Exhibit 4.1




 





 




PRICELINE.COM INCORPORATED



ISSUER












AMERICAN STOCK TRANSFER & TRUST COMPANY



TRUSTEE












INDENTURE



Dated as of November 6, 2006












2006 1.00% CONVERTIBLE SENIOR NOTES DUE AUGUST 1, 2010






 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.2

  	
   

  	
  Compliance Certificates
  and Opinions

  	
   

  	
  10

  
	
  Section 1.3

  	
   

  	
  Form of Documents
  Delivered to the Trustee

  	
   

  	
  11

  
	
  Section 1.4

  	
   

  	
  Acts of Holders of
  Securities

  	
   

  	
  11

  
	
  Section 1.5

  	
   

  	
  Notices, Etc. to the
  Trustee and Company

  	
   

  	
  13

  
	
  Section 1.6

  	
   

  	
  Notice to Holders of
  Securities; Waiver

  	
   

  	
  14

  
	
  Section 1.7

  	
   

  	
  Effect of Headings and
  Table of Contents

  	
   

  	
  14

  
	
  Section 1.8

  	
   

  	
  Successors and Assigns

  	
   

  	
  14

  
	
  Section 1.9

  	
   

  	
  Separability Clause

  	
   

  	
  14

  
	
  Section 1.10

  	
   

  	
  Benefits of Indenture

  	
   

  	
  15

  
	
  Section 1.11

  	
   

  	
  Governing Law

  	
   

  	
  15

  
	
  Section 1.12

  	
   

  	
  Legal Holidays

  	
   

  	
  15

  
	
  Section 1.13

  	
   

  	
  Conflict With Trust
  Indenture Act

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITY
  FORMS

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  Form Generally

  	
   

  	
  16

  
	
  Section 2.2

  	
   

  	
  Form of Security

  	
   

  	
  16

  
	
  Section 2.3

  	
   

  	
  Form of Certificate of
  Authentication

  	
   

  	
  30

  
	
  Section 2.4

  	
   

  	
  Form of Conversion
  Notice

  	
   

  	
  31

  
	
  Section 2.5

  	
   

  	
  Form of Assignment

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III THE
  SECURITIES

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Title and Terms

  	
   

  	
  33

  
	
  Section 3.2

  	
   

  	
  Denominations

  	
   

  	
  34

  
	
  Section 3.3

  	
   

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  	
  34

  
	
  Section 3.4

  	
   

  	
  Global Securities;
  Non-global Securities; Book-entry Provisions

  	
   

  	
  34

  
	
  Section 3.5

  	
   

  	
  Registration;
  Registration of Transfer and Exchange

  	
   

  	
  36

  
	
  Section 3.6

  	
   

  	
  Mutilated, Destroyed,
  Lost or Stolen Securities

  	
   

  	
  38

  
	
  Section 3.7

  	
   

  	
  Payment of Interest;
  Interest Rights Preserved

  	
   

  	
  39

  
	
  Section 3.8

  	
   

  	
  Persons Deemed Owners

  	
   

  	
  40

  
	
  Section 3.9

  	
   

  	
  Cancellation

  	
   

  	
  40

  
	
  Section 3.10

  	
   

  	
  Computation of Interest

  	
   

  	
  40

  
	
  Section 3.11

  	
   

  	
  CUSIP Numbers

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV SATISFACTION
  AND DISCHARGE

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Satisfaction and
  Discharge of Indenture

  	
   

  	
  41

  
	
  Section 4.2

  	
   

  	
  Application of Trust
  Money

  	
   

  	
  42

  



 


i

















 


	
  ARTICLE V REMEDIES

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Events of Default

  	
   

  	
  42

  
	
  Section 5.2

  	
   

  	
  Acceleration of
  Maturity; Rescission and Annulment

  	
   

  	
  44

  
	
  Section 5.3

  	
   

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  45

  
	
  Section 5.4

  	
   

  	
  Trustee May File Proofs
  of Claim

  	
   

  	
  45

  
	
  Section 5.5

  	
   

  	
  Trustee May Enforce
  Claims Without Possession of Securities

  	
   

  	
  46

  
	
  Section 5.6

  	
   

  	
  Application of Money
  Collected

  	
   

  	
  46

  
	
  Section 5.7

  	
   

  	
  Limitation on Suits

  	
   

  	
  47

  
	
  Section 5.8

  	
   

  	
  Unconditional Right of
  Holders to Receive Principal and Interest and to Convert

  	
   

  	
  47

  
	
  Section 5.9

  	
   

  	
  Restoration of Rights and
  Remedies

  	
   

  	
  48

  
	
  Section 5.10

  	
   

  	
  Rights and Remedies
  Cumulative

  	
   

  	
  48

  
	
  Section 5.11

  	
   

  	
  Delay or Omission Not
  Waiver

  	
   

  	
  48

  
	
  Section 5.12

  	
   

  	
  Control by Holders of
  Securities

  	
   

  	
  48

  
	
  Section 5.13

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  49

  
	
  Section 5.14

  	
   

  	
  Undertaking for Costs

  	
   

  	
  49

  
	
  Section 5.15

  	
   

  	
  Waiver of Stay, Usury
  or Extension Laws

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI THE TRUSTEE

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Certain Duties and
  Responsibilities

  	
   

  	
  50

  
	
  Section 6.2

  	
   

  	
  Notice of Defaults

  	
   

  	
  51

  
	
  Section 6.3

  	
   

  	
  Certain Rights of
  Trustee

  	
   

  	
  51

  
	
  Section 6.4

  	
   

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
   

  	
  52

  
	
  Section 6.5

  	
   

  	
  May Hold Securities,
  Act as Trustee under Other Indentures

  	
   

  	
  52

  
	
  Section 6.6

  	
   

  	
  Money Held in Trust

  	
   

  	
  53

  
	
  Section 6.7

  	
   

  	
  Compensation and
  Reimbursement

  	
   

  	
  53

  
	
  Section 6.8

  	
   

  	
  Corporate Trustee
  Required; Eligibility

  	
   

  	
  53

  
	
  Section 6.9

  	
   

  	
  Resignation and
  Removal; Appointment of Successor

  	
   

  	
  54

  
	
  Section 6.10

  	
   

  	
  Acceptance of
  Appointment by Successor

  	
   

  	
  55

  
	
  Section 6.11

  	
   

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
   

  	
  56

  
	
  Section 6.12

  	
   

  	
  Authenticating Agents

  	
   

  	
  56

  
	
  Section 6.13

  	
   

  	
  Disqualification;
  Conflicting Interests

  	
   

  	
  57

  
	
  Section 6.14

  	
   

  	
  Preferential Collection
  of Claims Against Company

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Company May
  Consolidate, Etc Only on Certain Terms

  	
   

  	
  58

  
	
  Section 7.2

  	
   

  	
  Successor Substituted

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  SUPPLEMENTAL INDENTURES

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Supplemental Indentures
  Without Consent of Holders of Securities

  	
   

  	
  59

  
	
  Section 8.2

  	
   

  	
  Supplemental Indentures
  with Consent of Holders of Securities

  	
   

  	
  60

  
	
  Section 8.3

  	
   

  	
  Execution of
  Supplemental Indentures

  	
   

  	
  61

  



 


ii

















 


	
  Section 8.4

  	
   

  	
  Effect of Supplemental
  Indentures

  	
   

  	
  61

  
	
  Section 8.5

  	
   

  	
  Reference in Securities
  to Supplemental Indentures

  	
   

  	
  61

  
	
  Section 8.6

  	
   

  	
  Notice of Supplemental
  Indentures

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX HOLDERS
  LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1

  	
   

  	
  Company to Furnish
  Trustee Names and Addresses of Holders

  	
   

  	
  62

  
	
  Section 9.2

  	
   

  	
  Preservation of
  Information

  	
   

  	
  62

  
	
  Section 9.3

  	
   

  	
  Reports by Trustee

  	
   

  	
  62

  
	
  Section 9.4

  	
   

  	
  Reports by Company

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X COVENANTS

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1

  	
   

  	
  Payment of Principal
  and Interest

  	
   

  	
  63

  
	
  Section 10.2

  	
   

  	
  Maintenance of Offices
  or Agencies

  	
   

  	
  63

  
	
  Section 10.3

  	
   

  	
  Money for Security
  Payments to Be Held in Trust

  	
   

  	
  64

  
	
  Section 10.4

  	
   

  	
  Existence

  	
   

  	
  65

  
	
  Section 10.5

  	
   

  	
  Statement by Officers
  as to Default

  	
   

  	
  65

  
	
  Section 10.6

  	
   

  	
  RESERVED

  	
   

  	
  66

  
	
  Section 10.7

  	
   

  	
  RESERVED

  	
   

  	
  66

  
	
  Section 10.8

  	
   

  	
  RESERVED

  	
   

  	
  66

  
	
  Section 10.9

  	
   

  	
  Waiver of Certain
  Covenants

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI REDEMPTION
  OF SECURITIES

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.1

  	
   

  	
  Right of Redemption

  	
   

  	
  66

  
	
  Section 11.2

  	
   

  	
  Applicability of
  Article

  	
   

  	
  66

  
	
  Section 11.3

  	
   

  	
  Election to Redeem;
  Notice to Trustee

  	
   

  	
  66

  
	
  Section 11.4

  	
   

  	
  Selection by Trustee of
  Securities to Be Redeemed

  	
   

  	
  67

  
	
  Section 11.5

  	
   

  	
  Notice of Redemption

  	
   

  	
  67

  
	
  Section 11.6

  	
   

  	
  Deposit of Redemption
  Price

  	
   

  	
  68

  
	
  Section 11.7

  	
   

  	
  Securities Payable on
  Redemption Date

  	
   

  	
  68

  
	
  Section 11.8

  	
   

  	
  Conversion Arrangement
  on Call for Redemption

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII CONVERSION
  OF SECURITIES

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 12.1

  	
   

  	
  Conversion Privilege
  and Conversion Rate

  	
   

  	
  70

  
	
  Section 12.2

  	
   

  	
  Exercise of Conversion
  Privilege

  	
   

  	
  72

  
	
  Section 12.3

  	
   

  	
  Fractions of Shares

  	
   

  	
  76

  
	
  Section 12.4

  	
   

  	
  Adjustment of
  Conversion Rate

  	
   

  	
  76

  
	
  Section 12.5

  	
   

  	
  Notice of Adjustments
  of Conversion Rate

  	
   

  	
  80

  
	
  Section 12.6

  	
   

  	
  Notice of Certain
  Corporate Action

  	
   

  	
  81

  
	
  Section 12.7

  	
   

  	
  Company to Reserve
  Common Stock

  	
   

  	
  82

  
	
  Section 12.8

  	
   

  	
  Taxes on Conversions

  	
   

  	
  82

  
	
  Section 12.9

  	
   

  	
  Covenant as to Common
  Stock

  	
   

  	
  82

  
	
  Section 12.10

  	
   

  	
  Cancellation of
  Converted Securities

  	
   

  	
  82

  
	
  Section 12.11

  	
   

  	
  Provision in Case of
  Consolidation, Merger or Sale of Assets

  	
   

  	
  82

  



 


iii

















 


	
  Section 12.12

  	
   

  	
  Rights Issued in
  Respect of Common Stock

  	
   

  	
  83

  
	
  Section 12.13

  	
   

  	
  Responsibility of
  Trustee for Conversion Provisions

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII DEFEASANCE

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 13.1

  	
   

  	
  Company’s Option to
  Effect Defeasance

  	
   

  	
  84

  
	
  Section 13.2

  	
   

  	
  Defeasance and
  Discharge

  	
   

  	
  85

  
	
  Section 13.3

  	
   

  	
  Conditions to
  Defeasance

  	
   

  	
  85

  
	
  Section 13.4

  	
   

  	
  Deposited Money and
  U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions

  	
   

  	
  87

  
	
  Section 13.5

  	
   

  	
  Reinstatement

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV REPURCHASE
  OF SECURITIES

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 14.1

  	
   

  	
  Right to Require
  Repurchase

  	
   

  	
  88

  
	
  Section 14.2

  	
   

  	
  Right to Require
  Repurchase Upon a Designated Event

  	
   

  	
  88

  
	
  Section 14.3

  	
   

  	
  RESERVED

  	
   

  	
  89

  
	
  Section 14.4

  	
   

  	
  Notices; Method of
  Exercising Repurchase Right, Etc

  	
   

  	
  89

  
	
  Section 14.5

  	
   

  	
  Certain Definitions

  	
   

  	
  92

  
	
  Section 14.6

  	
   

  	
  Consolidation, Merger,
  Etc.

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV MAKE WHOLE
  PREMIUM

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 15.1

  	
   

  	
  Determination of the
  Make Whole Premium

  	
   

  	
  94

  
	
  Section 15.2

  	
   

  	
  Payment of the Make
  Whole Premium

  	
   

  	
  96

  
	
  Section 15.3

  	
   

  	
  Adjustments Relating to
  the Make Whole Premium

  	
   

  	
  96

  



 


iv

















 


CROSS-REFERENCE
TABLE*


 


	
  Trust Indenture

  	
   

  	
  Indenture

  
	
  Act Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
  6.8

  
	
   

  	
  (a)(2)

  	
   

  	
  6.8

  
	
   

  	
  (a)(3)

  	
   

  	
  n/a

  
	
   

  	
  (a)(4)

  	
   

  	
  n/a

  
	
   

  	
  (a)(5)

  	
   

  	
  6.8

  
	
   

  	
  (b)

  	
   

  	
  6.13, 6.9

  
	
   

  	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  
	
  311

  	
  (a)

  	
   

  	
  6.14

  
	
   

  	
  (b)

  	
   

  	
  6.14

  
	
   

  	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  	
   

  
	
  312

  	
  (a)

  	
   

  	
  9.1

  
	
   

  	
  (b)

  	
   

  	
  9.2

  
	
   

  	
  (c)

  	
   

  	
  9.2

  
	
   

  	
   

  	
   

  	
   

  
	
  313

  	
  (a)

  	
   

  	
  9.3

  
	
   

  	
  (b)(1)

  	
   

  	
  9.3

  
	
   

  	
  (b)(2)

  	
   

  	
  9.3

  
	
   

  	
  (c)

  	
   

  	
  9.3

  
	
   

  	
  (d)

  	
   

  	
  9.4

  
	
   

  	
   

  	
   

  	
   

  
	
  314

  	
  (a)

  	
   

  	
  9.4

  
	
   

  	
  (b)

  	
   

  	
  n/a

  
	
   

  	
  (c)(1)

  	
   

  	
  1.2

  
	
   

  	
  (c)(2)

  	
   

  	
  1.2

  
	
   

  	
  (c)(3)

  	
   

  	
  n/a

  
	
   

  	
  (d)

  	
   

  	
  n/a

  
	
   

  	
  (e)

  	
   

  	
  1.2

  
	
   

  	
  (f)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  	
   

  
	
  315

  	
  (a)

  	
   

  	
  6.1

  
	
   

  	
  (b)

  	
   

  	
  6.2, 10.5

  
	
   

  	
  (c)

  	
   

  	
  6.3

  
	
   

  	
  (d)

  	
   

  	
  6.1

  
	
   

  	
  (e)

  	
   

  	
  5.14

  
	
   

  	
   

  	
   

  	
   

  
	
  316

  	
  (a)(last sentence)

  	
   

  	
  12.4

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (a)(2)

  	
   

  	
  n/a

  



 


v

















 


	
   

  	
  (b)

  	
   

  	
  5.8

  
	
   

  	
  (c)

  	
   

  	
  2.2

  
	
   

  	
   

  	
   

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
  5.3

  
	
   

  	
  (a)(2)

  	
   

  	
  5.4

  
	
   

  	
  (b)

  	
   

  	
  6.2

  
	
   

  	
   

  	
   

  	
   

  
	
  318

  	
  (a)

  	
   

  	
  1.13

  
	
   

  	
  (b)

  	
   

  	
  n/a

  
	
   

  	
  (c)

  	
   

  	
  1.13

  



 






“n/a” means not
applicable.


 


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


 


vi

















 


 


INDENTURE, dated as of
November 6, 2006, between PRICELINE.COM INCORPORATED, a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal office at 800 Connecticut Avenue, Norwalk, Connecticut 06854 (herein
called the “Company”), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New
York Corporation, as Trustee hereunder (herein called the “Trustee”).


 


RECITALS OF THE
COMPANY


 


The Company has duly
authorized the creation of an issue of its 2006 1.00% Convertible Senior Notes
due August 1, 2010 (herein called 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 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 I

DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION


 


Section 1.1             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 generally
accepted accounting principles in the United States, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation; 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.


 


“Act”, when used with
respect to any Holder of a Security, has the meaning specified in
Section 1.4.


 


“Additional Shares” has
the meaning specified in Section 12.2(b).


 


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


 


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


 


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


 


“Authenticating Agent”
means any Person authorized pursuant to Section 6.12 to act on behalf of
the Trustee to authenticate Securities.


 


“Board of Directors”
means either the board of directors of the Company or any duly authorized
committee of that 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 have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, shall have been delivered to the Trustee.


 


“Business Day”, when used
with respect to any Place of Payment, Place of Conversion or any other place,
as the case may be, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in such Place of Payment,
Place of Conversion or other place, as the case may be, are authorized or
obligated by law or executive order to close.


 


“Calculation Agent” has
the meaning specified in Section 15.1(4).


 


“Calculation Date” has
the meaning specified in Section 15.1(4)(A)(a).


 


“Cash Settlement Notice
Period” has the meaning specified in Section 12.2.


 


“Change in Control” has
the meaning specified in Section 14.5(2).


 


2

















 


“Closing Price Per Share”
means, with respect to the Common Stock, for any day, (i) the last reported sale
price regular way on The Nasdaq National Market or, (ii) if the Common Stock is
not quoted on The Nasdaq National Market, the last reported sale price regular
way per share or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either
case, on the principal national securities exchange on which the Common Stock
is listed or admitted to trading, or (iii) if the Common Stock is not quoted on
The Nasdaq National Market or listed or admitted to trading on any national
securities exchange, the average of the closing bid prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.


 


“Code” has the meaning
specified in Section 2.1.


 


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


 


“Common Stock” means the
Common Stock, par value $0.008 per share, of the Company authorized at the date
of this instrument as originally executed or as such stock may be constituted
from time to time. Subject to the provisions of Section 12.11, 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” includes
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 thereof and which is not
subject to redemption by the issuer thereof.


 


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


 


“Company Notice” has the
meaning specified in Section 14.4.


 


“Company Request” or
“Company Order” means a written request or order signed in the name of the
Company by (i) its Chairman of the Board, its Chief Executive Officer, its
President or an Executive Vice President, and by (ii) its Chief Financial
Officer, Controller or its Corporate Secretary and delivered to the Trustee.


 


3

















 


“Constituent Person” has
the meaning specified in Section 12.11.


 


“Conversion Agent” means
any Person authorized by the Company to convert Securities in accordance with
Article XII. The Company has initially appointed the Trustee as its Conversion
Agent pursuant to Section 10.2.


 


“Conversion Cap” has the
meaning specified in Section 12.2.


 


“Conversion Date” has the
meaning specified in Section 12.2.


 


“Conversion Obligation”
has the meaning specified in Section 12.1


 


“Conversion Period” has
the meaning specified in Section 12.1.


 


“Conversion Price” means
at any time the amount equal to $1,000 divided by the then current Conversion
Rate.


 


“Conversion Rate” has the
meaning specified in Section 12.1.


 


“Conversion Retraction
Period” has the meaning specified in Section 12.2.


 


“Conversion Value” has
the meaning specified in Section 12.1.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time the trust
created by this Indenture shall be principally administered (which at the date
of this Indenture is located at 59 Maiden Lane, New York, NY 10038,
Attention:  Corporate Trust
Administration,  priceline.com
Incorporated, 2006 1.00% Convertible Senior Notes due August 1, 2010).


 


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


 


“Daily Settlement Amount”
means, for each of the 20 Trading Days during the Observation Period,


 


(i)            cash equal to the lesser of (x) $50
and the Daily Conversion Value relating to such day; and


 


(ii)           if such Daily Conversion Value
exceeds $50, a number of shares of Common Stock equal to (A) the difference
between such Daily Conversion Value and $50, divided by (B) the Daily VWAP of
the Common Stock for such day.


 


“Daily Conversion Value”
means, for each of the 20 consecutive Trading Days during the Observation
Period, one-twentieth (1/20) of the product of (a) the applicable
Conversion Rate and (b) the Daily VWAP of the Common Stock on such day, as
determined by the Company. Any such determination by the Company will be conclusive
absent manifest error.


 


4

















 


“Daily VWAP” means for
each of the 20 consecutive Trading Days during the Observation Period, the per
share volume-weighted average price as displayed under the heading “Bloomberg
VWAP” on Bloomberg page PCLN <equity> AQR 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
volume-weighted average price is unavailable, the market value of one share of
Common Stock on such Trading Day as the Board of Directors determines in good
faith using a volume-weighted method).


 


“Defaulted Interest” has
the meaning specified in Section 3.7.


 


“Depositary” means, with
respect to any Securities (including any Global Securities), a clearing agency
that is registered as such under the Exchange Act and is designated by the
Company to act as Depositary for such Securities (or any successor securities
clearing agency so registered).


 


“Designated Event” has
the meaning specified in Section 14.5(3).


 


“Designated Event
Repurchase Date” has the meaning specified in Section 14.2.


 


“Designated Event
Repurchase Notice” has the meaning specified in Section 14.4(1)(D).


 


“Designated Event
Repurchase Price” has the meaning specified in Section 14.2.


 


“Distribution Notice” has
the meaning specified in Section 12.1.


 


“Dollar,” “U.S. $” or “$”
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.


 


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


 


“Effective Date” has the
meaning specified in Section 15.1(2)(A).


 


“Effective Failure” has
the meaning specified in Section 2.2.


 


“Effectiveness Period”
has the meaning specified in Section 2.2.


 


“Elected Cash Value” has
the meaning specified in Section 12.2.


 


“Event of Default” has
the meaning specified in Section 5.1.


 


“Exchange Act” means the
United States Securities Exchange Act of 1934 (or any successor statute), as
amended from time to time.


 


“Expiration Date” has the
meaning specified in Section 12.4.


 


“Fundamental Change” has
the meaning specified in Section 14.5(4).


 


“Fundamental Change
Notice” has the meaning specified in Section 12.1.


 


5

















 


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


 


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


 


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


 


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


 


“Make Whole Premium” has
the meaning specified in Section 15.1(2)(C).


 


“Make Whole Premium
Table” has the meaning specified in Section 15.1(2)(C)(d).


 


“Maturity”, when used
with respect to any Security, means the date on which the principal of such
Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
exercise of the repurchase right set forth in Article XIV or otherwise.


 


“Notice of Conversion”
has the meaning specified in Section 12.2.


 


“Notice of Default” has
the meaning specified in Section 5.1.


 


“Observation Period”
means the 20 consecutive Trading Day period beginning on and including the
Second Trading Day after the related Conversion Date in respect of such
Security.


 


“Officers’ Certificate”
means a certificate signed by (i) the Chairman of the Board or the Chief
Executive Officer, the President or an Executive Vice President and by
(ii) the Chief Financial Officer, Controller or the Corporate Secretary
and delivered to the Trustee. One of the Officers signing an Officers’
Certificate given pursuant to Section 10.5 shall be the principal
executive, financial or accounting officer of the Company.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company and who
shall be acceptable to the Trustee.


 


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


 


6

















 


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


 


(ii)                                  Securities
for the payment or redemption of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities, provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;


 


(iii)                               Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and


 


(iv)                              Securities
converted into Common Stock pursuant to Article XII;


 


provided,
however, that, in determining whether the Holders of the
requisite principal amount of Outstanding Securities are present at a meeting
of Holders of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
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 relying upon any such determination as to the presence of a quorum or upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee has been notified in
writing to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, and the Trustee shall be protected in relying
upon an Officer’s Certificate to such effect.


 


“Paying Agent” means any
Person authorized by the Company to pay the principal of or interest on any
Securities on behalf of the Company and, except as otherwise specifically set
forth herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its Paying
Agent pursuant to Section 10.2.


 


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


 


“Place of Conversion” has
the meaning specified in Section 3.1.


 


7

















 


“Place of Payment” has
the meaning specified in Section 3.1.


 


“Predecessor Security” of
any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.


 


“Press Release” means any
press release issued by the Company and disseminated to Reuters Business News
Services and Bloomberg News Services.


 


“Purchased Shares” has
the meaning specified in Section 12.4.


 


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


 


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


 


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


 


“Redemption Price”, when
used with respect to any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.


 


“Reference Property"
has the meaning specified in Section 12.11.


 


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


 


“Repurchase Date” has the
meaning specified in Section 14.1.


 


“Repurchase Notice” has
the meaning specified in Section 14.4.


 


“Repurchase Price” has
the meaning specified in Section 14.1.


 


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


 


“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.


 


8

















 


“Security Register” and
“Security Registrar” have the respective meanings specified in
Section 3.5.


 


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


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Company
pursuant to Section 3.7.


 


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


 


“Stock Price” has the
meaning specified in Section 15.1(2)(B).


 


“Stock Price Cap” has the
meaning specified in Section 15.1(2)(C)(c).


 


“Stock Price Threshold”
has the meaning specified in Section 15.1(2)(C)(b).


 


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


 


“Successor Security” of
any particular Security means every Security issued after, and evidencing all
or a portion of the same debt as that evidenced by, such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Termination of Trading”
has the meaning specified in Section 14.5(5).


 


“Trading Day” means (i)
if the Common Stock is quoted on The Nasdaq National Market or any other system
of automated dissemination of quotations of securities prices, days on which
trades may be effected through such system, (ii) if the Common Stock is listed
or admitted for trading on any national or regional securities exchange, days
on which such national or regional securities exchange is open for business, or
(iii) if the Common Stock is not listed on a national or regional securities
exchange or quoted on The Nasdaq National Market or any other system of
automated dissemination of quotation of securities prices, days on which the
Common Stock is traded regular


 


9

















 


way in the
over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock are available.


 


“Trading Price” has the
meaning specified in Section 12.1.


 


“Trigger Event’ has the
meaning specified in Section 12.12.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, and the rules and regulations
thereunder, as in force at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, and the rules and regulations thereunder, as so
amended.


 


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


 


“United States” means the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction
(its “possessions” including Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).


 


“U.S. Government
Obligation” has the meaning specified in Section 13.3.


 


Section 1.2             Compliance Certificates and
Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (including certificates provided for in Section 10.5) shall
include:


 


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


 


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


 


10

















 


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


 


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


 


Section 1.3             Form of Documents Delivered to
the Trustee.


 


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


 


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


 


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


 


Section 1.4             Acts of Holders of Securities.


 


(1)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders of Securities may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent or proxy 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. The Trustee shall
promptly deliver to the Company copies of all such instruments and records
delivered to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders of Securities signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this


 


11

















 


Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the
Company if made in the manner provided in this Section.


 


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


 


(3)           The principal amount and serial
number of any Security held by any Person, and the date of his holding the
same, shall be proved by the Security Register.


 


(4)           The fact and date of execution of any
such instrument or writing and the authority of the Person executing the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section.


 


(5)           The Company may set any day as the
record date for the purpose of determining the Holders entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted by this Indenture to
be given or taken by Holders. Promptly and in any case not later than ten days
after setting a record date, the Company shall notify the Trustee and the
Holders of such record date. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 9.1) prior to
such first solicitation or vote, as the case may be. With regard to any record
date, the Holders on such date (or their duly appointed agents or proxies), and
only such Persons, shall be entitled to give or take, or vote on, the relevant
action, whether or not such Holders remain Holders after such record date.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any notice,
declaration or direction referred to in the next paragraph.


 


Upon receipt by the
Trustee from any Holder of (i) any notice of default or breach referred to in
Section 5.1(5), if such default or breach has occurred and is continuing
and the Trustee shall not have given such a notice to the Company, (ii) any
declaration of acceleration referred to in Section 5.2, if an Event of
Default has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in
Section 5.12, if the Trustee shall not have taken the action specified in
such direction, then, with respect to clauses (ii) and (iii), a record date
shall automatically and without any action by the Company or the Trustee be set
for determining the Holders entitled to join in such declaration or direction,
which record date shall be the close of business on the tenth day (or, if such
day is not a Business Day, the first Business Day thereafter) following the day
on which the Trustee receives such declaration or direction, and, with respect
to clause (i), the Trustee may set any day as a record date for the purpose


 


12

















 


of determining the
Holders entitled to join in such notice of default. Promptly after such receipt
by the Trustee of any such declaration or direction referred to in clause (ii)
or (iii), and promptly after setting any record date with respect to clause
(i), and as soon as practicable thereafter, the Trustee shall notify the Company
and the Holders of any such record date so fixed. The Holders on such record
date (or their duly appointed agents or proxies), and only such Persons, shall
be entitled to join in such notice, declaration or direction, whether or not
such Holders remain Holders after such record date; provided that, unless such notice, declaration or direction
shall have become effective by virtue of Holders of the requisite principal
amount of Securities on such record date (or their duly appointed agents or
proxies) having joined therein on or prior to the 90th day after such record
date, such notice, declaration or direction shall automatically and without any
action by any Person be canceled and of no further effect. Nothing in this
paragraph shall be construed to prevent a Holder (or a duly appointed agent or
proxy thereof) from giving, before or after the expiration of such 90-day
period, a notice, declaration or direction contrary to or different from, or,
after the expiration of such period, identical to, the notice, declaration or
direction to which such record date relates, in which event a new record date
in respect thereof shall be set pursuant to this paragraph. In addition,
nothing in this paragraph shall be construed to render ineffective any notice,
declaration or direction of the type referred to in this paragraph given at any
time to the Trustee and the Company by Holders (or their duly appointed agents
or proxies) of the requisite principal amount of Securities on the date such
notice, declaration or direction is so given.


 


(6)           Except as provided in
Section 5.12 and Section 5.13, any request, demand, authorization,
direction, notice, consent, election, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Security.


 


Section 1.5             Notices, Etc. to the Trustee and
Company.


 


Any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of
Holders of Securities or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,


 


(1)           the Trustee by any Holder of
Securities or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (which may be via facsimile) to or
with a Responsible Officer of the Trustee and received at its Corporate Trust
Office, Attention: Corporate Trust Administration, priceline.com Incorporated,
2006 1.00% Convertible Senior Notes due August 1, 2010.


 


(2)           the Company by the Trustee or by any
Holder of Securities shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed, first-class postage
prepaid, or telecopied and confirmed by mail, first-class postage prepaid, or
delivered by hand or overnight courier, addressed to the Company at 800
Connecticut Avenue, Norwalk,


 


13

















 


Connecticut 06854,
Attention:  Corporate Secretary, or at
any other address previously furnished in writing to the Trustee by the
Company.


 


Section 1.6             Notice to Holders of Securities;
Waiver.


 


Except as otherwise
expressly provided herein, where this Indenture provides for notice to Holders
of Securities of any event, such notice shall be sufficiently given to Holders
if in writing and mailed, first-class postage prepaid or delivered by an
overnight delivery service, to each Holder of a Security affected by such
event, at the address of such Holder as it appears in the Security Register,
not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.


 


Neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Security shall affect the sufficiency of such notice with respect
to other Holders of Securities. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Securities as shall
be made with the approval of the Trustee, which approval shall not be
unreasonably withheld, shall constitute a sufficient notification to such
Holders for every purpose hereunder.


 


Such notice shall be
deemed to have been given when such notice is mailed.


 


Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders of Securities shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance
upon such waiver.


 


Section 1.7             Effect of Headings and Table of
Contents.


 


The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.


 


Section 1.8             Successors and Assigns.


 


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


 


Section 1.9             Separability Clause.


 


In case any provision in
this Indenture or 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.


 


14

















 


Section 1.10           Benefits of Indenture.


 


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


 


Section 1.11           Governing Law.


 


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


 


Section 1.12           Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Repurchase Date or Stated Maturity of
any Security or the last day on which a Holder of a Security has a right to
convert his Security shall not be a Business Day at a Place of Payment or Place
of Conversion, as the case may be, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of principal of, or interest on,
or the payment of the Redemption Price, Repurchase Price or Designated Event
Repurchase Price with respect to, or delivery for conversion of, such Security
need not be made at such Place of Payment or Place of Conversion, as the case
may be, on or by such day, but may be made on or by the next succeeding
Business Day at such Place of Payment or Place of Conversion, as the case may
be, with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repurchase Date or Designated Event Repurchase Date, or at the
Stated Maturity or by such last day for conversion; provided, however,
that in the case that payment is made on such succeeding Business Day, no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repurchase Date, Designated Event
Repurchase Date, Stated Maturity or last day for conversion, as the case may
be.


 


Section 1.13           Conflict With Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this Indenture, the
Company and the Trustee shall be deemed for all purposes hereof to be subject
to and governed by the Trust Indenture Act to the same extent as would be the
case if this Indenture were so qualified on the date hereof.


 


15

















 


ARTICLE
II

SECURITY FORMS


 


Section 2.1             Form Generally.


 


The Securities shall be
in substantially the form set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, the Internal
Revenue Code of 1986, as amended, and regulations thereunder (the “Code”), or
as may, consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof. The Company shall furnish
any such legends and endorsements to the Trustee in writing. All Securities shall
be in fully registered form.


 


The Trustee’s
certificates of authentication shall be in substantially the form set forth in
Section 2.3.


 


Conversion notices shall
be in substantially the form set forth in Section 2.4.


 


Repurchase notices shall
be substantially in the form set forth in Section 2.2.


 


The Securities shall be
printed, lithographed, typewritten or engraved or produced by any combination
of these methods or may be produced in any other manner permitted by the rules
of any automated quotation system or securities exchange (including on steel
engraved borders if so required by any securities exchange upon which the
Securities may be listed) on which the Securities may be quoted or listed, as
the case may be, all as determined by the officers executing such Securities,
as evidenced by their execution thereof.


 


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


 


Section 2.2             Form of Security.


 


[FORM
OF FACE]


 


[THE
FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:


 


THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE


 


16

















 


TREATED BY THE COMPANY, THE TRUSTEE
AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.


 


UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]


 


17

















 


PRICELINE.COM
INCORPORATED



2006 1.00% CONVERTIBLE SENIOR NOTE DUE AUGUST 1, 2010


 


	
  No.

  	
   

  	
   

  	
  $

  	
   

  



 


CUSIP NO.


 


PRICELINE.COM
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Company”, which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to                  ,
or registered assigns, the principal sum of         
United States Dollars (U.S.$       ) [if this Security is a Global Security, then insert —
(which principal amount may from time to time be decreased to such other
principal amounts (which, taken together with the principal amounts of all
other Outstanding Securities, shall not exceed $125,000,000) by adjustments
made on the records of the Trustee hereinafter referred to in accordance with
the Indenture)] on August 1, 2010
and to pay interest thereon, from August 1, 2006, or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or
duly provided for, semi-annually in arrears on February 1 and August 1 in each
year (each, an “Interest Payment Date”), commencing February 1, 2007, at
the rate of 1.00% per annum, until the principal hereof is due, and at the rate
of 1.00% per annum on any overdue principal and, to the extent permitted by
law, on any overdue interest. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 15 or July 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to Holders of Securities not less than 10 days prior to the Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any automated quotation system or securities exchange
on which the Securities may be quoted or listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payments of principal shall be made upon the surrender of this Security at the
option of the Holder at the Corporate Trust Office of the Trustee, or at such
other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, in such lawful monies
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, or at such other offices or
agencies as the Company may designate, by United States Dollar check drawn on,
or wire transfer to, a United States Dollar account (such a transfer to be made
only to a Holder of an aggregate principal amount of Securities in excess of
U.S.$2,000,000 and only if such Holder shall have furnished wire instructions
in writing to the Trustee no later than 15 days prior to


 


18

















 


the relevant payment
date). Payment of interest on this Security may be made by United States Dollar
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or, upon written application by the
Holder to the Security Registrar setting forth wire instructions not later than
the relevant Record Date, by transfer to a United States Dollar account (such a
transfer to be made only to a Holder of an aggregate principal amount of
Securities in excess of U.S. $2,000,000 and only if such Holder shall have
furnished wire instructions in writing to the Trustee no later than 15 days
prior to the relevant payment date).


 


Except as specifically
provided herein and in the Indenture, the Company shall not be required to make
any payment with respect to any tax, assessment or other governmental charge
imposed by any government or any political subdivision or taxing authority
thereof or therein.


 


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


 


Unless the certificate of
authentication hereon has been executed by the Trustee referred to on the
reverse hereof or an Authenticating Agent by the manual signature of one of
their respective authorized signatories, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.


 


19

















 


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


 


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TRUSTEE’S CERTIFICATE
  OF AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AMERICAN STOCK TRANSFER
  & TRUST COMPANY,

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  
								



 


20

















 


[FORM
OF REVERSE]


 


This Security is one of a
duly authorized issue of securities of the Company designated as its “2006
1.00% Convertible Senior Notes due August 1, 2010” (herein called the
“Securities”), limited in aggregate principal amount to U.S. $125,000,000,
issued and to be issued under an Indenture, dated as of November 6, 2006
(herein called the “Indenture”, which term shall have the meaning assigned to
it in such instrument), between the Company and American Stock Transfer &
Trust Company, as Trustee (herein called the “Trustee”, which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of any
authorized denominations as requested by the Holder surrendering the same upon
surrender of the Security or Securities to be exchanged, at the Corporate Trust
Office of the Trustee. The Trustee upon such surrender by the Holder will issue
the new Securities in the requested denominations.


 


No sinking fund is
provided for the Securities.


 


The Securities are also
subject to redemption at the option of the Company at any time on or after
August 1, 2008, in whole or in part, upon not less than 30 nor more than 60
days’ notice to the Holders prior to the Redemption Date at a Redemption Price
equal to 100% of the principal amount, together, in each case, with accrued and
unpaid interest, if any, to, but excluding, the Redemption Date; provided, however,
that interest installments on Securities whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.


 


In the event of a
redemption of the Securities, the Company will not be required (a) to issue,
register the transfer or exchange of Securities for a period of 15 days
immediately preceding the date notice is given identifying the serial numbers
of the Securities called for such redemption or (b) to register the transfer or
exchange of any Security, or portion thereof, called for redemption.


 


Notice to the Holders
will be given not more than 60 and not less than 30 days prior to the
Redemption Date as provided in the Indenture.


 


In any case where the due
date for the payment of the principal of or interest on any Security or the
last day on which a Holder of a Security has a right to convert his Security
shall be, at any Place of Payment or Place of Conversion as the case may be, a
day on which banking institutions at such Place of Payment or Place of
Conversion are authorized or obligated by law or executive order to close, then
payment of principal, interest, or delivery for conversion of such Security
need not be made on or by such date at such place but may be made on or by the
next succeeding day at such place which is not a day on which banking
institutions are authorized or obligated by law or


 


21

















 


executive order to close,
with the same force and effect as if made on the date for such payment or the
date fixed for redemption or repurchase, or by such last day for conversion,
and no interest shall accrue on the amount so payable for the period after such
date.


 


Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at his option, to convert any Security that is an integral multiple
of $1,000 into cash or a combination of cash and fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion as follows:


 


(1)           if, on or prior to August 1, 2008,
the Closing Price Per Share of the Common Stock for at least 20 Trading Days in
the period of the 30 consecutive Trading Days ending on the first day of a
Conversion Period was more than 120% of the then current Conversion Price of
the Securities, then the Holder thereof will be entitled to convert such Security
during that Conversion Period;


 


(2)           if, on any date after August 1, 2008
and prior to the Stated Maturity, the Closing Price Per Share of the Common
Stock is more than 110% of the then current Conversion Price of the Securities,
then the Holder thereof will be entitled to convert such Security at all times
thereafter;


 


(3)           if the Company distributes to all or
substantially all holders of Common Stock rights, options or warrants entitling
them to purchase Common Stock at less than the Closing Price Per Share of the
Common Stock on the last Trading Day preceding the declaration of such
distribution, then the Holder will be entitled to convert such Security during
the period specified below;


 


(4)           if the Company distributes to all or
substantially all holders of Common Stock cash, assets, debt securities or
capital stock, which distribution has a per share value as determined by the
Board of Directors exceeding 5% of the Closing Price Per Share of the Common
Stock on the last Trading Day preceding the declaration of such distribution,
then the Holder will be entitled to convert such Security during the period
specified below;


 


(5)           if a Fundamental Change occurs, then
the Holder will be entitled to convert such Security during the period
specified below; if the Fundamental Change occurs on or before August 1, 2008,
Holders may be entitled to receive a Make Whole Premium (consisting of an
increase in the Conversion Rate) upon such conversion or


 


(6)           if, on or after August 1, 2008, the
Company elects to call any Security for redemption, then the Holder thereof
will be entitled to convert such Security at any time from and after the date
on which the Company gives notice of such redemption until the close of
business on the Business Day immediately preceding the Redemption Date.


 


In the case of a
distribution contemplated by clauses (3) and (4) above, the Company will notify
Holders at least 20 days prior to the ex-dividend date for such distribution
(the “Distribution Notice”). Once the Company has given the Distribution
Notice, Holders may surrender their Securities for conversion at any time until
the earlier of the close of business on the last Business Day preceding the
ex-dividend date or the Company’s announcement that such distribution will not
take place. Notwithstanding the foregoing, in the event of a distribution
contemplated by clauses (3)


 


22

















 


and (4) above, Holders
may not convert the Securities if the Holders may participate in such
distribution without converting their Securities. In the event of Fundamental
Change as contemplated by clause (5) above, the Company will notify Holders at
least 20 days prior to the anticipated closing date of such transaction (the
“Fundamental Change Notice”). Once the Company has given the Fundamental Change
Notice, the Holders may, in the event of such Fundamental Change, surrender
Securities for conversion at any time from and after the date which is 15 days
prior to the anticipated closing date of such transaction until the date which
is 15 days after the actual closing date of such transaction.


 


Subject to the provisions
of the Indenture, the Holder of a Security is entitled, at its option, to
convert the principal amount of this Security (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) for the five
Business Day period after any five consecutive Trading Day period in which the
average Trading Prices for the Securities for such five Trading Day period was
less than 95% of the average Conversion Value for the Securities during such
period. The Trustee will determine the average Trading Prices after being
requested by the Company to do so as more fully described in the Indenture.


 


Subject to and upon
compliance with the terms described above and the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or
before the close of business on the date of Maturity, or in case this Security
or a portion hereof is called for redemption or the Holder hereof has exercised
his right to require the Company to repurchase this Security or such portion
hereof, then in respect of this Security until the Business Day immediately
preceding, but (unless the Company defaults in making the payment due upon redemption
or repurchase, as the case may be) not after, the close of business on the
Business Day immediately preceding the Redemption Date, the Repurchase Date or
the Designated Event Repurchase Date, as the case may be, to convert this
Security (or any portion of the principal amount hereof that is an integral
multiple of U.S.$1,000, provided
that the unconverted portion of such principal amount is U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof) at an initial Conversion
Rate of 25.0000 shares of Common Stock for each U.S.$1,000 principal amount of
Securities (or at the current adjusted Conversion Rate if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank and, in case such surrender
shall be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date (except if this Security or portion thereof has
been called for redemption on a Redemption Date or is repurchasable on a
Repurchase Date or Designated Event Repurchase Date occurring, in either case,
during such period and, as a result, the right to convert this Security would
otherwise terminate in such period if not exercised), also accompanied by
payment in New York Clearing House or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted, and also the conversion
notice hereon duly executed, to the Company at the Corporate Trust Office of
the Trustee, or at such other office or agency of the Company, subject to any
laws or regulations applicable thereto and subject to the right of the Company
to terminate the appointment of any Conversion Agent (as defined below) as may
be designated by it for such purpose in the Borough of Manhattan, The City of
New York, or at such


 


23

















 


other offices or agencies
as the Company may designate (each a “Conversion Agent”), provided, further,
that, if this Security or portion hereof has been called for redemption on a
Redemption Date or is repurchasable on a Repurchase Date or Designated Event
Repurchase Date occurring, in either case, during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such succeeding Interest Payment Date, and as a
result, the right to convert this Security would otherwise terminate in such
period if not exercised and this Security is surrendered for conversion during
such period, then the Holder of this Security on such Regular Record Date will
be entitled to receive the interest accruing hereon from the Interest Payment
Date next preceding the date of such conversion to such succeeding Interest
Payment Date and the Holder of this Security who converts this Security or a
portion hereof during such period shall not be required to pay such interest
upon surrender of this Security for conversion. Subject to the provisions of
the preceding sentence and, in the case of a conversion after the close of
business on the Regular Record Date next preceding any Interest Payment Date
and on or before the close of business on such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security of record as
of such Regular Record Date) to receive the related installment of interest to
the extent and under the circumstances provided in the Indenture, no cash
payment or adjustment is to be made on conversion for interest accrued hereon
from the Interest Payment Date next preceding the day of conversion, or for
dividends on the Common Stock issued on conversion hereof. The Company shall
thereafter deliver to the Holder (1) cash or a combination of cash and shares
of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and (2) if the conversion of
such Security is upon the occurrence of a Fundamental Change with an Effective
Date that is on or before August 1, 2008, the Make Whole Premium payable upon
such conversion, if any, and such delivery will be deemed to satisfy the
Company’s obligation to pay the principal amount of this Security. No fractions
of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the nearest
1/100th of a share) the Company shall pay a cash adjustment as provided in the
Indenture. The Conversion Rate is subject to adjustment as provided in the
Indenture. In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party (other than a
consolidation or merger that does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the conveyance,
transfer, sale or lease of all or substantially all of the property and assets
of the Company, the Indenture shall be amended, without the consent of any
Holders of Securities, so that this Security, if then Outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, transfer, sale
or lease by a holder of the number of shares of Common Stock of the Company
into which this Security could have been converted immediately prior to such
consolidation, merger, conveyance, transfer, sale or lease (assuming such
holder of Common Stock is not a Constituent Person or an Affiliate of a
Constituent Person), as determined in accordance with the Indenture. A Holder
may convert all or part of this Security by delivering this Security at the
corporate trust office of the Trustee accompanied by a duly signed and
completed conversion notice, a copy of which may be obtained by the Trustee. [if this security is a global security, then insert
– DTC will affect the conversion upon notice from the Holder of a beneficial


 


24

















 


interest in this Security
in accordance with DTC’s rules and procedures.] 
The conversion date will be the date on which the Security and the duly
signed and completed conversion notice are so delivered.


 


Subject to the terms and
conditions of the Indenture, the Company shall repurchase all or a portion of
the Securities (any such portion being at least $1,000 or an integral multiple
of $1,000 in excess thereof and provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to $1,000 or integral
multiples of $1,000 in excess thereof) at the option of the Holder on August 1,
2008 (the “Repurchase Date”), at a repurchase price equal to 100% of the
principal amount of the Securities to be repurchased, plus interest accrued but
unpaid to, but excluding, such Repurchase Date (the “Repurchase Price”). The
Repurchase Price shall be paid in cash.


 


If a Designated Event
occurs, the Holder of this Security, at the Holder’s option, shall have the
right, in accordance with the provisions of the Indenture, to require the
Company to repurchase this Security (or any portion of the principal amount
hereof that is at least $1,000 or an integral multiple of $1,000 in excess
thereof, provided that the
portion of the principal amount of this Security to be Outstanding after such
repurchase is at least equal to U.S.$1,000) at a Designated Event Repurchase
Price equal to 100% of the principal amount thereof plus interest accrued to
the Designated Event Repurchase Date. The Designated Event Repurchase Price
shall be paid in cash.


 


Whenever in this Security
there is a reference, in any context, to the principal of any Security as of
any time, such reference shall be deemed to include reference to the Repurchase
Price or the Designated Event Repurchase Price, as the case may be, payable in
respect of such Security to the extent that such Repurchase Price or Designated
Event Repurchase Price, as the case may be, is, was or would be so payable at
such time, and express mention of the Repurchase Price or the Designated Event
Repurchase Price, as the case may be, in any provision of this Security shall
not be construed as excluding the Repurchase Price or the Designated Event
Repurchase Price, as the case may be, so payable in those provisions of this
Security when such express mention is not made.


 


If a Fundamental Change
occurs on or before August 1, 2008, Holders of this Security will be entitled
to receive from the Company upon conversion of this Security in accordance with
Section 12.1(a)(5) of the Indenture, the Make Whole Premium.


 


[The
following paragraph shall appear in each Global Security:


 


In the event of a deposit
or withdrawal of an interest in this Security, including an exchange, transfer,
redemption, repurchase or conversion of this Security in part only, the
Trustee, as custodian of the Depositary, shall make an adjustment on its
records to reflect such deposit or withdrawal in accordance with the Applicable
Procedures.]


 


25

















 


[The
following paragraph shall appear in each Security that is not a Global
Security:


 


In the event of
redemption, repurchase or conversion of this Security in part only, a new
Security or Securities for the unredeemed, unrepurchased or unconverted portion
hereof will be issued in the name of the Holder hereof.]


 


If an Event of Default
shall occur and be continuing, the principal of all the Securities, together
with accrued and unpaid interest, if any, to the date of declaration, may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable, together with accrued interest to the date of declaration, and (ii) of
interest on any overdue principal and, to the extent permitted by applicable
law, overdue interest, all of the Company’s obligations in respect of the
payment of the principal of and interest on the Securities shall terminate.


 


[The following paragraph shall appear in each Global
Security:


 


In the event of a
withdrawal of an interest in this Security resulting from any redemption,
repurchase or conversion of this Security in part only, the Trustee, as
custodian of the Depositary, shall make an adjustment on its records to reflect
such withdrawal in accordance with the Applicable Procedures.]


 


The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities under the Indenture at any time by the Company and
the Trustee with the written consent of the Holders of not less than a majority
in principal amount of the Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of a majority in principal
amount of the Securities at the time Outstanding, on behalf of the Holders of
all the Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued in exchange therefore or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security or
such other Security.


 


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


 


26

















 


respective due dates expressed herein or for the enforcement of the
right to convert this Security as provided in the Indenture.


 


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


 


As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register upon surrender of this
Security for registration of transfer at the Corporate Trust Office of the
Trustee or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York (which
shall initially be an office or agency of the Trustee), or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees by the Security
Registrar. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to recover any tax or other governmental charge payable in connection
therewith.


 


Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.


 


Prior to due presentation
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 thereof for all purposes, whether or not
such Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


No recourse for the
payment of the principal or interest on this Security and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of consideration for the
issue hereof, expressly waived and released.


 


THE
INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.


 


27

















 


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


 


28
















 


ABBREVIATIONS


 


The following abbreviations, when used in the
inscription of the face of this Security, shall be construed as though they
were written out in full according to applicable laws or regulations:


 


	
  TEN COM

  	
   

  	
  as tenant in
  common

  	
   

  	
  UNIF GIFT MIN
  ACT

  	
   

  	
           
  Custodian         

  
	
  TEN ENT

  	
   

  	
  as tenants by
  the entireties (Cust)

  	
   

  	
   

  	
   

  	
  (Cust)

  	
  (Minor)

  
	
  JT TEN

  	
   

  	
  as joint tenants
  with right of survivorship and not as tenants in common

  	
   

  	
   

  	
   

  	
  under Uniform Gifts
  to

  Minors Act          

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  (State)

  
									



 


Additional abbreviations may also
be used though not in the above list.


 


29

















 


ELECTION OF HOLDER TO REQUIRE REPURCHASE


 


(1)                                  Pursuant
to Section 14.2 of the Indenture, the undersigned hereby elects to have
this Security repurchased by the Company.


 


(2)                                  The
undersigned hereby directs the Trustee or the Company to pay it or               
an amount in cash equal to 100% of the principal amount to be repurchased plus
interest accrued to, but excluding, the Repurchase Date, as provided in the
Indenture.


 


Dated:


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


Signature(s)


 


Signature(s) must be guaranteed by an Eligible

Guarantor Institution with membership in an 

approved signature guarantee program pursuant

to Rule 17Ad-15 under the Securities Exchange

Act of 1934.


 


	
   

  	
   

  



Signature Guaranteed


 


Principal amount to be repurchased (at least

U.S. $1,000 or an integral multiple of $1,000

in excess thereof):                     


 


Remaining principal amount following such

repurchase (not less than U.S. $1,000):  

              


 


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.


 


Section 2.3                                      Form of
Certificate of Authentication  The
Trustee’s certificate of authentication shall be in substantially the following
form:


 


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


 


	
  Dated:

  	
   

  	
   

  



 


30

















 


	
   

  	
  AMERICAN
  STOCK TRANSFER &

  	
   

  
	
   

  	
       TRUST
  COMPANY

  	
   

  
	
   

  	
  as
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
				



 


Section 2.4                                      Form of
Conversion Notice




CONVERSION NOTICE


 


The undersigned Holder of this Security hereby
irrevocably exercises the option to convert this Security, or any portion of
the principal amount hereof (which is U.S.$1,000 or an integral multiple of
U.S.$1,000 in excess thereof, provided
that the unconverted portion of such principal amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof) below designated, into cash
or a combination of cash and shares of Common Stock in accordance with the
terms of the Indenture referred to in this Security, and directs that such
shares, together with a check in payment for any fractional share and any
Securities representing any unconverted principal amount hereof, be delivered
to and be registered in the name of the undersigned unless a different name has
been indicated below. If shares of Common Stock or Securities are to be
registered in the name of a Person other than the undersigned, (a) the
undersigned will pay all transfer taxes payable with respect thereto and (b) signature(s)
must be guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  	
   

  



 


If shares or Securities are to be registered in the

name of a Person other than the Holder, please

print such Person’s name and address:


 


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or other Identification

  	
   

  



 


31

















 


	
  Number, if any

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Signature Guaranteed]

  	
   

  



 


If only a portion of the Securities is to be
converted, please indicate:


 


1.                                       Principal
amount to be converted: U.S. $            


 


2.                                       Principal
amount and denomination of Securities

representing unconverted principal amount to be issued:


 


Amount: U.S. $                                                                     Denominations:
U.S. $            


 


(U.S.$1,000 or any integral multiple of U.S.$1,000 in
excess thereof, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof)


 


Section 2.5                                      Form of
Assignment




ASSIGNMENT


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s)
  must be guaranteed by an Eligible 

  Guarantor Institution with membership in an 

  approved signature guarantee program pursuant 

  to Rule 17Ad - 15 under the Securities 

  Exchange Act of 1934.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guaranteed

  
							



 


32

















 


ARTICLE III

THE SECURITIES


 


Section 3.1                                      Title
and Terms.


 


The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to U.S. $125,000,000,
except for Securities authenticated and delivered pursuant to Section 3.4,
Section 3.5, Section 3.6, Section 8.5, Section 12.2 or Section 14.4(6) in
exchange for, or in lieu of, other Securities previously authenticated and
delivered under this Indenture.


 


(1)                                  The
Securities shall be known and designated as the “2006 1.00% Convertible Senior
Notes due August 1, 2010” of the Company. Their Stated Maturity shall be August 1,
2010 and they shall bear interest on their principal amount from August 1,
2006, payable semi-annually in arrears on February 1 and August 1 in
each year, commencing February 1, 2007, at the rate of 1.00% per annum
until the principal thereof is due and at the rate of 1.00% per annum on any
overdue principal and, to the extent permitted by law, on any overdue interest;
provided, however, that payments shall only be made
on a Business Day as provided in Section 1.12.


 


The principal of and interest on the Securities shall
be payable as provided in the form of Securities set forth in Section 2.2,
and the Repurchase Price or the Designated Event Repurchase Price, as the case may be,
shall be payable at such places as are identified in the Company Notice given
pursuant to Section 14.4 (any city in which any Paying Agent is located
being herein called a “Place of Payment”).


 


The Securities shall be senior unsecured obligations
of the Company and shall rank pari passu
with all of the Company’s other senior unsecured obligations, including,
without limitation, the Company’s 2.25% Convertible Senior Notes due January 15,
2025, issued pursuant to an indenture dated as of August 1, 2003 between
the Company and the Trustee, as amended or supplemented.


 


The Securities shall be redeemable at the option of
the Company at any time on or after August 1, 2008, in whole or in part,
subject to the conditions and as otherwise provided in Article XI and in
the form of Security set forth in Section 2.2.


 


The Securities shall be convertible as provided in Article XII
(any city in which any Conversion Agent is located being herein called a “Place
of Conversion”).


 


The Securities shall be subject to repurchase by the
Company at the option of the Holders as provided in Article XIV.


 


33

















 


Section 3.2                                      Denominations.


 


The Securities shall be issuable only in registered
form, without coupons, in denominations of U.S.$1,000 and integral multiples of
U.S.$1,000 in excess thereof.


 


Section 3.3                                      Execution,
Authentication, Delivery and Dating.


 


The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Financial Officer, or one of its Executive Vice
Presidents, and attested by its Chief Operating Officer, Controller or Secretary.
Any such signature may be manual or facsimile.


 


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


 


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee or to its order for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order shall
authenticate and make available for delivery such Securities as in this
Indenture provided.


 


Each Security shall be dated the date of its
authentication.


 


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


 


Section 3.4                                      Global
Securities; Non-global Securities; Book-entry Provisions.


 


(1)                                  Global
Securities


 


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


 


(B)                                Except
for exchanges of Global Securities for definitive, Non-global Securities at the
sole discretion of the Company, no Global Security may be exchanged in
whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a 


 


34

















 


nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be a clearing agency
registered as such under the Exchange Act or announces an intention permanently
to cease business or does in fact do so or (B) there shall have occurred
and be continuing an Event of Default with respect to such Global Security. In
such event, if a successor Depositary for such Global Security is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of an Officers’ Certificate directing the authentication and delivery
of Securities, will authenticate and deliver, Securities, in any authorized
denominations in an aggregate principal amount equal to the principal amount of
such Global Security in exchange for such Global Security.


 


(C)                                If
any Global Security is to be exchanged for other Securities or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee
to the Trustee, as Security Registrar, for exchange or cancellation, as
provided in this Article. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, in each
case, as provided in Section 3.5, then either (A) such Global
Security shall be so surrendered for exchange or cancellation, as provided in
this Article, or (B) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means
of an appropriate adjustment made on the records of the Trustee, as Security Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, except as otherwise provided in this
Article, authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depositary or its
authorized representative. Upon the request of the Trustee in connection with
the occurrence of any of the events specified in the preceding paragraph, the
Company shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee
shall be entitled to rely upon any order, direction or request of the
Depositary or its authorized representative which is given or made pursuant to
this Article if such order, direction or request is given or made in
accordance with the Applicable Procedures.


 


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


 


(E)                                 The
Depositary or its nominee, as registered owner of a Global Security, shall be
the Holder of such Global Security for all purposes under the Indenture and the
Securities, and owners of beneficial interests in a Global Security shall hold
such interests pursuant to the 


 


35

















 


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


 


(2)                                  Non-global
Securities. Securities issued upon the events described in Section 3.4(1)(B) shall
be in definitive, fully registered form, without interest coupons.


 


Section 3.5                                      Registration;
Registration of Transfer and Exchange.


 


(1)                                  The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed “Security Registrar” for the
purpose of registering Securities and transfers and exchanges of Securities as
herein provided.


 


Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated pursuant to Section 10.2
for such purpose, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of any authorized denominations and of a like aggregate
principal amount.


 


At the option of the Holder, and subject to the other
provisions of this Section 3.5, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, and subject to
the other provisions of this Section 3.5, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive. Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Company or the Security Registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company,
the Trustee and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.


 


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


 


No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities except as provided in Section 3.6,
but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, Section 8.5, Section 12.2 or Section 14.4
(other than where the shares of Common Stock are to be issued or delivered in a
name other than that of the Holder of the Security) not involving any transfer
and other than any stamp and other duties, if any, which may be imposed in
connection with any 


 


36

















 


such transfer or exchange by the United States or any
political subdivision thereof or therein, which shall be paid by the Company.


 


In the event of a redemption of the Securities,
neither the Company nor the Securities Registrar will be required (a) to issue,
register the transfer of or exchange of Securities for a period of 15 days
immediately preceding the date notice is given identifying the serial numbers
of the Securities called for such redemption or (b) to register the
transfer of or exchange of any Security, or portion thereof, called for
redemption.


 


(2)                                  Certain
Transfers and Exchanges. Notwithstanding any other provision of this
Indenture or the Securities, transfers and exchanges of Securities and beneficial
interests in a Global Security of the kinds specified in this Section 3.5(2) shall
be made only in accordance with this Section 3.5(2).


 


(A)                              Global
Security to Non-global Security. In the event that Non-global Securities
are to be issued pursuant to Section 3.4(1)(B) in connection with any
transfer of Securities, such transfer may be effected only in accordance
with the provisions of this Clause (2)(A) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (a) a
Company Order from the Company directing the Trustee, as Security Registrar, to
(i) authenticate and deliver one or more Securities of the same aggregate
principal amount as the beneficial interest in the Global Security to be
transferred, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of the
Securities to be so issued and appropriate delivery instructions and (ii) decrease
the beneficial interest of a specified Agent Member’s account in a Global
Security by a specified principal amount not greater than the principal amount
of such Global Security, and (b) such other certifications, legal opinions
or other information as the Company or the Trustee may reasonably require
to confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act, then the Trustee, as Security Registrar, shall decrease the
principal amount of the Global Security by the specified amount and
authenticate and deliver Securities in accordance with such instructions from
the Company as provided in Section 3.4(1)(C).


 


(B)                                Non-global
Security to Global Security. If the Holder of a Security (other than a
Global Security) wishes at any time to transfer all or any portion of such
Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Global Security, such transfer may be effected
only in accordance with the provisions of this Clause (2)(B) and subject
to the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of such Security as provided in Section 3.5(1) and
instructions from the Company directing that a beneficial interest in the
Global Security in a specified principal amount not greater than the principal
amount of such Security be credited to a specified Agent Member’s account, then
the Trustee, as Security Registrar, shall cancel such Security (and issue a new
Security in respect of any untransferred portion thereof) as provided in Section 3.5(1) and
increase the principal amount of the Global Security by the specified principal
amount as provided in Section 3.4(1)(C).


 


37

















 


(C)                                Exchanges
Between Global Security and Non-global Security. A beneficial interest in a
Global Security may be exchanged for a Security that is not a Global
Security only as provided in Section 3.4 or only if such exchange occurs
in connection with a transfer effected in accordance with Clause (A) above.
A Security that is not a Global Security may be exchanged for a beneficial
interest in a Global Security only if such exchange occurs in connection with a
transfer effected in accordance with Clause (B) above.


 


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


 


Section 3.6                                      Mutilated,
Destroyed, Lost or Stolen Securities.


 


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


 


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


 


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


 


(2)                                  such
security or indemnity as may be satisfactory to the Company and the
Trustee to save each of them and any agent of either of them harmless, then, in
the absence of actual notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.


 


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


 


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


 


Every new Security issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone, 


 


38

















 


and such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.


 


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


 


Section 3.7                                      Payment
of Interest; Interest Rights Preserved.


 


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


 


Any interest on any Security that is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:


 


(1)                                  The
Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security, the date of the proposed payment and the
Special Record Date, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. The Special
Record Date for the payment of such Defaulted Interest shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder at such Holder’s address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).


 


(2)                                  The
Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by 


 


39

















 


the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.


 


Subject to the foregoing and following provisions of
this Section and Section 3.5, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.


 


Interest on any Security that is converted in
accordance with Section 12.2 during a Record Date Period shall be payable
in accordance with the provisions of Section 12.2.


 


Section 3.8                                      Persons
Deemed Owners.


 


Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee, any Paying Agent and any
agent of the Company, the Trustee or any Paying Agent 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 and (subject to Section 3.7)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee, any Paying
Agent nor any agent of the Company, the Trustee or any Paying Agent shall be
affected by notice to the contrary.


 


Section 3.9                                      Cancellation.


 


All Securities surrendered for payment, redemption,
repurchase, registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered to the Trustee shall be canceled promptly by the
Trustee (or its agent) and may not be re-issued or resold. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 3.9. The Trustee shall dispose of all canceled
Securities in accordance with applicable law and its customary practices in
effect from time to time.


 


Section 3.10                                Computation
of Interest.


 


Interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.


 


Section 3.11                                CUSIP
Numbers.


 


The Company in issuing Securities may use “CUSIP”
numbers (if then generally in use) in addition to serial numbers; if so, the
Trustee shall use such CUSIP numbers in addition to serial numbers in notices
of redemption and repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP numbers
either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the
serial or other identification numbers printed on the 


 


40

















 


Securities, and any such redemption or repurchase
shall not be affected by any defect in or omission of such CUSIP numbers.


 


ARTICLE IV

SATISFACTION AND DISCHARGE


 


Section 4.1                                      Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of conversion, or
registration of transfer or exchange, or replacement of Securities herein
expressly provided for and the Company’s obligations to the Trustee pursuant to
Section 6.7), and the Trustee, at the expense of the Company, shall
execute proper instruments in form and substance satisfactory to the
Trustee acknowledging satisfaction and discharge of this Indenture, when


 


(1)                                  either


 


(A)                              all
Securities theretofore authenticated and delivered (other than (a) Securities
which have been destroyed, lost or stolen and that have been replaced or paid
as provided in Section 3.6 and (b) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or


 


(B)                                all
such Securities not theretofore delivered to the Trustee or its agent for
cancellation (other than Securities referred to in clauses (a) and (b) of
clause (1)(A) above)


 


(a)                                  have
become due and payable, or


 


(b)                                 will
have become due and payable at their Stated Maturity within one year, or


 


(c)                                  are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,


 


and the Company, in the case of clause (a), (b) or
(c) above, has deposited or caused to be deposited with the Trustee as
trust funds (immediately available to the Holders in the case of clause (a)) in
trust for the purpose an amount in cash sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;


 


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


 


41

















 


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


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Company to any Authenticating Agent under Section 6.12,
the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 and the obligations of the Company and the Trustee under Section 3.5
and Article XII shall survive.


 


Section 4.2                                      Application
of Trust Money.


 


Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust for the sole benefit of the Holders, and such monies shall be applied
by the Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Persons entitled
thereto, of the principal and interest for whose payment such money has been
deposited with the Trustee.


 


All moneys deposited with the Trustee pursuant to Section 4.1
(and held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.


 


The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed or assessed against all money
deposited with the Trustee pursuant to Section 4.1 (other than income
taxes and franchise taxes incurred or payable by the Trustee and such other
taxes, fees or charges incurred or payable by the Trustee that are not directly
the result of the deposit of such money with the Trustee).


 


ARTICLE V

REMEDIES


 


Section 5.1                                      Events
of Default.


 


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


 


(1)                                  default
in the payment of the principal of any Security at its Maturity; or


 


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


 


42

















 


(3)                                  failure
by the Company to pay the Repurchase Price or the Designated Event Repurchase
Price, as the case may be, if a Holder exercises its right to require such
payment pursuant to Section 14.1 or Section 14.2, as the case may be;
or


 


(4)                                  failure
by the Company to deliver cash or a combination of cash and Common Stock when
such delivery is required following conversion of any Security, including any
Make Whole Premium, and the continuance of such default for a period of 10
days; or


 


(5)                                  default
in the performance or breach of any covenant of the Company in this Indenture
(other than a covenant a default in the performance of which is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(6)                                  a
default in the payment when due (either at its stated maturity or upon
acceleration thereof, and after expiration of any applicable grace period)
under any bonds, debentures, notes or other evidences of indebtedness for money
borrowed (or guarantee thereof) by the Company or any Significant Subsidiary
with an aggregate principal amount in excess of U.S. $15,000,000, whether such
indebtedness now exists or shall hereafter be created, and such indebtedness is
not discharged, or such acceleration is not rescinded or annulled, within a
period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such default to be cured or waived or
such acceleration to be rescinded or annulled and stating that such notice is a
“Notice of Default” hereunder; or


 


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


 


(8)                                  the
commencement by the Company or any Significant Subsidiary of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by either to the entry of a
decree or order for relief in respect of the Company or any 


 


43

















 


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


 


Section 5.2                                      Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default (other than an Event of Default
specified in Section 5.1(7) or Section 5.1(8) with respect
to the Company) occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities may declare the principal of all the Securities to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal and all
accrued interest thereon shall become immediately due and payable. If an Event
of Default specified in Section 5.1(7) or Section 5.1(8) with
respect to the Company occurs and is continuing, the principal of, and accrued
interest on, all the Securities shall become immediately due and payable
without any declaration or other Act of the Holders or any act on the part of
the Trustee.


 


At any time after such declaration of acceleration has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may, on behalf of all Holders,
rescind and annul such declaration and its consequences if:


 


(1)                                  the
Company has paid or deposited with the Trustee a sum sufficient to pay


 


(A)                              all
overdue interest on all Securities,


 


(B)                                the
principal of any Securities that have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate borne by the
Securities,


 


(C)                                to
the extent permitted by applicable law, interest upon overdue interest at a
rate of 1.00% per annum, and


 


(D)                               all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;


 


44

















 


(2)                                  all
Events of Default, other than the nonpayment of the principal of and interest
on Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13; and


 


(3)                                  such
rescission and annulment would not conflict with any judgment or decree issued
in appropriate judicial proceedings regarding the payment by the Trustee to the
Holders of the amounts referred to in Section 5.2(1).


 


No rescission or annulment referred to above shall
affect any subsequent default or impair any right consequent thereon.


 


Section 5.3                                      Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if:


 


(1)                                  default
is made in the payment of any interest on any Security when it becomes due and
payable and such default continues for a period of 30 days, or


 


(2)                                  default
is made in the payment of the principal of any Security at the Maturity
thereof,


 


the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities the whole amount then due
and payable on such Securities for principal and interest and interest on any
overdue principal and, to the extent permitted by applicable law, on any
overdue interest, at a rate of 1.00% per annum, and in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


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


 


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


 


Section 5.4                                      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 


 


45

















 


Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or the creditors of
either, the Trustee (irrespective of whether the principal of, and any interest
on, the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,


 


(1)                                  to
file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and take such other actions, including
participating as a member, voting or otherwise, of any official committee of
creditors appointed in such matter, and to file such other papers or documents,
in each of the foregoing cases, as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders of Securities allowed in such judicial
proceeding, and


 


(2)                                  to
collect and receive any moneys or other property payable or deliverable on any
such claim and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder of Securities to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders of Securities to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.7.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security in any such proceeding; provided,
however, that the Trustee may, on
behalf of such Holders, vote for the election of a trustee in bankruptcy or
similar official.


 


Section 5.5                                      Trustee
May Enforce Claims Without Possession of Securities.


 


All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which judgment has been recovered.


 


Section 5.6                                      Application
of Money Collected.


 


Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on 


 


46

















 


account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:


 


FIRST:  To the
payment of all amounts due the Trustee under Section 6.7;


 


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


 


THIRD:  Any
remaining amounts shall be repaid to the Company.


 


Section 5.7                                      Limitation
on Suits.


 


No Holder of any Security shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:


 


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


 


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


 


(3)                                  such
Holder or Holders have offered to the Trustee, and if requested, shall have
provided, reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;


 


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


 


(5)                                  no
direction inconsistent with such written request has been given to the Trustee
during such 60 day period by the Holders of a majority in principal amount of
the Outstanding Securities, it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.


 


Section 5.8                                      Unconditional
Right of Holders to Receive Principal and Interest and to Convert.


 


Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to 


 


47

















 


Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or Repurchase Date, as the
case may be), and to convert such Security in accordance with Article XII,
and to institute suit for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
Holder.


 


Section 5.9                                      Restoration
of Rights and Remedies.


 


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


 


Section 5.10                                Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


Section 5.11                                Delay
or Omission Not Waiver.


 


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


 


Section 5.12                                Control
by Holders of Securities.


 


Subject to Section 6.3, the Holders of a majority
in principal amount of the Outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that


 


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


 


48

















 


(2)                                  the
Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction, and


 


(3)                                  the
Trustee need not take any action that might be unjustly prejudicial to the
Holders of Securities not consenting.


 


Section 5.13                                Waiver
of Past Defaults.


 


The Holders of not less than a majority in principal
amount of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its consequences, except a
default (A) in the payment of the principal of or interest on any
Security, or (B) in respect of a covenant or provision hereof which under Article VIII
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.


 


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


 


Section 5.14                                Undertaking
for Costs.


 


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


 


Section 5.15                                Waiver
of Stay, Usury or Extension Laws.


 


The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, usury or
extension law wherever enacted, now or at any time hereafter in force, that 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 by reason of such law the execution of any power herein granted 


 


49

















 


to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


ARTICLE VI

THE TRUSTEE


 


Section 6.1                                      Certain
Duties and Responsibilities.


 


(1)                                  Except
during the continuance of an Event of Default,


 


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


 


(B)                                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 the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture, but not to verify the contents thereof.


 


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


 


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


 


(A)                              this
paragraph (3) shall not be construed to limit the effect of paragraph (1) of
this Section;


 


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


 


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


 


50

















 


(D)                               no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


 


(4)                                  Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section and the
Trust Indenture Act.


 


Section 6.2                                      Notice
of Defaults.


 


Within 90 days after the occurrence of any default
hereunder as to which the Trustee has received written notice, the Trustee
shall give to all Holders of Securities, in the manner provided in Section 1.6,
notice of such default, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of or
interest on any Security the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders; and provided, further, that in the case of any default
of the character specified in Section 5.1(5), no such notice to Holders of
Securities shall be given until at least 60 days after the occurrence thereof
or, if applicable, the cure period specified therein. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default.


 


Section 6.3                                      Certain
Rights of Trustee.


 


Subject to the provisions of Section 6.1:


 


(1)                                  the
Trustee may rely, and shall be protected in acting or refraining from
acting, upon any resolution, Officers’ Certificate, other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, 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;


 


(2)                                  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 shall be sufficiently evidenced by a Board Resolution;


 


(3)                                  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 the one
specifically prescribed) may, in the absence of bad faith on its part, request
and rely upon an Officers’ Certificate or Opinion of Counsel;


 


51

















 


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


 


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


 


(6)                                  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, coupon,
other evidence of indebtedness or other paper or document, but the Trustee 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; and


 


(7)                                  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.


 


Section 6.4                                      Not
Responsible for Recitals or Issuance of Securities.


 


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


 


Section 6.5                                      May Hold
Securities, Act as Trustee under Other Indentures.


 


The Trustee, any Authenticating Agent, any Paying
Agent, any Conversion Agent or any other agent of the Company or the Trustee,
in its individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Conversion Agent or such other agent.


 


The Trustee may become and act as trustee under
other indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding in the same
manner as if it were not Trustee hereunder.


 


52

















 


Section 6.6                                      Money
Held in Trust.


 


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


 


Section 6.7                                      Compensation
and Reimbursement.


 


The Company agrees:


 


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


 


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


 


(3)                                  to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense 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, expenses and reasonable attorneys’ fees of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


The Trustee shall have a lien prior to the Securities
on all money or property held or controlled by the Trustee to secure the
Company’s payment obligations in this Section 6.7, except that held in
trust to pay principal and interest on the Securities.


 


When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 5.1(7) or
Section 5.1(8), the expenses (including the reasonable charges of its
counsel) and the compensation for the services are intended to constitute
expenses of the administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.


 


The provisions of this Section shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.


 


Section 6.8                                      Corporate
Trustee Required; Eligibility.


 


There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, having (or be part of a holding company group with) a combined
capital and surplus of at least U.S. $10,000,000, subject to supervision or
examination by federal or state authority, and in good standing. The Trustee or
an Affiliate of the 


 


53

















 


Trustee shall maintain an established place of
business in the Borough of Manhattan, The City of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article and
a successor shall be appointed pursuant to Section 6.9.


 


Section 6.9                                      Resignation
and Removal; Appointment of Successor.


 


(1)                                  No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.


 


(2)                                  The
Trustee may resign at any time by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.10
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee.


 


(3)                                  The
Trustee may be removed at any time by an Act of the Holders of a majority
in principal amount of the Outstanding Securities, delivered to the Trustee and
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the removed Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.


 


(4)                                  The
Trustee may be removed at any time by the Company and the Company may appoint
a successor Trustee pursuant to this Article, provided,
that (i) there is not an Event of Default that is continuing at the time
of removal, (ii) the successor Trustee appointed by the Company meets the
eligibility requirements of Section 6.8, and (iii) such removal and
resignation shall not become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section 6.10.


 


(5)                                  If
at any time:


 


(A)                              the
Trustee shall cease to be eligible under Section 6.8 and shall fail to
resign after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six months,
or


 


(B)                                the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,


 


54

















 


then, in any such case (i) the Company, by a
Board Resolution, may remove the Trustee, or (ii) subject to Section 5.14,
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


(6)                                  If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee and shall comply with
the applicable requirements of this Section and Section 6.10. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner required by this Section and
Section 6.10, any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


(7)                                  The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders of Securities in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


Section 6.10                                Acceptance
of Appointment by Successor.


 


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


 


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


 


55

















 


Section 6.11                                Merger,
Conversion, Consolidation or Succession to Business.


 


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


 


Section 6.12                                Authenticating
Agents.


 


The Trustee may, with the consent of the Company,
appoint an Authenticating Agent or Agents acceptable to the Company with
respect to the Securities, which Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Securities issued upon exchange or
substitution pursuant to this Indenture.


 


Securities authenticated by an Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder, and every
reference in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee’s certificate of authentication shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
subject to acceptance by the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent and subject to supervision or examination by
government or other fiscal authority. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section 6.12,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 6.12.


 


Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided
that such corporation shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.


 


An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon 


 


56

















 


receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may appoint
a successor Authenticating Agent which shall be subject to acceptance by the
Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.


 


The Company agrees to pay to each Authenticating Agent,
from time to time, reasonable compensation for its services under this Section.


 


If an Authenticating
Agent is appointed with respect to the Securities pursuant to this Section, the
Securities may have endorsed thereon, in addition to or in lieu of the
Trustee’s certification of authentication, an alternative certificate of
authentication in the following form:


 


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


 


	
   

  	
  AMERICAN
  STOCK TRANSFER &

  
	
   

  	
     TRUST
  COMPANY

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


Section 6.13                                Disqualification;
Conflicting Interests.


 


If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


 


Section 6.14                                Preferential
Collection of Claims Against Company.


 


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


 


57

















 


ARTICLE VII

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


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


 


The Company shall not consolidate with or merge with
or into any other Person or convey, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets to any Person unless:


 


(1)                                  the
Person formed by such consolidation or into or with which the Company is merged
or the Person to which the properties and assets of the Company are so
conveyed, transferred, sold or leased shall be a corporation, limited liability
company, partnership or trust organized and validly existing under the laws of
the United States of America, any State thereof or the District of Columbia
and, if other than the Company, shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and interest
on all of the Securities as applicable, and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in all
material respects in accordance with Article XII;


 


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


 


(3)                                  the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer,
lease or other disposal and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with, together with any documents required under Section 8.3.


 


For purposes of this Section, the sale, lease,
conveyance assignment, transfer, or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.


 


Section 7.2                                      Successor
Substituted.


 


Upon any consolidation of the Company with, or merger
of the Company with or into any other Person or any conveyance, transfer, lease
or other disposal of all or substantially all the properties and assets of the
Company in accordance with Section 7.1, the successor Person formed by
such consolidation or into or with which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and 


 


58

















 


power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall not
be relieved of all obligations and covenants under this Indenture and the
Securities.


 


ARTICLE VIII

SUPPLEMENTAL INDENTURES


 


Section 8.1                                      Supplemental
Indentures Without Consent of Holders of Securities.


 


Without the consent of any Holders of Securities the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto for any of the following purposes:


 


(1)                                  to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants and obligations of the Company herein and
in the Securities as permitted by Article VII of this Indenture; or


 


(2)                                  to
add to the covenants of the Company or Events of Default for the benefit of the
Holders of Securities or to surrender any right or power herein conferred upon
the Company; or


 


(3)                                  to
secure the Securities; or


 


(4)                                  to
make provision with respect to the conversion rights of Holders of Securities
pursuant to Section 12.11 or to make provision with respect to the
repurchase rights of Holders of Securities pursuant to Section 14.6; or


 


(5)                                  to
comply with the requirements of the Trust Indenture Act or the rules and
regulations of the Commission thereunder in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act, as contemplated
by this Indenture or otherwise; or


 


(6)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee; or


 


(7)                                  to
cure any ambiguity, to correct or supplement any provision herein that may be
inconsistent with any other provision herein or that is otherwise defective, or
to make any other provisions with respect to matters or questions arising under
this Indenture as the Company and the Trustee may deem necessary or
desirable, provided that such action
pursuant to this clause (7) shall not adversely affect the interests of
the Holders of Securities in any material respect.


 


Upon Company Request, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
subject to and upon receipt by the Trustee of the documents described in Section 8.3,
the Trustee shall join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations that may be therein
contained.


 


59

















 


Section 8.2                                      Supplemental
Indentures with Consent of Holders of Securities.


 


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


 


(1)                                  extend
the Stated Maturity of the principal of, or the time of payment of interest on,
any Security, or reduce the principal amount thereof or the rate of interest
payable thereon, or reduce, change the terms or alter the method of computation
of the amount payable upon a redemption or mandatory repurchase, or change the
place or currency of payment of the principal of or interest on any Security, Redemption
Price, Repurchase Price or Designated Event Repurchase Price in respect of such
Security) or impair the right to institute suit for the enforcement of any
payment in respect of any Security on or after the Stated Maturity thereof (or,
in the case of redemption or any repurchase, on or after the Redemption Date or
Repurchase Date, as the case may be) or, except as permitted by Section 12.11,
adversely affect the right of Holders to convert any Security as provided in Article XII;
or


 


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


 


(3)                                  modify
the obligation of the Company to maintain an office or agency in the Borough of
Manhattan, The City of New York, pursuant to Section 10.2; or


 


(4)                                  modify
any of the provisions of this Section or Section 5.13 or Section 10.9,
except to increase any percentage contained herein or therein or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; or


 


(5)                                  modify
the provisions of Article XI in a manner adverse to the Holders.


 


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


 


60

















 


Section 8.3                                      Execution
of Supplemental Indentures.


 


In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 6.1 and Section 6.3)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture, and that such supplemental indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company enforceable against the Company in accordance
with its terms subject to general equity principles and applicable bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, arrangement, dissolution,
moratorium or other similar laws relating to or affecting creditors’ rights
generally. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


Section 8.4                                      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 appertaining thereto shall be bound
thereby.


 


Section 8.5                                      Reference
in Securities to Supplemental Indentures.


 


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


 


Section 8.6                                      Notice
of Supplemental Indentures.


 


Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of Section 8.2,
the Company shall give notice to all Holders of Securities of such fact,
setting forth in general terms the substance of such supplemental indenture, in
the manner provided in Section 1.6. Any failure of the Company to give
such notice, or any defect therein, shall not in any way impair or affect the
validity of any such supplemental indenture.


 


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ARTICLE IX

HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 9.1                                      Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish or cause to be furnished to
the Trustee:


 


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


 


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


 


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


 


Section 9.2                                      Preservation
of Information.


 


(1)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 9.1 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list, if any, furnished to it as provided in Section 9.1
upon receipt of a new list so furnished.


 


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


 


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


 


Section 9.3                                      Reports
by Trustee.


 


(1)                                  After
this Indenture has been qualified under the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.


 


(2)                                  After
this Indenture has been qualified under the Trust Indenture Act, a copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock 


 


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exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the Securities are
listed on any stock exchange.


 


Section 9.4                                      Reports
by Company.


 


After this Indenture has been qualified under the
Trust Indenture Act, the Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.


 


ARTICLE X

COVENANTS


 


Section 10.1                                Payment
of Principal and Interest.


 


The Company covenants and agrees that it will duly and
punctually pay the principal of and interest on 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 or its nominee, no later than the
opening of business on the date of the Stated Maturity of any Security or no
later than the opening of business on the due date for any installment of
interest, all payments so due, which payments shall be in immediately available
funds on the date of such Stated Maturity or due date, as the case may be.


 


Section 10.2                                Maintenance
of Offices or Agencies.


 


The Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment or for conversion, redemption or repurchase and where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not
designated or appointed by 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 Corporate Trust Office or the office
or agency of the Trustee in the Borough of Manhattan, The City of New York.


 


The Company may at any time and from time to time
vary or terminate the appointment of any such agent or appoint any additional
agents for any or all of such purposes; provided,
however, that until all of the
Securities have been delivered to the Trustee for cancellation, or moneys 


 


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sufficient to pay the principal of and interest on the
Securities have been made available for payment and either paid or returned to
the Company pursuant to the provisions of Section 10.3, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment and conversion,
which shall initially be the Corporate Trust Office where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee, and
notice to the Holders in accordance with Section 1.6, of the appointment
or termination of any such agents and of the location and any change in the
location of any such office or agency.


 


The
Company hereby initially designates the Trustee as Paying Agent, Security
Registrar, Conversion Agent and Calculation Agent, and each of the Corporate
Trust Office of the Trustee and the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, located at 59 Maiden Lane, New
York, New York 10038, attention: Corporate Trust Administration (priceline.com
Incorporated 2006 1.00% Convertible Senior Notes due August 1, 2010) as
one such office or agency of the Company for each of the aforesaid purposes.


 


Section 10.3           Money
for Security Payments to Be Held in Trust.


 


If the
Company shall act as its own Paying Agent, it will, on or before each due date
of the principal of or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and the Company will
promptly notify the Trustee of its action or failure so to act.


 


Whenever
the Company shall have one or more Paying Agents, it will, no later than the
opening of business on each due date of the principal of or interest on any
Securities, deposit with the Trustee a sum in funds immediately payable on the
payment date sufficient to pay the principal or interest so becoming due, such
sum to be held for the benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure so to act.


 


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


 


(1)           hold
all sums held by it for the payment of the principal of or interest on
Securities for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;


 


(2)           give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal or interest; and


 


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


 


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


 


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid within 60 days of such date by the
Trustee to the Company on Company Request as its property free from trust, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.


 


Section 10.4           Existence.


 


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


 


Section 10.5           Statement
by Officers as to Default.


 


The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the 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 will deliver to the Trustee, forthwith upon becoming aware of any
default or any Event of Default under the Indenture, an Officers’ Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto. For the purpose of this Section, the term “default” means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.


 


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Any
notice required to be given under this Section shall be delivered to the
Trustee at its Corporate Trust Office.


 


Section 10.6           RESERVED.


 


Section 10.7           RESERVED.


 


Section 10.8           RESERVED.


 


Section 10.9           Waiver
of Certain Covenants.


 


The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Section 10.4 (other than with respect to the
existence of the Company (subject to Article VII)), if before the time for such
compliance the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee or any
Paying or Conversion Agent in respect of any such covenant or condition shall
remain in full force and effect.


 


ARTICLE XI

REDEMPTION OF SECURITIES


 


Section 11.1           Right
of Redemption.


 


The
Securities may be redeemed in accordance with the provisions of the form of
Securities set forth in Section 2.2.


 


Section 11.2           Applicability
of Article.


 


Redemption
of Securities at the election of the Company or otherwise, as permitted or
required by any provision of the Securities or this Indenture, shall be made in
accordance with such provision and this Article.


 


Section 11.3           Election
to Redeem; Notice to Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of any of
the Securities, the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date.


 


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Section 11.4           Selection
by Trustee of Securities to Be Redeemed.


 


If
less than all the Securities are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee (in principal amounts of $1,000 or
integral multiples thereof) within five Business Days after it receives the
notice described in Section 11.3, from the Outstanding Securities not
previously called for redemption, by lot or by such other method as the Trustee
may deem fair and appropriate.


 


If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as Outstanding for the purpose of such selection. The Trustee shall
promptly notify the Company and each Security Registrar in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.


 


For
all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.


 


Section 11.5           Notice
of Redemption.


 


Notice
of redemption shall be given by the Company in the manner provided in Section 1.6
to the Trustee, the Paying Agent and the Holders of Securities to be redeemed
not less than 30 nor more than 60 days prior to the Redemption Date, and such
notice shall be irrevocable. The Company shall, concurrently with the giving of
such notice, publish a Press Release including the information required to be
included in such notice of redemption hereunder.


 


All
notices of redemption shall state:


 


(1)           the
Redemption Date,


 


(2)           the
Redemption Price, and accrued but unpaid interest, if any, to, but excluding,
the Redemption Date,


 


(3)           if
less than all Outstanding Securities are to be redeemed, the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities which will be outstanding after such partial redemption,


 


(4)           that
on the Redemption Date the Redemption Price, and accrued but unpaid interest,
if any, to, but excluding, the Redemption Date, will become due and payable
upon each such Security to be redeemed, and that interest thereon shall cease
to accrue on and after said date,


 


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(5)           the
Conversion Rate, the date on which the right to convert the Securities to be
redeemed will terminate and the places where such Securities may be surrendered
for conversion, and


 


(6)           the
place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest, if any, to, but excluding, the
Redemption Date.


 


In
case of a partial redemption, the notice shall specify the serial and CUSIP
numbers (if any) and the portions thereof called for redemption and that
transfers and exchanges may occur on or prior to the Redemption Date.


 


Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s written request, by the Trustee in
the name of and at the expense of the Company. Notice of redemption of
Securities to be redeemed at the election of the Company received by the
Trustee shall be given by the Trustee to each Paying Agent in the name of and
at the expense of the Company.


 


Section 11.6           Deposit
of Redemption Price.


 


On or
prior to the Redemption Date, the Company shall deposit with the Trustee (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 10.3) an amount of money (which shall be in
immediately available funds on such Redemption Date) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest to the Redemption Date on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.


 


If any
Security called for redemption is converted, any money deposited with the
Trustee or so segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of Section 3.7)
be paid to the Company on Company Request or, if then held by the Company,
shall be discharged from such trust.


 


Section 11.7           Securities
Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price, including accrued interest)
such Securities shall cease to bear interest. Upon surrender of any Security
for redemption in accordance with said notice such Security shall be paid by
the Company at the Redemption Price together with accrued and unpaid interest
to but excluding the Redemption Date; provided,
however, that installments of
interest on Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more


 


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Predecessor Securities, registered as such on the
relevant Record Date according to their terms and the provisions of Section 3.7.


 


If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal amount of and, to the extent permitted by applicable
law, accrued interest on such Security shall, until paid, bear interest from the
Redemption Date at a rate of 1.00% per annum and such Security shall remain
convertible until the Redemption Price of such Security (or portion thereof, as
the case may be) shall have been paid or duly provided for.


 


Any
Security that is to be redeemed only in part shall be surrendered at the
Corporate Trust Office or an office or agency of the Company designated for
that purpose pursuant to Section 10.2 (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 his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery 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 unredeemed portion
of the principal of the Security so surrendered. Upon redemption, interests in
Global Securities shall be reduced in accordance with the Applicable
Procedures.


 


Section 11.8           Conversion
Arrangement on Call for Redemption.


 


In
connection with any redemption of Securities, the Company may arrange for the purchase
and conversion of any Securities by an agreement with one or more investment
bankers or other purchasers (the “Purchasers”) to purchase such securities by
paying to the Trustee in trust for the Holders, on or before the Redemption
Date, an amount not less than the applicable Redemption Price, together with any
interest accrued and unpaid to but excluding the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article,
the obligation of the Company to pay the Redemption Price, together with any interest
accrued and unpaid to but excluding the Redemption Date, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
Purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the close of business on the Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be
acquired by such Purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article XII) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it by the Purchasers to the Holders in the same manner as it would
monies deposited with it by the Company for the redemption of Securities.
Without the Trustee’s prior written consent, no arrangement between the Company
and such Purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture,


 


69

















 


and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such Purchasers, including the costs and
expenses, including reasonable legal fees, incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.


 


ARTICLE XII

CONVERSION OF SECURITIES


 


Section 12.1           Conversion
Privilege and Conversion Rate.


 


(a)           Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, any Security (or any portion thereof equal to $1,000 or any
integral multiple of $1,000 in excess thereof) may be converted at a rate (the “Conversion
Rate”) of 25.0000 shares of Common Stock (subject to adjustment by the Company
as provided in Section 12.4) per $1,000 principal amount of the Security (the “Conversion
Obligation”) as follows:


 


(1)           if,
on or prior to August 1, 2008, the Closing Price Per Share of the Common
Stock for at least 20 Trading Days in the period of the 30 consecutive Trading
Days ending on the first day of a Conversion Period was more than 110% of the
then current Conversion Price, then the Holder thereof will be entitled to
convert such Security during that Conversion Period;


 


(2)           if,
on any date after August 1, 2008 and prior to the Stated Maturity, the
Closing Price Per Share of the Common Stock is more than 110% of the then
current Conversion Price, then the Holder thereof will be entitled to convert
such Security at all times thereafter;


 


(3)           if
the Company distributes to all or substantially all holders of Common Stock
rights, options or warrants entitling them to purchase Common Stock at less
than the Closing Price Per Share of the Common Stock on the last Trading Day preceding
the declaration of such distribution, then the Holder thereof will be entitled
to convert such Security during the period specified in this Section;


 


(4)           if
the Company distributes to all or substantially all holders of Common Stock
cash, assets, debt securities or capital stock, which distribution has a per
share value as determined by the Board of Directors exceeding 5% of the Closing
Price Per Share of the Common Stock on the last Trading Day preceding the
declaration for such distribution, then the Holder thereof will be entitled to
convert such Security during the period specified in this Section;


 


(5)           if
a Fundamental Change occurs, then the Holder thereof will be entitled to
convert such Security during the period specified in this Section; if the
Fundamental Change occurs on or before August 1, 2008, Holders may be entitled
to receive a Make Whole Premium (consisting of an increase in the Conversion
Rate) upon such conversion; or


 


(6)           if,
on or after August 1, 2008, the Company elects to call any Security for
redemption, then the Holder thereof will be entitled to convert such Security
at any time from and


 


70

















 


after the date on
which the Company gives notice of such redemption until the close of business
on the Business Day immediately preceding the Redemption Date.


 


A “Conversion
Period” for the Securities is the period from and including the eleventh
Trading Day in any fiscal quarter of the Company to, but excluding, the
eleventh Trading Day of the immediately following fiscal quarter.


 


In the
case of a distribution contemplated by clauses (3) and (4) of this subsection (a),
the Company will notify Holders at least 20 days prior to the ex-dividend date
for such distribution (the “Distribution Notice”). Once the Company has given
the Distribution Notice, Holders may surrender their Securities for conversion
at any time until the earlier of the close of business on the last Business Day
preceding the ex-dividend date or the Company’s announcement that such
distribution will not take place. Notwithstanding the foregoing, in the event
of a distribution contemplated by clauses (3) and (4) of this subsection (a),
Holders may not convert the Securities if the Holders may participate in such
distribution without converting their Securities. In the event of a
consolidation, merger or sale of all or substantially all of the Company’s
assets as contemplated by clause (5) of this subsection (a), the Company will
notify Holders at least 20 days prior to the anticipated closing date of such
transaction (the “Fundamental Change Notice”). Once the Company has given the Fundamental
Change Notice, the Holders may, in the event of such consolidation, merger or
sale of all or substantially all of the Company’s assets, surrender Securities
for conversion at any time from and after the date which is 15 days prior to
the anticipated closing date of such transaction until the date which is 15
days after the actual closing date of such transaction.


 


With
respect to clause (1) of this subsection (a), the Conversion Agent will
determine, on behalf of the Company, on the first Business Day succeeding the
first day of the Conversion Period whether the Securities are convertible as
set forth in such clause (1) as a result of the Closing Price Per Share of the
Common Stock and the then current Conversion Price and, if so, will notify the
Company. With respect to clause (2) of this subsection (a), the Conversion
Agent will determine, on behalf of the Company, daily on any date after
August 1, 2008, whether the Securities are convertible as set forth in
such clause (2) as a result of the Closing Price Per Share of the Common Stock
and the then current Conversion Price and, if so, will notify the Company.


 


(b)           Subject
to the further provisions of this Article, a Holder of a Security may also
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) for the five
Business Day period after any five consecutive Trading Day period in which the
average Trading Prices for the Securities for such five Trading Day period was
less than 95% of the average Conversion Value for the Securities during such
period.


 


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


 


The “Trading
Price” of the Securities on any Trading Day means the secondary market bid
quotations per Security obtained by the Conversion Agent for $5,000,000
principal amount of the Securities at approximately 3:30 p.m., New York City
time, on such Trading Day from an


 


71

















 


independent nationally recognized securities dealer
the Company selects; provided
that if the Conversion Agent cannot reasonably obtain a bid for $5,000,000
principal amount of the Securities from a nationally recognized securities
dealer or if in the Company’s reasonable judgment, the bid quotations are not
indicative of the secondary market value of the Securities, then the Trading
Price of the Securities will be deemed to be equal to the product of the then
current Conversion Rate and the Closing Price Per Share of Common Stock on such
Trading Day.


 


The
Conversion Agent shall have no obligation to determine the Trading Price of the
Securities unless the Company has requested such determination; and the Company
shall have no obligation to make such request unless a Holder provides the
Company with reasonable evidence that the Trading Price of the Securities is
reasonably likely to be less than 95% of the Conversion Value; at which time,
the Company shall instruct the Conversion Agent to determine the Trading Price
of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price is greater than or equal to 95% of the
Conversion Value.


 


In the
case of a conversion pursuant to subsection (a)(5) of this subsection upon a
Fundamental Change with an Effective Date that is on or before August 1, 2008,
Holders electing to convert shall also receive the Make Whole Premium payable
upon such conversion as set forth in Article XV.


 


(c)           The
conversion right, subject to the conditions described in subsections (a) and
(b) of this Section, shall commence on the initial issuance date of the
Securities and expire at the close of business on the date of Maturity,
subject, in the case of conversion of any Global Security, to any Applicable
Procedures. In case a Security or portion thereof is called for redemption at
the election of the Company or the Holder thereof exercises his right to
require the Company to repurchase the Security, such conversion right in
respect of the Security, or portion thereof so called, shall expire at the
close of business on the Business Day immediately preceding the Redemption Date
or the Repurchase Date, as the case may be, unless the Company defaults in
making the payment due upon redemption or repurchase, as the case may be (in
each case subject as aforesaid to any Applicable Procedures with respect to any
Global Security).


 


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


 


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


 


Section 12.2           Exercise
of Conversion Privilege.


 


(a)           (1)           Subject
to subsection (b) of this Section, the Company will satisfy the Conversion
Obligation with respect to each $1,000 principal amount of Securities tendered
for conversion in cash and shares of fully paid Common Stock, if applicable, by
delivering, on the third Trading Day immediately following the last day of the
related Observation Period, cash and shares


 


72

















 


of Common Stock, if any, equal to the sum of the Daily
Settlement Amounts for each of the 20 Trading Days during the related
Observation Period; provided that
the Company will deliver cash in lieu of fractional shares of Common Stock as
provided in Section 12.3. The Daily Settlement Amounts shall be determined by
the Company promptly following the last day of the Observation Period. Notwithstanding
any provision to the contrary in this Indenture, in no event shall the number
of shares of Common Stock issued upon conversion of the Securities exceed
28.7688 shares of Common Stock per $1,000 (the “Conversion Cap”) principal
amount of Securities, except as a result of the adjustments to the Conversion
Rate pursuant to Section 12.4, and the Company shall not be required to make
any additional cash payment in lieu of delivering any shares of Common Stock in
excess of the Conversion Cap.


 


(2)           The
Company may elect to pay cash to Holders of Securities surrendered for
conversion in lieu of all or a portion of the shares of Common Stock issuable
upon conversion of the Securities in satisfaction of the Conversion Obligation.
If the Company elects to pay cash in lieu of delivering shares of Common Stock,
the Company shall notify, in the manner provided for in Section 1.6, the Holder
tendering a Notice of Conversion of the dollar amount to be satisfied in cash
(as a percentage of each share of Common Stock issuable upon conversion that
will be paid in cash in lieu of shares of Common Stock) at any time on or
before the date that is three Business Days following the Company’s receipt of
the Notice of Conversion tendered by such Holder (the “Cash Settlement Notice
Period”). If the Company timely elects to pay cash for any portion of shares of
Common Stock to be issued upon conversion of Securities, such Holder may
retract its Notice of Conversion at any time during the two Business Day period
immediately following the Cash Settlement Notice Period (the “Conversion
Retraction Period”). If the Company does not elect to pay cash in lieu of
issuing shares of Common Stock upon conversion of Securities, no such
retraction can be made and the Notice of Conversion is irrevocable. In the
event the Company elects to settle in cash all or any portion of the shares of
Common Stock issuable upon conversion in connection with conversions of
Securities within 30 days prior to the Stated Maturity of the Securities, the
Company shall send, on or prior to the applicable Stated Maturity, a single
notice for all such conversions to the Trustee with respect to the dollar
amount to be satisfied in cash (as a percentage of each share of Common Stock
issuable upon conversion that will be paid in cash in lieu of shares of Common
Stock). The amount of cash payable in respect of each share of Common Stock
otherwise issuable upon conversion of Securities shall equal the sum of the
Elected Cash Values for shares of Common Stock issuable upon conversion of
Securities for each Trading Day of the applicable Observation Period. The “Elected
Cash Value” for shares of Common Stock issuable upon conversion of Securities
for a Trading Day shall be the product of (1) the percentage of each share of
Common Stock issuable upon conversion of Securities which the Company elects to
pay in cash and (2) the difference between the Daily Conversion Value for such
Trading Day and $50.


 


(b)           Notwithstanding subsection (a) of this
Section, the Company shall satisfy the Conversion Obligation with respect to
each $1,000 principal amount of Securities tendered for conversion to which a
number of additional shares of Common Stock (the “Additional Shares”) shall be
added to the Conversion Rate as set forth in Section 15.1 pursuant to this
clause (b); provided, the Company may elect
to pay cash to Holders of Securities surrendered for conversion in lieu of all
or a portion of the shares of Common Stock


 


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issuable upon conversion of the Securities in
satisfaction of the Conversion Obligation pursuant to clause (2) of subsection
(a) of this Section.


(1)           If the last day of the applicable
Observation Period related to Securities surrendered for conversion is prior to
the third Trading Day preceding the Effective Date of the Fundamental Change,
the Company will satisfy the related Conversion Obligation with respect to each
$1,000 principal amount of Securities tendered for conversion as described in
this subsection (b) by delivering the cash and shares of Common Stock (based on
the Conversion Rate, but without regard to the number of Additional Shares to
be added to the Conversion Rate pursuant to Section 15.1) on the third Trading
Day immediately following the last day of the applicable Observation Period. As
soon as practicable following the Effective Date of the Fundamental Change, the
Company will deliver the increase in such amount of cash or Reference Property
in lieu of shares of Common Stock, if any, as if the Conversion Rate had been
increased by such number of Additional Shares during the related Observation
Period (and based upon the related Daily VWAP prices during such Observation
Period).  If such increased amount of
cash and shares, if any, results in an increase to the amount of cash to be
paid to Holders, the Company will pay such increase in cash, and if such
increased amount results in an increase to the number of shares of Common
Stock, the Company will deliver such increase by delivering Reference Property
based on such increased number of shares.


 


(2)           If
the last day of the applicable Observation Period related to Securities
surrendered for conversion is on or following the third scheduled Trading Day
preceding the Effective Date of such Fundamental Change, the Company will
satisfy the Conversion Obligation with respect to each $1,000 principal amount
of Securities tendered for conversion as described in Section 12.1(a)(3)
and (4) (based on the Conversion Rate as increased by the Additional Shares
pursuant to Section 15.1) on the later to occur of (1) the Effective
Date of the Fundamental Change and (2) the third Trading Day immediately
following the last day of the applicable Observation Period.


 


(c)           Before
any Holder of a Security shall be entitled to convert the same as set forth
above, such holder shall (1) in the case of a Global Note, comply with the
procedures of the Depositary in effect at that time and, if required, pay funds
equal to interest payable on the next Interest Payment Date to which such
Holder is not entitled as set forth in subsection (i) of this Section and, if
required, pay all taxes or duties, if any, and (2) in the case of a
Security issued in certificated form, (A) complete and manually sign and
deliver an irrevocable written notice to the Conversion Agent in the form set
forth under Section 2.4 (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and
shall state in writing therein the principal amount of Securities to be
converted and the name or names (with addresses) in which such Holder wishes
the certificate or certificates for any shares of Common Stock, if any, to be
delivered upon settlement of the Conversion Obligation to be registered,
(B) surrender such Securities, duly endorsed to the Company or in blank
(and accompanied by appropriate endorsement and transfer documents), at the
office of the Conversion Agent, (C) if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not
entitled as set forth in subsection (i) of this Section, and (D) if
required, pay all taxes or duties, if any. A Security shall be deemed to have
been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has
complied with the requirements set forth in this subsection (c).


 


No
Notice of Conversion with respect to any Securities may be tendered by a Holder
thereof if such Holder has also tendered a Designated Event Repurchase Notice
and not validly withdrawn such Designated Event Repurchase Notice in accordance
with the applicable provisions of Section 14.4.


 


If
more than one Security shall be surrendered for conversion at one time by the
same Holder, the Conversion Obligation with respect to such Securities, if any,
that shall be payable upon conversion shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted thereby) so surrendered.


 


(d)           Delivery
of the amounts owing in satisfaction of the Conversion Obligation shall be made
by the Company in no event later than the date specified in subsection (a) of
this Section, except to the extent specified in subsection (b) of this Section.
The Company shall make such delivery by paying the cash amount owed to the
Conversion Agent or to the Holder of the Security surrendered for conversion,
or such Holder’s nominee or nominees, and by issuing, or causing to be issued,
and delivering to such Holder, or such Holder’s nominee or nominees,
certificates or a book-entry transfer through the Depositary for the number of
full shares of Common Stock, if any, to which such holder shall be entitled as
part of such Conversion Obligation (together with any cash in lieu of
fractional shares).


 


(e)           In
case any Security shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to or upon the
written order of the Holder of


 


74

















 


the Security so surrendered, without charge to such
Holder, a new Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Securities.


 


(f)            If
a Holder submits a Security for conversion, the Company shall pay all stamp and
other duties, if any, which may be imposed by the United States or any
political subdivision thereof or taxing authority thereof or therein with
respect to the issuance of shares of Common Stock, if any, upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests any shares of Common Stock to be issued in a name other than the
Holder’s name. The Conversion Agent may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the
Holder’s name until the Trustee receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the Holder’s
name. Nothing herein shall preclude any tax withholding required by law or
regulations.


 


(g)           Except
as provided in Section 12.4, no adjustment shall be made for dividends on
any shares issued upon the conversion of any Security as provided in this
Article.


 


(h)           Upon
the conversion of an interest in a Global Note, the Trustee, or the Custodian
at the direction of the Trustee, shall make a notation on such Global Note as
to the reduction in the principal amount represented thereby. The Company shall
notify the Trustee in writing of any conversion of Securities effected through
any Conversion Agent other than the Trustee.


 


(i)            Upon
conversion, a Holder will not receive any separate cash payment for accrued and
unpaid interest except as set forth below. The Company’s settlement of the
Conversion Obligations as described above shall be deemed to satisfy its
obligation to pay the principal amount of the Security and accrued and unpaid
interest to, but not including, the Conversion Date. As a result, accrued and
unpaid interest to, but not including, the Conversion Date shall be deemed to
be paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the preceding sentence, if Securities are converted after the
close of business on a record date, Holders of such Securities as of the close of
business on the record date will receive the interest payable on such
Securities on the corresponding Interest Payment Date notwithstanding the
conversion. Securities surrendered for conversion during the period from the
close of business on any Regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount
equal to the interest payable on the Securities so converted; provided, however, that no such payment
need be made (i) if the Company has specified a Designated Event Purchase
Date that is after a Record Date and on or prior to the corresponding Interest
Payment Date; (ii) to the extent of any overdue interest existing at the
time of conversion with respect to such Security; or (iii) in respect of any
conversion that occurs during the period from the close of business on the
Regular Record Date immediately preceding Stated Maturity to Stated Maturity.
Except as described above, no payment or adjustment will be made for accrued
interest on converted Securities.


 


(j)            The
Person in whose name the certificate for any shares of Common Stock issued upon
conversion is registered shall be treated as a stockholder of record on and
after the Conversion Date; provided,
however, that no surrender of Securities on any date when the stock
transfer books


 


75

















 


of the Company shall be closed shall be effective to
constitute the Person or Persons entitled to receive the shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
Person or Persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the date that such Securities
shall have been surrendered for conversion, as if the stock transfer books of
the Company had not been closed. Upon conversion of Securities, such Person
shall no longer be a Holder of Securities surrendered for conversion.


 


Section 12.3           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 issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall calculate and pay a cash
adjustment in respect of such fraction (calculated to the nearest 1/100th of a
share) in an amount equal to the same fraction of the Closing Price Per Share
at the close of business on the day of conversion.


 


Section 12.4           Adjustment
of Conversion Rate.


 


The
Conversion Rate shall be subject to adjustments from time to time as follows:


 


(1)           In
case the Company shall pay or make a dividend or other distribution on shares
of Common Stock payable in shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. If, after any such date
fixed for determination, any dividend or distribution is not in fact paid, the
Conversion Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would have been in effect if such determination date had
not been fixed. For the purposes of this paragraph (1), 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.


 


76

















 


(2)           In
case the Company shall issue rights, options or warrants to all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (determined
as provided in paragraph (8) of this Section) of the Common Stock on the date
fixed for the determination of stockholders entitled to receive such rights,
options or warrants (other than any rights, options or warrants that by their
terms will also be issued to any Holder upon conversion of a Security into
shares of Common Stock without any action required by the Company or any other
Person), the Conversion Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Conversion Rate by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock that the
aggregate of the offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or purchase,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. If, after any such
date fixed for determination, any such rights, options or warrants are not in
fact issued, or are not exercised prior to the expiration thereof, the
Conversion Rate shall be immediately readjusted, effective as of the date such
rights, options or warrants expire, or the date the Board of Directors
determines not to issue such rights, options or warrants, to the Conversion
Rate that would have been in effect if the unexercised rights, options or
warrants had never been granted or such determination date had not been fixed,
as the case may be. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company.


 


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


 


(4)           In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares of any class of capital
stock or other property (including cash or assets or securities, but excluding
(i) any rights, options or warrants referred to in paragraph (2) of this
Section, (ii) any dividend or distribution paid exclusively in cash referred to
in paragraph (5) of this Section, (iii) any dividend or distribution referred
to in paragraph (1) of this Section and (iv) any consideration distributed in
any merger or consolidation to which Section 12.11


 


77

















 


applies), the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of the portion of the assets, shares or evidences of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. If after any such date fixed for
determination, any such distribution is not in fact made, the Conversion Rate
shall be immediately readjusted, effective as of the date of the Board of
Directors determines not to make such distribution, to the Conversion Rate that
would have been in effect if such determination date had not been fixed.


 


(5)           In
case the Company shall, by dividend or otherwise, distribute cash (excluding
cash that is distributed upon a merger or consolidation to which Section 12.11
applies) to all holders of its Common Stock, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Conversion Rate in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal to the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the date fixed for such determination and (ii)
the denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Stock
on such date fixed for determination plus the amount of the cash distribution
per share, such adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. If after any such date
fixed for determination, any such distribution is not in fact made, the
Conversion Rate shall be immediately readjusted, effective as of the date of
the Board of Directors determines not to make such distribution, to the
Conversion Rate that would have been in effect if such determination date had
not been fixed.


 


(6)           In
case the Company or any Subsidiary shall purchase shares of Common Stock
pursuant to a tender or exchange offer for all or any portion of the Common
Stock (the shares accepted by the Company or such Subsidiary in such offer
being referred to as the “Purchased Shares”) and the per share amount of cash
and fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of any
other consideration included in the payment for a Purchased Share exceeds the
Closing Price Per Share on the Trading Day next succeeding the date (the “Expiration
Date”) of the last time tenders or surrenders for exchange could have been made
pursuant to such tender or exchange offer (as it may be amended), the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate immediately prior to close of
business on the Trading Day next


 


78

















 


succeeding the
Expiration Date by a fraction (i) the numerator of which shall be equal to
(A) the product of (I) the current market price per share of the
Common Stock (determined as provided in paragraph (8) of this Section) on
the Expiration Date multiplied by (II) the total number of shares of
Common Stock outstanding on the Expiration Date (including the Purchased Shares
and any other shares tendered or surrendered for exchange) less (B) the
aggregate amount of cash and fair market value of other consideration to be
paid for all Purchased Shares, and (ii) the denominator of which shall be
equal to the product of (A) the current market price per share of the
Common Stock (determined as provided in paragraph (8) of this Section) on
the Expiration Date multiplied by (B) the total  number of shares of Common Stock outstanding
on the Expiration Date (including the Purchased Shares and any other shares
tendered or surrendered for exchange) less the total number of Purchased Shares,
such adjustment to become effective immediately prior to the opening of
business on the day following the Trading Day next succeeding the Expiration
Date.


 


(7)           The
reclassification of Common Stock into securities other than Common Stock (other
than any reclassification upon a consolidation or merger to which Section 12.11
applies) shall be deemed to involve (a) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be “the date fixed for the
determination of stockholders entitled to receive such distribution” and “the
date fixed for such determination” within the meaning of paragraph (4) of this
Section), and (b) a subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall
be deemed to be “the day upon which such subdivision becomes effective” or “the
day upon which such combination becomes effective”, as the case may be, and “the
day upon which such subdivision or combination becomes effective” within the
meaning of paragraph (3) of this Section).


 


(8)           For
the purpose of any computation under paragraphs (2), (4), or (6) of this
Section, the current market price per share of Common Stock on any date shall
be calculated by the Company and be the average of the daily Closing Prices Per
Share for the five consecutive Trading Days selected by the Company commencing
not more than 10 Trading Days before, and ending not later than the earlier of
the day in question and the day before the “ex” date with respect to the
issuance or distribution requiring such computation. For the purpose of any
computation under paragraph (5) of this Section, the current market price per
share of Common Stock on any date shall be calculated by the Company and be the
average of the daily Closing Prices Per Share for the first ten Trading Days
from and including the first “ex” date on which the Common Stock trades regular
way in the applicable securities market or on the applicable securities
exchange. For purposes of this paragraph, the term “‘ex’ date”, when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.


 


(9)           All
calculations under this Article shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.


 


79

















 


(10)         The
Company may make such increases in the Conversion Rate, for the remaining term
of the Securities or any shorter term, in addition to those required by
paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to
be advisable in order to avoid or diminish any income tax to any holders of
shares of Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes. The Company shall have the power
to resolve any ambiguity or correct any error in this paragraph (10) and its
actions in so doing shall, absent manifest error, be final and conclusive.


 


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


 


(12)         To
the extent permitted by applicable law, the Company from time to time may
increase the Conversion Rate by any amount for any period of time if the period
is at least twenty days, the increase is irrevocable during such period, and
the Board of Directors shall have made a determination that such increase would
be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the increase to the Holders in the
manner provided in Section 1.6 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.


 


Section 12.5           Notice
of Adjustments of Conversion Rate.


 


Whenever
the Conversion Rate is adjusted as herein provided:


 


(1)           the
Company shall compute the adjusted Conversion Rate in accordance with Section 12.4
and shall prepare a certificate signed by the Chief Financial Officer of the
Company setting forth the adjusted Conversion Rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate
shall promptly be filed with the Trustee and with each Conversion Agent; and


 


(2)           upon
each such adjustment, a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall be required, and
as soon as practicable after it is required, such notice shall be provided by
the Company to all Holders in accordance with Section 1.6.


 


Neither
the Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate or the information and calculations
contained therein, except to exhibit the same to any Holder of Securities
desiring inspection thereof at its office during normal business hours.


 


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Section 12.6           Notice
of Certain Corporate Action.


 


In
case:


 


(1)           the
Company shall declare a dividend (or any other distribution) on its Common
Stock; or


 


(2)           the
Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or


 


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


 


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


 


then the Company shall cause to be filed at each
office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.2, and shall cause to be provided to all Holders in
accordance with Section 1.6, at least 20 days (or 10 days in any case
specified in clause (1) or (2) above) prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such notice or the
notice referred to in the following paragraph nor any defect therein shall
affect the legality or validity of the proceedings described in clauses (1)
through (4) of this Section. If at the time the Trustee shall not be the Conversion
Agent, a copy of such notice shall also forthwith be filed by the Company with
the Trustee.


 


The
Company shall cause to be filed at the Corporate Trust Office and each office
or agency maintained for the purpose of conversion of Securities pursuant to Section 10.2,
and shall cause to be provided to all Holders in accordance with Section 1.6,
notice of any tender offer by the Company or any Subsidiary for all or any
portion of the Common Stock at or about the time that such notice of tender
offer is provided to the public generally.


 


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Section 12.7           Company
to Reserve Common Stock.


 


The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock then issuable upon the conversion of all Outstanding Securities.


 


Section 12.8           Taxes
on Conversions.


 


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


 


Section 12.9           Covenant
as to Common Stock.


 


The
Company agrees that all shares of Common Stock that may be delivered upon
conversion of Securities, upon such delivery, will have been duly authorized
and validly issued and will be fully paid and nonassessable and, except as
provided in Section 12.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.


 


Section 12.10         Cancellation
of Converted Securities.


 


All
Securities delivered for conversion shall be delivered to the Trustee or its
agent to be canceled by or at the direction of the Trustee, which shall dispose
of the same as provided in Section 3.9.


 


Section 12.11         Provision
in Case of Consolidation, Merger or Sale of Assets.


 


In
case of any consolidation or merger of the Company with or into any other
Person, any merger of another Person with or into the Company (other than a
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets
of the Company (other than a sale of all or substantially all of the assets of
the Company that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock of the Company), the
Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
then Outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 12.1, to convert
such Security only into the kind and amount of securities, cash and other
property receivable


 


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upon such consolidation, merger, conveyance, sale, transfer
or lease by a holder of the number of shares of Common Stock of the Company
into which such Security might have been converted immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease (the “Reference
Property”), assuming such holder of Common Stock of the Company is not (A) a
Person with which the Company consolidated or merged with or into or which
merged into or with the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a “Constituent Person”), or (B) an
Affiliate of a Constituent Person (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer, or lease is not
the same for each share of Common Stock of the Company held immediately prior
to such consolidation, merger, conveyance, sale, transfer or lease by others
than a Constituent Person or an Affiliate thereof (determined based in part
upon any form of stockholder election), then for the purpose of this Section the
kind and amount of Reference Property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by the holders of Common Stock shall
be deemed to be the weighted average of the kinds and amounts of consideration
received by the holders of Common Stock that affirmatively make such election).
Such supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security as provided in Section 1.6 promptly
upon such execution.


 


Neither
the Trustee nor any Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other
securities or property or cash receivable by Holders of Securities upon the
conversion of their Securities after any such consolidation, merger, conveyance,
transfer, sale or lease or to any such adjustment, but may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, an Opinion of Counsel with respect thereto, which the Company
shall cause to be furnished to the Trustee upon request.


 


Section 12.12         Rights
Issued in Respect of Common Stock.


 


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


 


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


 


(ii)           are
not exercisable, and


 


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


 


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shall not be deemed distributed for purposes of Section 12.4(2)
until the occurrence of the earliest Trigger Event. In addition, in the event
of any distribution of rights or warrants, or any Trigger Event with respect
thereto, that shall have resulted in an adjustment to the Conversion Rate under
Section 12.4(2), (1) in the case of any such rights or warrants that shall
all have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of any such rights or warrants
all of which shall have expired without exercise by any holder thereof, the
Conversion Price shall be readjusted as if such issuance had not occurred.


 


Section 12.13         Responsibility
of Trustee for Conversion Provisions.


 


The
Trustee, subject to the provisions of Section 6.1, 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 extent of
any such adjustment when made, or with respect to the method employed, herein
or in any supplemental indenture provided to be employed, in making the same, or
whether a supplemental indenture need be entered into. Neither the Trustee,
subject to the provisions of Section 6.1, nor any Conversion Agent shall
be accountable with respect to the validity or value (or the kind or amount) of
any Common Stock, or of any other securities or property or cash, 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,
subject to the provisions of Section 6.1, nor any Conversion Agent shall
be responsible for any failure of the Company to make or calculate any cash
payment or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 6.1, and any Conversion Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article.


 


ARTICLE XIII

DEFEASANCE


 


Section 13.1           Company’s
Option to Effect Defeasance.


 


The
Company may elect, at its option at any time, to have Section 13.2 applied
to any Securities upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution.


 


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Section 13.2           Defeasance
and Discharge.


 


Upon
the Company’s exercise of its option (if any) to have this Section applied to
any Securities, the Company shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.3 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in Section 13.3
and as more fully set forth in such Section, payments in respect of the
principal of and interest on such Securities when payments are due, (2) the
Company’s obligations with respect to such Securities under Section 3.4, Section 3.5,
Section 3.6, Section 10.2, Section 10.3 and Article XII, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities.


 


Section 13.3           Conditions
to Defeasance.


 


The
following shall be the conditions to the application of Section 13.2 to
any Securities:


 


(1)           The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.8
and agrees to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and interest  on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities.
As used herein, “U.S. Government Obligation” means (x) any security which is
(i) a direct obligation of the United States of America for the payment of
which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified


 


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and held, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.


 


(2)           In
the event of an election to have Section 13.2 apply to any Securities, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.


 


(3)           The
Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that such Securities, if then listed on any securities exchange, will be
delisted as a result of such deposit.


 


(4)           No
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with regard to any
such event specified in Section 5.1(7) and (8), at any time on or prior to
the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).


 


(5)           Such
Defeasance shall not cause the Trustee to have a conflicting interest within
the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).


 


(6)           Such
Defeasance shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a
party or by which it is bound.


 


(7)           Such
Defeasance shall not result in the trust arising from such deposit constituting
an investment company within the meaning of the Investment Company Act unless such
trust shall be registered under the Investment Company Act or exempt from
registration thereunder.


 


(8)           The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such Defeasance have been complied with.


 


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Section 13.4           Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.


 


Subject
to the provisions of the last paragraph of Section 10.3, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.5,
the Trustee and any such other trustee are referred to collectively as the “Trustee”)
pursuant to Section 13.3 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.


 


The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 13.3 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.


 


Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.3 with respect
to any Securities which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance with respect to such
Securities.


 


Section 13.5           Reinstatement.


 


If the
Trustee or the Paying Agent is unable to apply any money in accordance with
this Article with respect to any Securities by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this Indenture and
such Securities from which the Company has been discharged or released pursuant
to Section 13.2 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such
time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.4 with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.


 


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ARTICLE XIV

REPURCHASE OF SECURITIES


 


Section 14.1           Right
to Require Repurchase.


 


(A)          Securities
shall be repurchased by the Company pursuant to the terms of the Securities at
the option of the Holder on August 1, 2008 (the “Repurchase Date”), at a repurchase
price equal to 100% of the principal amount of the Securities to be repurchased
(any such portion being at least $1,000 or an integral multiple of $1,000 in
excess thereof and provided that
no single Security may be repurchased in part unless the portion of the
principal amount of such Security to be Outstanding after such repurchase is
equal to $1,000 or integral multiples of U.S. $1,000 in excess thereof), plus interest
accrued but unpaid to, but excluding, such Repurchase Date (the “Repurchase
Price”). The Repurchase Price shall be paid in cash. Whenever in this Indenture
(including Section 2.2, Section 3.1, Section 5.1(1) and Section 5.8)
there is a reference, in any context, to the principal of any Security as of
any time, such reference shall be deemed to include reference to the Repurchase
Price payable in respect of such Security to the extent that such Repurchase
Price is, was or would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Indenture shall not be construed as
excluding the Repurchase Price in those provisions of this Indenture when such
express mention is not made.


 


Section 14.2           Right
to Require Repurchase Upon a Designated Event.


 


In the
event that a Designated Event (as hereinafter defined) shall occur, then each
Holder shall have the right, at the Holder’s option, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder’s Securities not theretofore called for redemption, or any
portion of the principal amount thereof that is equal to $1,000 or any integral
multiple of $1,000 in excess thereof (provided, however, that no single Security may be repurchased in part
unless the portion of the principal amount of such Security to be Outstanding
after such repurchase is equal to $1,000 or integral multiples of U.S. $1,000
in excess thereof), on the date (the “Designated Event Repurchase Date”) that
is 35 Business Days after the date of the Company Notice (as defined in Section 14.4),
at a repurchase price equal to 100% of the principal amount of the Securities
to be repurchased plus interest accrued but unpaid to, but excluding, the Designated
Event Repurchase Date, (the “Designated Event Repurchase Price”); provided, however,
that installments of interest on Securities whose Stated Maturity is on or
prior to the Designated Event Repurchase Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the provisions of Section 3.7.
Such right to require the repurchase of the Securities shall not continue after
a discharge of the Company from its obligations with respect to the Securities
in accordance with Article IV, unless a Designated Event shall have occurred
prior to such discharge. The Designated Event Repurchase Price shall be paid in
cash. Whenever in this Indenture (including Section 2.2, Section 3.1,
Section 5.1(1) and Section 5.8) there is a reference, in any context,
to the principal of any Security as of any time, such reference shall be deemed
to include reference to the


 


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Designated Event Repurchase Price payable in respect
of such Security to the extent that such Designated Event Repurchase Price is,
was or would be so payable at such time, and express mention of the Designated
Event Repurchase Price in any provision of this Indenture shall not be
construed as excluding the Designated Event Repurchase Price in those
provisions of this Indenture when such express mention is not made.


 


Section 14.3           RESERVED.


 


Section 14.4           Notices;
Method of Exercising Repurchase Right, Etc.


 


(1)           Unless
the Company shall have theretofore called for redemption all of the Outstanding
Securities, the Company shall give to the Trustee, the Paying Agent and all
Holders of Securities, in the manner provided in Section 1.6, notice (the “Company
Notice”) on or before the 20th Business Day prior to the Repurchase
Date or on or before the 30th Business Day prior to the Designated
Event Repurchase Date. In connection with providing such Company Notice, the
Company shall, on or before the 20th Business Day prior to the
Repurchase Date or on or before the 30th day after the occurrence of a Designated Event, as the
case may be, issue a Press Release or publish such information on the Company’s
then existing website including the information required to be included in such
Company Notice hereunder. The Company shall also deliver a copy of any Company
Notice to the Trustee. At the request and expense of the Company on or before
the fifth Business Day prior to the date on which the Company Notice is to be
mailed, the Trustee shall give the Company Notice to the Holders.


 


Each
Company Notice shall state:


 


(A)          the
Repurchase Date or the Designated Event Repurchase Date, as the case may be,


 


(B)           the date
by which the repurchase right must be exercised,


 


(C)           the
Repurchase Price, or the Designated Event Repurchase Price, as the case may be,


 


(D)          if the
notice relates to the occurrence of a Designated Event, the events causing the
Designated Event, the date of the Designated Event and that the Securities with
respect to which a Holder gives a Repurchase Notice with respect to a
Designated Event (a “Designated Event Repurchase Notice”) may be converted only
if the Holder withdraws the Repurchase Notice in accordance with the terms of
this Indenture,


 


(E)           a
description of the procedure that a Holder must follow to exercise a repurchase
right, and the place or places where such Securities are to be surrendered for
payment of the Repurchase Price or the Designated Event Repurchase Price, as
the case may be, and accrued but unpaid interest, if any, to the Repurchase
Date or the Designated Event Repurchase Date, as the case may be,


 


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(F)           that on
the Repurchase Date or the Designated Event Repurchase Date, as the case may
be, the Repurchase Price or the Designated Event Repurchase Price, as the case
may be, and accrued but unpaid interest, if any, to the Repurchase Date or the Designated
Event Repurchase Date, as the case may be, will become due and payable upon
each such Security designated by the Holder to be repurchased, and that
interest thereon shall cease to accrue on and after said date,


 


(G)           the
Conversion Rate then in effect, the date on which the right to convert the
principal amount of the Securities to be repurchased will terminate and the
place or places where such Securities may be surrendered for conversion,


 


(H)          the place
or places that the Security certificate with the Election of Holder to Require
Repurchase as specified in Section 2.2 shall be delivered, and


 


(I)            the name
and address of the Paying Agent and Conversion Agent.


 


No
failure of the Company to give the foregoing notices or defect therein shall
limit any Holder’s right to exercise a repurchase right or affect the validity
of the proceedings for the repurchase of Securities.


 


If any
of the foregoing provisions or other provisions of this Article are
inconsistent with applicable law, such law shall govern.


 


(2)           To
exercise a repurchase right pursuant to Section 14.1 or Section 14.2,
a Holder shall deliver to the Paying Agent (i) written notice (a “Repurchase Notice”)
of the Holder’s exercise of such right, which notice shall set forth the name
of the Holder, the principal amount of the Securities to be repurchased (and,
if any Security is to repurchased in part, the serial number thereof, the
portion of the principal amount thereof to be repurchased (which portion must
be in principal amounts of $1,000 or a whole multiple of $1,000) and the name
of the Person in which the portion thereof to remain Outstanding after such repurchase
is to be registered), if certified, the certificate numbers of the Securities
to be repurchased, and a statement that an election to exercise the repurchase
right pursuant to the terms and conditions specified in the Securities and the
Indenture is being made thereby, and (ii) book-entry
transfer or delivery of such Security to the Paying Agent at any time after
delivery of the Repurchase Notice (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Repurchase Price therefor or the Designated Event Repurchase
Price therefor, as the case may be; provided, however, that such Repurchase Price or Designated Event
Repurchase Price, as the case may be, shall be so paid pursuant to this
Section only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Repurchase
Notice. In the case of a repurchase right pursuant to Section 14.1, such
delivery shall be at any time from the opening of business on the date that is
20 Business Days prior to the Repurchase Date until the close of business on
the fifth Business Day prior to the Repurchase Date and in the case of a
repurchase right pursuant to Section 14.2, such delivery shall be on or
before the 35th day after the date of the Company Notice, subject to
extension to comply with applicable law.


 


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A
repurchase notice given by a Holder in accordance with this Section may be
withdrawn, in whole or in part, by means of a written notice of withdrawal
delivered to the office of the Paying Agent at any time prior to the close of
business on the day that is two Business Days before the Repurchase Date or Designated
Event Repurchase Date, as the case may be, specifying:


 


(A)          the
certificate number, if any, of the Security in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary procedures if
Certificated Securities have not been issued,


 


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


 


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


 


The
Company may, in its sole and complete discretion, accept a written notice of
withdrawal on or after the close of business on the day that is two Business
Days prior to the Repurchase Date or a Designated Event Repurchase Date, as the
case may be. The decision of the Company to accept or reject such a withdrawal
notice shall be conclusive and binding on the Holder proposing to make the
withdrawal.


 


(3)           There
shall be no purchase of any Securities pursuant to this Article if an Event of
Default has occurred and is continuing (other than a default that is cured by
the payment of the Repurchase Price or Designated Event Repurchase Price, as
the case may be). The Paying Agent shall promptly return to the respective
Holders thereof any Securities (i) with respect to which a Repurchase Notice or
Designated Event Repurchase Notice, as the case may be, has been withdrawn in
compliance with this Indenture or (ii) held by it during the continuance of an
Event of Default (other than a default that is cured by the payment of the
Repurchase Price or Designated Event Repurchase Price, as the case may be ) in
which case, upon such return, the Repurchase Notice or Designated Event
Repurchase Notice with respect thereto shall be deemed to have been withdrawn.


 


(4)           In
the event a repurchase right shall be exercised in accordance with the terms
hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase
Price or the Designated Event Repurchase Price, as the case may be, for payment
to the Holder on the Repurchase Date or the Designated Event Repurchase Date,
as the case may be, together with accrued and unpaid interest to the Repurchase
Date or the Designated Event Repurchase Date, as the case may be, payable with
respect to the Securities as to which the repurchase right has been exercised; provided, however,
that installments of interest that mature on or prior to the Repurchase Date or
the Designated Event Repurchase Date, as the case may be, shall be payable in
cash to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Date.


 


(5)           If
any Security (or portion thereof) surrendered for repurchase shall not be so
paid on the Repurchase Date or the Designated Event Repurchase Date, as the
case may be, the principal


 


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amount of such
Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date or
the Designated Event Repurchase Date, as the case may be, at the rate then in
effect per annum, and each Security shall remain convertible into Common Stock
until the principal of such Security (or portion thereof, as the case may be)
shall have been paid or duly provided for.


 


(6)           Any
Security that is to be repurchased only in part shall be surrendered to the
Trustee (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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service charge,
a new Security or Securities, containing identical terms and conditions, each
in an authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.


 


(7)           RESERVED.


 


(8)           RESERVED.


 


(9)           RESERVED.


 


(10)         RESERVED.


 


(11)         All
Securities delivered for repurchase shall be delivered to the Trustee to be
canceled at the direction of the Trustee, which shall dispose of the same as
provided in Section 3.9.


 


Section 14.5           Certain
Definitions.


 


For
purposes of this Article,


 


(1)           the
term “beneficial owner” shall be determined in accordance with Rule 13d-3, as
in effect on the date of the original execution of this Indenture, promulgated
by the Commission pursuant to the Exchange Act;


 


(2)           a
“Change in Control” shall be deemed to have occurred at the time, after the
original issuance of the Securities, of:


 


(A)          any “person”
or “group” (within the meaning of Section 13(d) of the Exchange Act) other than
the Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any Subsidiary files a Schedule TO, Schedule 13D or any
schedule, form or report under the Exchange Act disclosing that such “person” or
“group” has become a direct or indirect ultimate beneficial owner of shares of common
stock of the Company entitling such “person” or “group” to exercise 50% or more
of the total voting power of all shares of common stock of the Company entitled
to vote generally in the elections of directors, other than any such


 


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filing by the Company, any Subsidiary of the Company
or any employee benefit plan of the Company or any Subsidiary; or


 


(B)           consummation
of any share exchange, consolidation or merger of the Company pursuant to which
the Company’s Common Stock will be converted into cash, securities or other
property or any sale, lease, or other transfer in one transaction or a series
of transactions of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to any person other than the
Company or one or more of the Company’s Subsidiaries; provided,
however, that a transaction pursuant to which the holders of 50% or
more of the total voting power of all shares of the common stock of the Company
entitled to vote generally in the election of directors immediately prior to
such transaction have the entitlement to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of common stock entitled to
vote generally in the election of directors of the continuing or surviving
corporation immediately after such transaction shall not be a Change in Control.


 


(3)           a
“Designated Event” shall be deemed to have occurred upon a Fundamental Change
or a Termination of Trading; provided
that a Fundamental Change occurring on or prior to August, 2008, shall not
be a Designated Event unless the transaction or event resulting in such
Fundamental Change shall also constitute a Change in Control.


 


(4)           a
“Fundamental Change” shall be any transaction or event (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) in connection with which all
or substantially all of the Common Stock is exchanged for, converted into,
acquired for or constitutes solely the right to receive, consideration
(excluding cash payments for fractional shares) that is not all or
substantially all common shares, common stock or American Depositary Shares that
are:


 


(A)          listed on,
or immediately after the transaction or event shall be listed on, the New York
Stock Exchange or a United States national securities exchange; or


 


(B)           approved,
or immediately after the transaction or event shall be approved, for quotation
on The Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices; and


 


(5)           a
“Termination of Trading” shall be deemed to have occurred if the Common Stock
or other common stock into which the Securities are convertible is neither
listed for trading on a United States national securities exchange nor approved
for listing on The Nasdaq National Market or another established automated
over-the-counter trading market in the United States, and no American
depositary shares or similar instruments for such common stock are so listed or
approved for listing in the United States.


 


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Section 14.6           Consolidation,
Merger, Etc.


 


In the
case of any merger, consolidation, conveyance, sale, transfer or lease of all
or substantially all of the assets of the Company to which Section 12.11
applies, in which the Common Stock of the Company is changed or exchanged as a
result into the right to receive shares of stock and other securities or
property or assets (including cash) that include shares of Common Stock of the
Company or common stock of another Person that are, or upon issuance will be,
traded on a United States national securities exchange or approved for trading
on an established automated over-the-counter trading market in the United
States and such shares constitute at the time such change or exchange becomes
effective in excess of 50% of the aggregate fair market value of such shares of
stock and other securities, property and assets (including cash) (as determined
by the Company, which determination shall be conclusive and binding), then the
Person formed by such consolidation or resulting from such merger or
combination or which acquires the properties or assets (including cash) of the
Company, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) modifying the
provisions of this Indenture relating to the right of Holders to cause the
Company to repurchase the Securities following a Designated Event, including
without limitation the applicable provisions of this Article and the
definitions of the Common Stock and Designated Event, as appropriate, and such
other related definitions set forth herein as determined in good faith by the
Company (which determination shall be conclusive and binding), to make such
provisions apply in the event of a subsequent Designated Event to the common
stock and the issuer thereof if different from the Company and Common Stock of
the Company (in lieu of the Company and the Common Stock of the Company).


 


ARTICLE XV

MAKE WHOLE PREMIUM


 


Section 15.1           Determination
of the Make Whole Premium.


 


(1)           If
a Fundamental Change occurs on or before August 1, 2008, Holders of Securities
shall be entitled to receive from the Company the Make Whole Premium upon the
conversion of Securities upon a Fundamental Change as described in Section 12.1.
The Make Whole Premium shall consist of an increase in the applicable
Conversion Rate applicable to each $1,000 principal amount of Securities so
converted by an additional number of shares of Common Stock as described below.


 


(2)           The
Make Whole Premium shall be determined as follows:


 


(A)          “Effective
Date” means the date that the applicable Fundamental Change becomes effective.


 


(B)           “Stock
Price” means the price paid per share of Common Stock in the transaction
constituting the applicable Fundamental Change, determined as follows:


 


(i)  if holders
of Common Stock receive only cash in the Fundamental Change, the Stock Price
shall be the cash amount paid per share of Common Stock; or


 


94

















 


(ii)  in all
other circumstances, the Stock Price shall be the average of the last reported
sale price of the Common Stock on the 10 Trading Days up to, but not including,
the Effective Date.


 


(C)           “Make
Whole Premium” means the number of additional shares per $1,000 original principal
amount of Securities equal to:


 


(a)           If the
Effective Date is after August 1, 2008, 0;


 


(b)           If the
Stock Price is less than $35.00 (subject to adjustment pursuant to Section
15.3) (the “Stock Price Threshold”), 0;


 


(c)           If the
Stock Price is more than $100.00 (subject to adjustment pursuant to Section 15.3)
(the “Stock Price Cap”), 0; and


 


(d)           Otherwise,
the number of additional shares set forth on the table below (the “Make Whole
Premium Table”) for the Stock Price and the Effective Time.


 


	
  Effective Date of

  Fundamental

  	
   

  	
  Stock Price

  	
   

  
	
  Change

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $65.00

  	
   

  	
  $70.00

  	
   

  	
  $75.00

  	
   

  	
  $100.00

  	
   

  
	
  November 7, 2006

  	
   

  	
  3.77

  	
   

  	
  3.77

  	
   

  	
  3.00

  	
   

  	
  2.15

  	
   

  	
  1.57

  	
   

  	
  1.16

  	
   

  	
  0.87

  	
   

  	
  0.65

  	
   

  	
  0.50

  	
   

  	
  0.16

  	
   

  
	
  February 1, 2007

  	
   

  	
  3.77

  	
   

  	
  3.77

  	
   

  	
  2.80

  	
   

  	
  1.96

  	
   

  	
  1.40

  	
   

  	
  1.01

  	
   

  	
  0.74

  	
   

  	
  0.55

  	
   

  	
  0.41

  	
   

  	
  0.12

  	
   

  
	
  August 1, 2007

  	
   

  	
  3.77

  	
   

  	
  3.52

  	
   

  	
  2.26

  	
   

  	
  1.47

  	
   

  	
  0.97

  	
   

  	
  0.65

  	
   

  	
  0.45

  	
   

  	
  0.31

  	
   

  	
  0.22

  	
   

  	
  0.06

  	
   

  
	
  February 1, 2008

  	
   

  	
  3.77

  	
   

  	
  2.64

  	
   

  	
  1.44

  	
   

  	
  0.78

  	
   

  	
  0.42

  	
   

  	
  0.24

  	
   

  	
  0.14

  	
   

  	
  0.09

  	
   

  	
  0.06

  	
   

  	
  0.02

  	
   

  
	
  August 1, 2008

  	
   

  	
  3.57

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  



 


If the
Stock Price is between two Stock Price amounts on the Make Whole Premium Table
or the Effective Date is between two dates on the Make Whole Premium Table, the
Make Whole Premium shall be determined by straight-line interpolation between
Make Whole Premium percentages set forth in the Make Whole Premium Table for
the higher and lower Stock Price amounts and the two dates, as applicable,
based on a 365-day year. The Stock Prices set forth in the column headers are
subject to adjustment pursuant to Section 15.3.


 


(3)           The
Company may from time to time appoint a calculation agent with respect to the
calculation of the Make Whole Premium (the “Calculation Agent”). The
Calculation Agent shall, on behalf of and upon request by the Company or the
Trustee, calculate (A) the Stock Price and (B) the Make Whole Premium with
respect to such Stock Price based on the Effective Date specified by the
Company or the Trustee and shall deliver its calculation of the Stock Price and
Make Whole Premium to the Company and the Trustee within five Business Days of
the request by the Company


 


95

















 


or the Trustee. The
Company, or at the Company’s request, the Trustee in the name and at the
expense of the Company, shall notify the Holders of the Stock Price and Make
Whole Premium in accordance with the notice provisions of the Indenture.


 


(4)           Notwithstanding any provision to the
contrary in this Indenture, in no event shall the number


of shares of Common Stock issued upon conversion of the Securities
exceed the Conversion Cap, except as a result of the adjustments to the
Conversion Rate pursuant to Section 12.4, and the Company shall not be required
to make any additional cash payment in lieu of delivering any shares of Common
Stock in excess of the Conversion Cap.


 


Section 15.2           Payment
of the Make Whole Premium.


 


Settlement
of Securities tendered for conversion to which Additional Shares shall be added
to the applicable Conversion Rate as provided in Section 15.1 shall be
settled in accordance with Section 12.2.


 


Section 15.3           Adjustments
Relating to the Make Whole Premium.


 


Whenever
the Conversion Rate shall be adjusted from time to time by the Company pursuant
to Section 12.4, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the Stock Prices set forth in the Make Whole Premium Table
shall be adjusted by multiplying each such amount by a fraction the numerator
of which is the Conversion Rate immediately prior to such adjustment and the
denominator of which is the Conversion Rate as so adjusted.


 






 


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


 


96

















 


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


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Mylod

  	
   

  
	
   

  	
  Name:
  Robert J. Mylod

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST

  
	
   

  	
  COMPANY,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Herbert J. Lemmer

  	
   

  
	
   

  	
  Name:
  Herbert J. Lemmer

  
	
   

  	
  Title:
  Vice President

  



 


97