution of
such successor person and such discharge and release of the Company.




ARTICLE 6




DEFAULTS AND REMEDIES




          Section 6.01 Events of Default. An “Event of Default” occurs if:





     (1) the Company fails to pay when due the principal of or premium, if any, on any of
the Securities at Stated Maturity or exercise of a repurchase right or otherwise, whether or
not such payment is prohibited by the provisions of Article 11;




     (2) the Company fails to pay an installment of interest (including without limitation,
Additional Interest Amounts, if any) on any of the Securities that continues for 30 days
after the date when due, whether or not such payment is prohibited by the provisions of
Article 11;




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




     (4) the Company fails to pay when due the principal of, or acceleration of, any
Indebtedness in an amount in excess of $25 million, because of a default with respect to
such Indebtedness without such Indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled, in either case, for a period of 10 days
after written notice to the Company by the Trustee or to the Company and the Trustee by
Holders of at least 25% in aggregate principal amount of the Securities then outstanding;




     (5) the Company fails to provide the Change of Control Purchase Notice in accordance
with the provisions set forth in Section 3.01;




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




     (A) commences a voluntary case or proceeding;



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




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




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




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




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




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




     (A) is for relief against the Company in an involuntary case or proceeding, or
adjudicates the Company insolvent or bankrupt;




     (B) appoints a Custodian of the Company or for any substantial part of its
properties; or




     (C) orders the winding up or liquidation of the Company;




     and the order or decree remains unstayed and in effect for 60 days.



          Section 6.02 Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.01(6) or (7)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the Securities at the time
outstanding by written notice to the Company and the Trustee, may declare the Securities due and
payable at their principal amount together with accrued and unpaid interest. Upon a declaration of
acceleration, such principal and accrued and unpaid interest to the date of payment shall be
immediately due and payable.




          If an Event of Default specified in Section 6.01(6) or (7) above occurs and is continuing,
then the principal and the interest on all the Securities shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any Holders.




          With the written consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time outstanding or by the adoption of a written resolution at a
meeting of Holders at which a quorum is present by at least a majority in aggregate principal
amount of the Securities represented at the meeting, by notice to the Trustee (and without notice to any other Holder) may rescind or annul an acceleration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived, except nonpayment of the principal and any accrued and
unpaid cash interest that have become due solely as a result of acceleration, failure





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and if all
amounts due to the Trustee under Section 7.07 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.




          Section 6.03 Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of the principal and any accrued
cash interest on the Securities or to enforce the performance of any provision of the Securities or
this Indenture.




          The Trustee may maintain a proceeding even if the Trustee does not possess any of the
Securities or 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 6.04 Waiver of Past Defaults. With the written consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time outstanding or by
the adoption of a written resolution at a meeting of Holders at which a quorum is present by at
least a majority in aggregate principal amount of the Securities represented at the meeting, by
notice to the Trustee (and without notice to any other Holder), the Holders may waive an existing
Default or Event of Default and its consequences except where there exists (1) a Default or an
Event of Default as described in Section 6.01(1) or (2), (2) a Default or Event of Default in
respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder
affected or (3) a Default or Event of Default which constitutes a failure to convert any Security
in accordance with the terms of Article 10. When a Default or Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B)
of the TIA and such Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.




          Section 6.05 Control by Majority. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may, through their written consent or the Holders
of a majority in aggregate principal amount of the Securities then outstanding represented at a
meeting at which a quorum is present, direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines in good faith is unduly prejudicial to the rights of
other Holders or would involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it against loss, liability or expense. This Section 6.05 shall be in
lieu of Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.




          Section 6.06 Limitation on Suits. A Holder may not pursue any remedy with respect to
this Indenture or the Securities unless:





     (1) the Holder gives to the Trustee written notice stating that an Event of Default is
continuing;




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




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




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




     (5) the Holders of a majority in aggregate principal amount of the Securities at the
time outstanding do not give the Trustee a direction inconsistent with the request during
such 60-day period.



            A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a
preference or priority over any other Holder it being understood and intended that no one or more
of such Holders will have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb, or prejudice the rights of any other of such
Holders (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such Holders).



            Section 6.07 Rights of Holders to Receive Payment and to Convert. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of the principal
amount, premium, if any, Change in Control Purchase Price or any accrued and unpaid cash interest
in respect of the Securities held by such Holder, on or after the respective due dates expressed in
the Securities, and to convert the Securities in accordance with Article 10, 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 6.08 Collection Suit by Trustee. If an Event of Default described in Section
6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount owing with respect to the
Securities and the amounts provided for in Section 7.07.



            Section 6.09 Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount, Change in Control Purchase Price or any accrued and
unpaid cash interest in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of the principal amount, Change in
Control Purchase Price or any accrued and unpaid cash interest and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,



33









 






disbursements and advances
of the Trustee, its agents and counsel or any other amounts due the Trustee under Section
7.07) and of the Holders allowed in such judicial proceeding, and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or 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 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 7.07.



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



            Section 6.10 Priorities. If the Trustee collects any money pursuant to this Article
6, it shall pay out the money in the following order:




     (1) to the Trustee for amounts due under Section 7.07;




     (2) to Holders for amounts due and unpaid on the Securities for the principal amount,
Change in Control Purchase Price or any accrued and unpaid cash interest (including,
Additional Interest Amounts, if any) as the case may be, ratably, without preference or
priority of any kind, according to such amounts due and payable on the Securities; and




     (3) the balance, if any, to the Company.



            The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10. At least 15 days before such record date, the Trustee shall mail to each Holder and
the Company a notice that states the record date, the payment date and the amount to be paid.



            Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant (other than
the Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture,
as permitted by the TIA.



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            Section 6.12 Waiver of Stay, Extension or Usury 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 or any usury
or other law wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount, Change in Control
Purchase Price or any accrued and unpaid cash interest in respect of Securities, or any interest on
such amounts, as contemplated herein, or 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 7




TRUSTEE




            Section 7.01 Duties of Trustee.



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



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




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




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


This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.




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




     (1) this paragraph (c) does not limit the effect of paragraph (b) of this
Section 7.01;



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




     (3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05.


Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3)
of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from
this Indenture, as permitted by the TIA.




            (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.



            (e) The Trustee may refuse to perform any duty or exercise any right or power or extend or
risk its own funds or otherwise incur any financial liability unless it receives indemnity
satisfactory to it against any loss, liability or expense.



            (f) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.



            Section 7.02 Rights of Trustee. Subject to its duties and responsibilities under the
provisions of Section 7.01, and, except as expressly excluded from this Indenture pursuant to said
Section 7.01, subject also to its duties and responsibilities under the TIA:



            (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) 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, conclusively rely upon an Officers’ Certificate;



            (c) 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;



            (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith which it believes to be authorized or within its rights or powers conferred under
this Indenture;



36









 





            (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;



            (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred
therein or thereby;



            (g) 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 may be
sufficiently evidenced by a resolution of the Board of Directors;



            (h) 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 (which cost shall be reasonable)
and shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;



            (i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and 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 to each agent, custodian and
other Person employed to act hereunder;



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



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



            (m) the Trustee shall not be responsible for information in any notice provision provided to
the Trustee by the Company. Before the Trustee acts or refrains from acting, it may require an
Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall be protected



37









 




and it shall
not be liable for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.




            Section 7.03 Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.



            Section 7.04 Trustee’s Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Indenture, the Securities or the Pledged Securities, it shall not be
accountable for the Company’s use or application of the proceeds from the Securities, it shall not
be responsible for any statement in the registration statement for the Securities under the
Securities Act or in this Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are entitled to receive any
notices hereunder.



            Section 7.05 Notice of Defaults. If a Default occurs and if it is known to a
Responsible Officer of the Trustee, the Trustee shall give to each Holder notice of the Default
within 90 days after the occurrence thereof, unless such Default shall have been cured or waived
before the giving of such notice. Except in the case of a Default described in Section 6.01(1) or (2), the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the best interest of Holders. The second sentence of this Section
7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby
expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed
to have knowledge of a Default unless a Responsible Officer of the Trustee has received written
notice of such Default.



            Section 7.06 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee shall mail to each
Holder a brief report dated as of such May 15 that complies with TIA Section 313(a), if required by
such Section 313(a). The Trustee also shall comply with TIA Section 313(b).



            A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each securities exchange, if any, on which the Securities are listed. The Company agrees to
promptly notify the Trustee in writing whenever the Securities become listed on any securities
exchange and of any delisting thereof.



            Section 7.07 Compensation and Indemnity. The Company agrees:



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



            (b) to reimburse the Trustee upon its request for all 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, advances and disbursements of its



38









 




agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence or bad
faith; and




            (c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to hold them
harmless against, any loss, damage, claim, liability, cost or expense (including reasonable
attorney’s fees and expenses and taxes (other than taxes based upon, measured by or determined by
reference to the income of the Trustee)) incurred without negligence or bad faith 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 asserted by the
Company or any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.



            To secure the Company’s payment obligations in this Section 7.07, the Holders shall have been
deemed to have granted to the Trustee a lien prior to the Securities on all money or property held
or collected by the Trustee, except for the money and property held in trust to
pay the principal amount, Change in Control Purchase Price, or cash interest, if any, as the
case may be, on particular Securities.



            The Company’s payment obligations pursuant to this Section 7.07 shall survive the discharge of
this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(6) or (7), the expenses, including the
reasonable charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.



            Section 7.08 Replacement of Trustee. The Trustee may resign by so notifying the
Company; provided, however, no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company may remove the Trustee and shall remove the Trustee if:



            (1) the Trustee fails to comply with Section 7.10;



            (2) the Trustee is adjudged bankrupt or insolvent;



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



            (4) the Trustee otherwise becomes incapable of acting.



            If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee.



            A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to Holders. The



39









 




retiring
Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.




            If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor Trustee.



            If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



            Section 7.09 Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.



            Section 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate paragraph of TIA Section
310(b).



            Section 7.11 Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 8




DISCHARGE OF INDENTURE




            Section 8.01 Discharge of Liability on Securities. When all outstanding Securities
will become due and payable within one year of their Stated Maturity and the Company has deposited
with the Trustee cash sufficient to pay and discharge all outstanding Securities on the date of
their Stated Maturity, then the Company may discharge its obligations under this Indenture while
Securities remain outstanding; provided that provisions of Section 2.03, Section 2.04, Section
2.05, Section 2.06, Section 2.07, Section 2.12, Section 4.01, Section 4.05, Section 7.07, Article
10 and this Article 8 shall survive until the Securities have been paid in full. The Trustee shall
join in the execution of a document prepared by the Company acknowledging satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and
Opinion of Counsel and at the cost and expense of the Company.



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            Section 8.02 Repayment to the Company. The Trustee and the Paying Agent shall
promptly return to the Company upon written request (i) any excess money held by them at any time
and (ii) any money or securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another
person and the Trustee and the Paying Agent shall have no further liability to the Holders with
respect to such money or securities for that period commencing after the return thereof.



            Section 8.03 Deposited Monies to Be Held in Trust by Trustee. Subject to Section
8.02, all monies deposited with the Trustee pursuant to Section 8.01 shall be held in trust for the
sole benefit of the Holders and such monies shall be applied by the Trustee to the payment, either
directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to
the Holders for the payment of which such monies have been deposited with the Trustee, of all sums
due and to become due thereon for principal and interest.



            Section 8.04 Reinstatement. If the Trustee or the Paying Agent is unable to apply any
money in accordance with Sections 8.01 and 8.03 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the
Paying Agent is permitted to apply all such money in accordance with Sections 8.01 and 8.03;
provided, however, that if the Company makes any payment of interest on or principal of any
Security following the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 9




AMENDMENTS




            Section 9.01 Without Consent of Holders. The Company and the Trustee may amend this
Indenture or the Securities without the consent of any Holder for the purposes of, among other
things:




     (1) adding to the Company’s covenants for the benefit of the Holders;




     (2) surrendering any right or power conferred upon the Company;




     (3) providing for conversion rights of Holders if any reclassification or change of
Common Stock or any consolidation, merger or sale of all or substantially all of the
Company’s assets occurs;




     (4) providing for the assumption of the Company’s obligations to the Holders in the
case of a merger, consolidation, conveyance, transfer or lease;



41









 






     (5) reducing the Conversion Price; provided that the reduction will not adversely
affect the interests of Holders in any material respect;




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




     (7) making any changes or modifications to this Indenture necessary in connection with
the registration of the Securities under the Securities Act as
contemplated by the Registration Rights Agreement; provided that this action does not
adversely affect the interests of the Holders in any material respect;




     (8) curing any ambiguity, omission, inconsistency or correcting or supplementing any
defective provision contained in this Indenture; provided that such modification or
amendment does not, in the good faith opinion of the Board of Directors of the Company and
the Trustee, adversely affect the interests of the Holders in any material respect; or




     (9) adding or modifying any other provisions which the Company and the Trustee may deem
necessary or desirable and which will not adversely affect the interests of the Holders in
any material respect;




     (10) complying with Article 5;




     (11) providing for uncertificated Securities in addition to the Certificated Securities
so long as such uncertificated Securities are in registered form for purposes of the
Internal Revenue Code of 1986, as amended; or




     (12) providing for the appointment of a successor trustee.



            Section 9.02 With Consent of Holders. With the written consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time outstanding or by
the adoption of a resolution at a meeting of Holders at which a quorum is present by at least a
majority in aggregate principal amount of the Securities represented at the meeting, the Company
may modify and amend this Indenture or the Securities and waive noncompliance by the Company.
However, without the consent of each Holder affected, a modification, amendment or waiver to this
Indenture or the Securities may not:




     (1) change the maturity of the principal of or any installment of interest on any
Security or any payment of Additional Interest Amounts;




     (2) reduce the principal amount of any premium, or interest on or any payment of
Additional Interest Amounts on, any Security;




     (3) change the currency of payment of principal of any premium, or interest on any
Security;




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



42









 






     (5) modify the Company’s obligations to maintain an office or agency in New York City;




     (6) except as otherwise permitted or contemplated by provisions of this Indenture
concerning specified reclassifications or corporate reorganizations, adversely affect the
conversion rights of Holders (including, without limitation, the Make-Whole Premium);




     (7) adversely affect the repurchase option of the Holders upon a Change in Control;




     (8) modify the subordination provisions of the Notes in a manner adverse to the
Holders;




     (9) reduce the percentage in aggregate principal amount of Securities outstanding
necessary to modify or amend this Indenture or to waive any past default; or




     (10) reduce the percentage in aggregate principal amount of Securities outstanding
required for the adoption of a resolution or the quorum required at any meeting of Holders
at which a resolution is adopted.



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



            After an amendment under this Section 9.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment.



            Section 9.03 Compliance with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall comply with the TIA.



            Section 9.04 Revocation and Effect of Consents, Waivers and Actions. Until an
amendment, waiver or other action by Holders becomes effective, a consent thereto by a Holder of a
Security hereunder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same obligation as the consenting Holder’s
Security, even if notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s
Security or portion of the Security if the Trustee receives the notice of revocation before the
date the amendment, waiver or action becomes effective. After an amendment, waiver or action
becomes effective, it shall bind every Holder.



            Section 9.05 Notation on or Exchange of Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, 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.



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            Section 9.06 Trustee to Sign Supplemental Indentures. The Trustee shall sign any
supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions of Section 7.01)
shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.



            Section 9.07 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.



ARTICLE 10




CONVERSION




            Section 10.01 Conversion Right and Conversion Rate. A Holder of a Security may
convert the principal amount of such Security (or any 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 on the last Business Day prior to August 15, 2012 at the Conversion Rate then in effect.
The initial “Conversion Rate” is 56.2303 shares of Common Stock per $1,000 principal amount of the
Securities and is subject to adjustment as provided in this Article 10.



            In addition, upon conversion in connection with a Change in Control as provided in Section
3.01, the Company will pay the Make-Whole Premium to Holders of Securities upon conversion of such
Securities in addition to the shares of Common Stock deliverable upon conversion of such Holder’s
Securities in accordance with this Article 10.



            Section 10.02 Exercise of Conversion Right. To exercise the conversion right, the
Holder of any Security to be converted shall, in the case of Global Securities, comply with the
procedures of the Depositary in effect at that time, and, in the case of Certificated Securities,
surrender such Security duly endorsed or assigned to the Company or in blank, at the office of any
Conversion Agent, accompanied by a duly signed conversion notice substantially in the form attached
to the Security to the Company stating that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof to be converted.
Holders of any Security to be converted shall also furnish appropriate endorsement and transfer
documents and pay all taxes and duties, if any.



            If the Notes are converted after a Record Date for an Interest Payment Date but prior to the
next Interest Payment Date, those Notes must be accompanied by funds equal to the interest payable
to the Holder of the Notes on such Record Date on the next Interest Payment
Date on the principal amount so converted; provided, however, that no such payment need be
made if (1) the Company has specified a Change in Control Purchase that is after a Record Date and
prior to the next Interest Payment Date (2) only to the extent of any overdue interest, if any



44









 




overdue interest exists at the time of conversion with respect to such Security or (3) the
Securities are surrendered for conversion on or after August 1, 2012.




            Securities surrendered for conversion during the period from the close of business on any
Regular Record Date to the opening of business on the next succeeding Interest Payment Date shall
be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company
of an amount equal to the interest to be received on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion.



            Securities shall be deemed to have been converted immediately prior to the close of business
on the day of surrender of such Securities for conversion in accordance with the foregoing
provisions (the “Conversion Date”), and at such time the rights of the Holders of such Securities
as Holders shall cease (and all obligations of the Company with respect thereto shall be deemed
satisfied, including with respect to the principal amount and any accrued and unpaid interest,
including any Additional Interest), and the Person or Persons entitled to receive the Common Stock
issuable upon conversion shall be treated for all purposes as the record holder or holders of such
Common Stock at such time. Subject to Section 3.01(a) hereof, as promptly as practicable on or
after the Conversion Date, the Company shall cause to be issued and delivered to such Conversion
Agent a certificate or certificates for, or, if applicable, other book-entry confirmation
representing, the number of full shares of Common Stock issuable upon conversion, together with
payment in lieu of any fraction of a share as provided in Section 10.03 hereof.



            Notwithstanding the foregoing, in lieu of delivery of shares of Common Stock upon conversion
of any Security, for all or any portion of a Security, the Company may elect to pay the Holder
surrendering a Security for conversion an amount in cash per Security (or a portion of a Security)
equal to the average of the Applicable Stock Price over the five Trading Day period starting the
third Trading Day following the Conversion Date multiplied by the Conversion Rate in effect on the
Conversion Date. The Company will inform the Holders through the Trustee no later than two
Business Days following the Conversion Date of its election to deliver shares of Common Stock or to
pay cash in lieu of delivery of the shares of Common Stock. Shares of Common Stock and cash
deliverable upon conversion will be delivered through the Conversion Agent no later than the third
Business Day following the determination of the Applicable Stock Price. If the Company elects to
pay all of such payment in cash, the payment will be made to Holders surrendering Securities no
later than the tenth Business Day following the applicable Conversion Date.



            Except as specifically provided herein, no cash payment or other adjustment will be made on
conversion of any Securities for interest accrued thereon or for dividends on any Common Stock.
Accrued and unpaid interest will be deemed paid in full rather than canceled, extinguished or
forfeited.



            In the case of any Certificated Security which is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of authorized
denominations in an aggregate principal amount equal to the unconverted portion of the principal
amount of such Securities.



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            If shares of Common Stock to be issued upon conversion of a Restricted Security or portion
thereof are to be registered in a name other than that of the Holder of such Restricted Security,
such Holder must deliver to the Conversion Agent a certificate in substantially the form set forth
in the form of Security set forth in Exhibit C annexed hereto, dated the date of surrender of such
Restricted Security and signed by such Holder, as to compliance with the restrictions on transfer
applicable to such Restricted Security. Neither the Trustee nor any Conversion Agent, Registrar or
Transfer Agent shall be required to register in a name other than that of the Holder shares of
Common Stock or Securities issued upon conversion of any such Restricted Security not so
accompanied by a properly completed certificate.



            Section 10.03 Fractions of Shares. No fractional shares of Common Stock shall be
issued upon conversion of any Security or Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full shares which shall be
issued upon conversion thereof shall be computed on the basis of the aggregate principal amount of
the Securities (or specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issued upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction
(calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the
Closing Sale Price per Share of the Common Stock as of the Trading Day preceding the Conversion
Date.



            Section 10.04 Adjustment of Conversion Rate. The Conversion Rate shall be subject to
adjustments, calculated by the Company, from time to time as follows:



            (a) In case the Company shall hereafter pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the
opening of business on the date following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be increased by multiplying such
Conversion Rate by a fraction:




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




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


Such increase shall become effective immediately after the opening of business on the Business Day
following the Record Date. If any dividend or distribution of the type described in this Section
10.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or distribution had not been
declared.




            (b) In case the outstanding shares of Common Stock shall be subdivided into a greater number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be



46









 




proportionately reduced.
In each such case, the Conversion Rate shall be adjusted by multiplying such Conversion Rate by a
fraction, the numerator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such subdivision or combination and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to such subdivision or
combination. Such reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision or combination
becomes effective.




            (c) In case the Company shall issue rights or warrants to all holders of its outstanding
shares of Common Stock (other than as contemplated by Section 10.15) entitling them 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 per share) less than the Current Market Price per share of
Common Stock on the Record Date fixed for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Rate in effect at the opening of business on the
date after such Record Date by a fraction:




     (1) the numerator of which shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the total number of
additional shares of Common Stock so offered for subscription or purchase (or into
which the convertible securities so offered are convertible) at such price per share
below Current Market Price, and




     (2) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock so
offered for subscription or purchase (or the aggregate Conversion Price of the
convertible securities so offered) would purchase at such Current Market Price.


Such adjustment shall be successively made whenever any such rights or warrants are issued and
shall become effective immediately after the opening of business on the day following the Record
Date fixed for determination of stockholders entitled to receive such rights or warrants. To the
extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants
the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been
made on the basis of the delivery of only the number of shares of Common Stock (or securities
convertible into Common Stock) actually delivered. In the event that such rights or warrants are
not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such date fixed for the determination of stockholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such Current




47









 







Market Price,
and in determining the aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received for such rights or warrants, the value of such
consideration if other than cash, to be determined by the Board of Directors.




            (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock shares of any class of Capital Stock of the Company (other than any
dividends or distributions to which Section 10.04(a) applies) or evidences of its indebtedness or
other assets, including securities, but excluding (1) any rights or warrants referred to in Section
10.04(c) or 10.15, (2) any dividends or distributions in connection with a reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which
Section 10.12 hereof applies and (3) dividends and distributions paid exclusively in cash referred
to in Section 10.04(e) (the securities described in foregoing clauses (1), (2) and (3) hereinafter
in this Section 10.04(d) called the “excluded securities”), then, in each such case, subject to the
second succeeding paragraph of this Section 10.04(d), the Conversion Rate shall be adjusted so that
the same shall be equal to the price determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Record Date with respect to such distribution by
a fraction:




     (1) the numerator of which shall be such Current Market Price per share of the
Common Stock on the Record Date, and




     (2) the denominator of which shall be the Current Market Price per share of
Common Stock on such date, less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and set forth in a Board
Resolution) on such date of the portion of the securities, evidences of indebtedness
or other assets so distributed (other than excluded securities) applicable to one
share of Common Stock (determined on the basis of the number of shares of the Common
Stock outstanding on the Record Date).


Such increase shall become effective immediately prior to the opening of business on the day
following the Record Date. However, in the event that the then fair market value (as so
determined) of the portion of the securities, evidences of indebtedness or other assets so
distributed (other than excluded securities) applicable to one share of Common Stock is equal to or
greater than the Current Market Price on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to receive upon
conversion of a Security (or any portion thereof) the amount of securities, evidences of
indebtedness or other assets so distributed (other than excluded securities) such Holder would have
received had such Holder converted such Security (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect 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 10.04(d) by reference to the actual or when issued trading market for any securities
comprising all or part of such distribution (other than excluded securities), it must in doing so
consider the prices in such market over the same period (the “Reference Period”) used in computing
the Current Market Price pursuant to Section 10.04(g) to the extent possible,



48









 




unless the Board of
Directors in a Board Resolution determines in good faith that determining the fair market value
during the Reference Period would not be in the best interests of the Holder.




            For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any
dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of
Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or
rights or warrants to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) to which Section 10.04(c) applies (or any combination thereof), shall be deemed
instead to be:




     (1) a dividend or distribution of the evidences of indebtedness, assets, shares of
capital stock, rights or warrants other than such shares of Common Stock, such subdivision
or combination or such rights or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c)
apply, respectively (and any Conversion Rate increase required by this Section 10.04(d) with
respect to such dividend or distribution shall then be made), immediately followed by




     (2) a dividend or distribution of such shares of Common Stock, such subdivision or
combination or such rights or warrants (and any further Conversion Rate increase required by
Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall
then be made), except:




     (A) the Record Date of such dividend or distribution shall be substituted as
(x) “the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution”, “Record Date fixed for such determinations” and
“Record Date” within the meaning of Section 10.04(a), (y) “the day upon which such
subdivision becomes effective” and “the day upon which such combination becomes
effective” within the meaning of Section 10.04(b), and (z) as “the date fixed for
the determination of stockholders entitled to receive such rights or warrants,” “the
Record Date fixed for the determination of the stockholders entitled to receive such
rights or warrants” and such “Record Date” within the meaning of Section 10.04(c),
and




     (B) any shares of Common Stock included in such dividend or distribution shall
not be deemed “outstanding at the close of business on the Record Date fixed for
such determination” within the meaning of Section 10.04(a) and any increase or
reduction in the number of shares of Common Stock resulting from such subdivision or
combination shall be disregarded in connection with such dividend or distribution.



            (e) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock, cash (excluding any cash that is distributed as part of a
distribution referred to in Section 10.04(d) hereof), then and in each such case, immediately after
the close of business on such date, the Conversion Rate shall be increased so that the same shall
equal the price determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on such Record Date by a fraction:



49









 






     (i) the numerator of which shall be equal to the Current Market Price on such Record
Date, and




     (ii) the denominator of which shall be equal to the Current Market Price on the Record
Date less an amount equal to the quotient of (x) the aggregate amount of the cash
distributed and (y) the number of shares of Common Stock outstanding on the Record Date.


In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.




            (f) In case the Company or any of its Subsidiaries pays holders of the Common Stock in respect
of a tender offer or exchange offer, other than an odd-lot offer, by the Company or any of its
Subsidiaries for shares of Common Stock to the extent that the cash and fair market value of any
other consideration included in the payment per share of Common Stock exceeds the Closing Sale
Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders
or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”),
then, and in each such case, the Conversion Rate shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Rate in effect immediately prior to the close of
business on the date of the Expiration Time by a fraction:




     (1) the numerator of which shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender offer or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and
(y) the product of the number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Sale Price of the Common Stock on the Trading
Day next succeeding the Expiration Time, and




     (2) the denominator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied by the
Closing Sale Price of the Common Stock on the Trading Day next succeeding the Expiration
Time.


Such increase (if any) shall become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event that the Company is obligated to purchase
shares pursuant to any such tender offer or exchange offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all such purchases are rescinded,
the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect
if such tender offer or exchange offer had not been made.




            (g) For purposes of this Section 10.04, the following terms shall have the meanings indicated:



50









 






     (1) “Current Market Price” shall mean the average of the daily Closing Sale Prices per
share of Common Stock for the ten consecutive Trading Days ending not later than the earlier
of the date immediately prior to the date in question and the day before the “ex” date with
respect to the issuance, distribution, subdivision or combination requiring such
computation. If another issuance, distribution, subdivision or combination to which Section
10.04 applies occurs during the period applicable for calculating “Current Market Price”
pursuant to the preceding definition, then “Current Market Price” shall be appropriately
adjusted to reflect the impact of such issuance, distribution, subdivision or combination on
the Closing Sale Price of the Common Stock during such period. For purposes of this
paragraph, the term “ex” date, when used:




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




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




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


Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are called
for pursuant to this Section 10.04, such adjustments shall be made to the Current Market Price as
may be necessary or appropriate to effectuate the intent of this Section 10.04 and to avoid unjust
or inequitable results as determined in good faith by the Board of Directors.





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




     (3) “Record Date” shall mean for purposes of this Article 10, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock
have the right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether such date is fixed by
the Board of Directors or by statute, contract or otherwise).



            (h) The Company may make such increases in the Conversion Rate, in addition to those required
by Section 10.04(a), (b), (c), (d), (e) or (f), as the Board of Directors considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.



51









 





            To the extent permitted by applicable law and subject to the stockholder approval requirements
of The Nasdaq National Market, 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 calendar days and the increase is
irrevocable during the period and the Board of Directors determines in good faith that such
increase would be in the best interests of the Company, which determination shall be conclusive and
set forth in a Board Resolution. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Trustee and each Holder at the address of such
Holder as it appears in the Register a notice of the increase at least 15 days prior to the date
the increased Conversion Rate takes effect, and such notice shall state the increased Conversion
Rate and the period during which it will be in effect.



            Notwithstanding anything in this Indenture to the contrary, in no event shall the Company or
its Board of Directors increase the Conversion Rate to an amount that would violate the stockholder
approval requirements of The Nasdaq National Market without first obtaining the approval of the
Company’s stockholders to such increase.



            (i) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Price then in effect; provided,
however, that any adjustments which by reason of this Section 10.04(i) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. In the event that,
on the date that is five Business Days prior to the maturity of the Securities (whether at Stated
Maturity or otherwise), an adjustment has been carried forward pursuant to the preceding sentence
but has not yet been taken into account in an adjustment to the Conversion Rate and notwithstanding
the first sentence of this paragraph (i), an adjustment to the Conversion Rate will be made on such
date in accordance with the relevant paragraph of this Section 10.04. All calculations under this
Article 10 shall be made by the Company and shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be. No adjustment need be made for a change in the par value
or no par value of the Common Stock. No adjustment in the Conversion Rate shall be required if the
Holders participate in the transactions that would otherwise lead to an adjustment in the
Conversion Rate pursuant to this Section 10.04.



            (j) In any case in which this Section 10.04 provides that an adjustment shall become effective
immediately after a Record Date for an event, the Company may defer until the occurrence of such
event (i) issuing to the Holder of any Security converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (ii) paying to such Holder any amount in
cash in lieu of any fraction pursuant to Section 10.03 hereof.



            (k) For purposes of this Section 10.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.



52









 





            Section 10.05 Make-Whole Premium Upon Conversion in Connection with a Change in
Control. If there shall have occurred a Change in Control pursuant to clause (i) or (ii) of
the definition thereof in which any of the consideration for the Common Stock in the transaction or
transactions constituting the Change in Control consists of cash (other than cash payments for
fractional shares and cash payments made in respect of dissenters’ appraisal rights), the Company
will pay on the Change in Control Purchase Date a Make-Whole Premium, by increasing the Conversion
Rate, to the Holders of the Securities who convert their Securities on or after the date on which
the Company has given a notice to all Holders of Securities in accordance with Section 3.01(b)
hereof and on or before the Change in Control Purchase Date. The payment of the Make-Whole Premium
shall be in addition to, and not in substitution for any cash, securities or other assets otherwise
due to Holders of Securities upon conversion of the Securities in accordance with Article 10
hereof.



            The “Make-Whole Premium” will be determined by reference to the table below and is based on
the date on which the Change in Control becomes effective (the “Effective Date”) and the price (the
“Stock Price”) paid, or deemed to be paid, per share of the Company’s Common Stock in the
transaction constituting the Change in Control subject to adjustment described below. If the
holders of the Company’s Common Stock receive only cash in the transaction constituting the Change
in Control, the Stock Price shall be the cash amount paid per share of the Company’s Common Stock.
Otherwise, the Stock Price shall be the average Closing Sale Price per share of the Company’s
Common Stock for the 20 Trading Days immediately preceding, but not including, the Effective Date.



            The following table shows what the Make-Whole Premium would be for each hypothetical Stock
Price and Effective Date set forth below, expressed as additional shares of Common Stock per $1,000
principal amount of the Securities.



Make-Whole Premium Upon a Change in Control




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Effective Date
	Stock Price on	 	August 9,	 	August 15,	 	August 15,	 	August 15,	 	August 15,	 	August 15,	 	August 15,	 	August 15,
	Effective Date	 	2005	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012
	$14.82
	 	 	11.2460	 	 	 	11.2460	 	 	 	11.2460	 	 	 	11.2460	 	 	 	11.2460	 	 	 	11.2460	 	 	 	11.2460	 	 	 	0.0000	 
	$17.50
	 	 	8.4337	 	 	 	8.5884	 	 	 	8.6506	 	 	 	8.6731	 	 	 	8.5421	 	 	 	8.1012	 	 	 	6.9378	 	 	 	0.0000	 
	$20.00
	 	 	6.0246	 	 	 	6.0623	 	 	 	5.9932	 	 	 	5.8672	 	 	 	5.5844	 	 	 	4.9874	 	 	 	3.7288	 	 	 	0.0000	 
	$22.50
	 	 	5.1008	 	 	 	4.5620	 	 	 	4.1752	 	 	 	3.9688	 	 	 	3.6295	 	 	 	3.0140	 	 	 	1.8884	 	 	 	0.0000	 
	$25.00
	 	 	4.6094	 	 	 	4.1069	 	 	 	3.5714	 	 	 	2.9740	 	 	 	2.3275	 	 	 	1.7300	 	 	 	0.8399	 	 	 	0.0000	 
	$27.50
	 	 	4.1760	 	 	 	3.7478	 	 	 	3.2451	 	 	 	2.7127	 	 	 	2.1170	 	 	 	1.4737	 	 	 	0.7636	 	 	 	0.0000	 
	$30.00
	 	 	3.8433	 	 	 	3.4200	 	 	 	2.9879	 	 	 	2.4868	 	 	 	1.9500	 	 	 	1.3473	 	 	 	0.6995	 	 	 	0.0000	 
	$32.50
	 	 	3.5322	 	 	 	3.1704	 	 	 	2.7423	 	 	 	2.3070	 	 	 	1.7976	 	 	 	1.2469	 	 	 	0.6448	 	 	 	0.0000	 
	$35.00
	 	 	3.2906	 	 	 	2.9270	 	 	 	2.5603	 	 	 	2.1250	 	 	 	1.6776	 	 	 	1.1563	 	 	 	0.5968	 	 	 	0.0000	 
	$37.50
	 	 	3.0476	 	 	 	2.7426	 	 	 	2.3931	 	 	 	1.9917	 	 	 	1.5470	 	 	 	1.0785	 	 	 	0.5567	 	 	 	0.0000	 
	$40.00
	 	 	2.8659	 	 	 	2.5484	 	 	 	2.2324	 	 	 	1.8738	 	 	 	1.4619	 	 	 	1.0107	 	 	 	0.5186	 	 	 	0.0000	 
	$45.00
	 	 	2.5585	 	 	 	2.2818	 	 	 	1.9692	 	 	 	1.6612	 	 	 	1.2913	 	 	 	0.9009	 	 	 	0.4600	 	 	 	0.0000	 
	$50.00
	 	 	2.3064	 	 	 	2.0616	 	 	 	1.7792	 	 	 	1.4836	 	 	 	1.1626	 	 	 	0.8139	 	 	 	0.4124	 	 	 	0.0000	 
	$55.00
	 	 	2.1134	 	 	 	1.8805	 	 	 	1.6315	 	 	 	1.3537	 	 	 	1.0580	 	 	 	0.7391	 	 	 	0.3741	 	 	 	0.0000	 
	$60.00
	 	 	1.9063	 	 	 	1.7382	 	 	 	1.5007	 	 	 	1.2443	 	 	 	0.9733	 	 	 	0.6779	 	 	 	0.3437	 	 	 	0.0000	 
	$65.00
	 	 	1.7642	 	 	 	1.5703	 	 	 	1.3944	 	 	 	1.1548	 	 	 	0.8997	 	 	 	0.6284	 	 	 	0.3210	 	 	 	0.0000	 
	$70.00
	 	 	1.6444	 	 	 	1.4643	 	 	 	1.2651	 	 	 	1.0739	 	 	 	0.8355	 	 	 	0.5874	 	 	 	0.2974	 	 	 	0.0000	 
	$75.00
	 	 	1.5314	 	 	 	1.3671	 	 	 	1.1847	 	 	 	1.0034	 	 	 	0.7803	 	 	 	0.5484	 	 	 	0.2786	 	 	 	0.0000	 
	$80.00
	 	 	1.4441	 	 	 	1.2857	 	 	 	1.1148	 	 	 	0.9398	 	 	 	0.7326	 	 	 	0.5144	 	 	 	0.2595	 	 	 	0.0000	 
	$85.00
	 	 	1.3694	 	 	 	1.2119	 	 	 	1.0481	 	 	 	0.8870	 	 	 	0.6880	 	 	 	0.4830	 	 	 	0.2438	 	 	 	0.0000	 
	$90.00
	 	 	1.2994	 	 	 	1.1537	 	 	 	0.9944	 	 	 	0.8380	 	 	 	0.6511	 	 	 	0.4593	 	 	 	0.2301	 	 	 	0.0000	 
	$95.00
	 	 	1.2379	 	 	 	1.0980	 	 	 	0.9405	 	 	 	0.7916	 	 	 	0.6145	 	 	 	0.4330	 	 	 	0.2186	 	 	 	0.0000	 
	$100.00
	 	 	1.1798	 	 	 	1.0528	 	 	 	0.8956	 	 	 	0.7526	 	 	 	0.5856	 	 	 	0.4120	 	 	 	0.2075	 	 	 	0.0000	 






53









 






            The actual Stock Price and Effective Date may not be set forth on the table, in which
case:




	 	•	 	If the actual Stock Price on the Effective Date is between two Stock
Prices on the table or the actual Effective Date is between two Effective Dates on the
table, the Make-Whole Premium will be determined by a straight-line interpolation
between the Make-Whole Premiums set forth for the two Stock Prices and the two
Effective Dates on the table based on a 365-day year, as applicable.
	 
	 	•	 	If the Stock Price on the Effective Date exceeds $100.00 per share,
subject to adjustment described below, no Make-Whole Premium will be paid.
	 
	 	•	 	If the Stock Price on the Effective Date is less than $14.82 per share,
subject to adjustment described below, no Make-Whole Premium will be paid.





            The Stock Prices set forth in the first column of the table above will be adjusted as of any
date on which the Conversion Rate is adjusted. The adjusted Stock Prices will equal the Stock
Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of
which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of
additional shares of Common Stock set forth in the table above will be adjusted in the same manner
as the Conversion Rate as provided in Section 10.04 hereof, in addition to the adjustment of the
Conversion Rate by adding the Make-Whole Premium to the Conversion Rate as provided by Section
10.05.



            A conversion of Securities by a Holder thereof will be deemed to be “in connection with” a
Change in Control if the conversion notice is received by the Conversion Agent on or subsequent to
the date 15 calendar days prior to the date announced by the Company as the anticipated Effective
Date of the Change in Control but before the close of business on the Business Day immediately
preceding the related Change in Control Purchase Date. The Company will notify Holders of
Securities of the anticipated Effective Date of any Change in Control at least 20 calendar days
prior to such anticipated Effective Date.



            Notwithstanding anything herein to the contrary, in no event will the Conversion Rate exceed
67.4763 per $1,000 principal amount of Securities, subject to adjustment in the same manner as the
Conversion Rate as provided in Section 10.04 hereof. The additional shares
of Common Stock will be delivered to the Holder by the Company upon the later of the
applicable Conversion Date and promptly following the Effective Date of the Change in Control.



            A “Change in Control” of the Company shall be deemed to have occurred at such time after the
issuance of Securities as any of the following events shall occur:




     (i) the acquisition by any person, including any syndicate or group deemed to be a
“person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), of beneficial ownership, directly or indirectly, through a purchase,



54









 






merger
(except a merger by the Company described in clause (ii) below) or other acquisition
transaction or series of transactions, of shares of the Capital Stock of the Company
entitling that person to exercise 50% or more of the total voting power of all shares of
such Capital Stock entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its Subsidiaries or any employee benefit plans of the
Company; or




     (ii) any consolidation or merger of the Company with or into any other person, any
merger of another person into the Company, or any conveyance, transfer, sale, lease or other
disposition of all or substantially all of the Company’s properties and assets to another
person, other than:




     (A) any transaction (1) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the Capital Stock of
the Company and (2) pursuant to which holders of the Capital Stock of the Company
immediately prior to the transaction are entitled to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of the Capital Stock
of the Company entitled to vote generally in the election of directors of the
continuing or surviving person immediately after the transaction; or




     (B) any merger, share exchange, transfer of assets or similar transaction
solely for the purpose of changing the Company’s jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of outstanding shares of
Common Stock solely into shares of common stock of the surviving entity; or




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


Notwithstanding the foregoing, it will not constitute a “Change in Control” if 100% of the
consideration for Common Stock (excluding cash payments for fractional share and cash payments made
in respect of dissenters’ appraisal rights) in the transaction or transactions constituting the
Change in Control consists of common stock or American Depositary Shares
representing shares of common stock traded on a U.S. national securities exchange or quoted on The
Nasdaq National Market, or which will be so traded or quoted when issued or exchanged in connection
with the Change in Control, and as a result of such transaction or transactions, the notes become
convertible solely into such common stock or American Depositary Shares representing shares of
common stock; provided that, with respect to an entity organized under the laws of a jurisdiction
outside the U.S., such entity has a worldwide market capitalization of its equity securities of at
least U.S.$5 billion before giving effect to the consolidation or merger.




55









 








            Beneficial ownership shall be determined in accordance with Rule 13d-3 promulgated by the SEC
under the Exchange Act.



            Section 10.06 Notice of Adjustments of Conversion Rate. Whenever the Conversion Rate
is adjusted as herein provided (other than in the case of an adjustment pursuant to the second
paragraph of Section 10.04(h) for which the notice required by such paragraph has been provided),
the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an
Officers’ Certificate setting forth the adjusted Conversion Rate and showing in reasonable detail
the facts upon which such adjustment is based. Promptly after delivery of such Officers’
Certificate, the Company shall prepare a notice stating that the Conversion Rate has been adjusted
and setting forth the adjusted Conversion Rate and the date on which each adjustment becomes
effective, and shall mail, or cause the Trustee to mail, at the Company’s expense, such notice to
each Holder at the address of such Holder as it appears in the Register within 20 days of the
effective date of such adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.



            Section 10.07 Notice Prior to Certain Actions. In case at any time after the date
hereof:




     (1) the Company shall declare a dividend (or any other distribution) on its Common
Stock payable otherwise than in cash out of its capital surplus or its consolidated retained
earnings;




     (2) the Company shall authorize (other than pursuant to a Rights Plan) the granting to
the holders of its Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class (or of securities convertible into shares of capital
stock of any class) or of any other rights;




     (3) there shall occur any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, a change in par value, a
change from par value to no par value or a change from no par value to par value), or any
merger, consolidation, statutory share exchange or combination to which the Company is a
party and for which approval of any shareholders of the Company is required, or the sale,
transfer or conveyance of all or substantially all of the assets of the Company; or




     (4) there shall occur the voluntary or involuntary dissolution, liquidation or winding
up of the Company;


the Company shall cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 4.05 hereof, and shall cause to be provided to the
Trustee and all Holders in accordance with Section 12.02 hereof, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating:





     (A) the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or



56









 






     (B) the date on which such reclassification, merger, consolidation, statutory
share exchange, combination, sale, transfer, conveyance, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, merger, consolidation, statutory share exchange, sale, transfer,
dissolution, liquidation or winding up.



            Neither the failure to give such notice nor any defect therein shall affect the legality or
validity of the proceedings or actions described in clauses (1) through (4) of this Section 10.07.



            Section 10.08 Company to Reserve Common Stock. The Company shall at all times use its
best efforts to reserve and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number
of shares of fully paid and nonassessable Common Stock then issuable upon the conversion of all
Securities outstanding.



            Section 10.09 Taxes on Conversions. Except as provided in the next sentence, the
Company will pay any and all taxes (other than taxes on income) and duties that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant
hereto. A Holder delivering a Security for conversion shall be liable for and will be required to
pay any tax or duty which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless the Person
requesting such issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has been paid.



            Section 10.10 Covenant as to Common Stock. The Company covenants that all shares of
Common Stock which may be issued upon conversion of Securities will upon issuance be fully paid and
nonassessable.



            Section 10.11 Cancellation of Converted Securities. All Securities delivered for
conversion shall be delivered to the Trustee to be canceled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 2.10.



            Section 10.12 Effect of Reclassification, Consolidation, Merger or Sale. If any of
following events occur (each, a “Business Combination”), namely:




     (1) any reclassification or change of the outstanding Common Stock (other than a change
as a result of a subdivision or combination);




     (2) any merger, consolidation or combination of the Company with another corporation;




     (3) any sale, conveyance or lease of all, or substantially all, the properties and
assets of the Company to any other corporation; or



57









 






     (4) any statutory share exchange;


in each case, as a result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash or any combination thereof) with respect to
or in exchange for such Common Stock, the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if such supplemental
indenture is then required to so comply) providing that such Security shall be convertible into the
kind and amount of shares of stock and other securities or property or assets (including cash or
any combination thereof) (“Consideration”) which such Holder would have been entitled to receive
upon such Business Combination had such Securities been converted into Common Stock immediately
prior to such Business Combination; provided, however, that in event the holders of the Common
Stock have the opportunity to elect the form of Consideration to be received in such Business
Combination, Holders of Securities shall have a reasonable opportunity to determine the form of
consideration into which all of the Securities, treated as a single class, shall be convertible
from and after the Effective Date of such Business Combination. Such determination shall be (1)
based on the weighted average of elections made by Holders of Securities, (2) be subject to any
limitations to which all of the holders of the Common Stock are subject, such as any pro-rata
reduction applicable to a portion of the consideration payable in such Business Combination and (3)
conducted in such a manner as to be completed by the date which is the earliest of (a) the deadline
for elections to be made by holders of Common Stock, and (b) two Trading Days Prior to the date
which the Company announces as the anticipated Effective Date. The Company will provide notice of
the opportunity to determine the form of such consideration, as well as notice of the determination
made by Holders of the Securities (and the weighted average of elections) by press release and by
providing a copy of such notice to the Trustee. In the event the Effective Date is delayed beyond
the initially anticipated Effective Date, Holders of the Securities shall be given the opportunity
to make subsequent similar determinations in regard to such delayed Effective Date. The Company
may not become party to any agreement contemplating a Business Combination unless its terms are
consistent with the preceding. None of the foregoing provisions shall affect the right of a Holder
of Securities to convert such Securities into shares of Common Stock prior to the Effective Date in
accordance with the terms of this Article 10.




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



            The above provisions of this Section 10.12 shall similarly apply to successive Business
Combinations.



            If this Section 10.12 applies to any event or occurrence, Section 10.04 hereof shall not apply
to such event or occurrence.



            Section 10.13 Adjustment for Other Distributions. If, after the Issue Date of the
Securities, the Company pays a dividend or makes a distribution to all holders of its Common Stock
consisting of Capital Stock of any class or series, or similar equity interests as described in



58









 




Section 10.04(d), of or relating to a Subsidiary or other business unit of the Company, the
Conversion Rate shall be adjusted in accordance with the formula:




P  ́ = P x 1/(1 + M/F)



where:




     P  ́ = the adjusted Conversion Rate.



     P = the current Conversion Rate.



     F = the fair market value of the securities distributed in respect of each share of Common
Stock, which shall be the number of securities distributed in respect of each share of Common Stock
multiplied by the average of the Post-Distribution Prices of those securities distributed for the
10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date.



     M = the average of the Post-Distribution Prices of the Common Stock for the 10 Trading Days
commencing on and including the fifth Trading Day after the date on which “ex-dividend trading”
commences for such dividend or distribution on The Nasdaq National Market or such other national or
regional exchange or market which such securities are then listed or quoted (the “Ex-Dividend
Date”).



            “Post-Distribution Price” of Capital Stock or any similar equity interest on any date means
the closing per unit sale price (or, if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of the average bid and the average
ask prices) on such date for trading of such units on a “when issued” basis without due bills (or
similar concept) as reported in the composite transactions for The Nasdaq National Market or such
other national or regional exchange or market on which such Capital Stock or
equity interest is traded or, if the Capital Stock or equity interest, as the case may be, is
not listed on a United States national or regional securities exchange or market, as reported by
the Nasdaq system or by the National Quotation Bureau Incorporated; provided that if on any date
such units have not traded on a “when issued” basis, the Post-Distribution Price shall be the
closing per unit sale price (or, if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid and the average ask
prices) on such date for trading of such units on a “regular way” basis without due bills (or
similar concept) as reported in the composite transactions for The Nasdaq National Market or such
other national or regional exchange on which such Capital Stock or equity interest is traded or, if
the Capital Stock or equity interest, as the case may be, is not listed on a United States national
or regional securities exchange, as reported by the Nasdaq system or by the National Quotation
Bureau Incorporated. In the absence of such quotation, the Company shall be entitled to determine
the Post-Distribution Price on the basis of such quotations, which reflect the post-distribution
value of the Capital Stock or equity interests as it considers appropriate.



            Section 10.14 Responsibility of Trustee for Conversion Provisions. The Trustee and
any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or intent of any such adjustments when made,



59









 




or with respect to
the method employed, or herein or in any supplemental indenture provided to be employed, in making
the same. Neither the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (of the kind or amount) of any Common Stock, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of any Security; and it
or they do not make any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of stock or share certificates or other securities or
property upon the surrender of any Security for the purpose of conversion; and the Trustee and any
Conversion Agent shall not be responsible or liable for any failure of the Company to comply with
any of the covenants of the Company contained in this Article.




     Section 10.15 Rights Issued in Respect of Common Stock Issued Upon Conversion. In the
event that the Company implements a new rights plan or any similar plan (a “Rights Plan”), or the
Company’s current Rights Plan is still in effect, upon conversion of the Securities into Common
Stock, to the extent that any such Rights Plan has been implemented and is still in effect upon
such conversion, the holders of Securities will receive, in addition to the Common Stock, the
rights described therein (unless the rights have separated from the Common Stock at the time of
conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights
or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately
preceding sentence of this paragraph (including the issuance of the rights, the distribution of
separate certificates representing the rights, the exercise or redemption of such rights in
accordance with the applicable rights agreement and the termination or invalidation of the rights)
shall not constitute a distribution of rights or warrants pursuant to Section 10.04.



ARTICLE 11




SUBORDINATION




            Section 11.01 Securities Subordinated to Senior Indebtedness. (a) The Company
covenants and agrees, and each Holder of Securities, by such Holder’s acceptance thereof, likewise
covenants and agrees, that the Indebtedness represented by the Securities and the payment of the
principal of and premium, if any, and interest (including Additional Interest Amounts, if any) on
each and all of the Securities is hereby expressly subordinated and junior, to the extent and in
the manner set forth and as set forth in this Section 11.01, in right of payment to the prior
payment in full of all Senior Indebtedness; provided, however, that the Securities, the
Indebtedness represented thereby and the payment of the principal of and premium, if any, and
interest (including Additional Interest Amounts, if any) on the Securities in all respects shall
rank equally with, or prior to, all existing and future Indebtedness of the Company that is
expressly subordinated to any Senior Indebtedness.



            (b) In the event of any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency, reorganization
or receivership proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise, the holders of all Senior
Indebtedness shall first be entitled to receive payment of the full amount



60









 




due thereon in respect
of all such Senior Indebtedness and all other amounts due or provision shall be made for such
amount in cash, or other payments satisfactory to the holders of Senior Indebtedness, before the
Holders of any of the Securities are entitled to receive any payment or distribution of any
character, whether in cash, securities or other property, on account of the principal of or
premium, if any, or interest (including Additional Interest Amounts, if any) on the Securities.




            (c) In the event of and during the continuance of any default in payment of the principal of
or premium, if any, or interest on, rent or other payment obligation in respect of, any Senior
Indebtedness, unless all such payments due in respect of such Senior Indebtedness have been paid in
full in cash or other payments satisfactory to the holders of Senior Indebtedness, no payment shall
be made by the Company with respect to the principal of, premium, if any, or interest (including
Additional Interest Amounts, if any) on the Securities or to acquire any of the Securities
(including any conversion or repurchase pursuant to Article 3). The Company shall give prompt
written notice to the Trustee of any default under any Senior Indebtedness or under any agreement
pursuant to which Senior Indebtedness may have been issued.



            (d) In the event that, notwithstanding the foregoing provisions of Sections 11.01(b) and
11.01(c), any payment on account of principal, premium, if any, or interest (including Additional
Interest Amounts, if any) on the Securities shall be made by or on behalf of the Company and
received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its
own Paying Agent, money for any such payment shall be segregated and held in trust):




     (i) after the occurrence of an event specified in Section 11.01(b) then, unless
all Senior Indebtedness is paid in full in cash, or provision shall be made
therefor, or




     (ii) after the happening of an event of default of the type specified in
Section 11.01(c) above, then, unless the amount of such Senior Indebtedness then due
shall have been paid in full, or provision made therefor or such event of default
shall have been cured or waived, such payment (subject, in each case, to the
provisions of Section 11.07 hereof) shall be held in trust for the benefit of, and
shall be immediately paid over to, the holders of the Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
under which any instruments evidencing any of the Senior Indebtedness, as the case
may be, may have been issued, as their interests may appear.



            Section 11.02 Subrogation. Subject to the payment in full of all Senior Indebtedness
to which the Indebtedness evidenced by the Securities is in the circumstances subordinated as
provided in Section 11.01 hereof, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company applicable to such Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, and, as between the Company, its creditors other than holders of
such Senior Indebtedness, and the Holders of the Securities, no such payment or distribution made
to the holders of Senior Indebtedness by virtue of this Article which otherwise would have been
made to the holders of the Securities shall be



61









 




deemed to be a payment by the Company on account of
such Senior Indebtedness; provided, however, that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of Senior Indebtedness, on the other hand.




            Section 11.03 Obligation of the Company Is Absolute and Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness,
and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and premium, if any, and
interest (including Additional Interest Amounts, if any) on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything contained herein or therein prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.



            Section 11.04 Maturity of or Default on Senior Indebtedness. Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise,
all principal of or premium, if any, or interest on, rent or other payment obligations in respect
of all such matured Senior Indebtedness shall first be paid in full, or such payment shall have
been duly provided for, before any payment on account of principal, or premium, if any, or interest
(including Additional Interest Amounts, if any) is made upon the Securities.



            Section 11.05 Payments on Securities Permitted. Except as expressly provided in this
Article, nothing contained in this Article shall affect the obligation of the Company to make, or
prevent the Company from making, payments of the principal of, or premium, if any, or interest
(including Additional Interest Amounts, if any) on the Securities in accordance with the provisions
hereof and thereof, or shall prevent the Trustee or any Paying Agent from applying any moneys
deposited with it hereunder to the payment of the principal of, or premium, if any, or interest
(including Additional Interest Amounts, if any) on the Securities.



            Section 11.06 Effectuation of Subordination by Trustee. (a) Each Holder of
Securities, by such Holder’s acceptance thereof, authorizes and directs the Trustee on such
Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee such Holder’s attorney-in-fact for
any and all such purposes.



            (b) Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or
agent or other Person making any payment or distribution, delivered to the Trustee or to the
Holders of the Securities, for the purpose of ascertaining the Persons entitled to




62









 





participate in
such payment or distribution, and as to other facts pertinent to the right of such Persons under
this Article, and if such evidence is not furnished, the Trustee may defer any payment to such
Persons pending judicial determination as to the right of such Persons to receive such payment.




          Section 11.07 Knowledge of Trustee. Notwithstanding the provision of this Article or
any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any Senior Indebtedness, of any default in payment of principal of, premium, if any,
or interest on, rent or other payment obligation in respect of any Senior Indebtedness, or of any
facts which would prohibit the making of any payment of moneys to or by the Trustee, or the taking
of any other action by the Trustee, unless a Responsible Officer of the Trustee having
responsibility for the administration of the trust established by this Indenture shall have
received written notice thereof from the Company, any Holder of Securities, any Paying or
Conversion Agent of the Company or the holder or representative of any class of Senior
Indebtedness, and, prior to the receipt of any such written notice, the Trustee shall be entitled
in all respects to assume that no such default
or facts exist; provided, however, that unless on the third Business Day prior to the date
upon which by the terms hereof any such moneys may become payable for any purpose the Trustee shall
have received the notice provided for in this Section 11.07, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys
and apply the same to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.




          Section 11.08 Trustee’s Relation to Senior Indebtedness. (a) The Trustee shall be
entitled to all the rights set forth in this Article with respect to any Senior Indebtedness at the
time held by it, to the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any Authenticating Agent of any of its rights as such
holder.




          (b) Nothing contained in this Article shall apply to claims of or payments to the Trustee
under or pursuant to Section 7.07 hereof.




          (c) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or
to observe only such of its covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall pay over or deliver to Holders, the Company or any other
Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.




          Section 11.09 Rights of Holders of Senior Indebtedness Not Impaired. No right of any
present or future holder of any Senior Indebtedness to enforce the subordination herein shall at
any time or in any way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged
with.




63









 








          Section 11.10 Modification of Terms of Senior Indebtedness. Any renewal or extension
of the time of payment of any Senior Indebtedness or the exercise by the holders of Senior
Indebtedness of any of their rights under any instrument creating or evidencing Senior
Indebtedness, including without limitation the waiver of default thereunder, may be made or done
all without notice to or assent from the Holders of the Securities or the Trustee.




          No compromise, alteration, amendment, modification, extension, renewal or other change of, or
waiver, consent or other action in respect of, any liability or obligation under or in respect of,
or of any of the terms, covenants or conditions of any indenture or other instrument under which
any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or not such release
is in accordance with the provisions or any applicable document, shall in any
way alter or affect any of the provisions of this Article or of the Securities relating to the
subordination thereof.




          Section 11.11 Certain Conversions Not Deemed Payment. For the purposes of this
Article 11 only:




          (1) the issuance and delivery of junior securities upon conversion of Securities in accordance
with Article 10 hereof shall not be deemed to constitute a payment or distribution on account of
the principal of, premium, if any, or interest (including Additional Interest Amounts, if any) on
Securities or on account of the purchase or other acquisition of Securities, and




          (2) the payment, issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 10.03 hereof), property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the principal of,
premium, if any, or interest (including Additional Interest Amounts, if any) on such Security.




For the purposes of this Section 11.11, the term “junior securities” means:




          (a) shares of any Common Stock of the Company or




          (b) other securities of the Company that are subordinated in right of payment to all Senior
Indebtedness that may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article.




          Nothing contained in this Article 11 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors (other than holders of Senior
Indebtedness) and the Holders of Securities, the right, which is absolute and unconditional, of the
Holder of any Security to convert such Security in accordance with Article 10 hereof.




ARTICLE 12



MISCELLANEOUS



     Section 12.01 Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required to be included in this



64









 





Indenture by the TIA, the required provision shall control. If any provision of this Indenture
expressly modifies or excludes any provision of the TIA that may be so modified or excluded, the
Indenture provision so modifying or excluding such provision of the TIA shall be deemed to apply.




          Section 12.02 Notices. Any request, demand, authorization, notice, waiver, consent or
communication shall be in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows, or, other than notices to the Company, transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following facsimile numbers:




     if to the Company:


Human Genome Sciences, Inc.

14200 Shady Grove Road

Rockville, Maryland 20850

Attention: James H. Davis, Ph.D

Facsimile: (301) 517-8831




     if to the Trustee:


The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Corporate Trust Administration

Facsimile: 212-815-5707




          The Company or the Trustee by notice given to the other in the manner provided above may
designate additional or different addresses for subsequent notices or communications.




          Any notice or communication given to a Holder shall be mailed to the Holder, by first-class
mail, postage prepaid, at the Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time prescribed.




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




          If the Company mails a notice or communication to the Holders, it shall mail a copy to the
Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.




          Section 12.03 Communication by Holders with Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent
and anyone else shall have the protection of TIA Section 312(c).




          Section 12.04 Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the




65









 







Company shall furnish to the Trustee an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.




          Section 12.05 Statements Required in an Officers’ Certificate or Opinion
Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a covenant
or condition provided for in this Indenture shall include:





          (1) a statement that each person making such Officers’ Certificate or Opinion of
Counsel has read such covenant or condition;




          (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officers’ Certificate or Opinion of
Counsel are based;




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




          (4) a statement that, in the opinion of such person, such covenant or condition has
been complied with.



          Section 12.06 Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.




          Section 12.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar, Conversion
Agent and the Paying Agent may make reasonable rules for their functions.




          Section 12.08 Legal Holidays. A “Legal Holiday” is any day other than a Business Day.
If any specified date (including a date for giving notice) is a Legal Holiday, the action shall be
taken on the next succeeding day that is not a Legal Holiday, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest, if any, shall accrue for the
intervening period.




          Section 12.09 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE AND THE NOTES WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.




          Section 12.10 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each Holder shall waive




66









 







and release all such liability. The waiver and release shall be part of the consideration for the
issue of the Securities.




          Section 12.11 Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.




          Section 12.12 Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.




          Section 12.13 Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.




67









 








     IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on
behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 
	 	 	HUMAN GENOME SCIENCES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven C. Mayer
	 

	 	 	 	 
	 

	 	 	 	Name: Steven C. Mayer
	 

	 	 	 	Title: Executive Vice President and CFO
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Dorothy Miller
	 

	 	 	 	 
	 

	 	 	 	Name: Dorothy Miller
	 

	 	 	 	Title: Vice President






 









 






EXHIBIT A



[FORM OF GLOBAL NOTE]



          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




          TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




          THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. 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, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH HUMAN GENOME
SCIENCES, INC. OR ANY AFFILIATE OF HUMAN GENOME SCIENCES, INC. WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO HUMAN GENOME SCIENCES, INC. OR ANY SUBSIDIARY THEREOF
OR (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A




A-1









 







UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A OR (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO HUMAN GENOME SCIENCES, INC.’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




A-2









 








HUMAN GENOME SCIENCES, INC.



2 1/4% Convertible Subordinated Securities Due 2012



CUSIP NO. 444903 AL 2



No.:



Issue Date: August 9, 2005




          HUMAN GENOME SCIENCES, INC., a Delaware corporation, promises to pay to Cede & Co. or
registered assigns, the principal sum of Two Hundred and Thirty Million Dollars ($230,000,000) on
August 15, 2012.




          This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.




          Additional provisions of this Security are set forth on the other side of this Security.




	 	 	 	 	 
	Dated:	 	HUMAN GENOME SCIENCES, INC.
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






TRUSTEE’S CERTIFICATE OF

AUTHENTICATION



The Bank of New York, as Trustee, certifies that this is one of the Securities referred to in the
within-mentioned Indenture (as defined on the other side of this Security).




	 	 	 
	By

	 	 
	 


	 	 
	Authorized Signatory

	 
	 	 
	Dated: 
	 	 
	 

	 	 






A-3









 






[FORM OF REVERSE SIDE OF NOTE]



2 1/4% Convertible Subordinated Securities Due 2012



     Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture (the “Indenture”) dated August 9, 2005 between the Company and The Bank of New York (the
“Trustee”) unless otherwise indicated.



1. Cash Interest.




     The Company promises to pay interest at the Interest Rate in cash on the principal amount of
this Security. The Company will pay cash interest semiannually in arrears on February 15 and
August 15 of each year (each an “Interest Payment Date”), beginning on February 15, 2006, to
Holders of record at the close of business on the preceding February 1 and August 1 (whether or not
a Business Day) (each a “Regular Record Date”), as the case may be, immediately preceding such
Interest Payment Date. Cash interest on the Securities will accrue from the most recent date to
which interest has been paid or duly provided or, if no interest has been paid, from the Issue
Date. Cash interest will be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay cash interest on overdue principal at the rate borne by the Securities, and it
shall pay interest in cash on overdue installments of cash interest at the same rate to the extent
lawful. All such overdue cash interest shall be payable on demand. Upon conversion, accrued and
unpaid interest shall be deemed paid in full rather than cancelled, extinguished or forfeited.



2. Method of Payment.




     Subject to the terms and conditions of the Indenture, the Company will make payments in
respect of the principal of, and cash interest on this Security and in respect of the Change in
Control Purchase Price, if any, to Holders who surrender Securities to a Paying Agent to collect
such payments in respect of the Securities. The Company will pay cash amounts in money of the
United States that at the time of payment is legal tender for payment of public and private debts.
However, the Company may make such cash payments by check or wire transfer payable in such money.
Notwithstanding the foregoing, so long as this Security is registered in the name of a Depositary
or its nominee, all payments hereon shall be made by wire transfer of immediately available funds
to the account of the Depositary or its nominee. Any payment required to be made on any day that
is not a Business Day will be made on the next succeeding Business Day.



3. Paying Agent, Conversion Agent and Registrar.




     Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without
notice, other than notice to the Trustee except that the Company will maintain at least one Paying
Agent in the State of New York, The City of New York, the Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The Company or any of its Subsidiaries or any of
their Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar.



4. Indenture.




A-4









 








     The Company issued the Securities under the Indenture. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect from time to time (the “TIA”). The Securities are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a statement of those
terms.



     The Securities are general unsecured subordinated obligations of the Company limited to
$230,000,000 aggregate principal amount (subject to Section 2.07 and Section 2.02 of the
Indenture). The Indenture does not limit other indebtedness of the Company, secured or unsecured.



     No sinking fund is provided for the Securities.



5. Purchase by the Company at the Option of the Holder upon Change in Control.




     If there shall have occurred a Change in Control (subject to certain conditions provided for
in the Indenture), each Holder, at such Holder’s option, shall have the right, in accordance with
the provisions of the Indenture, to require the Company to purchase its Securities (or any portion
of the principal amount hereof that is at least $1,000 or any whole multiple thereof, provided that
the portion of the principal amount of this Security to be outstanding after such purchase is at
least equal to $1,000) at the Change in Control Purchase Price in cash plus any accrued and unpaid
interest to but not including the Change in Control Purchase Date.



     If there shall have occurred a Change in Control pursuant to clause (i) or (ii) of the
definition thereof in which any of the consideration for the Common Stock in the transaction or
transactions constituting the Change in Control consists of cash (other than cash payments for
fractional shares and cash payments made in respect of dissenters’ rights), and a Holder surrenders
such Securities for purchase, the Company shall pay to such Holder a Make-Whole Premium, by
increasing the Conversion Rate, to the Holders of the Securities who convert their Securities on or
after the date on which the Company has given a notice to all Holders of Securities in accordance
with Section 3.01 of the Indenture and on or before the Change in Control Purchase Date. The
payment of the Make-Whole Premium shall be in addition to, and not in substitution for any cash,
securities or other assets otherwise due to Holders of Securities upon conversion of the Securities
in accordance with Article 10 of the Indenture.



     A written notice of the Change in Control will be given to the Holders as provided in the
Indenture. To exercise a purchase right, a Holder must deliver to the Trustee a Change in Control
Purchase Notice as provided in the Indenture.



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



6. Subordination.




     The Indebtedness evidenced by this Security and the payment of the principal of and premium,
if any, and interest (including Additional Interest Amounts, if any) on each and all of the
Securities is expressly subordinated and junior, to the extent and in the manner set forth and



A-5









 




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




7. Conversion.




     Subject to Article 10 of the Indenture, a Holder of a Security may convert such Security (or
any 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 on the last Business Day prior to August
15, 2012 or such earlier date set forth in the Indenture, at the Conversion Rate then in effect
subject to adjustment described in the Indenture. Subject to certain conditions provided for in
the Indenture, in certain circumstances, a Holder may receive a Make-Whole Premium, in addition to
the shares of Common Stock issuable, or cash payments for fractional shares, on conversion of such
Security.



     The initial “Conversion Rate” is 56.2303 shares of Common Stock per $1,000 principal amount of
the Securities and is subject to adjustment as provided in the Indenture. A Security in respect of
which a Holder has delivered a Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if such Change in
Control Purchase Notice is withdrawn in accordance with the terms of the Indenture. The Company
shall pay a cash adjustment as provided in the Indenture in lieu of any fractional share of Common
Stock.



     To convert a Certificated Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such
notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or
the Trustee, (4) pay all funds required, if any, relating to interest on the Securities to be
converted to which the Holder is not entitled and (5) pay any transfer or similar tax, if required.
To convert a Global Security, a Holder must comply with the procedures of the Depositary in effect
at such time.



8. Denominations; Transfer; Exchange.




     The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities in respect
of which a Change in Control Purchase Notice has been given and not



A-6









 




withdrawn (except, in the case of a Security to be purchased in part, the portion of the
Security not to be purchased).




9. Persons Deemed Owners.




     The registered Holder of this Security shall be treated as the owner of this Security for all
purposes.



10. Unclaimed Money or Securities.




     The Trustee and the Paying Agent shall return to the Company upon written request any money,
Securities or shares of Common Stock held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable unclaimed property law.
After such return to the Company, Holders entitled to the money or Securities must look to the
Company for payment as general creditors unless an applicable abandoned property law designates
another person.



11. Amendment; Waiver.




     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time outstanding and (ii) certain Defaults and Events of
Default may be waived with the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the Company and the
Trustee may amend the Indenture or the Securities to, among other things, cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Holder, or to comply with any requirement
of the SEC in connection with the qualification of the Indenture under the TIA.



12. Defaults and Remedies.




     Under the Indenture, Events of Default include (1) failure by the Company to pay when due the
principal of or premium, if any, on any of the Securities at maturity, upon exercise of a
repurchase right or otherwise, whether or not such payment is prohibited by Article 11 of the
Indenture; (2) failure by the Company to pay an installment of interest (or Additional Interest
Amounts, if any) on any of the Securities that continues for 30 days after the date when due,
whether or not such payment is prohibited by Article 11 of the Indenture; (3) failure by the
Company to provide the Change of Control Notice in accordance with the provisions set forth in
Section 3.01 of the Indenture; (4) failure by the Company to perform or observe any other term,
covenant or agreement contained in the Securities or the Indenture for a period of 60 days after
written notice of such failure, requiring the Company to remedy the same, shall have been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding (a “Notice of Default”); (5) failure
by the Company to pay when due the principal of, or acceleration of, any Indebtedness in an amount
in excess of $25 million, because of a default with respect to such Indebtedness without such
Indebtedness having been discharged or such acceleration having been cured,



A-7









 




waived, rescinded or annulled, in either case for a period of 10 days after the date of a
Notice of Default; (6) certain events of bankruptcy, insolvency or reorganization with respect to
the Company; and (7) the Company’s filing of a voluntary petition seeking liquidation,
reorganization arrangement, readjustment of debts or for any other relief under the federal
bankruptcy code. If an Event of Default (other than an Event of Default specified in clause (6) or
(7) of Section 6.01 of the Indenture) occurs and is continuing, the Trustee, or the Holders of at
least 25% in aggregate principal amount of the Securities at the time outstanding, may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities becoming due and payable immediately upon the
occurrence of such Events of Default.




     Holders may not enforce the Indenture or the Securities, except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any continuing Default
(except a Default in payment of amounts specified in clause (1) or (2) above) if it determines that
withholding notice is in their interests as provided in the Indenture.



13. Trustee Dealings with the Company.




     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



14. No Recourse Against Others.




     A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.



15. Authentication.




     This Security shall not be valid until an authorized signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.



16. Abbreviations.




     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).



17. GOVERNING LAW.




A-8









 








     THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



 






A-9









 








     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture which has in it the text of this Security. Requests may be made to:


Human Genome Sciences, Inc.

14200 Shady Grove Road

Rockville, Maryland 20850

Attention: James H. Davis, Ph.D.



A-10









 








ASSIGNMENT FORM




          For value received, ___hereby sell(s), assign(s), and transfer(s) unto
___(Please insert social security or other Taxpayer Identification Number
of assignee) the within Security, and hereby irrevocably constitutes and appoints
___attorney to transfer the said Security on the books of the Company, with
full power of substitution in the premises.




          In connection with the transfer of this Security within the period prior to the expiration of
the holding period applicable to the sales thereof under Rule 144(k) under the Securities Act of
1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered
owner of this Security hereby certifies with respect to $___principal amount of this
Security presented or surrendered on the date hereof (the “Surrendered Security”) for registration
of transfer, or for exchange where the Securities issuable upon such transfer or exchange are to be
registered in a name other than that of the undersigned registered owner (each such transaction
being a “transfer”), that such transfer complies with the restrictive legend set forth on the face
of the Surrendered Security for the reason checked below:





	 	 	 	[  ] A transfer of the Surrendered Security is made to the
Company; or
	 
	 	 	 	[  ] The transfer of the Surrendered Security complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”);
or
	 
	 	 	 	[  ] The transfer of the Surrendered Security is pursuant to an
effective registration statement under the Securities Act; or
	 
	 	 	 	[  ] The transfer of the Surrendered Security is pursuant to
another available exemption from the registration requirement of the Securities
Act,




and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
the Surrendered Security is not being transferred to an “affiliate” of the Company as defined in
Rule 144 under the Securities Act (an “Affiliate”).





	 	 	 	[  ] The transferee is an Affiliate of the Company.





	 	 	 	 
	Dated: 
	 		 
	 

	 		 
	 
	 		 
	 

	 		Signature(s)
	 
	 		 
	 

	 		Signature(s) must be guaranteed by an “eligible
	 

	 		guarantor institution” meeting the requirements of the
	 

	 		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






A-11









 






	 	 	 
	 

	 	by the Securities registrar in addition to, or in
	 

	 	substitution for, STAMP, all in accordance with the
	 

	 	Securities Exchange Act of 1934, as amended.







A-12










 






CONVERSION NOTICE



To convert this Security into Common Stock of the Company, check the box:



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 sec. or tax ID no.)

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

	 	 






	 	 	 
	[  ]

	 	If you want the stock certificate made out
in another person’s name, you are required
to complete and deliver to the Conversion
Agent a duly completed Transfer Certificate
(which is in the form of Exhibit C to the
Indenture) as required thereby.






A-13









 






OPTION TO ELECT PURCHASE

UPON A CHANGE IN CONTROL



To: Human Genome Sciences, Inc.



o The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from the Company as to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of this Security, or the
portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance
with the terms of the Indenture referred to in this Security at the Change in Control Purchase
Price, including accrued interest, if any, up to, but excluding, such date, to the registered
Holder hereof.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

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

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranty






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

	 	 








 




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




A-14









 










EXHIBIT B




[FORM OF CERTIFICATED NOTE]




          THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. 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, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH HUMAN GENOME
SCIENCES, INC. OR ANY AFFILIATE OF HUMAN GENOME SCIENCES, INC. WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO HUMAN GENOME SCIENCES, INC. OR ANY SUBSIDIARY THEREOF
OR (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (C)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR
(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO HUMAN GENOME SCIENCES, INC.’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.




B-1









 








HUMAN GENOME SCIENCES, INC.




2 1/4% Convertible Subordinated Securities Due 2012




CUSIP NO. 444903 AL 2




No.:




Issue Date: August 9, 2005




          HUMAN GENOME SCIENCES, INC., a Delaware corporation, promises to pay to Cede & Co. or
registered assigns, the principal sum of Two Hundred and Thirty Million Dollars ($230,000,000) on
August 15, 2012.




          This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.




          Additional provisions of this Security are set forth on the other side of this Security.




	 	 	 	 	 	 	 
	Dated:	 	 	 	HUMAN GENOME SCIENCES, INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






TRUSTEE’S CERTIFICATE OF

AUTHENTICATION


The Bank of New York, as Trustee, certifies that this is one of the Securities referred to in the
within-mentioned Indenture (as defined on the other side of this Security).




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory
	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 	 	 






B-2









 






[FORM OF REVERSE SIDE OF NOTE]




2 1/4% Convertible Subordinated Securities Due 2012




     Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture (the “Indenture”) dated August 9, 2005 between the Company and The Bank of New York (the
“Trustee”) unless otherwise indicated.




	1.	 	Cash Interest.





     The Company promises to pay interest at the Interest Rate in cash on the principal amount of
this Security. The Company will pay cash interest semiannually in arrears on February 15 and
August 15 of each year (each an “Interest Payment Date”), beginning on February 15, 2006, to
Holders of record at the close of business on the preceding February 1 and August 1 (whether or not
a Business Day) (each a “Regular Record Date”), as the case may be, immediately preceding such
Interest Payment Date. Cash interest on the Securities will accrue from the most recent date to
which interest has been paid or duly provided or, if no interest has been paid, from the Issue
Date. Cash interest will be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay cash interest on overdue principal at the rate borne by the Securities, and it
shall pay interest in cash on overdue installments of cash interest at the same rate to the extent
lawful. All such overdue cash interest shall be payable on demand. Upon conversion, accrued and
unpaid interest shall be deemed paid in full rather than cancelled, extinguished or forfeited.




	2.	 	Method of Payment.





     Subject to the terms and conditions of the Indenture, the Company will make payments in
respect of the principal of, and cash interest on this Security and in respect of the Change in
Control Purchase Price, if any, to Holders who surrender Securities to a Paying Agent to collect
such payments in respect of the Securities. The Company will pay cash amounts in money of the
United States that at the time of payment is legal tender for payment of public and private debts.
However, the Company may make such cash payments by check or wire transfer payable in such money.
Notwithstanding the foregoing, so long as this Security is registered in the name of a Depositary
or its nominee, all payments hereon shall be made by wire transfer of immediately available funds
to the account of the Depositary or its nominee. Any payment required to be made on any day that
is not a Business Day will be made on the next succeeding Business Day.




	3.	 	Paying Agent, Conversion Agent and Registrar.





     Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without
notice, other than notice to the Trustee except that the Company will maintain at least one Paying
Agent in the State of New York, The City of New York, the Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The Company or any of its Subsidiaries or any of
their Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar.




	4.	 	Indenture.




B-3









 











     The Company issued the Securities under the Indenture. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect from time to time (the “TIA”). The Securities are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a statement of those
terms.



     The Securities are general unsecured subordinated obligations of the Company limited to
$230,000,000 aggregate principal amount (subject to Section 2.07 and Section 2.02 of the
Indenture). The Indenture does not limit other indebtedness of the Company, secured or unsecured.



     No sinking fund is provided for the Securities.




	5.	 	Purchase by the Company at the Option of the Holder upon Change in Control.





     If there shall have occurred a Change in Control (subject to certain conditions provided for
in the Indenture), each Holder, at such Holder’s option, shall have the right, in accordance with
the provisions of the Indenture, to require the Company to purchase its Securities (or any portion
of the principal amount hereof that is at least $1,000 or any whole multiple thereof, provided that
the portion of the principal amount of this Security to be outstanding after such purchase is at
least equal to $1,000) at the Change in Control Purchase Price in cash plus any accrued and unpaid
interest to but not including the Change in Control Purchase Date.



     If there shall have occurred a Change in Control pursuant to clause (i) or (ii) of the
definition thereof, in which any of the consideration for the Common Stock in the transaction or
transactions constituting the Change in Control consists of cash (other than cash payments for
fractional shares and cash payments made in respect of dissenters’ rights) and a Holder surrenders
such Securities for purchase, the Company shall pay to such Holder a Make-Whole Premium, by
increasing the Conversion Rate, to the Holders of the Securities who convert their Securities on or
after the date on which the Company has given a notice to all Holders of Securities in accordance
with Section 3.01 of the Indenture and on or before the Change in Control Purchase Date. The
payment of the Make-Whole Premium shall be in addition to, and not in substitution for any cash,
securities or other assets otherwise due to Holders of Securities upon conversion of the Securities
in accordance with Article 10 of the Indenture.



     A written notice of the Change in Control will be given to the Holders as provided in the
Indenture. To exercise a purchase right, a Holder must deliver to the Trustee a Change in Control
Purchase Notice as provided in the Indenture.



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




	6.	 	Subordination.





     The Indebtedness evidenced by this Security and the payment of the principal of and premium,
if any, and interest (including Additional Interest Amounts, if any) on each and all of the
Securities is expressly subordinated and junior, to the extent and in the manner set forth and



B-4









 




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





	7.	 	Conversion.





     Subject to Article 10 of the Indenture, a Holder of a Security may convert such Security (or
any 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 on the last Business Day prior to August
15, 2012 or such earlier date set forth in the Indenture, at the Conversion Rate then in effect
subject to adjustment described in the Indenture. Subject to certain conditions provided for in
the Indenture, in certain circumstances, a Holder may receive a Make-Whole Premium, in addition to
the shares of Common Stock issuable, or cash payment for fractional shares, on conversion of such
Security.



     The initial “Conversion Rate” is 56.2303 shares of Common Stock per $1,000 principal amount of
the Securities and is subject to adjustment as provided in the Indenture. A Security in respect of
which a Holder has delivered a Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if such Change in
Control Purchase Notice is withdrawn in accordance with the terms of the Indenture. The Company
shall pay a cash adjustment as provided in the Indenture in lieu of any fractional share of Common
Stock.



     To convert a Certificated Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such notice) and deliver such
notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or
the Trustee, (4) pay all funds required, if any, relating to interest on the Securities to be
converted to which the Holder is not entitled and (5) pay any transfer or similar tax, if required.
To convert a Global Security, a Holder must comply with the procedures of the Depositary in effect
at such time.




	8.	 	Denominations; Transfer; Exchange.





     The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and whole multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities in respect
of which a Change in Control Purchase Notice has been given and not



B-5









 




withdrawn (except, in the case of a Security to be purchased in part, the portion of the
Security not to be purchased).





	9.	 	Persons Deemed Owners.





     The registered Holder of this Security shall be treated as the owner of this Security for all
purposes.




	10.	 	Unclaimed Money or Securities.





     The Trustee and the Paying Agent shall return to the Company upon written request any money,
Securities or shares of Common Stock held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable unclaimed property law.
After such return to the Company, Holders entitled to the money or Securities must look to the
Company for payment as general creditors unless an applicable abandoned property law designates
another person.




	11.	 	Amendment; Waiver.





     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time outstanding and (ii) certain Defaults and Events of
Default may be waived with the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the Company and the
Trustee may amend the Indenture or the Securities to, among other things, cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Holder, or to comply with any requirement
of the SEC in connection with the qualification of the Indenture under the TIA.




	12.	 	Defaults and Remedies.





     Under the Indenture, Events of Default include (1) failure by the Company to pay when due the
principal of or premium, if any, on any of the Securities at maturity, upon exercise of a
repurchase right or otherwise, whether or not such payment is prohibited by Article 11 of the
Indenture; (2) failure by the Company to pay an installment of interest (or Additional Interest
Amounts, if any) on any of the Securities that continues for 30 days after the date when due
whether or not such payment is prohibited by Article 11 of the Indenture; (3) failure by the
Company to provide the Change of Control Notice in accordance with the provisions set forth in
Section 3.01 of the Indenture; (4) failure by the Company to perform or observe any other term,
covenant or agreement contained in the Securities or the Indenture for a period of 60 days after
written notice of such failure, requiring the Company to remedy the same, shall have been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding (a “Notice of Default”); (5) failure
by the Company to pay when due the principal of, or acceleration of, any Indebtedness in an amount
in excess of $25 million, because of a default with respect to such Indebtedness without such
Indebtedness having been discharged or such acceleration having been cured,



B-6









 




waived, rescinded or annulled, in either case for a period of 10 days after the date of a
Notice of Default; (6) certain events of bankruptcy, insolvency or reorganization with respect to
the Company; and (7) the Company’s filing of a voluntary petition seeking liquidation,
reorganization arrangement, readjustment of debts or for any other relief under the federal
bankruptcy code. If an Event of Default (other than an Event of Default specified in clause (6) or
(7) of Section 6.01 of the Indenture) occurs and is continuing, the Trustee, or the Holders of at
least 25% in aggregate principal amount of the Securities at the time outstanding, may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities becoming due and payable immediately upon the
occurrence of such Events of Default.




     Holders may not enforce the Indenture or the Securities, except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any continuing Default
(except a Default in payment of amounts specified in clause (1) or (2) above) if it determines that
withholding notice is in their interests as provided in the Indenture.




	13.	 	Trustee Dealings with the Company.





     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.




	14.	 	No Recourse Against Others.





     A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.




	15.	 	Authentication.





     This Security shall not be valid until an authorized signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.




	16.	 	Abbreviations.





     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).




	17.	 	GOVERNING LAW.




B-7









 











     THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


 




B-8









 








     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture which has in it the text of this Security. Requests may be made to:


Human Genome Sciences, Inc.

14200 Shady Grove Road

Rockville, Maryland 20850

Attention: James H. Davis, Ph.D.



B-9









 








ASSIGNMENT FORM




          For value received,                                  hereby sell(s), assign(s), and transfer(s) unto
                                   (Please insert social security or other Taxpayer Identification Number
of assignee) the within Security, and hereby irrevocably constitutes and appoints
                              attorney to transfer the said Security on the books of the Company, with
full power of substitution in the premises.




          In connection with the transfer of this Security within the period prior to the expiration of
the holding period applicable to the sales thereof under Rule 144(k) under the Securities Act of
1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered
owner of this Security hereby certifies with respect to $                     principal amount of this
Security presented or surrendered on the date hereof (the “Surrendered Security”) for registration
of transfer, or for exchange where the Securities issuable upon such transfer or exchange are to be
registered in a name other than that of the undersigned registered owner (each such transaction
being a “transfer”), that such transfer complies with the restrictive legend set forth on the face
of the Surrendered Security for the reason checked below:




	 	 	 
	[  ]

	 	A transfer of the Surrendered Security is made to the
Company; or
	[  ]

	 	The transfer of the Surrendered Security complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”);
or
	[  ]

	 	The transfer of the Surrendered Security is pursuant to an
effective registration statement under the Securities Act; or
	[  ]

	 	The transfer of the Surrendered Security is pursuant to
another available exemption from the registration requirement of the Securities
Act,





and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
the Surrendered Security is not being transferred to an “affiliate” of the Company as defined in
Rule 144 under the Securities Act (an “Affiliate”).




	 	 	 
	[  ]

	 	The transferee is an Affiliate of the Company.






	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s) must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the 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






B-10









 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	by the Securities registrar
in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.






B-11









 






CONVERSION NOTICE



To convert this Security into Common Stock of the Company, check the box:



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 sec. or tax ID no.)

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

	 	 






	 	 	 
	[  ]

	 	If you want the stock certificate made out
in another person’s name, you are required
to complete and deliver to the Conversion
Agent a duly completed Transfer Certificate
(which is in the form of Exhibit C to the
Indenture) as required thereby.






B-12









 






OPTION TO ELECT PURCHASE

UPON A CHANGE IN CONTROL



To: Human Genome Sciences, Inc.



o The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from the Company as to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of this Security, or the
portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance
with the terms of the Indenture referred to in this Security at the Change in Control Purchase
Price, including accrued interest, if any, up to, but excluding, such date, to the registered
Holder hereof.




	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

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

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranty






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

	 	 








 




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




B-13









 










EXHIBIT C




Transfer Certificate




          In connection with any transfer (or exchange or conversion as provided below) of any of the
Securities within the period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the “Securities Act”) (or
any successor provision), the undersigned registered owner of this Security hereby certifies with
respect to $                     principal amount of the above-captioned Securities presented or
surrendered on the date hereof (the “Surrendered Securities”) for registration of transfer, or for
exchange or conversion where the Securities or Common Stock issuable upon such exchange or
conversion, as the case may be, are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a “transfer”), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the reason checked
below:




	 	 	 
	[  ]

	 	A transfer of the Surrendered Securities is made to the
Company or any Subsidiaries; or
	 
	 	 
	[  ]

	 	The transfer of the Surrendered Securities complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”);
or
	 
	 	 
	[  ]

	 	The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
	 
	 	 
	[  ]

	 	The transfer of the Surrendered Securities is pursuant to
another available exemption from the registration requirement of the Securities
Act,





and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).




	 	 	 
	[  ]

	 	The transferee is an Affiliate of the Company.






	 	 	 	 	 	 	 
	DATE:
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)






(If the registered owner is a corporation, partnership or

fiduciary, the title of the Person signing on behalf of

such registered owner must be stated.)





C-1