Exhibit 4.5  




MILLENNIUM PHARMACEUTICALS, INC.

as Issuer  


 and  


 U.S. BANK NATIONAL ASSOCIATION

as Trustee  




Indenture  


 Dated as of November [    ], 2006  




$[    ],000,000

[    ]% Convertible Senior Notes due November 15, 2011  









RECITALS 



	ARTICLE 1
 DEFINITIONS AND INCORPORATION BY REFERENCE
	

Section 1.01.    Definitions	
 	

  1
	Section 1.02.    Other Definitions	 	  5
	Section 1.03.    Incorporation by Reference of Trust Indenture Act	 	  6
	Section 1.04.    Rules of Construction	 	  6
	Section 1.05.    Acts of Holders	 	7
	

ARTICLE 2
 THE NOTES
	

Section 2.01.    Form, Dating and Denominations; Legends	
 	

7
	Section 2.02.    Execution And Authentication	 	8
	Section 2.03.    Registrar, Paying Agent and Conversion Agent	 	8
	Section 2.04.    Paying Agent to Hold Money in Trust	 	9
	Section 2.05.    Noteholder Lists	 	9
	Section 2.06.    Transfer and Exchange	 	9
	Section 2.07.    Replacement Notes	 	10
	Section 2.08.    Outstanding Notes	 	10
	Section 2.09.    Treasury Notes	 	11
	Section 2.10.    Temporary Notes	 	11
	Section 2.11.    Cancellation	 	11
	Section 2.12.    CUSIP Numbers	 	11
	Section 2.13.    Book-Entry Provisions for Global Notes	 	11
	Section 2.14.    Special Transfer Provisions	 	12
	

ARTICLE 3
 REPURCHASES
	

Section 3.01.    Repurchase at the Option of the Holders Upon Change in Control	
 	

12
	Section 3.02.    Effect of Change in Control Repurchase Notice	 	14
	Section 3.03.    Deposit of Change In Control Repurchase Price	 	15
	Section 3.04.    Notes Repurchased in Part	 	15
	Section 3.05.    Covenant to Comply with Securities Laws upon Repurchase of Notes	 	15
	

ARTICLE 4
 COVENANTS
	

Section 4.01.    Payment of Notes	
 	

16
	Section 4.02.    Maintenance of Office or Agency	 	16
	Section 4.03.    Existence	 	16
	Section 4.04.    Annual Reports	 	17
	Section 4.05.    Reports to Trustee	 	17
	Section 4.06.    Stay, Extension and Usury Laws	 	17
	

ARTICLE 5
 CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS
	

Section 5.01.    Consolidation, Merger, Sale or Lease of Assets by the Company	
 	

17
	

ARTICLE 6
 DEFAULT AND REMEDIES
	

Section 6.01.    Events of Default	
 	

18
	Section 6.02.    Acceleration	 	19
	Section 6.03.    Other Remedies	 	19
	Section 6.04.    Waiver of Past Defaults	 	19
	Section 6.05.    Control by Majority	 	19
	 	 	 








 

	Section 6.06.    Limitation on Suits	 	20
	Section 6.07.    Rights of Holders to Receive Payment	 	20
	Section 6.08.    Collection Suit by Trustee	 	20
	Section 6.09.    Trustee may File Proofs of Claim	 	20
	Section 6.10.    Priorities	 	21
	Section 6.11.    Restoration of Rights and Remedies	 	21
	Section 6.12.    Undertaking for Costs	 	21
	Section 6.13.    Rights and Remedies Cumulative	 	21
	Section 6.14.    Delay or Omission Not Waiver	 	21
	

ARTICLE 7
 THE TRUSTEE
	

Section 7.01.    General	
 	

22
	Section 7.02.    Certain Rights of Trustee	 	22
	Section 7.03.    Individual Rights of Trustee	 	23
	Section 7.04.    Trustee's Disclaimer	 	23
	Section 7.05.    Notice of Default	 	23
	Section 7.06.    Reports by Trustee to Holders	 	23
	Section 7.07.    Compensation and Indemnity	 	23
	Section 7.08.    Replacement of Trustee	 	23
	Section 7.09.    Successor Trustee by Merger	 	24
	Section 7.10.    Eligibility	 	24
	Section 7.11.    Money Held in Trust	 	24
	

ARTICLE 8
 DISCHARGE
	

Section 8.01.    Satisfaction and Discharge of this Indenture	
 	

25
	Section 8.02.    Application of Trust Money	 	25
	Section 8.03.    Repayment to Company	 	25
	Section 8.04.    Reinstatement	 	26
	

ARTICLE 9
 AMENDMENTS, SUPPLEMENTS AND WAIVERS
	

Section 9.01.    Amendments Without Consent of Holders	
 	

26
	Section 9.02.    Amendments With Consent of Holders	 	27
	Section 9.03.    Effect of Consent	 	27
	Section 9.04.    Trustee's Rights and Obligations	 	28
	Section 9.05.    Conformity With Trust Indenture Act	 	28
	Section 9.06.    Payments for Consents	 	28
	

ARTICLE 10
 CONVERSION
	

Section 10.01.    Conversion Privilege	
 	

28
	Section 10.02.    Conversion Procedures; Conversion Settlement	 	30
	Section 10.03.    Fractional Shares	 	33
	Section 10.04.    Taxes on Conversion	 	33
	Section 10.05.    Company to Provide Common Stock	 	33
	Section 10.06.    Adjustment for Change in Capital Stock	 	33
	Section 10.07.    Adjustment for Rights, Options or Warrants Issue	 	34
	Section 10.08.    Adjustment for Other Distributions	 	35
	Section 10.09.    Adjustment for Cash Dividends	 	36
	Section 10.10.    Adjustment for Tender Offer	 	37
	Section 10.11.    Provisions Governing Adjustment to Conversion Rate	 	37
	Section 10.12.    Disposition Events	 	38
	 	 	 



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	Section 10.13.    Adjustment to Conversion Rate Upon a Make-Whole Change in Control; Discretionary Adjustment	 	39
	Section 10.14.    When Adjustment May Be Deferred	 	41
	Section 10.15.    When No Adjustment Required	 	41
	Section 10.16.    Notice of Adjustment	 	41
	Section 10.17.    Notice of Certain Transactions	 	41
	Section 10.18.    Right of Holders to Convert	 	42
	Section 10.19.    Company Determination Final	 	42
	Section 10.20.    Trustee's Adjustment Disclaimer	 	42
	Section 10.21.    Simultaneous Adjustments	 	42
	Section 10.22.    Successive Adjustments	 	43
	Section 10.23.    Rights Issued in Respect of Common Stock Issued Upon Conversion	 	43
	Section 10.24.    Withholding Taxes for Adjustments in Conversion Rate	 	43
	

ARTICLE 11
 PAYMENT OF INTEREST
	

Section 11.01.    Interest Payments	
 	

43
	Section 11.02.    Defaulted Interest	 	43
	Section 11.03.    Interest Rights Preserved	 	44
	

ARTICLE 12
 MISCELLANEOUS
	

Section 12.01.    Trust Indenture Act of 1939	
 	

44
	Section 12.02.    Noteholder Communications; Noteholder Actions	 	44
	Section 12.03.    Notices	 	45
	Section 12.04.    Communication by Holders with Other Holders	 	46
	Section 12.05.    Certificate and Opinion as to Conditions Precedent	 	46
	Section 12.06.    Statements Required in Certificate or Opinion	 	46
	Section 12.07.    Legal Holiday	 	46
	Section 12.08.    Rules by Trustee, Paying Agent, Conversion Agent and Registrar	 	47
	Section 12.09.    Governing Law	 	47
	Section 12.10.    No Adverse Interpretation of Other Agreements	 	47
	Section 12.11.    Successors	 	47
	Section 12.12.    Duplicate Originals	 	47
	Section 12.13.    Severability	 	47
	Section 12.14.    Table of Contents and Headings	 	47
	Section 12.15.    No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders	 	47
	

EXHIBITS	
 	

 
	EXHIBIT A    Form of Note	 	 
	EXHIBIT B    DTC Legend	 	 




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        INDENTURE, dated as of November [    ], 2006, between Millennium Pharmaceuticals, Inc., a Delaware corporation (as the
"Company") and U.S. Bank National Association, a national banking association, as Trustee. 


RECITALS  


        The Company has duly authorized the execution and delivery of this Indenture to provide for the initial issuance of
$[    ],000,000 aggregate principal amount of the Company's [    ]% Convertible Senior Notes due November 15, 2011 (the
"Initial Notes" and, together with any "Additional Notes," the
"Notes"). All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company
has done all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of the Company as
hereinafter provided. 


        This
Indenture is subject to, and will be governed by, the provisions of the Trust Indenture Act that are required to be a part of and govern indentures qualified under the Trust
Indenture Act. 


THIS INDENTURE WITNESSETH  


        For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and
proportionate benefit of all Holders, as follows: 


ARTICLE 1
 DEFINITIONS AND INCORPORATION BY REFERENCE


        Section 1.01.    Definitions.    


        "Additional Notes" means up to $[    ],000,000 aggregate principal amount of Notes issued under this
Indenture as a result of the Underwriters exercise of their over-allotment option pursuant to Section 2 of the Underwriting Agreement. The Additional Notes shall have the same terms
as the Initial Notes. 


        "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with")
with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of
Voting Securities, by contract or otherwise. 


        "Agent" means any Registrar, Paying Agent or Conversion Agent. 


        "Agent Member" means a member of, or a participant in, the Depositary. 


        "Applicable Conversion Rate" means the Conversion Rate on any day. 


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



        "Bankruptcy Law" means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of
debtors. 


        "Board of Directors" means the board of directors or comparable governing body of the Company, or any committee thereof duly authorized to
act on its behalf. 


        "Board Resolution" means a resolution duly adopted by the Board of Directors which is certified by the Secretary or an Assistant Secretary
of the Company and remains in full force and effect as of the date of its certification. 







 



        "Business Day" means any weekday that is not a day on which banking institutions in The City of New York are authorized or obligated to
close. 


        "Capital Stock" means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent
interests (however designated, whether voting or non-voting) in such Person's equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after
liabilities, of such Person. 


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


        "Cash Settlement Averaging Period" means (a) with respect to any Conversion Date occurring on or after the 20th Business Day
immediately preceding the Maturity Date, the twenty (20) consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the Maturity Date and
(b) in all other cases, the twenty (20) consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the relevant Conversion Date. 


        "Certificated Note" means a Note in registered individual form without interest coupons. 


        "Close of Business" means 5:00 p.m. (New York City time). 


        "Closing Price" of Common Stock or any other security on any date means the closing sale price per share (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for
the principal U.S. securities exchange on which Common Stock or such other security is traded. If Common Stock or such other security is not listed for trading on a U.S. national or regional
securities exchange on the relevant date, the Closing Price will be the last quoted bid price for Common Stock or such other security in the over-the-counter market on the
relevant date as reported by the National Quotation Bureau or similar organization. If Common Stock or such other security is not so quoted, the Closing Price will be the average of the
mid-point of the last bid and ask prices for Common Stock or such other security on the relevant date from each of at least three nationally recognized independent investment banking firms
selected by the Company for this purpose. The Closing Price will be determined without reference to extended or after hours trading. 


        "Common Stock" means Common Stock of the Company, $0.001 par value, as it exists on the date of this Indenture and any shares of any class
or classes of Capital Stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption by the Company; provided,  however, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion of Notes
shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from
all such reclassifications. 


        "Company" means the party named as such in the first paragraph of this Indenture or any successor obligor under this Indenture and the
Notes pursuant to Section 5.01. 


        "Conversion Price" per share of Common Stock as of any day means $1,000, divided by the
Conversion Rate on such day. 


        "Conversion Value" means the product of (a) the Applicable Conversion Rate, multiplied
by (b) the average of the Volume Weighted Average Prices per share of Common Stock on each of the Trading Days during the Cash Settlement Averaging Period. 


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        "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee is principally administered,
which at the date of this Indenture is located at 60 Livingston Avenue, St. Paul, Minnesota 55107-1419. 


        "Current Market Price" of Common Stock on any day means the average of the Closing Prices of Common Stock for each of the five consecutive
Trading Days ending on the earlier of the day in question and the day before the Ex-Date with respect to the issuance or distribution requiring such computation. 


        "Daily Share Amount" means, for each Trading Day of the Cash Settlement Averaging Period and each $1,000 principal amount of Notes
surrendered for conversion, a number of shares of Common Stock (but in no event less than zero) determined pursuant to the following formula: 


(Volume
Weighted Average Price per share of Common

Stock on such Trading Day × Conversion Rate in effect on the Conversion Date) - Specified Cash Amount







Volume Weighted Average Price per share of Common Stock on such Trading Day × 20 


        The
"Conversion Rate in effect on the Conversion Date," as such term is used in the formula set forth above, shall be appropriately adjusted to take into account the occurrence on or
before such Trading Day of any event that would require an adjustment to the applicable Conversion Rate pursuant to Sections 10.06 to 10.10 of this Indenture. 


        "Debt" means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money (other than
non-recourse obligations); and (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments. 


        "Default" means any event that is, or after notice or passage of time or both would be, an Event of Default. 



        "Depositary" means DTC or the nominee thereof, or any successor thereto. 


        "DTC" means The Depository Trust Company, a New York corporation, and its successors. 


        "DTC Legend" means the legend set forth in Exhibit B. 


        "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder. 



        "Ex-Date" means, with respect to any distribution on Common Stock, the first date on which the shares of Common Stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive such distribution. 


        "GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time. 


        "Global Note" means a Note in registered global form without interest coupons. 



        "Holder" or "Noteholder" means the registered holder of any Note. 


        "Indenture" means this indenture, as amended or supplemented from time to time. 


        "Initial Notes" means the Notes issued on the date hereof and any Notes issued in replacement thereof. 


        "interest", in respect of the Notes, unless the context otherwise requires, refers to interest. 



        "Interest Payment Date" means each May 15 and November 15 of each year, commencing May 15, 2007. 


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        "Market Disruption Event" means, with respect to Common Stock or any other security, the occurrence or existence for more than
one-half hour period in the aggregate on any scheduled Trading Day for Common Stock or such other security of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in Common Stock or such other security or in any options, contracts or future contracts relating to Common Stock or such other
security, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day. 


        "Maturity Date" means November 15, 2011. 


        "Notes" has the meaning assigned to such term in the Recitals. 


        "Officer" means the chairman of the Board of Directors, the president or chief executive officer, any vice president, the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any assistant secretary, of the Company. 


        "Officers' Certificate" means a certificate signed in the name of the Company (a) by the chairman of the Board of Directors, the
president or chief executive officer or a vice president and (b) by the chief financial officer, the treasurer or any assistant treasurer or the secretary or any assistant secretary. 



        "Opinion of Counsel" means a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee. 


        "Paying Agent" refers to a Person engaged to perform the obligations of the Trustee in respect of payments made or funds held hereunder in
respect of the Notes. 


        "Person" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity,
including a government or political subdivision or an agency or instrumentality thereof. 



        "principal" of any Debt (including the Notes) means the principal amount of such Debt (or if such Debt was issued with original issue
discount, the face amount of such Debt less the remaining unamortized portion of the original issue discount of such Debt), together with, unless the context otherwise indicates, any premium then
payable on such Debt. 


        "Prospectus" means the final prospectus dated November [    ], 2006 relating to the offering and
sale of the Notes. 


        "Regular Record Date" for the interest payable on any Interest Payment Date means the May 1 or November 1 next preceding
such Interest Payment Date. 


        "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder. 


        "Subsidiary" means with respect to any Person, any corporation, association or other business entity of which more than 50% of the
outstanding Voting Securities is owned, directly or indirectly, by, or, in the case of a partnership, the sole general partner or the managing partner or the only general partners of which are, such
Person and one or more Subsidiaries of such Person (or a combination thereof). 


        "Trading Day" means, with respect to Common Stock or any other security, a day during which (a) trading in Common Stock or such
other security generally occurs, (b) there is no Market Disruption Event and (iii) a Closing Price for Common Stock or such other security (other than a Closing Price referred to in the
next to last sentence of such definition) is available for such day; provided that if Common Stock or such other security is not admitted for trading or
quotation on or by any exchange, bureau or other organization, Trading Day will mean any business day. 


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        "Trading Price" means, on any date of determination, the average of the secondary market bid quotations obtained by the Trustee for
$5.0 million principal amount of the Notes, at approximately 3:30 p.m., New York City time, on such determination date from three independent U.S. nationally recognized securities
dealers selected by the Company; provided that if three such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for
$5.0 million principal amount of the Notes from a U.S. nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of the Notes will be deemed to be less than
98% of the product of the Closing Price of Common Stock on such date of determination and the then Applicable Conversion Rate for the Notes. 



        "Trustee" means the party named as such in the first paragraph of this Indenture or any successor trustee under this Indenture pursuant to
Article 7. 


        "Trust Indenture Act" means the Trust Indenture Act of 1939. 


        "Underwriters" means Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc. and such additional underwriters named
in the Underwriting Agreement. 


        "Underwriting Agreement" means that certain Underwriting Agreement relating to the purchase of the Notes by the Underwriters, dated as of
November [    ], 2006, among the Company and the Underwriters. 


        "Volume Weighted Average Price" per share of Common Stock on any Trading Day means such price as displayed on Bloomberg (or any successor
service) page MLNM ‹equity› VAP in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day. If such price is not available, the
Volume Weighted Average Price means the market value per share of Common Stock on such day as determined by a nationally recognized independent investment banking firm retained for this purpose by the
Company. 


        "Voting Securities" means, with respect to any Person, securities of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing body of such Person. 


        Section 1.02.    Other Definitions.    



	Term
 
	 	Defined in Section

	"act"	 	12.02(b)
	"Act"	 	1.05
	"Bankruptcy Default"	 	6.01(k)
	"beneficial owner"	 	3.01(a)
	"Change in Control"	 	3.01(a)
	"Change in Control Repurchase Date"	 	3.01(a)
	"Change in Control Repurchase Notice"	 	3.01(c)
	"Change in Control Repurchase Price"	 	3.01(a)
	"Company Order"	 	2.02
	"Conversion Agent"	 	2.03
	"Conversion Date"	 	10.02(a)
	"Conversion Obligation"	 	10.01(a)
	"Conversion Rate"	 	10.01(a)
	"Conversion Trigger Price"	 	10.01(b)(i)
	"Defaulted Interest"	 	11.02
	"Disposition Event"	 	10.12
	"Distributed Assets"	 	10.08(a)
	 	 	 





5







 

	"Effective Date"	 	10.13(b)
	"Event of Default"	 	6.01
	"Expiration Date"	 	10.10
	"group"	 	3.01(a)
	"Legal Holiday"	 	12.07
	"Make-Whole Change in Control"	 	10.13(a)
	"Make-Whole Shares"	 	10.13(a)
	"Net Share Settlement"	 	10.02(c)
	"Paying Agent"	 	2.03
	"Primary Registrar"	 	2.03
	"Purchased Shares"	 	10.10
	"Reference Period"	 	10.08(a)
	"Reference Property"	 	10.12
	"Register"	 	2.03
	"Registrar"	 	2.03
	"Rights"	 	10.23
	"Shareholders Rights Plan"	 	10.23
	"Special Record Date"	 	11.02(a)
	"Specified Cash Amount"	 	10.02(b)
	"Spin-Off"	 	10.08(b)
	"Stock Price"	 	10.13(b)
	"Trading Price Condition"	 	10.01(b)(ii)
	"Trigger Event"	 	10.11
	"Underwriters"	 	1.01





        Section 1.03.    Incorporation by Reference of Trust Indenture Act.    Whenever this Indenture refers to a
provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following
meanings: 


        "Commission" means the Securities and Exchange Commission. 



        "indenture securities" means the Notes. 


        "indenture security holder" means a Noteholder. 


        "indenture to be qualified" means this Indenture. 


        "indenture trustee" or "institutional trustee" means the Trustee. 


        "obligor" on this Indenture securities means the Company. 



        All
other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by
Securities Exchange Commission rule have the meanings assigned to them by such definitions. 


        Section 1.04.    Rules of Construction.    Unless the context otherwise requires or except as otherwise
expressly provided, 


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


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


        (c)   "herein,"
"hereof" and other words of similar import refer to this Indenture as a whole and not to any particular Section, Article or other subdivision; 


6







 



        (d)   all
references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Indenture unless otherwise indicated; 


        (e)   references
to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time
(or to successor statutes and regulations); 


        (f)    in
the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions the Company may classify such transaction as
it, in its sole discretion, determines; 


        (g)   "or"
is not exclusive; 


        (h)   "including"
means including, without limitation; and 


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


        Section 1.05.    Acts of Holders.    Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments (which may take the form of an electronic writing or messaging or
otherwise be in accordance with customary procedures of the Depositary or the Trustee) of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing (which may
be in electronic form); and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent (either of
which may be in electronic form) shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. 


ARTICLE 2
 THE NOTES


        Section 2.01.    Form, Dating and Denominations; Legends.    



        (a)   The
Notes and the Trustee's certificate of authentication will be substantially in the form attached as Exhibit A. The terms and provisions contained in the form
of the Note annexed as Exhibit A constitute and are hereby expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules of or agreements
with national securities exchanges to which the Company is subject, or usage. Each Note will be dated the date of its authentication. The Notes will be issuable only in denominations of $1,000 in
principal amount and any integral multiple thereof. 


        (b)   Global Notes in General. Each Global Note shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges, purchases or conversions of such Notes. Any adjustment of the aggregate principal amount of a Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by
Section 2.06 and shall be made on the records of the Trustee and the Depositary. 



        Agent
Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or under the Global Note, and the Depositary (including,
for this 


7







 



purpose,
its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or (ii) impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a
Holder of any Note. 


        (c)   Book-Entry Provisions. The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(c), authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Depositary, (ii) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary's instructions and (iii) shall bear a legend substantially to the effect set forth in Exhibit B. 



        Section 2.02.    Execution And Authentication.    An Officer shall sign the Notes for the Company by manual or
facsimile signature. Typographic and other minor errors or defects in any such facsimile signature shall not affect the validity or enforceability of any Note which has been authenticated and
delivered by the Trustee. 


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



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


        The
Trustee shall authenticate and make available for delivery Notes for original issue in the aggregate principal amount of $[    ],000,000 (or up to
$[    ],000,000 to the extent the Underwriters exercise their over-allotment option pursuant to Section 2 of the Underwriting Agreement in full)
upon receipt of a written order or orders of the Company signed by an Officer of the Company (a "Company Order"). The Company Order shall specify the
amount of Notes to be authenticated, shall provide that all such Notes will be represented by a Global Note and the date on which each original issue of Notes is to be authenticated. The initial
aggregate principal amount of Notes outstanding at any time may not exceed $[    ],000,000 (or $[    ],000,000 to the extent the
Underwriters exercise their over-allotment option pursuant to Section [    ] of the Underwriting Agreement in full) except as provided in
Section 2.07. 


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


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


        Section 2.03.    Registrar, Paying Agent and Conversion Agent.    The Company shall maintain one or more
offices or agencies where Notes may be presented for registration of transfer or for exchange (each, a "Registrar"), one or more offices or agencies
where Notes may be presented for payment (each, a "Paying Agent"), one or more offices or agencies where Notes may be presented for conversion (each, a
"Conversion Agent") and one or more offices or agencies where notices and demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the Company in respect of the Notes and this
Indenture 


8







 



may
be served in the United States. One of the Registrars (the "Primary Registrar") shall keep a register of the Notes and of their transfer and
exchange (the "Register"). 


        The
Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company may
act as Paying Agent (except for the purposes of Article 8). 


        The
Company hereby initially designates the Trustee as Paying Agent, Registrar, and Conversion Agent, and each of the Corporate Trust Office of the Trustee and the office or agency of
the Trustee in the United States (located at 60 Livingston Avenue, St. Paul, Minnesota 55107-1419, Attention: Raymond S. Haverstock, Corporate Trust Services), one such office or agency of
the Company for each of the aforesaid purposes. 


        Section 2.04.    Paying Agent to Hold Money in Trust.    Prior to 12:00 p.m., New York City time, on
each date on which the principal amount of or interest, if any, on any Notes is due and payable, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal amount or
interest, if any, so becoming due. A Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee all money held by the Paying Agent for the payment of principal amount of or
interest, if any, on the Notes, and shall notify the Trustee of any default by the Company (or any other obligor on the Notes) in making any such payment. If the Company or an Affiliate of the Company
acts as Paying Agent, it shall, before 12:00 p.m., New York City time, on each date on which a payment of the principal amount of or interest on any Notes is due and payable, segregate the
money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any time during the continuance of any
default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money. 


        Section 2.05.    Noteholder Lists.    The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of Noteholders. If the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee on or before each
semiannual interest payment date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and
addresses of Noteholders. 


        Section 2.06.    Transfer and Exchange.    Subject to compliance with any applicable additional requirements
contained in Section 2.14, when a Note is presented to a Registrar with a request to register a transfer thereof or to exchange such Note for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transactions are met;  provided, however, that every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form in the form included in Exhibit A, and in form satisfactory to the Registrar duly executed by the Holder thereof or its attorney duly
authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Note for registration of transfer or exchange at an office or agency maintained pursuant to
Section 2.03, the Company shall execute and the Trustee shall authenticate Notes of a like aggregate principal amount at the Registrar's request. Any exchange or transfer shall be without
service charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax assessment or other governmental charge that may be imposed in relation thereto;  provided that this sentence shall not apply to any exchange pursuant to Section 2.10, Section 3.04, Section 9.03(b) or
Section 10.02(h) not involving any transfer. 


9







 



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


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


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


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


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



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


        Every
new Note issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. 


        The
provisions of this Section 2.07 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes. 


        Section 2.08.    Outstanding Notes.    Notes outstanding at any time are all Notes authenticated by the
Trustee, except for those canceled by it, those converted pursuant to Article 10, those delivered to it for cancellation or surrendered for transfer or exchange and those described in this
Section 2.08 as not outstanding. 


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


        If
a Paying Agent holds at 12:00 p.m., New York City time, on the Maturity Date Cash sufficient to pay the principal amount of the Notes payable on that date, then on and after
the Maturity Date, such Notes shall cease to be outstanding and the principal amount thereof shall cease to bear interest. 


10







 



        Subject
to the restrictions contained in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note. 


        Section 2.09.    Treasury Notes.    (a)    In determining whether the Holders of the required
principal amount of Notes have concurred in any notice, direction, waiver or consent, Notes owned by the Company or any other obligor on the Notes or by any Affiliate of the Company or of such other
obligor shall be disregarded, except that, for purposes of determining whether the Trustee shall be protected in relying on any such notice, direction, waiver or consent, only Notes which a Trust
Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to the Notes and that the pledgee is not the Company or any other obligor on the Notes or any Affiliate of the Company or of such other
obligor. 


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


        Section 2.10.    Temporary Notes.    Until definitive Notes are ready for delivery, the Company may prepare and
execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have
variations that the Company with the consent of the Trustee considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate and
deliver definitive Notes in exchange for temporary Notes. 



        Section 2.11.    Cancellation.    The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any Notes surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one
else shall cancel, in accordance with its standard procedures, all Notes surrendered for transfer, exchange, payment, conversion or cancellation and upon written request of the Company shall deliver
the canceled Notes to the Company. 


        Section 2.12.    CUSIP Numbers.    The Company in issuing the Notes may use one or more "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of purchase as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a purchase and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such purchase shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers. 


        Section 2.13.    Book-Entry Provisions for Global Notes.    (a)    Transfers of Global
Notes shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. In addition, Certificated Notes shall be transferred to all beneficial
owners, as identified by the Depositary, in exchange for their beneficial interests in Global Notes only if (i) the Depositary notifies the Company that the Depositary is unwilling or unable to
continue as depositary for any Global Note (or the Depositary ceases to be a "clearing agency" registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by
the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the
Depositary to issue Certificated Notes. 


11







 



        (b)   In
connection with the transfer of a Global Note in its entirety to beneficial owners pursuant to Section 2.13(a), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations. 



        (c)   The
Holder of any Global Note may grant proxies and otherwise authorize any Person to take any action that a Holder is entitled to take under this Indenture or the
Notes. 


        Section 2.14.    Special Transfer Provisions.    (a)    Notwithstanding any other provisions of this
Indenture, but except as provided in Section 2.13, a Global Note 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. 



        (b)   The
Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.13 or this Section 2.14. The
Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time during normal hours of operation of the Registrar upon the
giving of reasonable notice to the Registrar. 


ARTICLE 3
 REPURCHASES



        Section 3.01.    Repurchase at the Option of the Holders Upon Change in Control.    (a)    Upon the
occurrence of a Change in Control, each Holder shall have the right, at such Holder's option, subject to the terms and conditions of Article 3 of this Indenture, to require the Company to
repurchase for Cash all or any portion of such Holder's Notes in integral multiples of $1,000 principal amount at a price (the "Change in Control Repurchase
Price") equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the Change in Control Repurchase Date;  provided
that if the Change in Control Repurchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which it relates,
the interest accrued to the Interest Payment Date will be paid to Holders of the Notes as of the preceding Regular Record Date, and the Change in Control Repurchase Price shall be equal to the
principal amount of Notes subject to repurchase. Upon a valid exercise of such an option, the Company will be required to repurchase the Notes on a date selected by the Company (the
"Change in Control Repurchase Date"), which shall be no earlier than twenty (20) days or later than thirty-five (35) days
after the date on which the Company mails the notice contemplated by Section 3.01(b)(i), subject to satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.01(c). 


        A
"Change in Control" shall be deemed to have occurred at such time as any of the following events shall occur: 



          (i)  any
person or group, other than the Company, its Subsidiaries or any employee benefit plan of the Company or its Subsidiaries, files a Schedule 13D or Schedule
TO (or any successor schedule, form or report) pursuant to the Exchange Act disclosing that such person has become the beneficial owner of shares with a majority of the total voting power of all of
the Company's outstanding Voting Securities, unless such beneficial ownership (a) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made
pursuant to the applicable rules and regulations under the Exchange Act, and (b) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act; 


         (ii)  the
Company consolidates with or merges with or into another person (other than a Subsidiary of the Company) and the outstanding Voting Securities of the Company are
reclassified 



12







 




into,
converted for or converted into the right to receive any other property or security, or the Company sells, conveys, transfers or leases all or substantially all of its properties and assets to
any Person (other than a Subsidiary of the Company); provided that none of these circumstances will be a Change in Control if persons that beneficially
own the Voting Securities of the Company immediately prior to the transaction own, directly or indirectly, a majority of the Voting Securities of the surviving or transferee person immediately after
the transaction in substantially the same proportion as their ownership of the Company's Voting Securities immediately prior to the transaction; or 


        (iii)  the
holders of Common Stock approve any plan or proposal for the liquidation or dissolution of the Company. 




        For
purposes of defining a Change in Control: 



        (A)  the
term "person" and the term "group" have the meanings given by
Section 13(d) and 14(d) of the Exchange Act or any successor provisions; 


        (B)  the
term "group" includes any group acting for the purpose of acquiring, holding or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision; and 


        (C)  the
term "beneficial owner" is determined in accordance with Rules 13d-3 and 13d-5 under
the Exchange Act or any successor provisions, except that a person will be deemed to have beneficial ownership of all shares that person has the right to acquire irrespective of whether that right is
exercisable immediately or only after the passage of time. 




        Notwithstanding
the foregoing, it will not constitute a Change in Control if at least 90% of the consideration for Common Stock (excluding Cash payments for fractional shares and Cash
payments made in respect of dissenter's appraisal rights) in the transaction or transactions constituting the Change in Control consists of common stock traded on a United States national securities
exchange, or which will be so traded when issued or exchanged in connection with the Change in Control, and as a result of such transaction or transactions the Notes become convertible solely into the
consideration that holders of Common Stock receive in such transaction, other than any Cash in lieu of fractional shares, subject to the provisions set forth in Section 10.02. 


        (b)   On
or before the 15th day after the occurrence of a Change in Control, the Company will mail a written notice of Change in Control by first-class mail to the Trustee and
to each Holder at their addresses shown in the register of the Registrar (and to beneficial owners as required by applicable law). The notice shall include a form of Change in Control Repurchase
Notice to be completed by the Noteholder and shall state: 



          (i)  the
events causing a Change in Control; 


         (ii)  the
date of such Change in Control; 


        (iii)  the
last date on which the repurchase right may be exercised; 


        (iv)  the
Change in Control Repurchase Price; 


         (v)  the
Change in Control Repurchase Date; 



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


       (vii)  the
then current Applicable Conversion Rate and any adjustments thereto; 


      (viii)  that
Notes with respect to which a Change in Control Repurchase Notice is given by the Holder may be converted pursuant to Article 10 hereof only if the Change
in Control Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; and 



13








 




        (ix)  the
procedures a Holder must follow to exercise rights under this Section 3.01. 




        (c)   A
Holder may exercise its rights specified in Section 3.01 by delivery of a written notice (a "Change in Control Repurchase
Notice") to the Paying Agent at any time prior to the Close of Business on the Business Day immediately preceding the Change in Control Repurchase Date. The Change in Control
Repurchase Notice shall state: 



          (i)  if
Certificated Notes have been issued, the certificate number of the Notes (or if the Holder's Notes are not Certificated Notes, such Holder's notice must comply with
appropriate DTC procedures); 


         (ii)  the
portion of the principal amount of Notes to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and 


        (iii)  that
such Notes shall be repurchased by the Company pursuant to the terms and conditions specified in this Article 3. 




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



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


        Any
repurchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery of the consideration to be received by the Holder
(together with accrued and unpaid interest) on or prior to the later of the Change in Control Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this
Section 3.01. 


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


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



        No
Notes may be repurchased by the Company at the option of Holders upon a Change in Control if the principal amount of the Notes has been accelerated (other than as a result of a
default in the payment of the Change in Control Repurchase Price with respect to the Notes), and such acceleration has not been rescinded, on or prior to the date on which such repurchase is to be
consummated. The Paying Agent will promptly return to the respective Holders thereof any Notes (x) with respect to which a Change in Control Repurchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of acceleration described in the immediately preceding sentence in which case, upon such return, the Change in Control Repurchase
Notice with respect thereto shall be deemed to have been withdrawn. 



        Section 3.02.    Effect of Change in Control Repurchase Notice.    (a)    Upon receipt by the Paying
Agent of the Change in Control Repurchase Notice specified in Section 3.01(c), the Holder of the Note 


14







 



in
respect of which such Change in Control Repurchase Notice was given shall (unless such Change in Control Repurchase Notice is withdrawn as specified in this Section 3.02) thereafter be
entitled to receive solely the Change in Control Repurchase Price and any accrued and unpaid interest, with respect to such Note. Such Change in Control Repurchase Price shall be paid to such Holder,
subject to receipt of funds by the Paying Agent, on or prior to the later of (x) the Change in Control Repurchase Date, with respect to such Note (provided the conditions in
Section 3.01(c) have been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder thereof in the manner required by Section 3.01(c). Notes in
respect of which a Change in Control Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 10 hereof on or after the date of the delivery of such
Change in Control Repurchase Notice unless such Change in Control Repurchase Notice has first been validly withdrawn as specified in this Section 3.02. 



        (b)   A
Change in Control Repurchase Notice may be withdrawn 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 Business Day immediately preceding the Change in Control Repurchase Date. Such notice of withdrawal shall state: 



          (i)  the
principal amount being withdrawn; 


         (ii)  the
certificate numbers of the Notes being withdrawn (or, if the Notes are not Certificated Notes, such Holder's notice must comply with appropriate DTC procedures); 



        (iii)  the
principal amount, if any, of the Notes that remain subject to a Change in Control Repurchase Notice. 




        Section 3.03.    Deposit of Change In Control Repurchase Price.    Prior to 12:00 p.m. (New York City
time) on or prior to the Change in Control Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary of the Company or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of money (in immediately available funds if deposited on such Trading Day)
sufficient to pay the aggregate Change in Control Repurchase Price of all the Notes or portions thereof which are to be repurchased as of the Change in Control Repurchase Date. 


        If
the Paying Agent holds money sufficient to pay the Change in Control Repurchase Price with respect to the Notes to be repurchased on the Change in Control Repurchase Date in
accordance with the terms of this Indenture, then, immediately after the Change in Control Repurchase Date, interest on such Notes shall cease to accrue, whether or not the Notes are delivered to the
Paying Agent, and all other rights of the Holders of such Notes shall terminate, other than the right to receive the Change in Control Repurchase Price upon delivery of such Notes. 



        Section 3.04.    Notes Repurchased in Part.    Any Note which is to be repurchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Note, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal
amount of the Note so surrendered that is not repurchased. 



        Section 3.05.    Covenant to Comply with Securities Laws upon Repurchase of Notes.    In connection with any
repurchase upon the occurrence of a Change in Control, to the extent required by applicable law, the Company shall: 


        (a)   comply
with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be
applicable; and 


15







 



        (b)   otherwise
comply with all federal and state securities laws as necessary under this Indenture to effect a Change in Control repurchase of Notes by the Company at the
option of Holder. 


ARTICLE 4
 COVENANTS


        Section 4.01.    Payment of Notes.    (a)    The Company agrees to pay the principal of and interest
on the Notes on the dates and in the manner provided in the Notes and this Indenture. Not later than 12:00 p.m. New York City time, on the due date of any principal of or interest on any Notes,
or any Change in Control Repurchase Price of the Notes, the Company will deposit with the Trustee (or Paying Agent) money in immediately available funds sufficient to pay such amounts;  provided that if
the Company or any Affiliate of the Company is acting as Paying Agent, it will, on or before each due date, segregate and hold in a
separate trust fund for the benefit of the Holders a sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in this Indenture. In each case the
Company will promptly notify the Trustee of its compliance with this paragraph. 



        (b)   An
installment of principal or interest will be considered paid on the date due if the Trustee (or Paying Agent, other than the Company or any Affiliate of the Company)
holds on that date money designated for and sufficient to pay the installment. If the Company or any Affiliate of the Company acts as Paying Agent, an installment of principal or interest will be
considered paid on the due date only if paid to the Holders. 


        (c)   The
Company agrees to pay interest on overdue principal, and, to the extent lawful, overdue installments of interest at the rate per annum specified in the Notes. 



        (d)   Payments
in respect of the Notes represented by the Global Notes are to be made by wire transfer of same-day funds to the Depositary, with respect to that
portion of such Global Note held for its account by Cede & Co. for the purpose of permitting such party to credit the interest received by it in respect of such Global Note to the accounts of
the beneficial owners thereof. With respect to Certificated Notes, the Company will make all payments in same-day funds by transfer to an account maintained by the payee located inside the
United States, if the Trustee shall have received proper wire transfer instructions from such payee not later than the related Regular Record Date or, if no such instructions have been received by
check drawn on a bank in the United States mailed to the payee at its address set forth on the Registrar's books. 



        Section 4.02.    Maintenance of Office or Agency.    The Company will maintain in the United States, an office
or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company hereby initially designates the Corporate Trust Office of the Trustee as such office of the Company. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee. 



        The
Company may also from time to time designate one or more other offices or agencies where the Notes may be surrendered or presented for any of such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. 


        Section 4.03.    Existence.    The Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence, rights and franchises of the Company; provided that the Company is not required to
preserve any such right or franchise if the 


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preservation
thereof is no longer desirable in the conduct of the business of the Company; provided further that this Section does not prohibit
any transaction otherwise permitted by Section 5.01. 



        Section 4.04.    Annual Reports.    The Company shall deliver to the Trustee, within fifteen days after the
Company files the same with the Commission, copies of the Company's annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. In the event the
Company is at any time no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and, upon
written request, to each Noteholder, annual and quarterly reports containing substantially the same information as would have been required to be filed with the Commission had the Company continued to
have been subject to such reporting requirements. In such event, such annual and quarterly reports shall be provided at substantially similar times as the Company would have been required to provide
reports had it continued to have been subject to such reporting requirements. 


        Section 4.05.    Reports to Trustee.    (a)    The Company will deliver to the Trustee within
120 days after the end of each fiscal year a certificate from the principal executive, financial or accounting officer of the Company stating that the officer has conducted or supervised a
review of the activities of the Company and its Subsidiaries and their performance under this Indenture and that, based upon such review, the Company has fulfilled its obligations hereunder or, if
there has been a Default, specifying the Default and its nature and status. 


        (b)   The
Company will deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware or should reasonably become aware of
the occurrence of a Default, an Officers' Certificate setting forth the details of the Default, and the action which the Company proposes to take with respect thereto. 


        Section 4.06.    Stay, Extension and Usury Laws.    The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture, and the Company
(in each case, to the extent that it may lawfully do so) hereby covenants that it will not, by resort to any such law to the extent it would hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. 


ARTICLE 5
 CONSOLIDATION, MERGER, SALE OR LEASE OF ASSETS


        Section 5.01.    Consolidation, Merger, Sale or Lease of Assets by the Company.    (a)    The
Company, without the consent of the Holders of any of the outstanding Notes, may consolidate with or merge into any Person or convey, transfer or lease its properties and assets substantially as an
entirety to another Person only if: 



          (i)  the
resulting, surviving or transferee Person (if other than the Company) is a corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia; 


         (ii)  such
corporation (if other than the Company) assumes all of the obligations of the Company under the Notes and this Indenture; 


        (iii)  immediately
after giving effect to the transaction, no Event of Default and no Default has occurred and is continuing; and 



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        (iv)  the
Company delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and
the supplemental indenture (if any) comply with this Indenture. 




        (b)   Upon
the consummation of any transaction effected in accordance with these provisions, if the Company is not the resulting, surviving or transferee Person, the
resulting, surviving or transferee Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if
such successor Person had been named as the Company in this Indenture. Upon such substitution, except in the case of a lease, unless the successor is one or more of the Company's Subsidiaries, the
Company will be released from its obligations under the Notes and this Indenture. 


ARTICLE 6
 DEFAULT AND REMEDIES



        Section 6.01.    Events of Default.    An "Event of Default"
occurs with respect to the Notes if: 


        (a)   the
Company defaults in payment of the principal or any Change in Control Repurchase Price with respect to any Note, when such becomes due and payable; 


        (b)   the
Company defaults in payment of any interest due on any Note when the same becomes due and payable, and such default continues for a period of 30 days; 



        (c)   the
Company fails to issue any notice of a Change in Control as required under Section 3.01(b) of this Indenture or a Make-Whole Change in Control
that does not constitute a Change in Control as required under Section 10.13(a) of this Indenture; 


        (d)   the
Company fails to issue notice described in Section 10.01(e) as required under this Indenture; 


        (e)   the
Company fails to comply with its obligation to convert the Notes into Common Stock, Cash or a combination of Cash and Common Stock, as applicable, upon exercise of a
Holder's right to convert its Notes pursuant to Article 10; 


        (f)    the
Company fails to comply with its obligations under Article 5; 


        (g)   the
Company fails to comply with any of its other covenants or agreements in the Notes or this Indenture upon receipt by the Company of a notice of such default by the
Trustee or by Holders of not less than 25% in aggregate principal amount of the Notes then outstanding and the failure by the Company to cure (or obtain a waiver of) such default within 60 days
after receipt of such notice; 


        (h)   (1)
the Company fails to make any payment by the end of any applicable grace period after maturity of any Debt in an amount in excess of $50,000,000 and continuance of
such failure, or (2) the acceleration of Debt in an amount in excess of $50,000,000 because of a default with respect to such Debt without such Debt having been discharged or such acceleration
having been cured, waived, rescinded or annulled within a period of 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding; provided, however, if any such failure
or acceleration referred to in (1) or (2) above shall cease or be cured, waived, rescinded or annulled, then the resulting Event of Default shall be deemed not to have occurred; 


        (i)    a
final judgment for the payment of $50,000,000 or more is rendered against the Company or any Subsidiaries of the Company and such amount is not covered by insurance or
an indemnity or not discharged when due or stayed within 30 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the
date on which all rights to appeal have been extinguished; 


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        (j)    the
Company, pursuant to or under or within the meaning of any Bankruptcy Law, (i) commences a voluntary case or proceeding; (ii) consents to the entry of
an order for relief against it in an involuntary case or proceeding or the commencement of any case against it; (iii) consents to the appointment of any receiver, trustee, assignee, liquidator,
custodian or similar official of it or for any substantial part of its property; (iv) makes a general assignment for the benefit of its creditors; (v) files a petition in bankruptcy or
answer or consent seeking reorganization or relief; or (vi) consents to the filing of such petition or the appointment of or taking possession by any receiver, trustee, assignee, liquidator,
custodian or similar official; or 


        (k)   a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt; (ii) appoints any receiver, trustee, assignee, liquidator, custodian or similar official of the Company or for any substantial part
of its property; or (iii) orders the winding up or liquidation of the Company, and the order or decree remains unstayed and in effect for 30 days (an event of default specified in
clause (j) or (k) a "Bankruptcy Default"). 


        Section 6.02.    Acceleration.    If an Event of Default, other than a Bankruptcy Default, occurs and is
continuing under this Indenture, the Trustee or the Holders of at least 25% in aggregate of the
outstanding principal amount of the Notes, by written notice to the Company (and to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such Holders shall,
declare the principal of and accrued and unpaid interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal and interest will become immediately due and
payable. If a Bankruptcy Default occurs, the principal of and accrued interest on the Notes then outstanding will become immediately due and payable automatically without any declaration or other act
on the part of the Trustee or any Holder. 


        Section 6.03.    Other Remedies.    If an Event of Default occurs and is continuing, the Trustee may pursue, in
its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of principal of and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. 


        Section 6.04.    Waiver of Past Defaults.    Except as otherwise provided in Section 6.07 and
Section 9.02(b), Holders of a majority in principal amount of the outstanding Notes by written notice to the Company and to the Trustee may waive any past Default and rescind and annul a
declaration of acceleration with respect to such Default and its consequences (other than an uncured default (x) in the payment of the principal amount with respect to any Note, accrued and
unpaid interest with respect to any Note or the Change in Control Repurchase Price with respect to any Note (b) in the payment or delivery of the consideration due upon conversion of the Notes
or (c) in respect of any provision that under this Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note affected) if: 



          (i)  all
existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by the declaration
of acceleration, have been cured or waived, and 


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




Upon
such waiver, the Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver will extend to any subsequent or other Default or
impair any right consequent thereon. 


        Section 6.05.    Control by Majority.    The Holders of a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any proceeding for any 


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remedy
available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may
involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction, and may
take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. 



        Section 6.06.    Limitation on Suits.    A Holder may not institute any proceeding, judicial or otherwise, with
respect to this Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy under this Indenture or the Notes, unless: 



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



         (ii)  Holders
of at least 25% in aggregate principal amount of outstanding Notes have made written request to the Trustee to institute proceedings in respect of the Event of
Default in its own name as Trustee under this Indenture; 


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


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



         (v)  during
such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction that is
inconsistent with such written request. 




        Section 6.07.    Rights of Holders to Receive Payment.    Notwithstanding anything to the contrary, the right
of a Holder of a Note to receive (x) payment of principal of or interest on its Note on the Maturity Date or the relevant Interest Payment Date, as the case may be, (y) payment of the
Change in Control Repurchase Price on the Change in Control Repurchase Date and (z) payment or delivery, as the case may be, of Cash, Common Stock or a combination thereof upon conversion of
such Note on the date specified in the third paragraph of Section 10.02(b), or to bring suit for the enforcement of any such
payment or delivery, as the case may be, on or after such respective dates, may not be impaired or affected without the consent of that Holder. 


        Section 6.08.    Collection Suit by Trustee.    If an Event of Default in payment of principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust for the whole amount
of principal and accrued interest remaining unpaid, together with interest on overdue principal and, to the extent lawful, overdue installments of interest, in each case at the rate specified in the
Notes, and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee hereunder. 


        Section 6.09.    Trustee may File Proofs of Claim.    The Trustee may file proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee hereunder) and the Holders allowed in any judicial proceedings relating to the Company or its creditors or property, and is entitled and empowered to
collect, receive and distribute any money, securities or other property payable or deliverable upon conversion or exchange of the Notes or upon any such claims. Any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, if the 


20







 



Trustee
consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee hereunder. Nothing in this Indenture will be deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding. 



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



        First:
to the Trustee for all amounts due hereunder; 


        Second:
to Holders for amounts then due and unpaid for principal of and interest on the Notes, ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest; and 


        Third:
to the Company or as a court of competent jurisdiction may direct. 




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


        Section 6.11.    Restoration of Rights and Remedies.    If the Trustee or any Holder has instituted a
proceeding to enforce any right or remedy under this Indenture and the proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to the Holder,
then, subject to any determination in the proceeding, the Company, the Trustee and the Holders will be restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Company, the Trustee and the Holders will continue as though no such proceeding had been instituted. 


        Section 6.12.    Undertaking for Costs.    In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an undertaking to
pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys fees, against any party litigant (other than the Trustee) in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by a Holder to enforce payment of principal of or interest on any Note on the
respective due dates, or a suit by Holders of more than 10% in principal amount of the outstanding Notes. 


        Section 6.13.    Rights and Remedies Cumulative.    No right or remedy conferred or reserved to the Trustee or
to the Holders under this Indenture is intended to be exclusive of any other right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in addition to every
other right and remedy hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not prevent the
concurrent assertion or exercise of any other right or remedy. 


        Section 6.14.    Delay or Omission Not Waiver.    No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be. 


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   ARTICLE 7
 THE TRUSTEE


        Section 7.01.    General.    (a)    The duties and responsibilities of the Trustee are as provided by
the Trust Indenture Act and as set forth herein. Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection
to the Trustee is subject to this Article. 


        (b)   Except
during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations will be read into this Indenture against the Trustee. In case an Event of Default has occurred and is continuing, the Trustee shall exercise those 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. 



        (c)   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. 


        Section 7.02.    Certain Rights of Trustee.    Subject to Trust Indenture Act Sections 315(a) through
(d): 


        (a)   In
the absence of bad faith on its part, the Trustee may rely, and will be protected in acting or refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but, in the case of any document which is specifically required to be furnished to
the Trustee pursuant to any provision hereof, the Trustee shall examine the document to determine whether it conforms to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). The Trustee, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit. 



        (b)   Before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel conforming to Section 12.06 and the Trustee will
not be liable for any action it takes or omits to take in good faith in reliance on the certificate or opinion. 


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


        (d)   The
Trustee will 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, unless
such Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. 


        (e)   The
Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any action
it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05 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. 



        (f)    The
Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel will 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. 


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        (g)   No
provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties
hereunder, or in the exercise of its rights or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense. 


        Section 7.03.    Individual Rights of Trustee.    The Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. 



        Section 7.04.    Trustee's Disclaimer.    The Trustee (a) makes no representation as to the validity or
adequacy of this Indenture or the Notes, (b) is not accountable for the Company's use or application of the proceeds from the Notes and (c) is not responsible for any statement in the
Notes other than its certificate of authentication. 


        Section 7.05.    Notice of Default.    If any Default occurs and is continuing and is known to the Trustee, the
Trustee will send notice of the Default to each Holder within 90 days after it occurs, unless the Default has been cured; provided that, except
in the case of a default (x) in the payment of the principal of or interest on any Note (y) in the payment of the Change in Control Repurchase Price on the Change in Control Repurchase
Date or (z) in the payment or delivery, as the case may be, of Cash, Common Stock or a combination thereof upon conversion of such Note on the date specified in the third paragraph of
Section 10.02(b), the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors of the Trustee in good faith determines
that withholding the notice is in the interest of the Holders. Notice to Holders under this Section will be given in the manner and to the extent provided in Trust Indenture Act
Section 313(c). 


        Section 7.06.    Reports by Trustee to Holders.    Within 60 days after each May 15, beginning
with May 15, 2007, the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c), a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a), and file such reports with each stock exchange upon which its Notes are listed and with the Commission as required by Trust Indenture Act Section 313(d). 


        Section 7.07.    Compensation and Indemnity.    (a)    The Company will pay the Trustee compensation
as agreed upon in writing for its services. The compensation of the Trustee is not limited by any law on compensation of a Trustee of an express trust. The Company will reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Trustee, including the reasonable compensation and expenses of the
Trustee's agents and counsel. 


        (b)   The
Company will indemnify the Trustee for, and hold it harmless against, any loss or liability or expense incurred by it without negligence or bad faith on its part
arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Notes, including the costs and expenses of defending itself against
any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under this Indenture and
the Notes. 


        (c)   To
secure the Company's payment obligations in this Section, the Trustee will have a lien prior to the Notes on all money or property held or collected by the Trustee,
in its capacity as Trustee, except money or property held in trust to pay principal of, and interest on particular Notes. 


        Section 7.08.    Replacement of Trustee.    (a) (i)    The Trustee may resign at any time by
written notice to the Company. 



         (ii)  The
Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by written notice to the Trustee. 



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        (iii)  If
the Trustee is no longer eligible under Section 7.10 or in the circumstances described in Trust Indenture Act Section 310(b), any Holder that
satisfies the requirements of Trust Indenture Act Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. 


        (iv)  The
Company may remove the Trustee if (A) the Trustee is no longer eligible under Section 7.10; (B) the Trustee is adjudged a bankrupt or an
insolvent; (C) a receiver or other public officer takes charge of the Trustee or its property; or (D) the Trustee becomes incapable of acting. 




A
resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. 



        (b)   If
the Trustee has been removed by the Holders, Holders of a majority in principal amount of the Notes may appoint a successor Trustee with the consent of the Company.
Otherwise, if the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. If the successor Trustee does
not deliver its written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the
outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. 



        (c)   Upon
delivery by the successor Trustee of a written acceptance of its appointment to the retiring Trustee and to the Company, (i) the retiring Trustee will
transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07(c), (ii) the resignation or removal of the retiring Trustee will
become effective, and (iii) the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. Upon request of any successor Trustee, the Company will
execute any and all reasonable instruments for fully and vesting in and confirming to the successor Trustee all such rights, powers and trusts. The Company will give notice of any resignation and any
removal of the Trustee and each appointment of a successor Trustee to all Holders, and include in the notice the name of the successor Trustee and the address of its Corporate Trust Office. 


        (d)   Notwithstanding
replacement of the Trustee pursuant to this Section, the Company's obligations under Section 7.07 will continue for the benefit of the retiring
Trustee. 


        (e)   The
Trustee agrees to give the notices provided for in, and otherwise comply with, Trust Indenture Act Section 310(b). 


        Section 7.09.    Successor Trustee by Merger.    If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking
association without any further act will be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee in this Indenture. 


        Section 7.10.    Eligibility.    This Indenture must always have a Trustee that satisfies the requirements of
Trust Indenture Act Section 310(a) and has a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. 



        Section 7.11.    Money Held in Trust.    The Trustee will not be liable for interest on any money received by
it except as it may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust under
Article 8. 


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ARTICLE 8
 DISCHARGE


        Section 8.01.    Satisfaction and Discharge of this Indenture.    (a)    This Indenture shall cease
to be of further effect if either: (i) all outstanding Notes (other than Notes replaced pursuant to Section 2.07) have been delivered to the Trustee for cancellation or (ii) all
outstanding Notes have become due and payable on the Maturity Date, any Change in Control Repurchase Date in connection with any repurchase upon the occurrence of a Change in Control, on the date
specified in the third paragraph of Section 10.02(b) in connection with any conversion of such Notes, and the Company irrevocably deposits or delivers, as the case may be, prior to the
applicable date on which such payment or delivery, as the case may be, is due and payable, with the Trustee, the Paying Agent (if the Paying Agent is not the Company or any of its Affiliates) or the
Conversion Agent Cash and Common Stock, if any, in respect of any such conversion, and, if applicable as herein provided and in accordance herewith, such other consideration, sufficient to pay all
amounts due and payable on all outstanding Notes (other than Notes replaced pursuant to Section 2.07) on the Maturity Date, the Change in Control Repurchase Date or the date specified in the
third paragraph of Section 10.02(b), as the case may be; provided that, in all cases, the Company shall pay to the Trustee all other sums payable
hereunder by the Company. 


        (b)   The
Company may exercise its satisfaction and discharge option with respect to the Notes only if: 



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


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


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




        Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07 shall survive and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Section 2.03, Section 2.04, Section 2.05, Section 2.06, Section 2.07,
Section 2.12, Section 3.01, Article 5, Article 10 and this Article 8, shall survive and the Company shall be required to make all payments and deliveries required by
such Sections or Articles, as the case may be, irrespective of any prior satisfaction and discharge until the Notes have been paid in full. 



        Section 8.02.    Application of Trust Money.    Subject to the provisions of Section 8.03, the Trustee
or a Paying Agent shall hold in trust, for the benefit of the Holders, all money, Common Stock or other consideration paid or delivered to it, as the case may be, pursuant to Section 8.01 and
shall apply such money, Common Stock or other consideration in accordance with this Indenture and the Notes to the payment of the principal amount of (including the relevant Change in Control
Repurchase Price) and interest on, or the amount due in connection with any conversion of, the Notes. 



        Section 8.03.    Repayment to Company.    The Trustee and each Paying Agent shall promptly pay or deliver, as
the case may be, to the Company upon request any excess money, Common Stock or other consideration (x) paid or delivered to them pursuant to Section 8.01 and (y) held by them at
any time. 


        The
Trustee and each Paying Agent shall also pay or deliver, as the case may be, to the Company upon request any money, Common Stock or other consideration held by them for the payment
of the 


25







 



principal
amount of (including the relevant Change in Control Repurchase Price) and interest on, or the amount due in connection with any conversion of, the Notes that remains unclaimed for two years
after a right to such money, Common Stock or other consideration has matured (which maturity shall occur, for the avoidance of doubt, on the Maturity Date, the Change in Control Repurchase Date or the
date specified in the third paragraph of Section 10.02(b), as the case may be); provided,  however, that the Trustee or such Paying Agent, before being
required to make any such payment or delivery, may at the expense of the Company cause to
be mailed to each Holder entitled to such money, Common Stock or other consideration or publish in a newspaper of general circulation in the City of New York notice that such money, Common Stock or
other consideration remains unclaimed and that after a date specified therein, which shall be at least 30 days from the date of such mailing or publication, any unclaimed balance or portion of
such money, Common Stock or other consideration then remaining will be repaid or re-delivered to the Company. After payment or delivery, as the case may be, to the Company, Holders
entitled to such money, Common Stock or other consideration must look to the Company for payment or delivery as general creditors unless an applicable abandoned property law designates another Person. 


        Section 8.04.    Reinstatement.    If the Trustee or any Paying Agent is unable to apply any money, Common
Stock or other consideration in accordance with Section 8.02 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Notes shall be revived and reinstated as though no payment or delivery, as the case
may be, had occurred pursuant to Section 8.01 until such time as the Trustee or such Paying Agent is permitted to apply all such money in accordance with Section 8.02;  provided, however, that if the Company has made any payment of the principal amount of (including the
relevant Change in Control Repurchase Price) or interest on, or the amount due in connection with any conversion of, the Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive any such payment or delivery from the money, Common Stock or other consideration held by the Trustee or such Paying Agent. 


ARTICLE 9
 AMENDMENTS, SUPPLEMENTS AND WAIVERS


        Section 9.01.    Amendments Without Consent of Holders.    The Company and the Trustee may amend or supplement
this Indenture or the Notes without notice to or the consent of any Noteholder: 



        (a)   to
cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes that does not adversely affect the rights of any Holder of the Notes
(provided that no amendment to cure any ambiguity, defect or inconsistency in this Indenture or the Notes made solely to conform this Indenture or the
Notes to the "Description of Notes" contained in the Prospectus will be deemed to adversely affect the interests of the Holders of the Notes); 


        (b)   to
evidence a successor to the Company and the assumption by that successor of the obligations of the Company under this Indenture in accordance with Article 5 or
Section 10.12 of this Indenture; 


        (c)   to
secure the obligations of the Company in respect of the Notes and this Indenture; 


        (d)   to
add to the covenants of the Company for the benefit of the Holders of the Notes or to surrender any right or power conferred upon the Company; 


        (e)   to
make any change to comply with the Trust Indenture Act, or any amendment thereto; and 


        (f)    to
make any change that does not adversely affect the rights of any Holder of the Notes. 


26







 



        Section 9.02.    Amendments With Consent of Holders.    (a)    Except as otherwise provided in
Section 6.07 or paragraph (b), the Company and the Trustee may amend this Indenture and the Notes with the written consent of the Holders of at least a majority in principal amount of
the outstanding Notes, and the Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may, on behalf of the Holders of such Notes waive any existing or
past default under this Indenture and its consequences, except an uncured default (i) in the payment of the principal amount with respect to any Note, accrued and unpaid interest with respect
to any Note or the Change in Control Repurchase Price with respect to any Note (ii) in the payment or delivery of the consideration due upon conversion of the Notes or (iii) in respect
of any provision that under this Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note affected. 


        (b)   Notwithstanding
the provisions of paragraph (a), without the consent of each Holder affected, an amendment or waiver may not: 



          (i)  reduce
the principal amount of, Change in Control Repurchase Price with respect to or any premium or interest payment on any Note; 


         (ii)  make
any Note payable in any currency or securities other than that stated in the Note; 


        (iii)  change
the Maturity Date of any Note; 


        (iv)  change
the ranking of the Notes; 


         (v)  make
any change that adversely affects the right of a Holder to convert any Note; 


        (vi)  make
any change that adversely affects the right of a Holder to require the Company to repurchase a Note upon the occurrence of a Change in Control; 


       (vii)  impair
the right to convert or receive payment with respect to the Notes or the right to institute suit for the enforcement of any payment with respect to, or
conversion of, the Notes; or 


      (viii)  change
the provisions in this Indenture that relate to modifying or amending the provisions of this Indenture. 




        (c)   It
is not necessary for Noteholders to approve the particular form of any proposed amendment, supplement or waiver, but is sufficient if their consent approves the
substance thereof. 


        (d)   An
amendment, supplement or waiver under this Section will become effective on receipt by the Trustee of written consents from the Holders of the requisite
percentage in principal amount of the outstanding Notes. After an amendment, supplement or waiver under this Section becomes effective, the Company will send to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will send supplemental indentures to Holders upon request. Any failure of the Company to send such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. 


        Section 9.03.    Effect of Consent.    (a)    After an amendment, supplement or waiver becomes
effective, it will bind every Holder unless it is of the type requiring the consent of each Holder affected. If the amendment, supplement or waiver is of the type requiring the consent of each Holder
affected, the
amendment, supplement or waiver shall bind each Holder that has consented to it and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting Holder. 


        (b)   If
an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver it to the Trustee so that the Trustee may place an
appropriate notation of the changed terms on the Note and return it to the Holder, or exchange it for a new Note that reflects the changed terms. The Trustee may also place an appropriate notation on
any Note thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not affected by any failure to annotate or exchange Notes in this fashion. 


27







 



        Section 9.04.    Trustee's Rights and Obligations.    The Trustee is entitled to receive, and will be fully
protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article is authorized or permitted by this Indenture. If
the Trustee has received such an Opinion of Counsel, it shall sign the amendment, supplement or waiver so long as the same does not adversely affect the rights of the Trustee. The Trustee may, but is
not obligated to, execute any amendment, supplement or waiver that affects the Trustee's own rights, duties or immunities under this Indenture. 


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


        Section 9.06.    Payments for Consents.    Neither the Company nor any of its Subsidiaries or Affiliates may,
directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or agreed to be paid to all Holders of the Notes that consent, waive or agree to amend such term or
provision within the time period set forth in the solicitation documents relating to the consent, waiver or amendment. 


ARTICLE 10
 CONVERSION


        Section 10.01.    Conversion Privilege.    (a)    Subject to and upon compliance with the provisions
of this Article 10, a Noteholder shall have the right, at such Noteholder's option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral
multiple thereof) of such
Noteholder's Notes (1) at any time prior to the Close of Business on August 14, 2011 upon the occurrence of any of the events set forth in clauses (i) through (vi) of
Section 10.01(b) and (2) at any time on or after August 15, 2011 until the Close of Business on the Business Day immediately preceding the Maturity Date without regard to the
occurrence of any of the events set forth in clauses (i) through (vi) of Section 10.01(b), in each case, at a conversion rate (the "Conversion
Rate") equivalent to [    ] shares of Common Stock, per $1,000 principal amount of Notes, subject to adjustment as set forth in this
Article 10. Upon conversion of any Notes, the Company shall pay or deliver to the converting Noteholder Cash, shares of Common Stock, or a combination thereof, as described in
Section 10.02 (the Company's obligation to pay or deliver such consideration being herein called the "Conversion Obligation"). 


        (b)   A
Noteholder may convert its Note into Cash, shares of Common Stock, or a combination thereof, as described in Section 10.02, prior to the Close of Business on
August 14, 2011, upon the occurrence of any of the transactions or events set forth below: 



          (i)  during
any calendar quarter commencing at any time after December 31, 2006, and only during such calendar quarter, if the Closing Price of Common Stock for at
least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last Trading Day of the preceding calendar quarter exceeds 120% of the Conversion Price per share of Common Stock on
the last day of such preceding calendar quarter (the "Conversion Trigger Price"); 


         (ii)  during
the five Business Day period after any five consecutive Trading Day period in which the Trading Price per $1,000 principal amount of Notes for each Trading Day
during that five-day period was less than 98% of the product of the Closing Price of Common Stock and the then Applicable Conversion Rate, subject to compliance with the procedures and
conditions described in Section 10.01(b) concerning the Trustee's obligation to make a Trading Price determination (the "Trading Price
Condition"); 



28







 




        (iii)  if
the Company elects to distribute to all holders of Common Stock rights, options or warrants entitling all holders of Common Stock to subscribe for or purchase
Common Stock, for a period expiring within 60 days after the record date for such distribution, at less than the average of the Closing Prices of Common Stock for the five consecutive Trading
Days ending on the date immediately preceding the announcement of such distribution, during the period beginning on, and including, the date the Company provides notice to Noteholders of such
distribution as set forth in Section 10.01(e) and ending on, and including, the earlier of (x) the Close of Business on the Business Day prior to the Ex-Date for such
distribution and (y) the Company's announcement that such distribution will not take place; 


        (iv)  if
the Company elects to distribute to all holders of Common Stock Cash, debt securities (or other evidence of Debt) or other assets (excluding dividends or
distributions described in Section 10.06), which distribution, together with all other such distributions within the preceding twelve months, has a per share value exceeding 15% of the average
of the Closing Prices of Common Stock for the five consecutive Trading Days ending on the date immediately preceding the first public announcement of such distribution, during the period beginning on,
and including, the date the Company provides notice to Noteholders of such distribution as set forth in Section 10.01(e) and ending on, and including, the earlier of (x) the Close of
Business on the Business Day prior to the Ex-Date for such distribution and (y) the Company's announcement that such distribution will not take place; 


         (v)  if
a Change if Control or a Make-Whole Change in Control that does not constitute a Change in Control occurs, during the period from, and including, the date
that is 35 Business Days prior to the anticipated effective date of the transaction to, and including, the date that is 35 Trading Days after the actual effective date of such transaction (or, if such
transaction also constitutes a Change in Control, until the related Change in Control Repurchase Date); or 


        (vi)  if
the Company is party to a consolidation, merger, binding share exchange, or transfer or lease of all or substantially all of the Company's assets, pursuant to which
Common Stock would be converted into Cash, securities or other assets, during the period from, and including, the date that is 35 Business Days prior to the anticipated effective date of the
transaction to, and including, the date that is 35 Trading Days after the actual effective date of such transaction (or, if such transaction also constitutes a Change in Control, until the related
Change in Control Repurchase Date). 




        (c)   The
Conversion Trigger Price as set forth in Section 10.01(b)(i) immediately following issuance of the Notes will be
$[    ], which is 120% of the initial Conversion Price for such Notes per share of Common Stock. The Conversion Trigger Price is subject to the same adjustments as
the adjustments to the Conversion Rate under Section 10.06, Section 10.07, Section 10.08, Section 10.09 and Section 10.10. The Company will determine at the
beginning of each quarter commencing at any time after December 31, 2006 (through the calendar quarter ending June 30, 2011) whether the Notes are convertible as a result of the price of
Common Stock and will notify the Company, the Conversion Agent and the Trustee. 


        (d)   In
connection with any conversion upon satisfaction of the Trading Price Condition as set forth in Section 10.01(b)(ii) above, the Trustee shall have no
obligation to determine the Trading Price of the Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request unless a Noteholder provides
the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Closing Price of Common Stock and the then Applicable
Conversion Rate. At such time, the Company shall instruct the Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading
Price per $1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Closing Price of Common Stock and 


29







 



the
then Applicable Conversion Rate. If the Company does not, when it is obligated to, make a request to the Trustee to determine the Trading Price per $1,000 principal amount of Notes, or if the
Company makes such request to the Trustee but the Trustee does not make such determination, then the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Closing Price of Common Stock and the then applicable Conversion Rate. If the Trading Price Condition has been met, the Company shall so notify the Noteholders. If, at any point after
the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of the Closing Price of Common Stock and the then Applicable
Conversion Rate, the Company shall so notify Noteholders. 


        (e)   Upon
the announcement of any distribution described in Section 10.01(b)(iii) or Section 10.01(b)(iv), the Company shall notify the Noteholders at
least 35 Business Days prior to the Ex-Date for such distribution by (i) issuing a press release and using its reasonable efforts to post such information on its website or
otherwise publicly disclose this information or (ii) providing written notice to Noteholders by mailing such notice to Noteholders at their address in the Register (in the case of a
Certificated Note), or through the facilities of the Depositary (in the case of a Global Note). 


        Following
the announcement of any public announcement of a transaction described in Section 10.01(b)(v) or Section 10.01(b)(vi), the Company shall notify the
Noteholders and the Trustee as promptly as practicable, but in no event less than 35 Business Days prior to the anticipated effective date of such transaction by (i) issuing a press release and
using its reasonable efforts to post such information on its website or otherwise publicly disclose this information or (ii) providing written notice to Noteholders by mailing such notice to
Noteholders at their address in the Register (in the case of a Certificated Note), or through the facilities of the Depositary (in the case of a Global Note). 


        (f)    Upon
determining that Noteholders are entitled to convert their Notes in accordance with the provisions set forth in Section 10.01(b), the Company shall promptly
(i) issue a press release and use its reasonable efforts to post such information on its website or otherwise publicly disclose this information or (ii) provide written notice to
Noteholders by mailing such notice to Noteholders at their address in the Register (in the case of a Certificated Note), or through the facilities of the Depositary (in the case of a Global Note). 



        (g)   Noteholders
shall not have the right to convert their Notes pursuant to Section 10.01(b)(iii) or Section 10.01(b)(iv) if in connection with
the distribution described in Section 10.01(b)(iii) or Section 10.01(b)(iv) that gives rise to a right to convert their Notes, such Noteholders are entitled to participate
(as a result of holding their Notes, and at the same time as holders of Common Stock participate) in the distribution described in such Section as if such Noteholders held a number shares of
Common Stock equal to the applicable Conversion Rate on the Ex-Date for such distribution, multiplied by the principal amount (expressed in
thousands) of Notes held by such Noteholder, without having to convert their notes. 



        Section 10.02.    Conversion Procedures; Conversion Settlement.    (a)    To convert a Note that is
represented by a Certificated Note, a Noteholder must (1) complete and manually sign a Conversion Notice, a form of which is on the back of the Note, and deliver such Conversion Notice to the
Conversion Agent, (2) surrender the Note to the Conversion Agent, (3) if required, furnish appropriate endorsement and transfer documents, (4) if required, pay all transfer or
similar taxes and (5) if required, pay Cash equal to amount of interest due on the next Interest Payment Date for such Note. If a Noteholder holds a beneficial interest in a Global Note, to
convert such beneficial interest, such Noteholder must comply with the requirements (4) and (5) as set forth in the immediately preceding sentence and comply with the Depositary's
procedures for converting a beneficial interest in a Global Note. The date on which the requirement set forth in the first sentence of this Section 10.02(a) (in the case of a Certificated Note)
or the second sentence of this Section 10.02(a) (in the case of a Global Note or a beneficial interest therein) is referred to in this Indenture as the "Conversion
Date." The 


30







 



Conversion
Agent shall, within one (1) Business Day of any Conversion Date, provide notice to the Company, as set forth in Section 12.03, of the occurrence of such Conversion Date. 


        (b)   Except
to the extent the Company has irrevocably elected Net Share Settlement as described in Section 10.02(c), the Company may satisfy the Conversion Obligation
by delivering shares of Common Stock, Cash, or a combination thereof as set forth in this Section 10.02(b). Except to the extent the Company has irrevocably elected Net Share Settlement as
described in Section 10.02(c), the Company shall inform Noteholders through the Trustee of the method the Company chooses to satisfy the Conversion Obligation (and the Specified Cash Amount, if
applicable) no later than the Maturity Date (in respect of Notes converted during the period beginning 20 Business Days immediately preceding the Maturity Date for such Notes) and no later than two
Trading Days following the applicable Conversion Date (in all other cases), as the case may be. Except to the extent the Company has irrevocably elected Net Share Settlement as described in
Section 10.02(c), if the Company does not give notice within the time periods described in the immediately preceding sentence as to how it intends to settle any Conversion Obligation, the
Company shall satisfy the Conversion Obligation by delivering solely shares of Common Stock (except for any Cash in lieu of fractional shares) as set forth in clause (1) below. 



        If
the Company chooses to satisfy any portion of the Conversion Obligation in Cash (except for any Cash in lieu of fractional shares), or if the Company has irrevocably elected Net Share
Settlement as described in Section 10.02(c), the Company shall notify holders during the periods set forth in the immediately preceding paragraph of the amount to be satisfied in Cash as a
fixed dollar amount per
$1,000 principal amount of Notes (the "Specified Cash Amount"); provided that if the Company has
previously irrevocably elected Net Share Settlement as described in Section 10.02(c), the Specified Cash Amount shall be greater than or equal to $1,000. The Company shall treat all Holders
with the same Cash Settlement Averaging Period in the same manner. The Company shall not, however, have any obligation to settle any Conversion Obligations arising with respect to different Cash
Settlement Averaging Periods in the same manner. 


        If
the Company elects to settle any conversion of Notes by delivering solely shares of Common Stock, such settlement shall occur as soon as practicable after the Company notifies Holders
that is has chosen such method of settlement, but in any event within three Business Days of the relevant Conversion Date. Any settlement of a Conversion Obligation made entirely or partially in Cash
(other than Cash in lieu of fractional shares) shall occur on the third Business Day immediately following the final Trading Day of the Cash Settlement Averaging Period. 



        The
amount of Cash and/or number of shares of Common Stock, as the case may be, due upon conversion of Notes shall be determined as follows: 



	(1)
	If
the Company elects to satisfy the entire Conversion Obligation by delivering Common Stock, the Company shall deliver to the converting Holder a number of shares of Common Stock
equal to (i) (A) the aggregate principal amount of Notes to be converted, divided by (B) 1,000, multiplied
by (ii) the Applicable Conversion Rate in effect on the relevant Conversion Date (provided that the Company shall deliver
Cash in lieu of fractional shares as described in Section 10.03).



	(2)
	If
the Company elects to satisfy the entire Conversion Obligation by paying Cash, the Company shall pay to the converting Holder, for each $1,000 principal amount of Notes so
converted, Cash in an amount equal to the Conversion Value.



	(3)
	If
the Company elects to satisfy the Conversion Obligation by delivering or paying, as the case may be, a combination of Cash and Common Stock, the Company shall deliver to the
converting holder, for each $1,000 principal amount of Notes so converted (x) Cash in an amount equal to the lesser of (A) the Specified Cash Amount and (B) the Conversion Value; 



31







 


and
(y) if the Conversion Value is greater than the Specified Cash Amount, a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each of the twenty Trading Days in
the Cash Settlement Averaging Period (provided that the Company shall deliver Cash in lieu of fractional shares as described in Section 10.03). 





        (c)   At
any time on or prior to the Maturity Date, the Company may irrevocably elect to satisfy the Conversion Obligation with respect to any Notes converted after the date
of such by delivering Cash up to the aggregate principal amount of Notes to be converted, and shares of Common Stock, Cash or a combination thereof in respect of the remainder, if any, of the
Conversion Obligation in excess of the aggregate principal amount of the Notes being converted as set forth in the immediately succeeding paragraph. Such election shall be in the Company's sole
discretion and shall not require the consent of Noteholders. We refer to settlement of the Conversion Obligation following such election as "Net Share
Settlement". Upon making such election, the Company shall promptly (i) issue a press release and use its reasonable efforts to post such information on its website or
otherwise publicly disclose this information or (ii) provide written notice to Noteholders by mailing such notice to Noteholders at their address in the Register (in the case of a Certificated
Note), or through the facilities of the Depositary (in the case of a Global Note). 


        If
the Company elects Net Share Settlement, with respect to any Notes converted after the date of such election, for each $1,000 principal amount of Notes surrendered for conversion,
Noteholders shall receive an amount of Cash and number of shares of Common Stock (if any) determined pursuant to clause (3) in Section 10.02(b);  provided that the Specified Cash Amount shall
be greater than or equal to $1,000. If, subsequent to the Company electing Net Share Settlement, the
Company fails to timely notify converting Noteholders of the Specified Cash Amount as described in Section 10.02(b), the Specified Cash Amount shall be deemed to be $1,000. 


        (d)   A
Holder receiving Common Stock upon conversion shall not be entitled to any rights as a holder of Common Stock, including, among other things, the right to vote and
receive dividends and notices of stockholder meetings, until the Close of Business on the Conversion Date (if the Company delivers solely Common Stock in respect of the Conversion Obligation pursuant
to clause (1) of Section 10.02(b), other than Cash in lieu of fractional shares delivered pursuant to Section 10.03) or the Close of Business on the last Trading Day of the Cash
Settlement Averaging Period (if the Company delivers cash in respect of any portion of the Conversion Obligation pursuant to clause (3) of Section 10.02(b), other than Cash in lieu of
any fractional shares delivered pursuant to Section 10.03, or if the Company has irrevocably elected Net Share Settlement). 


        (e)   No
payment or adjustment will be made for dividends on, or other distributions with respect to, any Common Stock except as provided in this Article 10. Upon
conversion of a Note, a Noteholder will not receive, except as described below, any Cash payment representing accrued interest. Instead, accrued interest will be deemed paid by the Cash and/or shares
of Common Stock, if any, received by the Noteholder upon conversion. Delivery to the Noteholder of such Cash and/or shares of Common Stock shall thus be deemed to satisfy (1) the Company's
obligation to pay the principal amount of a Note, and (2) the Company's obligation to pay any accrued and unpaid interest on the Note. As a result, upon conversion of a Note, accrued and unpaid
interest on such Note is deemed paid in full rather than cancelled, extinguished or forfeited. 


        (f)    Notwithstanding
Section 10.02(e), if Notes are converted after a Record Date but prior to the next succeeding Interest Payment Date, Holders of such notes at the
Close of Business on such Record Date will receive the interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Such Notes, upon surrender for
conversion, must be accompanied by Cash equal to the amount of interest payable on such Interest Payment Date on the Notes so converted; provided that
no such payment need be made (1) if the Company has specified a Change in Control Repurchase Date that is after a Record Date but on or prior to the next succeeding Interest 


32







 



Payment
Date, (2) with respect to any notes converted after the Record Date immediately preceding the Maturity Date or (3) to the extent of any Defaulted Interest that exists at the time
of conversion with respect to such Note. 


        (g)   If
a Noteholder converts more than one Note at the same time, the number of shares of Common Stock and the amount of Cash, if any, including Cash in lieu of fractional
shares, due upon conversion shall be determined based on the total principal amount of the Notes converted. 


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


        Section 10.03.    Fractional Shares.    The Company will not issue a fractional share of Common Stock upon
conversion of a Note. Instead, the Company shall pay Cash in lieu of fractional shares based on the Closing Price of Common Stock on the Trading Day prior to the applicable Conversion Date (if the
Company delivers solely shares of Common Stock to satisfy the Conversion Obligation, other than such Cash in lieu of fractional shares) or the Closing Price of Common Stock on the last Trading Day of
the relevant Cash Settlement Averaging Period (if the Company delivers Cash to satisfy a portion, but less than all, of the Conversion Obligation, other than solely such Cash in lieu of any fractional
shares, or if the Company has irrevocably elected Net Share Settlement upon conversion). 


        Section 10.04.    Taxes on Conversion.    If a Holder converts a Note, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon the conversion. However, the Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent may refuse to deliver the certificates representing Common Stock being issued in a name other than the Holder's name
until the Conversion Agent receives a sum sufficient to pay any tax which will be due because Common Stock is to be delivered in a name other than the Holder's name. 


        Section 10.05.    Company to Provide Common Stock.    The Company shall, from time to time as may be necessary,
reserve out of its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to permit the delivery in respect of all outstanding Notes of the number of
shares of Common Stock due upon conversion (assuming, for purposes of this sentence, that the Company elects to deliver solely shares of Common Stock in respect of the Conversion Obligation). 


        Any
shares of Common Stock delivered upon conversion of the Notes shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and
shall be free from preemptive rights and free of any lien or adverse claim. 


        The
Company will comply with all federal and state securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Notes, if any, and shall list or cause
to have quoted such shares of Common Stock on each national securities exchange or in the over-the-counter market or such other market on which Common Stock is then listed or
quoted. 


        In
addition, if any shares of Common Stock that would be issuable upon conversion of Notes hereunder require registration with or approval of any governmental authority before such
shares of Common Stock may be issued upon such conversion, the Company will cause such shares of Common Stock to be duly registered or approved, as the case may be. 


        Section 10.06.    Adjustment for Change in Capital Stock.    (a)    If the Company shall, at any time
and from time to time while any of the Notes are outstanding, issue dividends or make distributions on Common Stock payable in shares of Common Stock, then the Conversion Rate shall be increased so 


33







 



that
the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the Ex-Date for such dividend or distribution by a fraction: 



          (i)  the
numerator of which shall be the sum of the number of shares of Common Stock outstanding at the Close of Business on the Business Day immediately preceding the
Ex-Date for such dividend or distribution, plus the total number of shares of Common Stock constituting such dividend or distribution; and 


         (ii)  the
denominator of which shall be the number of shares of Common Stock outstanding at the Close of Business on the Business Day immediately preceding such
Ex-Date. 




        If
any dividend or distribution of the type described in this Section 10.06 is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
which would then be in
effect if such dividend or distribution had not been declared. In no event shall the Conversion Rate be decreased pursuant to this Section 10.06. 



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



        Section 10.07.    Adjustment for Rights, Options or Warrants Issue.    If the Company shall, at any time or
from time to time while the Notes are outstanding, distribute to all holders of Common Stock rights, options or warrants to purchase shares of Common Stock for a period expiring within 60 days
after the record date for such distribution at less than the average of the Closing Prices of Common Stock for the five consecutive Trading Days immediately preceding the first public announcement of
such distribution, then the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the
Ex-Date for such distribution by a fraction: 



         (x)  the
numerator of which shall be the number of shares of Common Stock outstanding at the Close of Business on the Business Day immediately preceding the
Ex-Date for such distribution, plus the total number of additional shares of Common Stock so offered for purchase; and 


         (y)  the
denominator of which shall be the number of shares of Common Stock outstanding on the Close of Business on the Business Day immediately preceding the
Ex-Date for such distribution, plus the number of shares of Common Stock that the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at the Current Market Price of Common Stock on the first public announcement date for such distribution (determined by multiplying such total number of shares of
Common Stock so offered by the exercise price of such rights, options or warrants and dividing the product so obtained by such Current Market Price). 



34







 





Such
adjustment shall become effective immediately after the opening of business on the Ex-Date for such distribution. 



        To
the extent that shares of Common Stock are not delivered pursuant to such rights or upon the expiration or termination of such rights, options or warrants, the Conversion Rate shall
be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of the delivery of only the
number of shares of Common Stock actually delivered. In the event that such rights, options or warrants are not so distributed, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if the Ex-Date for such distribution had not occurred. In determining whether any rights, options or warrants entitle the holders to purchase shares of Common
Stock at less than the average of the Closing Prices for the five consecutive Trading Days immediately preceding the first public announcement of the relevant distribution, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights, options or warrants and the value of such consideration if other
than Cash, to be determined in good faith by the Board of Directors. In no event shall the Conversion Rate be decreased pursuant to this Section 10.07. 


        If
the Company elects to make a distribution described in this Section 10.07 that has a per share of Common Stock value equal to more than 15% of the Closing Price of Common Stock
on the day preceding the declaration date for such distribution, the Company will be required to give notice to Holders at least 35 Business Days prior to the Ex-Date for such
distribution. 


        Section 10.08.    Adjustment for Other Distributions.    


        (a)   If
the Company shall, at any time or from time to time while the Notes are outstanding, distribute to all holders of Common Stock any of its Capital Stock, assets
(including shares of any Subsidiary of the Company or business unit of the Company), or debt securities or rights to purchase securities of the Company (excluding (x) any dividends or
distributions described in Section 10.06, (y) any rights, options or warrants described in Section 10.07 and (z) any dividends or other distributions described in
Section 10.09 (such Capital Stock, assets, debt securities or rights to purchase securities of the Company hereinafter in this Section 10.08 called the
"Distributed Assets")), then the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate
in effect at the opening of business on the Ex-Date for such distribution by a fraction: 



          (i)  the
numerator of which will be the Current Market Price of Common Stock on the Business Day immediately preceding the Ex-Date for such distribution, and 



         (ii)  the
denominator of which will be the Current Market Price of Common Stock on the Business Day immediately preceding the Ex-Date for such distribution,  minus the fair market value, as
determined by the Board of Directors, of the portion of Distributed Assets so distributed applicable to one share of Common Stock; 




Such
increase shall become effective immediately after the opening of business on the Ex-Date for such distribution; provided that if "the
fair market value, as determined by the Board of Directors, of the portion of Distributed Assets so distributed applicable to one share of Common Stock" as set forth above is equal to or greater than
"the Current Market Price of Common Stock on the Business Day immediately preceding the Ex-Date for such distribution" as set forth above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall receive on the date on which the Distributed Assets are distributed to holders of Common Stock, for each $1,000 principal amount of Notes, the
amount of Distributed Assets such Noteholder would have received had such Noteholder owned a number of shares of Common Stock equal to the Conversion Rate on the record date for such distribution. In
the event that such distribution is not so made, the Conversion Rate shall 


35







 

again
be adjusted to be the Conversion Rate which would then be in effect if such distribution had not been declared. In no event shall the Conversion Rate be decreased pursuant to this
Section 10.08(a). 


        If
the Board of Directors determines the fair market value of any distribution for purposes of this Section 10.08(a) by reference to the actual or when issued trading market for
any Distributed Assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference
Period") used in computing the Current Market Price for purposes of clause (i) above, unless the Board of Directors determines in good faith that determining the fair
market value during the Reference Period would not be in the best interest of the Holders. 


        (b)   Notwithstanding
anything to the contrary in this Section 10.08, if the Company distributes Capital Stock of, or similar equity interests in, a Subsidiary of the
Company or other business unit of the Company (a "Spin-Off"), then the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of business on the fifteenth Trading Day immediately following the Ex-Date for such Spin-Off by a
fraction: 



         (x)  the
numerator of which will be the sum of (A) the average of the Closing Prices of the Capital Stock or similar equity interest distributed to holders of Common
Stock applicable to one share of Common Stock over the ten consecutive Trading Day period immediately following, and including, the fifth Trading Day after the Ex-Date for the
Spin-Off and (B) the average of the Closing Prices of Common Stock over the ten consecutive Trading Day period immediately following, and including, the fifth Trading Day after the
Ex-Date for the Spin-Off; and 


         (y)  the
denominator of which is the average of the Closing Prices of Common Stock over the ten consecutive Trading Day period immediately following, and including, the fifth
Trading Day after the Ex-Date for the Spin-Off. 




        In
no event shall the Conversion Rate be decreased pursuant to this Section 10.08(b). 


        (c)   If
the Company elects to make a distribution described in Section 10.08(a) or Section 10.08(b) that has a per share of Common Stock value equal to more
than 15% of the Closing Price of Common Stock on the day preceding the declaration date for such distribution, the Company will be required to give notice to Holders at least 35 Business Days
prior to the Ex-Date for such distribution. 


        Section 10.09.    Adjustment for Cash Dividends.    If the Company shall, at any time or from time to time
while any of the Notes are outstanding, distribute dividends or make other distributions paid entirely in Cash to all or substantially all holders of Common Stock (other than (x) distributions
described in Section 10.10 below or (y) any dividend or distribution in connection with the Company's liquidation, dissolution or winding up), then the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the Ex-Date for such dividend or distribution by a fraction: 



         (x)  the
numerator of which will be the Current Market Price per share of Common Stock on the Business Day immediately preceding the Ex-Date for such dividend or
distribution; and 


         (y)  the
denominator of which will be the Current Market Price per share of Common Stock on the Business Day immediately preceding the Ex-Date for such dividend
or distribution, minus the amount per share of such dividend or distribution. 




        Such
adjustment shall become effective immediately after the opening of business on the Ex-Date for such distribution or dividend;  provided that if "the amount per share of such dividend or distribution" as
set forth above is equal to or greater than "the Current Market Price per
share of Common Stock on the Business Day immediately preceding the Ex-Date for such dividend or distribution" as set forth above, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Noteholder shall have the right to receive on the date on which the relevant Cash dividend or distribution is distributed to holders of Common Stock, for each $1,000
principal amount of 


36







 

Notes
upon conversion, the amount of Cash such Noteholder would have received had such Noteholder owned a number of shares equal to the Conversion Rate on the Record Date for such dividend or
distribution. In the event that such distribution or dividend is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared. 


        In
no event shall the Conversion Rate be decreased pursuant to this Section 10.09. 


        If
the Company elects to make a distribution described in this Section 10.09 that has a per share of Common Stock value equal to more than 15% of the Closing Price of Common Stock
on the day preceding the declaration date for such distribution, the Company will be required to give notice to Holders at least 35 Business Days prior to the Ex-Date for such
distribution. 


        Section 10.10.    Adjustment for Tender Offer.    If the Company or any of its Subsidiaries shall, at any time
or from time to time, while any of the Notes are outstanding, distribute Cash or other consideration in respect of a tender offer or exchange offer for Common Stock, where such Cash and the value of
any such other consideration per share of Common Stock validly tendered or exchanged exceeds the Closing Price of Common Stock on Trading Day immediately following the last date (such last date, the
"Expiration Date") on which tenders or exchanges may be made pursuant to the tender or exchange offer, then the Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the Business Day immediately following the Trading Day immediately following
the Expiration Date by a fraction: 



         (x)  the
numerator of which will be the sum of (A) the fair market value, as determined by the Board of Directors, of the aggregate consideration payable for all
shares of Common Stock that the Company purchases in such tender or exchange offer and (B) the product of the number of shares of Common Stock outstanding, less the number of shares of Common
Stock purchased in the relevant tender offer or exchange offer (the "Purchased Shares"), and the Closing Price of Common Stock on the Trading Day
immediately following the Expiration Date; and 


         (y)  the
denominator of which will be the product of the number of shares of Common Stock outstanding, including the Purchased Shares, and the Closing Price of Common Stock
on the Trading Day immediately following the Expiration Date. 




An
adjustment, if any, to the Conversion Rate pursuant to this Section 10.10 shall become effective immediately prior to the opening of business on the second Trading Day immediately following
the Expiration Date. In the event that the Company or a Subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company
or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made. If the application of this Section 10.10 to any tender offer or exchange offer would
result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 10.10. 



        Section 10.11.    Provisions Governing Adjustment to Conversion Rate.    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,
options or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of
Section 10.06, Section 10.07, Section 10.08, Section 10.09 or Section 10.10 (and no adjustment to the Conversion Rate under Section 10.06,
Section 10.07, Section 10.08, Section 10.09 or Section 10.10 will be required) until the occurrence of the earliest Trigger Event, 


37







 



whereupon
such rights, options and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under Section 10.08,
and, if applicable, Section 10.23. If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of
any and each such event shall be deemed to be the date of distribution and Ex-Date with respect to new rights, options or warrants with such rights (and a termination or expiration of the
existing rights, options or warrants without exercise by any of the holders thereof), except as set forth in Section 10.23. In addition, except as set forth in Section 10.23, in the
event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was
counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under Section 10.06, Section 10.07, Section 10.08, Section 10.09 or
Section 10.10 was made (including any adjustment contemplated in Section 10.23), (1) in the case of any such rights, options 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 or holders of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights,
options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been
issued. 


        Section 10.12.    Disposition Events.    If any of the following events (a "Disposition
Event") occurs: 


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


        (b)   consolidation,
merger, or other combination involving the Company; or 


        (c)   sale
or conveyance to another Person of all or substantially all of the assets of the Company; 


in
each case, in which holders of outstanding Common Stock would be entitled to receive Cash, securities or other property for their shares of Common Stock, if a Holder converts its Notes on or after
the effective date of any such event, subject to the right of the Company to settle all or a portion of the Conversion Obligation with respect to such Notes in Cash (other than solely Cash in lieu of
any fractional shares), and the right of the Company to irrevocably elect Net Share Settlement, Notes will be convertible into, in lieu of the shares of Common Stock otherwise deliverable, the same
type (in the same proportions) of consideration received by holders of Common Stock in the relevant event (collectively, "Reference Property"). 


        If
the Company elects to settle all or any portion of the Conversion Obligation in Cash (other than solely Cash in lieu of any fractional shares) or if the Company irrevocably elects Net
Share Settlement, Holders shall receive in connection with any conversion (1) Cash in an amount equal to the portion of the Conversion Obligation that Company has elected to settle with Cash
(which shall be at least equal to the lesser of (x) the aggregate principal amount of Notes to be converted and (y) the relevant Conversion Value, if the Company has irrevocably elected
Net Share Settlement); and (2) in lieu of the shares of Common Stock otherwise deliverable, if any, Reference Property. If the Company elects to settle any conversion in whole or in part by
delivering Cash in respect the Conversion Obligation (other than solely Cash in lieu of any fractional shares) or if the Company irrevocably elects Net Share Settlement, the amount of Cash and any
Reference Property that the Holders will receive will be based on the Daily Share Amounts of Reference Property and the Applicable Conversion Rate as set forth in Section 10.02. 


38







 



        If
the Disposition Event provides the holders of Common Stock with the right to receive more than a single type of consideration determined based in part upon any form of stockholder
election, the Reference Property shall be comprised of the weighted average of the types and amounts of consideration received by the holders of Common Stock upon the occurrence of such event. 


        Upon
the occurrence of a Disposition Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) permitted under
Section 9.02(b) providing for the conversion and settlement of the Notes as set forth in this Indenture. Such supplemental indenture shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 10. If, in the case of any Disposition Event, the Reference Property includes shares of stock or other
securities and assets of a Person other than the successor or purchasing Person, as the case may be, in such reclassification, consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the holders of the Notes as the Board of Directors shall
reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the repurchase rights set forth in
Article 3 herein. 


        In
the event the Company shall execute a supplemental indenture pursuant to this Section 10.12, the Company shall promptly file with the Trustee an Officers' Certificate briefly
stating the reasons therefore, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Disposition Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Noteholders. The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Noteholder, at its address appearing on the Register provided for in this Indenture, within twenty days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture. 


        Section 10.13.    Adjustment to Conversion Rate Upon a Make-Whole Change in Control; Discretionary
Adjustment.    (a)    If, after the date hereof, a Change in Control (determined after giving effect to any exceptions or exclusions to such definition, but
without regard to the proviso in clause (ii) of the definition thereof, a "Make-Whole Change in
Control") occurs and a Holder elects to convert its Notes in connection with such Make-Whole Change in Control, the Company will, under certain circumstances,
increase the Applicable Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the "Make-Whole
Shares"), as described in this Section 10.13. A conversion of Notes will be deemed for these purposes to be "in connection with" a Make-Whole Change in
Control if the notice of conversion of the Notes is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Change in Control up to, and including, the
Business Day immediately prior to the related Change in Control Repurchase Date (or, in the case of an event that would have been a Change in Control but for the  proviso in clause (ii) of the
definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole
Change in Control). Upon surrender of Notes for conversion in connection with a Make-Whole Change in Control, the Company will have the right to deliver, in lieu of shares of Common Stock,
including the Make-Whole Shares, Cash or a combination of Cash and shares of Common Stock as described in Section 10.02. 


        On
or before the 15th day after the occurrence of a Make-Whole Change in Control that does not also constitute a Change in Control, the Company will mail to the Trustee and
to all Holders at their addresses shown in the Register of the Registrar, and to beneficial owners as required by applicable law, notice indicating that a Make-Whole Change in Control has
occurred. 


39







 



        (b)   The
number of Make-Whole Shares will be determined by reference to the table below and is based on the date which such Make-Whole Change in
Control transaction becomes effective (the "Effective Date") and the price paid per share of Common Stock in the Make-Whole Change in
Control (in the case of a Make-Whole Change in Control described in clause (ii) of the definition of Change in Control in which holders of Common Stock receive only Cash), or in the
case of any other Make-Whole Change in Control, the average of the Closing Prices per share of Common Stock over the five Trading-Day period ending on the Trading Day
immediately preceding the Effective Date of such Make-Whole Change in Control (the "Stock Price"). 


        (c)   The
Stock Prices set forth in the first column of the table below will be adjusted as of any date on which the Applicable Conversion Rate is adjusted. The adjusted Stock
Prices will equal the Stock Prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Applicable Conversion Rate immediately prior to the adjustment giving
rise to the Stock Price adjustment, and the denominator of which is the Applicable Conversion Rate as so adjusted. In addition, the number of Make-Whole Shares will be subject to
adjustment in the same manner as the Applicable Conversion Rate as set forth in Section 10.06 through Section 10.10. 



	 
	 	Effective Date

	Stock Price
 
	 	November     ,

2006
	 	November 15,

2007
	 	November 15,

2008
	 	November 15,

2009
	 	November 15,

2010
	 	November 15,

2011

	$        	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 
	$	 	 	 	 	 	 	 	 	 	 	 	 





        (d)   If
the exact Stock Price and Effective Date is not set forth in the table, then (i) if the Stock Price is between two Stock Prices in the table or the Effective
Date is between two Effective Dates in the table, the Make-Whole Shares issued upon conversion of the Notes will be determined by a straight-line interpolation between the
number of Make-Whole Shares set forth for the higher and lower Stock Prices and/or the earlier and later Effective Dates in the table, as applicable, based on a 365-day year,
(ii) if the Stock Price is in excess of $[    ] per share of Common Stock (subject to adjustment as set forth in Section 10.13(c)), no
Make-Whole Shares will be issued upon conversion of the Notes; and (iii) if the Stock Price is less than $[    ] per share of Common Stock (subject
to adjustment as set forth in Section 10.13(c)), no Make-Whole Shares will be issued upon conversion of the Notes. 


        (e)   The
Company may make such increases in the Conversion Rate, in addition to those required by Section 10.06, 10.07, 10.08, 10.09 and 10.10 as the Board of
Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes. 


        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
(20) days, the increase is irrevocable during the period and the Board of Directors shall have made a determination 


40







 



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 mail to holders of record of the Notes a notice of the increase at least fifteen (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 10.14.    When Adjustment May Be Deferred.    No adjustment in the Conversion Rate need be made unless
the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. Any adjustments that are less than 1% of the Conversion Rate will be carried forward and taken into account
in determining any subsequent adjustment. In addition, the Company shall make any carry forward adjustments not otherwise effected on each anniversary of the date hereof, upon conversion of any Note,
upon required repurchases of the Notes pursuant to Section 3.01, and on the Maturity Date. 


        Section 10.15.    When No Adjustment Required.    (a)    No adjustment need be made for a transaction
referred to in Section 10.06, 10.07, 10.08, 10.09 or 10.10 if Noteholders participate, without conversion, in the transaction or event that would otherwise give rise to an adjustment pursuant
to such Section at the same time as holders of Common Stock participate with respect to such transaction or event and on the same terms as holders of Common Stock participate with respect to
such transaction or event as if Noteholders, at such time, held a number of shares of Common Stock equal to the Applicable Conversion Rate, multiplied
by the principal amount (expressed in thousands) of Notes held by such Noteholder, without having to convert their Notes. 


        (b)   No
adjustment need be made for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase Common
Stock or any such security. 


        (c)   No
adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest. 


        (d)   No
adjustment need be made for a change in the par value or no par value of Common Stock. 


        (e)   To
the extent the Notes become convertible pursuant to this Article 10 into Cash, no adjustment need be made thereafter as to the Cash. Interest will not accrue
on the Cash. 


        (f)    Notwithstanding
anything in this Article 10 to the contrary, the Applicable Conversion Rate shall not exceed [    ] per $1,000
principal amount of Notes, other than on account of adjustments to the Conversion Rate in the manner set forth in Sections 10.06, 10.07, 10.08, 10.09 and 10.10. 


        Section 10.16.    Notice of Adjustment.    Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Noteholders a notice of the adjustment. The Company shall file with the Trustee and the Conversion Agent such notice and a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The certificate shall be conclusive evidence that the adjustment is correct. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such certificate except to exhibit the same to any Holder desiring inspection thereof. 


        Section 10.17.    Notice of Certain Transactions.    If (a) the Company takes any action that would
require an adjustment in the Conversion Rate pursuant to Section 10.06, 10.07, 10.08, 10.09 or 10.10 (unless no adjustment is to occur pursuant to Section 10.14 or Section 10.15),
(b) the Company takes any action that would require a supplemental indenture pursuant to Section 10.12, or (c) there is a liquidation or dissolution of the Company, then the
Company shall mail to Noteholders and file with the Trustee and the Conversion Agent a notice stating the proposed Ex-Date for a dividend or distribution or the proposed effective date of
a subdivision, combination, reclassification, consolidation, merger, combination, sale or conveyance. The Company shall file and mail the notice at least 15 days 


41







 



before
such date; provided that if the Company elects to make a distribution described in Section 10.07, Section 10.08, or
Section 10.09, and in the case of Section 10.08 or Section 10.09, that has a per share value equal to more than 15% of the Closing Price per share of Common Stock on the day
preceding the declaration date for such distribution, the Company shall give notice to Holders at least 35 Business Days prior to the Ex-Date for such distribution. Failure to file or mail
the notice or any defect in it shall not affect the validity of the transaction. 


        Section 10.18.    Right of Holders to Convert.    Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right to convert its Note in accordance with this Article 10 and to bring an action for the enforcement of any such right to convert, and such rights shall not
be impaired or affected without the consent of such Holder. 



        Section 10.19.    Company Determination Final.    The Company shall be responsible for making all calculations
called for hereunder and under the Notes. These calculations include, but are not limited to, Conversion Value, the Conversion Date, the Volume Weighted Average Price, the Cash Settlement Averaging
Period, the Trading Price of the Notes, the Closing Price, the Conversion Price, the Applicable Conversion Rate and the number of shares of Common Stock, if any, to be issued upon conversion of the
Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company's calculations will be final and binding on Noteholders. The Company shall provide a schedule
of the Company's calculations to the Trustee, and the Trustee is entitled to rely upon the accuracy of the Company's calculations without independent verification. 


        Section 10.20.    Trustee's Adjustment Disclaimer.    The Trustee has no duty to determine when an adjustment
under this Article 10 should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental indenture under Section 10.12 need be
entered into or whether any provisions of any supplemental indenture are correct. The Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or
assets issued upon conversion of Notes. The Trustee shall not be responsible for the Company's failure to comply with this Article 10. Each Conversion Agent shall have the same protection under
this Section 10.20 as the Trustee. 


        Section 10.21.    Simultaneous Adjustments.    (a)    For purposes of Section 10.08,
Section 10.06 and Section 10.07, any dividend or distribution to which Section 10.08 is applicable that also includes shares of Common
Stock, or rights, options or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the debt securities, assets
or shares of Capital Stock other than such shares of Common Stock or rights (and any Conversion Rate adjustment required by Section 10.08 with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights (and any further Conversion Rate adjustment required by Section 10.06
and Section 10.07 with respect to such dividend or distribution shall then be made), except any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding
at the Close of Business on the Business Day immediately preceding such Ex-Date" within the meaning of Section 10.06. 


        (b)   The
reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon an event to which
Section 10.12 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 "Ex-Date" within the meaning of this Section 10.08), 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 Section 10.06(b)). 


42







 



        Section 10.22.    Successive Adjustments.    After an adjustment to the Conversion Rate under this
Article 10, any subsequent event requiring an adjustment under this Article 10 shall cause an adjustment to the Conversion Rate as so adjusted. 



        Section 10.23.    Rights Issued in Respect of Common Stock Issued Upon Conversion.    Each share of Common
Stock issued upon conversion of Notes pursuant to this Article 10 shall be entitled to receive the appropriate number of rights ("Rights"), if
any, and the certificates representing Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of the rights agreement, dated as of
April 5, 2001, between the Company and State Street Bank and Trust Company, N.A., or any future rights plan (i.e., a poison pill) adopted by the Company, as the same may be amended form time to
time, is in effect, (in each case, a "Shareholders Rights Plan"). Upon conversion of the Notes a Holder will receive, in addition to any Common Stock
received in connection with such conversion, the Rights under the Shareholders Rights Plan, unless prior to any conversion, the Rights have separated from Common Stock, in which case the Applicable
Conversion Rate will be adjusted at the time of separation as if the Company distributed to all holders of Common Stock, shares of Company Capital Stock, assets, debt securities or certain rights to
purchase securities of the Company as described in Section 10.08, subject to readjustment in the event of the expiration, termination or redemption of such rights. Any distribution of Rights
pursuant to the Shareholders Rights Plan that would allow a Holder to receive upon conversion, in addition to shares of Common Stock, the Rights described therein (unless such Rights have separated
from Common Stock) shall not constitute a distribution of Rights that would entitle the Holder to an adjustment to the Conversion Rate. 


        Section 10.24.    Withholding Taxes for Adjustments in Conversion Rate.    The Company may, at its option,
set-off withholding taxes due with respect to Notes against payments of Cash and Common Stock on the Notes. In the case of any such set-off against Common Stock delivered upon
conversion of the Notes, such Common Stock shall be valued based on the arithmetic average of the Volume Weighted Average Prices for each Trading Day in the relevant Cash Settlement Averaging Period. 


ARTICLE 11
 PAYMENT OF INTEREST


        Section 11.01.    Interest Payments.    Interest on any Note that is payable, and is punctually paid or duly
provided for, on any applicable Interest Payment Date shall be paid to the Person in whose name that Note is registered at the Close of Business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose. Each installment of interest payable in Cash on any Note shall be paid in same-day funds by transfer to an account maintained
by the payee located inside the United States, if the Trustee shall have received proper wire transfer instructions from such payee not later than the related Regular Record Date or, if no such
instructions have been received by check drawn on a bank in the United States mailed to the payee at its address set forth on the Registrar's books. In the case of a Global Note, interest payable on
any applicable payment date will be paid by wire transfer of same-day funds to the Depositary, with respect to that portion of such Global Note held for its account by Cede & Co.
for the purpose of permitting such party to credit the interest received by it in respect of such Global Note to the accounts of the beneficial owners thereof. 



        Section 11.02.    Defaulted Interest.    Except as otherwise specified with respect to the Note, any interest
on any Note that is payable, but is not punctually paid or duly provided for, within 30 days following any applicable payment date (herein called "Defaulted
Interest", which term shall include any accrued and unpaid interest that has accrued on such defaulted amount in accordance with paragraph 1 of the Notes), shall
forthwith cease to be payable to the registered Holder thereof 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 (a) or (b) below. 


43







 



        (a)   The
Company may elect to make payment of any Defaulted Interest to the persons in whose names the Notes 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 Note and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), 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 on or 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. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall be not more than 20 days and not less than 15 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 "Special Record Date"). The Trustee shall
promptly notify the Company of such Special Record Date and, 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 of Notes at his address as it appears on the list of Noteholders maintained pursuant to Section 2.05 not less than
25 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Notes are registered at the Close of Business on such Special Record Date and shall no longer be payable pursuant to the following
clause (b). 


        (b)   The
Company may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee. 


        Section 11.03.    Interest Rights Preserved.    Subject to the foregoing provisions of this Article 11
and Section 2.06, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Notes. 


ARTICLE 12
 MISCELLANEOUS


        Section 12.01.    Trust Indenture Act of 1939.    This Indenture shall incorporate and be governed by the
provisions of the Trust Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act. 


        Section 12.02.    Noteholder Communications; Noteholder Actions.    (a)    The rights of Holders to
communicate with other Holders with respect to this Indenture or the Notes are as provided by the Trust Indenture
Act, and the Company and the Trustee shall comply with the requirements of Trust Indenture Act Sections 312(a) and 312(b). Neither the Company nor the Trustee will be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. 


        (b)   (i)    Any
request, demand, authorization, direction, notice, consent to amendment, supplement or waiver or other action provided by this Indenture to be given
or taken by a Holder (an "act") may be evidenced by an instrument signed by the Holder delivered to the Trustee. The fact and date of the execution of
the instrument, or the authority of the person executing it, may be proved in any manner that the Trustee deems sufficient. 


44







 



         (ii)  The
Trustee may make reasonable rules for action by or at a meeting of Holders, which will be binding on all the Holders. 




        (c)   Any
act by the Holder of any Note binds that Holder and every subsequent Holder of a Note that evidences the same debt as the Note of the acting Holder, even if no
notation thereof appears on the Note. Subject to paragraph (d), a Holder may revoke an act as to its Notes, but only if the Trustee receives the notice of revocation before the date the
amendment or waiver or other consequence of the act becomes effective. 


        (d)   The
Company may, but is not obligated to, fix a record date (which need not be within the time limits otherwise prescribed by Trust Indenture Act Section 316(c))
for the purpose of determining the Holders entitled to act with respect to any amendment or waiver or in any other regard, except that during the continuance of an Event of Default, only the Trustee
may set a record date as to notices of Default, any declaration or acceleration or any other remedies or other consequences of the Event of Default. If a record date is fixed, those Persons that were
Holders at such record date and only those Persons will be entitled to act, or to revoke any previous act, whether or not those Persons continue to be Holders after the record date. No act will be
valid or effective for more than 90 days after the record date. 


        Section 12.03.    Notices.    (a)    Any notice or communication to the Company will be deemed given
if in writing (i) when delivered in person or (ii) five days after mailing when mailed by first class mail, or (iii) when sent by facsimile transmission, with transmission
confirmed. Any notice to the Trustee will be effective only upon receipt. In each case the notice or communication should be addressed as follows: 




if to the Company:




	Millennium Pharmaceuticals, Inc.

40 Landsdowne Street

Cambridge, Massachusetts

02139

Attention: General Counsel

Tel: (617) 444-3282

Fax: (617) 551-8820









with a copy to:




	Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, Massachusetts

02109

Attention: David E. Redlick

Tel: (617) 526-6434

Fax: (617) 526-5000









if to the Trustee:




	U.S. Bank National Association

60 Livingston Avenue

St. Paul, Minnesota 55107-1419
	Attention:	Raymond L. Haverstock

Corporate Trust Services

EP-MN-WS3C
	Tel: (651) 495-3909

Fax: (651) 495-8097







45







 

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


        (b)   Except
as otherwise expressly provided with respect to published notices, any notice or communication to a Holder will be deemed given when mailed to the Holder at its
address as it appears on the Register by first class mail or, as to any Global Note registered in the name of the Depository or its nominee, as agreed by the Company, the Trustee and the Depository.
Copies of any notice or communication to a Holder, if given by the Company, will be mailed to the Trustee at the same time. Any defect in mailing a notice or communication to any particular Holder
will not affect its sufficiency with respect to other Holders. 


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


        Section 12.04.    Communication by Holders with Other Holders.    Noteholders may communicate pursuant to
Section 312(b) of the Trust Indenture Act with other Noteholders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act. 


        Section 12.05.    Certificate and Opinion as to Conditions Precedent.    Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company will furnish to the Trustee: 



        (1)   an
Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and 


        (2)   an
Opinion of Counsel stating that all such conditions precedent have been complied with. 




        Notwithstanding
the foregoing, no such Opinion of Counsel shall be required with respect to the authentication and delivery of any Initial Notes or Additional Notes. 


        Section 12.06.    Statements Required in Certificate or Opinion.    Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture must include: 



        (1)   a
statement that each person signing the certificate or opinion has read the covenant or condition and the related definitions; 



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


        (3)   a
statement that, in the opinion of each such person, that person has made such examination or investigation as is necessary to enable the person 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 or not, in the opinion of each such person, such condition or covenant has been complied with,  provided that an Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials with respect to matters of fact. 




        Section 12.07.    Legal Holiday.    A "Legal Holiday" is any
day other than a Business Day. If any specified date (including a date for giving notice) is a Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday, and, if
the action to be taken on such date is a payment in respect of the Notes, interest shall accrue for the intervening period. 


46







 

        Section 12.08.    Rules by Trustee, Paying Agent, Conversion Agent and Registrar.    The Trustee may make
reasonable rules for action by or a meeting of Noteholders. The Registrar, Conversion Agent and the Paying Agent may make reasonable rules for their functions. 



        Section 12.09.    Governing Law.    THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). 


        Section 12.10.    No Adverse Interpretation of Other Agreements.    This Indenture may not be used to interpret
another indenture or loan or debt agreement of the Company or any Subsidiary of the Company, and no such indenture or loan or debt agreement may be used to interpret this Indenture. 



        Section 12.11.    Successors.    All agreements of the Company in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its successor. 


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



        Section 12.13.    Severability.    In case any provision in this Indenture or in the Notes is invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. 


        Section 12.14.    Table of Contents and Headings.    The Table of Contents, Cross-Reference Table and headings
of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and in no way modify or restrict any of the terms
and provisions of this Indenture. 


        Section 12.15.    No Liability of Directors, Officers, Employees, Incorporators, Members and
Stockholders.    No director, officer, employee, incorporator, member or stockholder of the Company, as such, will have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect of, or by reason of, such obligations. Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes. 


47








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



	 	 	MILLENNIUM PHARMACEUTICALS, INC.,

as Issuer
	

 	
 	

By:	

 
	 	 	 	

	 	 	 	Name:
	 	 	 	Title:
	

 	
 	

U.S. BANK NATIONAL ASSOCIATION,

as Trustee
	

 	
 	

By:	

 
	 	 	 	

	 	 	 	Name:
	 	 	 	Title:










   EXHIBIT A  


[FACE OF NOTE] 


Millennium
Pharmaceuticals, Inc. 


[    ]%
Convertible Senior Notes due November 15, 2011 



	 	 	 	 	 	 	CUSIP	 	    

	No. [	    
	]	 	ISIN	 	    
	 	 





        Millennium
Pharmaceuticals, Inc., a Delaware corporation (the "Company," which term includes any successor under this Indenture
hereinafter referred to), for value received, promises to pay to                        , or its registered assigns, the principal
sum of                         MILLION DOLLARS
($[    ],000,000) on November 15, 2011, or such lesser amount as indicated on the Schedule of Exchanges of Notes on the other side of this Note to reflect
exchanges, purchases and conversions. 


        Initial
Interest Rate: [    ]% per annum. 


        Interest
Payment Dates: May 15 and November 15, commencing May 15, 2007. 


        Regular
Record Dates: May 1 and November 1. 



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


A-1







 

        IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. 



	Date: November [    ], 2006	 	MILLENNIUM PHARMACEUTICALS, INC.
	

 	
 	

By:	
 	

    
 Name:

Title:




A-2







 
(Form of Trustee's Certificate of Authentication) 


        This
is one of the [    ]% Convertible Senior Notes due November 15, 2011 described in the Indenture referred to in this Note. 



	 	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	

 	
 	

By:	
 	

    
 Authorized Signatory




A-3







 
[REVERSE SIDE OF NOTE] 


Millennium
Pharmaceuticals, Inc. 


[    ]%
Convertible Senior Notes due November 15, 2011 



1.    Principal and Interest.    


        The
Company promises to pay the principal of this Note on November 15, 2011. 


        The
Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth on the face of this Note, at the rate of
[    ]% per annum (subject to adjustment as provided below). 


        Interest
will be payable semiannually (to the holders of record of the Notes at the Close of Business on the May 1 or November 1 immediately preceding the interest payment
date) on each interest payment date, commencing May 15, 2007. 


        Interest
on this Note will accrue from the most recent date to which interest has been paid or provided for on this Note or the Note surrendered in exchange for this Note or, if no
interest has been paid, from November [    ], 2006, through the day before each Interest Payment Date. Interest will be computed in the basis of a
360-day year of twelve 30-day months. 


        The
Company will pay interest on overdue principal, premium, if any, and, to the extent lawful, interest at a rate per annum that is 2% in excess of
[    ]%. Defaulted Interest shall be paid to the Persons that are Holders on a Special Record Date, which will established as set forth in this Indenture referred to
below. 


2.    Method of Payment.    


        Subject
to the terms and conditions of this Indenture, the Company shall pay interest on this Note to the person who is the Holder of this Note at the Close of Business on the Regular
Record Date next preceding the related Interest Payment Date. The Company will pay any Cash amounts in money of the United States that at the time of payment is legal tender for payment of public and
private debts. 


3.    Paying Agent, Conversion Agent and Registrar.    



        Initially,
the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Registrar or
co-registrar. The Company may maintain deposit accounts and conduct other banking transactions with the Trustee in the normal course of business. 


4.    Indenture.    


        This
is one of the Notes issued under an Indenture dated as of November [    ], 2006 (as amended from time to time, the
"Indenture"), between the Company and U.S. Bank National Association, as Trustee. Capitalized terms used herein are used as defined in this Indenture
unless otherwise indicated. The terms of the Notes include those stated in this Indenture and those made part of this Indenture by reference to the Trust Indenture Act. The Notes are subject to all
such terms, and Holders are referred to this Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of this Indenture, the terms of this Indenture will control. The Notes are general unsecured obligations of the Company. 


A-4







 



5.    Repurchase at the Option of the Holders upon Change in Control.    


        Upon
the occurrence of a Change in Control, a Holder has the right, at such Holder's option, to require the Company to repurchase all of such Holder's Notes or any portion thereof (in
principal amounts of $1,000 or integral multiples thereof) on the Change in Control Repurchase Date at a price equal to the Change in Control Repurchase Price. 


6.    Conversion.    


        Subject
to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the
Indenture, prior to the close of business on the Business Day immediately preceding the Maturity Date, to convert this Note or portion thereof that is $1,000 or an integral multiple thereof, into
Common Stock, Cash or a combination thereof, at the Company's election, at a Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture. 


7.    Defaults and Remedies.    


        Subject
to certain exceptions, if an Event of Default, other than a Bankruptcy Default, occurs and is continuing under this Indenture, the Trustee or the Holders of at least 25% in
aggregate of the outstanding principal amount of the Notes, by written notice to the Company (and to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the
principal of and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal and interest will become immediately due and payable. If a
Bankruptcy Default occurs, the principal of and accrued interest on the Notes then outstanding will become immediately due and payable automatically without any declaration or other act on the part of
the Trustee or any Holder. 


8.    Amendment and Waiver.    


        Subject
to certain exceptions set forth in this Indenture, this Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of a majority in
principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or this Note to, among other things, cure
any ambiguity, omission, defect or inconsistency in this Indenture or this Note that does not adversely affect the rights of any Holder of the Notes. 


9.    Registered Form; Denominations; Transfer; Exchange.    


        The
Notes are in registered form without coupons in denominations of $1,000 principal amount and integral multiples of $1,000. A Holder may register the transfer or exchange of Notes in
accordance with this Indenture. The Trustee may require a Holder to furnish appropriate endorsements and transfer documents and to pay any taxes and fees as set forth in this Indenture. Pursuant to
this Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note. 


10.    Persons Deemed Owners.    


        The
registered Holder of this Note may be treated as the owner of this Note for all purposes. 


11.    Unclaimed Money or Notes.    


        The
Trustee and each Paying Agent shall pay or deliver, as the case may be, to the Company upon request any money, Common Stock or other consideration held by them for the payment of the
principal amount of (including the relevant Change in Control Repurchase Price) and interest on, or the amount due in connection with any conversion of, this Note that remains unclaimed for two years
after a right to such money, Common Stock or other consideration has matured. 


A-5







 



12.    Trustee Dealings with the Company.    


        The
Trustee, in its individual or any other capacity, may become the owner or pledgee of this Note and may otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. 


13.    No Recourse Against Others.    


        No
director, officer, employee, incorporator, member or stockholder of the Company, as such, will have any liability for any obligations of the Company under this Note or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations. Each Holder of this Note by accepting this Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of this Note. 


14.    Authentication.    


        This
Note shall not be valid until an authorized officer of the Trustee signs manually or by facsimile the Trustee's Certificate of Authentication on the other side of this Note. 


15.    Governing Law.    


        THE
INDENTURE AND THE NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). 


16.    Abbreviations.    


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


        The
Company will furnish a copy of this Indenture to any Holder upon written request and without charge. 


A-6







 
[FORM OF TRANSFER NOTICE]  


        FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto 


Insert
Taxpayer Identification No. 



	    
    
 Please print or typewrite name and address including zip code of
assignee
	

    
 the within Note and all rights thereunder, hereby irrevocably constituting and appointing
	

    

	
attorney to transfer said Note on the books of the Company with full power of substitution in the premises.





	

 	
 	

 	
 	

Your Signature:
	

Date:	
 	

 
	

 	
 	

 	
 	

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

*Signature guaranteed by:
	

By:	
 	

    
	
 	

 






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


A-7







 
CONVERSION NOTICE  


        To convert this Note, check the box: o 


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


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



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

    
    
    
 (Print or type assignee's name, address and zip code)
	
and irrevocably appoint
	

    

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





	

 	
 	

 	
 	

Your Signature:
	

Date:	
 	

 
	

 	
 	

 	
 	

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

*Signature guaranteed by:
	

By:	
 	

    
	
 	

 






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


A-8







 
SCHEDULE OF EXCHANGES OF NOTES(4)  


        The initial principal amount of this Global Note is $[    ],000,000. The following exchanges of a part of this Global Note for
an interest in another Global Note or for Notes in certificated form, have been made: 



	Date of Exchange
	 	Amount of decrease

in Principal Amount

of this Global Note
	 	Amount of Increase

in Principal Amount

of this Global Note
	 	Principal Amount

of this Global

Note following

such decrease

or increase
	 	Signature or

authorized signatory

of Trustee

	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    
	    	 	    	 	    	 	    	 	    






	(4)
	This
schedule should be included only if the Note is a Global Note. 


A-9








   EXHIBIT B


DTC LEGEND 


        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 A BENEFICIAL INTEREST HEREIN. 


        TRANSFERS
OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THIS INDENTURE. 


B-1