Exhibit 4.2


 




 





PRICELINE.COM
INCORPORATED


 


ISSUER


 






 


AMERICAN STOCK TRANSFER
& TRUST COMPANY


 


TRUSTEE


 






 


INDENTURE


 


Dated as of November 6, 2006


 






 


2006 2.25% CONVERTIBLE
SENIOR NOTES DUE JANUARY 15, 2025




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  
	
  Section 1.1 Definitions

  	
  1

  
	
  Section 1.2 Compliance Certificates and
  Opinions

  	
  10

  
	
  Section 1.3 Form of Documents Delivered to the
  Trustee

  	
  11

  
	
  Section 1.4 Acts of Holders of Securities

  	
  11

  
	
  Section 1.5 Notices, Etc. to the Trustee and
  Company

  	
  13

  
	
  Section 1.6 Notice to Holders of Securities;
  Waiver

  	
  14

  
	
  Section 1.7 Effect of Headings and Table of
  Contents

  	
  14

  
	
  Section 1.8 Successors and Assigns

  	
  14

  
	
  Section 1.9 Separability Clause

  	
  14

  
	
  Section 1.10 Benefits of Indenture

  	
  15

  
	
  Section 1.11 Governing Law

  	
  15

  
	
  Section 1.12 Legal Holidays

  	
  15

  
	
  Section 1.13 Conflict With Trust Indenture Act

  	
  15

  
	
   

  	
   

  
	
  ARTICLE II
  SECURITY FORMS

  	
  16

  
	
   

  	
   

  
	
  Section 2.1 Form Generally

  	
  16

  
	
  Section 2.2 Form of Security

  	
  17

  
	
  Section 2.3 Form of Certificate of
  Authentication

  	
  30

  
	
  Section 2.4 Form of Conversion Notice

  	
  31

  
	
  Section 2.5 Form of Assignment

  	
  32

  
	
   

  	
   

  
	
  ARTICLE III THE
  SECURITIES

  	
  33

  
	
   

  	
   

  
	
  Section 3.1 Title and Terms

  	
  33

  
	
  Section 3.2 Denominations

  	
  33

  
	
  Section 3.3 Execution, Authentication, Delivery
  and Dating

  	
  34

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

  	
  34

  
	
  Section 3.5 Registration; Registration of
  Transfer and Exchange

  	
  36

  
	
  Section 3.6 Mutilated, Destroyed, Lost or
  Stolen Securities

  	
  38

  
	
  Section 3.7 Payment of Interest; Interest
  Rights Preserved

  	
  39

  
	
  Section 3.8 Persons Deemed Owners

  	
  40

  
	
  Section 3.9 Cancellation

  	
  40

  
	
  Section 3.10 Computation of Interest

  	
  40

  
	
  Section 3.11 CUSIP Numbers

  	
  40

  
	
   

  	
   

  
	
  ARTICLE IV
  SATISFACTION AND DISCHARGE

  	
  41

  
	
   

  	
   

  
	
  Section 4.1 Satisfaction and Discharge of
  Indenture

  	
  41

  



 


i

















 


	
  Section 4.2 Application of Trust Money

  	
  42

  
	
   

  	
   

  
	
  ARTICLE V
  REMEDIES

  	
  42

  
	
   

  	
   

  
	
  Section 5.1 Events of Default

  	
  42

  
	
  Section 5.2 Acceleration of Maturity;
  Rescission and Annulment

  	
  44

  
	
  Section 5.3 Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  45

  
	
  Section 5.4 Trustee May File Proofs of Claim

  	
  45

  
	
  Section 5.5 Trustee May Enforce Claims Without
  Possession of Securities

  	
  46

  
	
  Section 5.6 Application of Money Collected

  	
  46

  
	
  Section 5.7 Limitation on Suits

  	
  47

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

  	
  47

  
	
  Section 5.9 Restoration of Rights and Remedies

  	
  48

  
	
  Section 5.10 Rights and Remedies Cumulative

  	
  48

  
	
  Section 5.11 Delay or Omission Not Waiver

  	
  48

  
	
  Section 5.12 Control by Holders of Securities

  	
  48

  
	
  Section 5.13 Waiver of Past Defaults

  	
  49

  
	
  Section 5.14 Undertaking for Costs

  	
  49

  
	
  Section 5.15 Waiver of Stay, Usury or Extension
  Laws

  	
  49

  
	
   

  	
   

  
	
  ARTICLE VI THE
  TRUSTEE

  	
  50

  
	
   

  	
   

  
	
  Section 6.1 Certain Duties and Responsibilities

  	
  50

  
	
  Section 6.2 Notice of Defaults

  	
  51

  
	
  Section 6.3 Certain Rights of Trustee

  	
  51

  
	
  Section 6.4 Not Responsible for Recitals or
  Issuance of Securities

  	
  52

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

  	
  52

  
	
  Section 6.6 Money Held in Trust

  	
  53

  
	
  Section 6.7 Compensation and Reimbursement

  	
  53

  
	
  Section 6.8 Corporate Trustee Required;
  Eligibility

  	
  53

  
	
  Section 6.9 Resignation and Removal;
  Appointment of Successor

  	
  54

  
	
  Section 6.10 Acceptance of Appointment by
  Successor

  	
  55

  
	
  Section 6.11 Merger, Conversion, Consolidation
  or Succession to Business

  	
  56

  
	
  Section 6.12 Authenticating Agents

  	
  56

  
	
  Section 6.13 Disqualification; Conflicting
  Interests

  	
  57

  
	
  Section 6.14 Preferential Collection of Claims
  Against Company

  	
  57

  
	
   

  	
   

  
	
  ARTICLE VII
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  58

  
	
   

  	
   

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

  	
  58

  
	
  Section 7.2 Successor Substituted

  	
  58

  
	
   

  	
   

  
	
  ARTICLE VIII
  SUPPLEMENTAL INDENTURES

  	
  59

  
	
   

  	
   

  
	
  Section 8.1 Supplemental Indentures Without
  Consent of Holders of Securities

  	
  59

  



 


ii

















 


	
  Section 8.2 Supplemental Indentures with
  Consent of Holders of Securities

  	
  60

  
	
  Section 8.3 Execution of Supplemental
  Indentures

  	
  61

  
	
  Section 8.4 Effect of Supplemental Indentures

  	
  61

  
	
  Section 8.5 Reference in Securities to
  Supplemental Indentures

  	
  61

  
	
  Section 8.6 Notice of Supplemental Indentures

  	
  61

  
	
   

  	
   

  
	
  ARTICLE IX
  HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY

  	
  62

  
	
   

  	
   

  
	
  Section 9.1 Company to Furnish Trustee Names
  and Addresses of Holders

  	
  62

  
	
  Section 9.2 Preservation of Information

  	
  62

  
	
  Section 9.3 Reports by Trustee

  	
  62

  
	
  Section 9.4 Reports by Company

  	
  63

  
	
   

  	
   

  
	
  ARTICLE X
  COVENANTS

  	
  63

  
	
   

  	
   

  
	
  Section 10.1 Payment of Principal and Interest

  	
  63

  
	
  Section 10.2 Maintenance of Offices or Agencies

  	
  63

  
	
  Section 10.3 Money for Security Payments to Be
  Held in Trust

  	
  64

  
	
  Section 10.4 Existence

  	
  65

  
	
  Section 10.5 Statement by Officers as to
  Default

  	
  65

  
	
  Section 10.6 RESERVED

  	
  66

  
	
  Section 10.7 RESERVED

  	
  66

  
	
  Section 10.8 RESERVED

  	
  66

  
	
  Section 10.9 Waiver of Certain Covenants

  	
  66

  
	
   

  	
   

  
	
  ARTICLE XI
  REDEMPTION OF SECURITIES

  	
  66

  
	
   

  	
   

  
	
  Section 11.1 Right of Redemption

  	
  66

  
	
  Section 11.2 Applicability of Article

  	
  66

  
	
  Section 11.3 Election to Redeem; Notice to
  Trustee

  	
  66

  
	
  Section 11.4 Selection by Trustee of Securities
  to Be Redeemed

  	
  67

  
	
  Section 11.5 Notice of Redemption

  	
  67

  
	
  Section 11.6 Deposit of Redemption Price

  	
  68

  
	
  Section 11.7 Securities Payable on Redemption
  Date

  	
  68

  
	
  Section 11.8 Conversion Arrangement on Call for
  Redemption

  	
  69

  
	
   

  	
   

  
	
  ARTICLE XII
  CONVERSION OF SECURITIES

  	
  70

  
	
   

  	
   

  
	
  Section 12.1 Conversion Privilege and
  Conversion Rate

  	
  70

  
	
  Section 12.2 Exercise of Conversion Privilege

  	
  73

  
	
  Section 12.3 Fractions of Shares

  	
  76

  
	
  Section 12.4 Adjustment of Conversion Rate

  	
  76

  
	
  Section 12.5 Notice of Adjustments of
  Conversion Rate

  	
  80

  
	
  Section 12.6 Notice of Certain Corporate Action

  	
  81

  
	
  Section 12.7 Company to Reserve Common Stock

  	
  82

  
	
  Section 12.8 Taxes on Conversions

  	
  82

  
	
  Section 12.9 Covenant as to Common Stock

  	
  82

  



 


iii

















 


	
  Section 12.10 Cancellation of Converted
  Securities

  	
  82

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

  	
  82

  
	
  Section 12.12 Rights Issued in Respect of
  Common Stock

  	
  83

  
	
  Section 12.13 Responsibility of Trustee for
  Conversion Provisions

  	
  84

  
	
   

  	
   

  
	
  ARTICLE XIII
  DEFEASANCE

  	
  85

  
	
   

  	
   

  
	
  Section 13.1 Company’s Option to Effect
  Defeasance

  	
  85

  
	
  Section 13.2 Defeasance and Discharge

  	
  85

  
	
  Section 13.3 Conditions to Defeasance

  	
  85

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

  	
  87

  
	
  Section 13.5 Reinstatement

  	
  87

  
	
   

  	
   

  
	
  ARTICLE XIV
  REPURCHASE OF SECURITIES

  	
  88

  
	
   

  	
   

  
	
  Section 14.1 Right to Require Repurchase

  	
  88

  
	
  Section 14.2 Right to Require Repurchase Upon a
  Designated Event

  	
  88

  
	
  Section 14.3 RESERVED

  	
  89

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

  	
  89

  
	
  Section 14.5 Certain Definitions

  	
  92

  
	
  Section 14.6 Consolidation, Merger, Etc.

  	
  94

  
	
   

  	
   

  
	
  ARTICLE XV MAKE
  WHOLE PREMIUM

  	
  94

  
	
   

  	
   

  
	
  Section 15.1 Determination of the Make Whole
  Premium

  	
  94

  
	
  Section 15.2 Payment of the Make Whole Premium

  	
  96

  
	
  Section 15.3 Adjustments Relating to the Make
  Whole Premium

  	
  97

  



 


iv

















 


CROSS-REFERENCE
TABLE*


 


	
  Trust
  Indenture

  	
   

  	
  Indenture

  
	
  Act
  Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.8

  
	
  (a)(3)

  	
   

  	
  n/a

  
	
  (a)(4)

  	
   

  	
  n/a

  
	
  (a)(5)

  	
   

  	
  6.8

  
	
  (b)

  	
   

  	
  6.13, 6.9

  
	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  
	
  311(a)

  	
   

  	
  6.14

  
	
  (b)

  	
   

  	
  6.14

  
	
  (c)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  
	
  312(a)

  	
   

  	
  9.1

  
	
  (b)

  	
   

  	
  9.2

  
	
  (c)

  	
   

  	
  9.2

  
	
   

  	
   

  	
   

  
	
  313(a)

  	
   

  	
  9.3

  
	
  (b)(1)

  	
   

  	
  9.3

  
	
  (b)(2)

  	
   

  	
  9.3

  
	
  (c)

  	
   

  	
  9.3

  
	
  (d)

  	
   

  	
  9.4

  
	
   

  	
   

  	
   

  
	
  314(a)

  	
   

  	
  9.4

  
	
  (b)

  	
   

  	
  n/a

  
	
  (c)(1)

  	
   

  	
  1.2

  
	
  (c)(2)

  	
   

  	
  1.2

  
	
  (c)(3)

  	
   

  	
  n/a

  
	
  (d)

  	
   

  	
  n/a

  
	
  (e)

  	
   

  	
  1.2

  
	
  (f)

  	
   

  	
  n/a

  
	
   

  	
   

  	
   

  
	
  315(a)

  	
   

  	
  6.1

  
	
  (b)

  	
   

  	
  6.2, 10.5

  
	
  (c)

  	
   

  	
  6.3

  
	
  (d)

  	
   

  	
  6.1

  
	
  (e)

  	
   

  	
  5.14

  
	
   

  	
   

  	
   

  
	
  316(a)(last sentence)

  	
  12.4

  
	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
  (a)(2)

  	
   

  	
  n/a

  



 


v

















 


	
  (b)

  	
  5.8

  
	
  (c)

  	
  2.2

  
	
   

  	
   

  
	
  317(a)(1)

  	
  5.3

  
	
  (a)(2)

  	
  5.4

  
	
  (b)

  	
  6.2

  
	
   

  	
   

  
	
  318(a)

  	
  1.13

  
	
  (b)

  	
  n/a

  
	
  (c)

  	
  1.13

  



 






“n/a” means not applicable.


 


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


 


vi

















 


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


 


RECITALS OF THE COMPANY


 


The
Company has duly authorized the creation
of an issue of its 2006 2.25% Convertible Senior Notes due January 15, 2025
(herein called the “Securities”) of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.


 


All
things necessary to make the Securities, when the Securities are executed by
the Company and authenticated and delivered hereunder, the valid obligations of
the Company, and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done. Further, all things necessary
to duly authorize the issuance of the Common Stock of the Company issuable upon
the conversion of the Securities, and to duly reserve for issuance the number
of shares of Common Stock issuable upon such conversion, have been done.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE
I

DEFINITIONS AND OTHER PROVISIONS OF

GENERAL APPLICATION


 


Section 1.1                                      Definitions.


 


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


 


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


 


(2)           all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation;
and


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


“Code”
has the meaning specified in Section 2.1.


 


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


 


“Common
Stock” means the Common Stock, par value $0.008 per share, of the Company
authorized at the date of this instrument as originally executed or as such
stock may be constituted from time to time. Subject to the provisions of Section 12.11,
shares issuable on conversion of Securities shall include only shares of Common
Stock or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.


 


“common
stock” includes any stock of any class of capital stock which has no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the issuer thereof and
which is not subject to redemption by the issuer thereof.


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Corporate
Trust Office” means the office of the Trustee at which at any particular time
the trust created by this Indenture shall be principally administered (which at
the date of this Indenture is located at 59 Maiden Lane, New York, NY  10038, Attention:  Corporate Trust Administration, priceline.com
Incorporated, 2006 2.25% Convertible Senior Notes due January 15, 2025).


 


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


 


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


 


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


 


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


 


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


 


4

















 


“Daily VWAP” means for each of the 20 consecutive
Trading Days during the Observation Period, the per share volume-weighted
average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page
PCLN <equity> AQR in respect of the period from 9:30 a.m. to 4:00 p.m.
(New York City time) on such Trading Day (or if such volume-weighted average
price is unavailable, the market value of one share of Common Stock on such
Trading Day as the Board of Directors determines in good faith using a
volume-weighted method).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Regular
Record Date” for interest payable in respect of any Security on any Interest
Payment Date means the close of business on January 1 or July 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1.2                                                              Compliance
Certificates and Opinions.


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


Section 1.3                                                              Form
of Documents Delivered to the Trustee.


 


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


 


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


 


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


 


Section 1.4                                                              Acts
of Holders of Securities.


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


(1)           the Trustee by any Holder of
Securities or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (which may be via facsimile) to or
with a Responsible Officer of the Trustee and received at its Corporate Trust
Office, Attention: Corporate Trust Administration, priceline.com Incorporated, 2006
2.25% Convertible Senior Notes due January 15, 2025.


 


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


 


13

















 


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


 


Section 1.6                                                              Notice
to Holders of Securities; Waiver.


 


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


 


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


 


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


 


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


 


Section 1.7                                                              Effect
of Headings and Table of Contents.


 


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


 


Section 1.8                                                              Successors
and Assigns.


 


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


 


Section 1.9                                                              Separability
Clause.


 


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


 


14

















 


Section 1.10                                                        Benefits
of Indenture.


 


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


 


Section 1.11                                                        Governing
Law.


 


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


 


Section 1.12                                                        Legal
Holidays.


 


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


 


Section 1.13                                                        Conflict
With Trust Indenture Act.


 


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


 


15

















 


ARTICLE II

SECURITY FORMS


 


Section 2.1                                                              Form
Generally.


 


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


 


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


 


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


 


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


 


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


 


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


 


16

















 


Section 2.2                                                              Form
of Security.


 


[FORM OF FACE]


 


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


 


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY
FOR ALL PURPOSES.


 


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


 


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


 


17

















 


PRICELINE.COM
INCORPORATED


 


2006 2.25%
CONVERTIBLE SENIOR NOTE DUE JANUARY 15, 2025


 


	
  No.

  	
  $

  



 


CUSIP NO.


 


PRICELINE.COM INCORPORATED, a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the “Company,” which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to                                   ,
or registered assigns, the principal sum of                 
United States Dollars (U.S. $            
) [if this Security is a Global Security, then
insert — (which principal amount may from time to time be decreased
to such other principal amounts (which, taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $100,000,000) by
adjustments made on the records of the Trustee hereinafter referred to in
accordance with the Indenture)] on January
15, 2025 and to pay interest thereon, from July 15, 2006, or from the most
recent Interest Payment Date (as defined below) to which interest has been paid
or duly provided for, semi-annually in arrears on January 15 and July 15 in
each year (each, an “Interest Payment Date”), commencing January 15, 2007,
at the rate of 2.25% per annum, until the principal hereof is due, and at the
rate of 1.00% per annum on any overdue principal and, to the extent permitted
by law, on any overdue interest. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 1 or July 1 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to Holders of Securities not less than 10 days prior to the Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any automated quotation system or securities exchange
on which the Securities may be quoted or listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payments of principal shall be made upon the surrender of  this Security at the option of the Holder at
the Corporate Trust Office of the Trustee, or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of  New York, in such
lawful monies of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate, by United States Dollar check
drawn on, or wire transfer to, a United States Dollar account (such a transfer
to be made only to a Holder of an aggregate principal amount of Securities in
excess of U.S. $2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date).


 


18

















 


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


 


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


 


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


 


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


 


19

















 


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


 


 


	
   

  	
  PRICELINE.COM
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TRUSTEE’S CERTIFICATE OF AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AMERICAN STOCK TRANSFER & TRUST COMPANY,

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
									



 


20

















 


[FORM
OF REVERSE]


 


This
Security is one of a duly authorized issue of securities of the Company
designated as its “2006 2.25% Convertible Senior Notes due January 15, 2025”
(herein called the “Securities”), limited in aggregate principal amount to U.S.
$100,000,000, issued and to be issued under an Indenture, dated as of November 6,
2006 (herein called the “Indenture,” which term shall have the meaning assigned
to it in such instrument), between the Company and American Stock Transfer
& Trust Company, as Trustee (herein called the “Trustee,” which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of any authorized denominations as requested by the Holder surrendering the
same upon surrender of the Security or Securities to be exchanged, at the
Corporate Trust Office of the Trustee. The Trustee upon such surrender by the
Holder will issue the new Securities in the requested denominations.


 


No
sinking fund is provided for the Securities.


 


The
Securities are also subject to redemption at the option of the Company at any
time on or after January 20, 2010, in whole or in part, upon not less than 30
nor more than 60 days’ notice to the Holders prior to the Redemption Date at a
Redemption Price equal to 100% of the principal amount, together, in each case,
with accrued and unpaid interest, if any, to, but excluding, the Redemption
Date; provided, however, that interest installments on
Securities whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.


 


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


 


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


 


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


 


21

















 


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


 


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


 


(1)           if, on or prior to January 15, 2020,
the Closing Price Per Share of the Common Stock for at least 20 Trading Days in
the period of the 30 consecutive Trading Days ending on the first day of a
Conversion Period was more than 120% of the then current Conversion Price of
the Securities, then the Holder thereof will be entitled to convert such
Security during that Conversion Period;


 


(2)           if, on any date after January 15,
2020 and prior to the Stated Maturity, the Closing Price Per Share of the
Common Stock is more than 120% of the then current Conversion Price of the
Securities, then the Holder thereof will be entitled to convert such Security
at all times thereafter;


 


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


 


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


 


(5)           if a Fundamental Change occurs, then
the Holder will be entitled to convert such Security during the period
specified below; or


 


(6)           if, on or after January 20, 2010, the
Company elects to call any Security for redemption, then the Holder thereof
will be entitled to convert such Security at any time from and after the date
on which the Company gives notice of such redemption until the close of
business on the Business Day immediately preceding the Redemption Date.


 


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


 


22

















 


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


 


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


 


Subject
to and upon compliance with the terms described above and the provisions of the
Indenture, the Holder of this Security is entitled, at his option, at any time
on or before the close of business on the date of Maturity, or in case this
Security or a portion hereof is called for redemption or the Holder hereof has
exercised his right to require the Company to repurchase this Security or such
portion hereof, then in respect of this Security until the Business Day
immediately preceding, but (unless the Company defaults in making the payment
due upon redemption or repurchase, as the case may be) not after, the close of
business on the Business Day immediately preceding the Redemption Date, the
Repurchase Date or the Designated Event Repurchase Date, as the case may be, to
convert this Security (or any portion of the principal amount hereof that is an
integral multiple of U.S. $1,000, provided
that the unconverted portion of such principal amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof) at an initial Conversion
Rate of 26.3505 shares of Common Stock for each U.S. $1,000 principal amount of
Securities (or at the current adjusted Conversion Rate if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank and, in case such surrender
shall be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date (except if this Security or portion thereof has
been called for redemption on a Redemption Date or is repurchasable on a
Repurchase Date or Designated Event Repurchase Date occurring, in either case,
during such period and, as a result, the right to convert this Security would
otherwise terminate in such period if not exercised), also accompanied by
payment in New York Clearing House or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted, and also the conversion
notice hereon duly executed, to the Company at the Corporate Trust Office of
the Trustee, or at such other office or agency of the Company, subject to any
laws or regulations applicable thereto and subject to the right of the Company
to terminate the appointment of any Conversion Agent (as defined below) as may
be designated by it for such purpose in the Borough of  Manhattan, The City of New York, or at such


 


23

















 


other offices or agencies as the Company may designate
(each a “Conversion Agent”), provided,
further, that, if this Security
or portion hereof has been called for redemption on a Redemption Date or is
repurchasable on a Repurchase Date or Designated Event Repurchase Date
occurring, in either case, during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such succeeding Interest Payment Date, and as a result, the right
to convert this Security would otherwise terminate in such period if not
exercised and this Security is surrendered for conversion during such period,
then the Holder of this Security on such Regular Record Date will be entitled
to receive the interest accruing hereon from the Interest Payment Date next
preceding the date of such conversion to such succeeding Interest Payment Date
and the Holder of this Security who converts this Security or a portion hereof
during such period shall not be required to pay such interest upon surrender of
this Security for conversion. Subject to the provisions of the preceding
sentence and, in the case of a conversion after the close of business on the
Regular Record Date next preceding any Interest Payment Date and on or before
the close of business on such Interest Payment Date, to the right of the Holder
of this Security (or any Predecessor Security of record as of such Regular
Record Date) to receive the related installment of interest to the extent and
under the circumstances provided in the Indenture, no cash payment or
adjustment is to be made on conversion for interest accrued hereon from the
Interest Payment Date next preceding the day of conversion, or for dividends on
the Common Stock issued on conversion hereof. The Company shall thereafter
deliver to the Holder (1) cash or a combination of cash and shares of Common
Stock (together with any cash adjustment, as provided in the Indenture) into
which this Security is convertible and (2) if the conversion of such Security
is upon the occurrence of a Fundamental Change with an Effective Date that is
on or before January 15, 2010, the Make Whole Premium payable upon such
conversion, if any, and such delivery will be deemed to satisfy the Company’s
obligation to pay the principal amount of this Security. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but
instead of any fractional interest (calculated to the nearest 1/100th of a
share) the Company shall pay a cash adjustment as provided in the Indenture.
The Conversion Rate is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party (other than a consolidation or merger
that does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock) or the conveyance, transfer, sale or lease of
all or substantially all of the property and assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities,
so that this Security, if then Outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above, only
into the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, transfer, sale or lease by a holder of
the number of  shares of Common Stock of
the Company into which this Security could have been converted immediately
prior to such consolidation, merger, conveyance, transfer, sale or lease
(assuming such holder of Common Stock is not a Constituent Person or an
Affiliate of a Constituent Person), as determined in accordance with the
Indenture. A Holder may convert all or part of this Security by delivering this
Security at the corporate trust office of the Trustee accompanied by a duly
signed and completed conversion notice, a copy of which may be obtained by the
Trustee. [if this security is a global security, then
insert – DTC will affect the conversion upon notice from the Holder
of a beneficial


 


24

















 


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


 


Subject
to the terms and conditions of the Indenture, the Company shall repurchase all
or a portion of the Securities (any such portion being at least $1,000 or an
integral multiple of $1,000 in excess thereof and provided that no single
Security may be repurchased in part unless the portion of the principal amount
of such Security to be Outstanding after such repurchase is equal to $1,000 or
integral multiples of $1,000 in excess thereof) at the option of the Holder on
each of January 15, 2010, 2015 and 2020 (each, a “Repurchase Date”), at a
repurchase price equal to 100% of the principal amount of the Securities to be
repurchased, plus interest accrued but unpaid to, but excluding, such
Repurchase Date (the “Repurchase Price”). The Repurchase Price shall be paid in
cash.


 


If a
Designated Event occurs, the Holder of this Security, at the Holder’s option,
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase this Security (or any portion of the
principal amount hereof that is at least $1,000 or an integral multiple of
$1,000 in excess thereof, provided
that the portion of the principal amount of this Security to be Outstanding
after such repurchase is at least equal to U.S. $1,000) at a Designated Event
Repurchase Price equal to 100% of the principal amount thereof plus interest
accrued to the Designated Event Repurchase Date plus, in the case of a
Designated Event that is a Fundamental Change with an Effective Date that is on
or before January 15, 2010, a Make Whole Premium, if any. The Designated Event
Repurchase Price shall be paid in cash, except that any Make Whole Premium may
be paid in shares of our Common Stock or cash.


 


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


 


If a
Fundamental Change occurs on or before January 15, 2010, Holders of this
Security will be entitled to receive from the Company (a) upon the repurchase
of this Security tendered upon a Designated Event pursuant to Section 14.2 of
the Indenture or (b) upon conversion of this Security in accordance with Section
12.1(a)(5) of the Indenture, the Make Whole Premium. 


 


[The
following paragraph shall appear in each Global Security:


 


In the
event of a deposit or withdrawal of an interest in this Security, including an
exchange, transfer, redemption, repurchase or conversion of this Security in
part only, the Trustee, as custodian


 


25

















 


of the Depositary, shall make an adjustment on its
records to reflect such deposit or withdrawal in accordance with the Applicable
Procedures.]


 


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


 


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


 


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


 


[The following paragraph shall appear in each
Global Security:


 


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


 


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


 


As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default, the Holders of not less than
25% in principal amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities Outstanding a direction inconsistent with such request, and


 


26

















 


shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein or for the enforcement of the right
to convert this Security as provided in the Indenture.


 


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


 


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


 


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


 


Prior
to due presentation of a Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered, as the owner thereof for all purposes,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


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


 


27

















 


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


 


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


 


28














 


ABBREVIATIONS


 


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


 


	
  TEN COM

  	
  as tenant in common

  	
  UNIF GIFT MIN ACT

  	
          
  Custodian         

  
	
  TEN ENT

  	
  as tenants by the
  entireties (Cust)

  	
   

  	
  (Cust)

  	
  (Minor)

  
	
  JT TEN

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

  	
   

  	
  under Uniform Gifts to
  Minors Act        

  
	
   

  	
   

  	
   

  	
   

  	
  (State)

  
						



 


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


 


29

















 


ELECTION
OF HOLDER TO REQUIRE REPURCHASE


 


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


 


(2)           The undersigned hereby directs the
Trustee or the Company to pay it or                             
an amount in cash equal to 100% of the principal amount to be repurchased plus
interest accrued to, but excluding, the Repurchase Date, as provided in the
Indenture plus, in the case of a repurchase upon a Designated Event that is a
Fundamental Change with an Effective Date that is on or before January 15,
2010, the applicable Make Whole Premium, if any.


 


	
  Dated:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  
	
  Signature(s)

  
	
   

  
	
  Signature(s) must be guaranteed by an Eligible

  
	
  Guarantor Institution with membership in an

  
	
  approved signature guarantee program pursuant

  
	
  to Rule 17Ad-15 under the Securities Exchange

  
	
  Act of 1934.

  
	
   

  
	
   

  	
   

  
	
  Signature Guaranteed

  
	
   

  
	
  Principal amount to be repurchased (at least

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

  
	
  in excess thereof):

  
	
   

  
	
  Remaining principal amount following such

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

  



 


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


 


Section 2.3                                                              Form
of Certificate of Authentication.


 


The
Trustee’s certificate of authentication shall be in substantially the following
form:


 


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


 


30

















 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AMERICAN
  STOCK TRANSFER &

  	
   

  
	
   

  	
   

  	
      TRUST
  COMPANY

  	
   

  
	
   

  	
   

  	
  as
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  
						



 


Section 2.4                                                              Form
of Conversion Notice.


 


CONVERSION
NOTICE


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  	
   

  
	
   

  
	
  If shares or Securities are to be registered in the

  
	
  name of a Person other than the Holder, please

  
	
  print such Person’s name and address:

  
	
   

  
	
   

  	
   

  
	
  (Name)

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  
							



 


31

















 


	
   

  	
   

  
	
  Social Security or other Identification

  
	
  Number, if any

  
	
   

  
	
   

  	
   

  
	
  [Signature Guaranteed]

  



 


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


 


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


 


2.                                       Principal
amount and denomination of Securities

representing unconverted principal amount to be issued:


 


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


 


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


 


Section 2.5                                                              Form
of Assignment.


 


ASSIGNMENT


 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  



 


32

















 


ARTICLE III
THE SECURITIES


 


Section 3.1                                                              Title
and Terms.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to U.S. $100,000,000, except for
Securities authenticated and delivered pursuant to Section 3.4, Section 3.5,
Section 3.6, Section 8.5, Section 12.2 or Section 14.4(6)
in exchange for, or in lieu of, other Securities previously authenticated and
delivered under this Indenture.


 


The
Securities shall be known and designated as the “2006 2.25% Convertible Senior
Notes due January 15, 2025” of the Company. Their Stated Maturity shall be
January 15, 2025, and they shall bear interest on their principal amount from July
15, 2006, payable semi-annually in arrears on January 15 and July 15 in each
year, commencing January 15, 2007, at the rate of 2.25% per annum until the principal
thereof is due and at the rate of 1.00% per annum on any overdue principal and,
to the extent permitted by law, on any overdue interest; provided, however,
that payments shall only be made on a Business Day as provided in Section 1.12.


 


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


 


The
Securities shall be senior unsecured obligations of the Company and shall rank pari passu with all of the Company’s other
senior unsecured obligations, including, without limitation, the Company’s
1.00% Convertible Senior Notes due August 1, 2010, issued pursuant to an
indenture dated as of August 1, 2003 between the Company and the Trustee, as
amended or supplemented.


 


The
Securities shall be redeemable at the option of the Company at any time on or
after January 20, 2010, in whole or in part, subject to the conditions and as
otherwise provided in Article XI and in the form of Security set forth in Section 2.2.


 


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


 


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


 


Section 3.2                                                              Denominations.


 


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


 


33

















 


Section 3.3                                                              Execution,
Authentication, Delivery and Dating.


 


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


 


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


 


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


 


Each
Security shall be dated the date of its authentication.


 


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


 


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


 


(1)           Global Securities


 


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


 


(B)           Except
for exchanges of Global Securities for definitive, Non-global Securities at the
sole discretion of the Company, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered as such under the Exchange Act or announces an
intention permanently to cease business or does in fact do so or (B) there
shall have occurred and be continuing an Event of Default with


 


34

















 


respect to such
Global Security. In such event, if a successor Depositary for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of an Officers’ Certificate directing
the authentication and delivery of Securities, will authenticate and deliver,
Securities, in any authorized denominations in an aggregate principal amount
equal to the principal amount of such Global Security in exchange for such Global
Security.


 


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


 


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


 


(E)           The
Depositary or its nominee, as registered owner of a Global Security, shall be
the Holder of such Global Security for all purposes under the Indenture and the
Securities, and owners of beneficial interests in a Global Security shall hold
such interests pursuant to the Applicable Procedures. Accordingly, any such
owner’s beneficial interest in a Global Security will be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee or its Agent Members and such owners of
beneficial interests in a Global Security will not be considered the owners or
holders thereof.


 


35

















 


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


 


Section 3.5                                                              Registration;
Registration of Transfer and Exchange.


 


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


 


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


 


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


 


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


 


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


 


In the
event of a redemption of the Securities, neither the Company nor the Securities
Registrar will be required (a) to issue, register the transfer of or exchange
of Securities for a period


 


36

















 


of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer of or exchange of any Security, or
portion thereof, called for redemption.


 


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


 


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


 


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


 


(C)           Exchanges
Between Global Security and Non-global Security. A beneficial interest in a
Global Security may be exchanged for a Security that is not a Global Security
only as provided in Section 3.4 or only if such exchange occurs in
connection with a transfer effected in accordance with Clause 2(A) above. A
Security that is not a Global Security may be exchanged for a beneficial
interest in a Global Security only if such exchange occurs in connection with a
transfer effected in accordance with Clause (2)(B) above.


 


37

















 


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


 


Section 3.6                                                              Mutilated,
Destroyed, Lost or Stolen Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


Section 3.7                                                              Payment
of Interest; Interest Rights Preserved.


 


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


 


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


 


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


 


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


 


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


 


39

















 


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


 


Section 3.8                                                              Persons
Deemed Owners.


 


Prior
to due presentment of a Security for registration of transfer, the Company, the
Trustee, any Paying Agent and any agent of the Company, the Trustee or any
Paying Agent may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and (subject to Section 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee, any Paying Agent nor any agent of the Company, the
Trustee or any Paying Agent shall be affected by notice to the contrary.


 


Section 3.9                                                              Cancellation.


 


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


 


Section 3.10                                                        Computation
of Interest.


 


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


 


Section 3.11                                                        CUSIP
Numbers.


 


The
Company in issuing Securities may use “CUSIP” numbers (if then generally in
use) in addition to serial numbers; if so, the Trustee shall use such CUSIP
numbers in addition to serial numbers in notices of redemption and repurchase
as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Securities or as
contained in any notice of a redemption or repurchase and that reliance may be
placed only on the serial or other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission of such CUSIP numbers.


 


40

















 


ARTICLE IV

SATISFACTION AND DISCHARGE


 


Section 4.1                                                              Satisfaction
and Discharge of Indenture.


 


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


 


(1)           either


 


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


 


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


 


(a)           have
become due and payable, or


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.2                                                              Application
of Trust Money.


 


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


 


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


 


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


 


ARTICLE V

REMEDIES


 


Section 5.1                                                              Events
of Default.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


43

















 


or the consent by
either to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of either, or the making
by either of an assignment for the benefit of creditors, or the admission by
either in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any Significant
Subsidiary in furtherance of any such action.


 


Section 5.2                                                              Acceleration
of Maturity; Rescission and Annulment.


 


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


 


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


 


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


 


(A)          all
overdue interest on all Securities,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The
Company covenants that if:


 


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


 


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


 


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


 


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


 


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


 


Section 5.4                                                              Trustee
May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or the creditors of
either, the Trustee (irrespective of whether the principal of, and any interest
on, the Securities shall then be due and payable as therein expressed or by
declaration or


 


45

















 


otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,


 


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


 


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


 


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


 


Section 5.5                                                              Trustee
May Enforce Claims Without Possession of Securities.


 


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


 


Section 5.6                                                              Application
of Money Collected.


 


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


 


46

















 


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


 


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


 


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


 


Section 5.7                                                              Limitation
on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or Repurchase Date, as the
case may be), and to convert such Security in accordance with Article XII, and
to institute suit for


 


47

















 


the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
Holder.


 


Section 5.9                                                              Restoration
of Rights and Remedies.


 


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


 


Section 5.10                                                        Rights
and Remedies Cumulative.


 


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


 


Section 5.11                                                        Delay
or Omission Not Waiver.


 


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


 


Section 5.12                                                        Control
by Holders of Securities.


 


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


 


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


 


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


 


48

















 


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


 


Section 5.13                                                        Waiver
of Past Defaults.


 


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


 


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


 


Section 5.14                                                        Undertaking
for Costs.


 


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


 


Section 5.15                                                        Waiver
of Stay, Usury or Extension Laws.


 


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


 


49

















 


ARTICLE VI

THE TRUSTEE


 


Section 6.1                                                              Certain
Duties and Responsibilities.


 


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


 


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


 


(B)           in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture, but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture,
but not to verify the contents thereof.


 


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


 


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


 


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


 


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


 


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


 


(D)          no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for


 


50

















 


believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.


 


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


 


Section 6.2                                                              Notice
of Defaults.


 


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


 


Section 6.3                                                              Certain
Rights of Trustee.


 


Subject
to the provisions of Section 6.1:


 


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


 


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


 


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


 


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


 


51

















 


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


 


(6)           the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and


 


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


 


Section 6.4                                                              Not
Responsible for Recitals or Issuance of Securities.


 


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


 


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


 


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


 


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


 


52

















 


Section 6.6                                                              Money
Held in Trust.


 


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


 


Section 6.7                                                              Compensation
and Reimbursement.


 


The
Company agrees:


 


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


 


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


 


(3)           to indemnify the Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable costs,
expenses and reasonable attorneys’ fees of defending itself against any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder.


 


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


 


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


 


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


 


Section 6.8                                                              Corporate
Trustee Required; Eligibility.


 


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


 


53

















 


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


 


Section 6.9                                                              Resignation
and Removal; Appointment of Successor.


 


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


 


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


 


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


 


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


 


(5)           If at any time:


 


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


 


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


 


54

















 


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


 


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


 


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


 


Section 6.10                                                        Acceptance
of Appointment by Successor.


 


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


 


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


 


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


 


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


 


Section 6.12                                                        Authenticating
Agents.


 


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


 


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


 


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


 


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


 


56

















 


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


 


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


 


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


 


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


 


	
   

  	
  AMERICAN STOCK
  TRANSFER &

  
	
   

  	
  TRUST COMPANY

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  As Authenticating
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


Section 6.13                                                        Disqualification;
Conflicting Interests.


 


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


 


Section 6.14                                                        Preferential
Collection of Claims Against Company.


 


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


 


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ARTICLE VII

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.2                                                              Successor
Substituted.


 


Upon
any consolidation of the Company with, or merger of the Company with or into
any other Person or any conveyance, transfer, lease or other disposal of all or
substantially all the properties and assets of the Company in accordance with Section 7.1,
the successor Person formed by such consolidation or into or with which the
Company is merged or to which such conveyance,


 


58

















 


transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall not be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE VIII

SUPPLEMENTAL INDENTURES


 


Section 8.1                                                              Supplemental
Indentures Without Consent of Holders of Securities.


 


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


 


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


 


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


 


(3)           to secure the Securities; or


 


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


 


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


 


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


 


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


 


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


 


59

















 


Section 8.2                                                              Supplemental
Indentures with Consent of Holders of Securities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


60

















 


Section 8.3                                                              Execution
of Supplemental Indentures.


 


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


 


Section 8.4                                                              Effect
of Supplemental Indentures.


 


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


 


Section 8.5                                                              Reference
in Securities to Supplemental Indentures.


 


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


 


Section 8.6                                                              Notice
of Supplemental Indentures.


 


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


 


61

















 


ARTICLE IX

HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


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


 


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


 


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


 


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


 


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


 


Section 9.2                                                              Preservation
of Information.


 


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


 


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


 


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


 


Section 9.3                                                              Reports
by Trustee.


 


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


 


62

















 


(2)           After this Indenture has been
qualified under the Trust Indenture Act, a copy of each such report shall, at
the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the Securities are
listed on any stock exchange.


 


Section 9.4                                                              Reports
by Company.


 


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


 


ARTICLE X

COVENANTS


 


Section 10.1                                                        Payment
of Principal and Interest.


 


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


 


Section 10.2                                                        Maintenance
of Offices or Agencies.


 


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


 


63

















 


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


 


The
Company hereby initially designates the Trustee as Paying Agent, Security
Registrar, Conversion Agent and Calculation Agent, and each of the Corporate
Trust Office of the Trustee and the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, located at 59 Maiden Lane, New
York, New York 10038, attention: Corporate Trust Administration (priceline.com
Incorporated 2006 2.25% Convertible Senior Notes due January 15, 2025) as one
such office or agency of the Company for each of the aforesaid purposes.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.4                                                        Existence.


 


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


 


Section 10.5                                                        Statement
by Officers as to Default.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers’ Certificate, stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.


 


The Company will deliver to the Trustee, forthwith
upon becoming aware of any default or any Event of Default under the Indenture,
an Officers’ Certificate specifying with particularity such default or Event of
Default and further stating what action the Company has taken, is taking or


 


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proposes to take with respect thereto. For the purpose
of this Section, the term “default” means any event which is, or after notice
or lapse of time or both would become, an Event of Default.


 


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


 


Section 10.6                                                        RESERVED.


 


Section 10.7                                                        RESERVED.


 


Section 10.8                                                        RESERVED.


 


Section 10.9                                                        Waiver
of Certain Covenants.


 


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


 


ARTICLE XI

REDEMPTION OF SECURITIES


 


Section 11.1                                                        Right
of Redemption.


 


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


 


Section 11.2                                                        Applicability
of Article.


 


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


 


Section 11.3                                                        Election
to Redeem; Notice to Trustee.


 


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


 


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Section 11.4                                                        Selection
by Trustee of Securities to Be Redeemed.


 


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


 


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


 


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


 


Section 11.5                                                        Notice
of Redemption.


 


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


 


All notices of redemption shall state:


 


(1)                                  the
Redemption Date,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 11.6                                                        Deposit
of Redemption Price.


 


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


 


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


 


Section 11.7                                                        Securities
Payable on Redemption Date.


 


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


 


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


 


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


 


Any Security that is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or an office or agency of the
Company designated for that purpose pursuant to Section 10.2 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security without service charge, a
new Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. Upon
redemption, interests in Global Securities shall be reduced in accordance with
the Applicable Procedures.


 


Section 11.8                                                        Conversion
Arrangement on Call for Redemption.


 


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


 


69

















 


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


 


ARTICLE XII

CONVERSION OF SECURITIES


 


Section 12.1                                                        Conversion
Privilege and Conversion Rate.


 


(a)                                  Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, any Security (or any portion thereof equal to $1,000 or any
integral multiple of $1,000 in excess thereof) may be converted at a rate
(the "Conversion Rate") of 26.3505 shares of Common Stock (subject to
adjustment by the Company as provided in Section 12.4) per $1,000 principal
amount of the Security (the "Conversion Obligation") as follows:


 


(1)                                  if,
on or prior to January 15, 2020, the Closing Price Per Share of the Common
Stock for at least 20 Trading Days in the period of the 30 consecutive Trading
Days ending on the first day of a Conversion Period was more than 120% of the
then current Conversion Price, then the Holder thereof will be entitled to
convert such Security during that Conversion Period;


 


(2)                                  if,
on any date after January 15, 2020 and prior to the Stated Maturity, the
Closing Price Per Share of the Common Stock is more than 120% of the then
current Conversion Price, then the Holder thereof will be entitled to convert
such Security at all times thereafter;


 


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


 


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


 


(5)                                  if
a Fundamental Change occurs, then the Holder thereof will be entitled to
convert such Security during the period specified in this Section; if the Fundamental
Change occurs on or after January 15, 2010, Holders may be entitled to
receive a Make Whole Premium (consisting of extra cash or shares of Common
Stock) upon such conversion; or


 


(6)                                  if,
on or after January 20, 2010, the Company elects to call any Security for
redemption, then the Holder thereof will be entitled to convert such Security
at any time from and


 


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


 


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


 


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


 


With respect to clause (1) of this subsection (a),
the Conversion Agent will determine, on behalf of the Company, on the first
Business Day succeeding the first day of the Conversion Period whether the
Securities are convertible as set forth in such clause (1) as a result of
the Closing Price Per Share of the Common Stock and the then current Conversion
Price and, if so, will notify the Company. With respect to clause (2) of
this subsection (a), the Conversion Agent will determine, on behalf of the
Company, daily on any date after January 15, 2020, whether the Securities
are convertible as set forth in such clause (2) as a result of the Closing
Price Per Share of the Common Stock and the then current Conversion Price and,
if so, will notify the Company.


 


(b)                                 Subject
to the further provisions of this Article, a Holder of a Security may also
convert the principal amount of such Security (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) for the five
Business Day period after any five consecutive Trading Day period in which the
average Trading Prices for the Securities for such five Trading Day period was
less than 95% of the average Conversion Value for the Securities during such
period.


 


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


 


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


 


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


 


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


 


In the case of a conversion pursuant to subsection (a)(5) of
this subsection upon a Fundamental Change with an Effective Date that is
on or before January 15, 2010, Holders electing to convert shall also
receive the Make Whole Premium payable upon such conversion as set forth in Article XV.


 


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


 


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


 


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


 


 


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Section 12.2                                                        Exercise
of Conversion Privilege.


 


(a)                                  (1)                                  Subject
to subsection (b) of this Section, the Company will satisfy the
Conversion Obligation with respect to each $1,000 principal amount of
Securities tendered for conversion in cash and shares of fully paid Common
Stock, if applicable, by delivering, on the third Trading Day immediately
following the last day of the related Observation Period, cash and shares of
Common Stock, if any, equal to the sum of the Daily Settlement Amounts for each
of the 20 Trading Days during the related Observation Period; provided that the Company will deliver
cash in lieu of fractional shares of Common Stock as provided in Section 12.3.
The Daily Settlement Amounts shall be determined by the Company promptly
following the last day of the Observation Period. Notwithstanding any provision
to the contrary in this Indenture, in no event shall the number of shares of
Common Stock issued upon conversion of the Securities exceed 36.2319 shares of
Common Stock per $1,000 (the “Conversion Cap”) principal amount of Securities,
except as a result of the adjustments to the Conversion Rate pursuant to Section 12.4,
and the Company shall not be required to make any additional cash payment in
lieu of delivering any shares of Common Stock in excess of the Conversion Cap.


 


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


 


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(b)                                 Notwithstanding subsection (a) of
this Section, the Company shall satisfy the Conversion Obligation with respect
to each $1,000 principal amount of Securities tendered for conversion to which a
number of additional shares of Common Stock (the "Additional Shares")
shall be added to the Conversion Rate as set forth in Section 15.1 pursuant
to this clause (b); provided, the
Company may elect to pay cash to Holders of Securities surrendered
for conversion in lieu of all or a portion of the shares of Common Stock
issuable upon conversion of the Securities in satisfaction of the Conversion
Obligation pursuant to clause (2) of subsection (a) of this
Section.


 


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


 


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


 


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


 


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


 


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


 


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


 


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which such holder shall be entitled as part of
such Conversion Obligation (together with any cash in lieu of fractional
shares).


 


(e)                                  In
case any Security shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written
order of the Holder of the Security so surrendered, without charge to such
Holder, a new Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Securities.


 


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


 


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


 


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


 


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


 


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Record Date immediately preceding Stated Maturity to
Stated Maturity. Except as described above, no payment or adjustment will be
made for accrued interest on converted Securities.


 


(j)                                     The
Person in whose name the certificate for any shares of Common Stock issued upon
conversion is registered shall be treated as a stockholder of record on and
after the Conversion Date; provided,
however, that no surrender of Securities on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the Person or Persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record holder or
holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the date that such Securities
shall have been surrendered for conversion, as if the stock transfer books of
the Company had not been closed. Upon conversion of Securities, such Person
shall no longer be a Holder of Securities surrendered for conversion.


 


Section 12.3                                                        Fractions
of Shares.


 


No fractional shares of Common Stock shall be issued
upon conversion of any Security or Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock that would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall calculate and pay
a cash adjustment in respect of such fraction (calculated to the nearest
1/100th of a share) in an amount equal to the same fraction of the Closing
Price Per Share at the close of business on the day of conversion.


 


Section 12.4                                                        Adjustment
of Conversion Rate.


 


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


 


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


 


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the purposes of this paragraph (1), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


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


 


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


 


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(4)                                  In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares of any class of
capital stock or other property (including cash or assets or securities, but
excluding (i) any rights, options or warrants referred to in paragraph (2) of
this Section, (ii) any dividend or distribution paid exclusively in cash
referred to in paragraph (5) of this Section, (iii) any dividend or
distribution referred to in paragraph (1) of this Section and (iv) any
consideration distributed in any merger or consolidation to which Section 12.11
applies), the Conversion Rate shall be adjusted so that the same shall equal
the rate determined by dividing the Conversion Rate in effect immediately prior
to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets, shares or
evidences of indebtedness so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination
of stockholders entitled to receive such distribution. If after any such date
fixed for determination, any such distribution is not in fact made, the
Conversion Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to make such distribution, to the Conversion
Rate that would have been in effect if such determination date had not been
fixed.


 


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


 


(6)                                  In
case the Company or any Subsidiary shall purchase shares of Common Stock
pursuant to a tender or exchange offer for all or any portion of the Common
Stock (the shares accepted by the Company or such Subsidiary in such offer
being referred to as the “Purchased Shares”) and the per share amount of cash
and fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of any


 


78

















 


other consideration included in the payment for a Purchased Share
exceeds the Closing Price Per Share on the Trading Day next succeeding the date
(the “Expiration Date”) of the last time tenders or surrenders for exchange
could have been made pursuant to such tender or exchange offer (as it may be
amended), the Conversion Rate shall be adjusted so that the same shall equal
the rate determined by dividing the Conversion Rate immediately prior to close
of business on the Trading Day next succeeding the Expiration Date by a
fraction (i) the numerator of which shall be equal to (A) the product
of (I) the current market price per share of the Common Stock (determined
as provided in paragraph (8) of this Section) on the Expiration Date
multiplied by (II) the total number of shares of Common Stock outstanding
on the Expiration Date (including the Purchased Shares and any other shares
tendered or surrendered for exchange) less (B) the aggregate amount of
cash and fair market value of other consideration to be paid for all Purchased
Shares, and (ii) the denominator of which shall be equal to the product of
(A) the current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section) on the Expiration Date
multiplied by (B) the total  number
of shares of Common Stock outstanding on the Expiration Date (including the
Purchased Shares and any other shares tendered or surrendered for exchange)
less the total number of Purchased Shares, such adjustment to become effective
immediately prior to the opening of business on the day following the Trading
Day next succeeding the Expiration Date.


 


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


 


(8)                                  For
the purpose of any computation under paragraphs (2), (4), or (6) of this
Section, the current market price per share of Common Stock on any date shall
be calculated by the Company and be the average of the daily Closing Prices Per
Share for the five consecutive Trading Days selected by the Company commencing
not more than 10 Trading Days before, and ending not later than the earlier of
the day in question and the day before the “ex” date with respect to the
issuance or distribution requiring such computation. For the purpose of any
computation under paragraph (5) of this Section, the current market price
per share of Common Stock on any date shall be calculated by the Company and be
the average of the daily Closing Prices Per Share for the first ten Trading
Days from and including the first “ex” date on which the Common Stock trades
regular way in the applicable securities market or on the applicable securities
exchange. For purposes of this paragraph, the term “‘ex’ date,” when used with
respect to any issuance or distribution, means the first date on


 


79

















 


which the Common Stock trades regular way in the applicable securities
market or on the applicable securities exchange without the right to receive
such issuance or distribution.


 


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


 


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


 


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


 


(12)                            To
the extent permitted by applicable law, the Company from time to time may increase
the Conversion Rate by any amount for any period of time if the period is at
least twenty days, the increase is irrevocable during such period, and the
Board of Directors shall have made a determination that such increase would be
in the best interests of the Company, which determination shall be conclusive. Whenever
the Conversion Rate is increased pursuant to the preceding sentence, the
Company shall give notice of the increase to the Holders in the manner provided
in Section 1.6 at least 15 days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.


 


Section 12.5                                                        Notice
of Adjustments of Conversion Rate.


 


Whenever the Conversion Rate is adjusted as herein
provided:


 


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


 


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


 


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


 


Section 12.6                                                        Notice
of Certain Corporate Action.


 


In case:


 


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


 


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


 


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


 


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


 


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


 


The Company shall cause to be filed at the Corporate
Trust Office and each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 10.2, and shall cause to be provided to
all Holders in accordance with Section 1.6, notice of any tender offer by
the Company or


 


81

















 


any Subsidiary for all or any portion of the Common
Stock at or about the time that such notice of tender offer is provided to the
public generally.


 


Section 12.7                                                        Company
to Reserve Common Stock.


 


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


 


Section 12.8                                                        Taxes
on Conversions.


 


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


 


Section 12.9                                                        Covenant
as to Common Stock.


 


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


 


Section 12.10                                                  Cancellation
of Converted Securities.


 


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


 


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


 


In case of any consolidation or merger of the Company
with or into any other Person, any merger of another Person with or into the
Company (other than a merger that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any conveyance, sale, transfer or lease of all or substantially
all of the assets of the Company (other than a sale of all or substantially all
of the assets of the Company that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company), the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a


 


82

















 


supplemental indenture providing that the Holder of
each Security then Outstanding shall have the right thereafter, during the
period such Security shall be convertible as specified in Section 12.1, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately prior to
such consolidation, merger, conveyance, sale, transfer or lease (the
"Reference Property"), assuming such holder of Common Stock of the
Company is not (A) a Person with which the Company consolidated or merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a “Constituent
Person”), or (B) an Affiliate of a Constituent Person (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer, or lease is not the same for each share of Common
Stock of the Company held immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease by others than a Constituent Person or an
Affiliate thereof (determined based in part upon any form of stockholder
election), then for the purpose of this Section the kind and amount of Reference
Property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease by the holders of Common Stock shall be deemed to be the weighted
average of the kinds and amounts of consideration received by the holders of
Common Stock that affirmatively make such election). Such supplemental
indenture shall provide for adjustments that, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The
above provisions of this Section shall similarly apply to successive consolidations,
mergers, conveyances, sales, transfers or leases. Notice of the execution of
such a supplemental indenture shall be given by the Company to the Holder of
each Security as provided in Section 1.6 promptly upon such execution.


 


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


 


Section 12.12                                                  Rights
Issued in Respect of Common Stock.


 


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


 


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


 


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(ii)                                  are
not exercisable, and


 


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


 


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


 


Section 12.13                                                  Responsibility
of Trustee for Conversion Provisions.


 


The Trustee, subject to the provisions of Section 6.1,
and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, herein or in any supplemental indenture provided to be
employed, in making the same, or whether a supplemental indenture need be
entered into. Neither the Trustee, subject to the provisions of Section 6.1,
nor any Conversion Agent shall be accountable with respect to the validity or
value (or the kind or amount) of any Common Stock, or of any other securities
or property or cash, which may at any time be issued or delivered upon the
conversion of any Security; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 6.1,
nor any Conversion Agent shall be responsible for any failure of the Company to
make or calculate any cash payment or to issue, transfer or deliver any shares
of Common Stock or share certificates or other securities or property or cash
upon the surrender of any Security for the purpose of conversion; and the
Trustee, subject to the provisions of Section 6.1, and any Conversion
Agent shall not be responsible for any failure of the Company to comply with
any of the covenants of the Company contained in this Article.


 


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ARTICLE XIII

DEFEASANCE


 


Section 13.1                                                        Company’s
Option to Effect Defeasance.


 


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


 


Section 13.2                                                        Defeasance
and Discharge.


 


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


 


Section 13.3                                                        Conditions
to Defeasance.


 


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


 


(1)                                  The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.8
and agrees to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this Indenture
and such Securities. As used herein, “U.S. Government Obligation” means (x) any
security which is (i) a


 


85

















 


direct obligation of the United States of America for the payment of
which the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 13.5                                                        Reinstatement.


 


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


 


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ARTICLE XIV

REPURCHASE OF SECURITIES


 


Section 14.1                                                        Right
to Require Repurchase.


 


Securities shall be repurchased by the Company
pursuant to the terms of the Securities at the option of the Holder on each of January 15,
2010, 2015 and 2020 (each, a “Repurchase Date”), at a repurchase price equal to
100% of the principal amount of the Securities to be repurchased (any such
portion being at least $1,000 or an integral multiple of $1,000 in excess
thereof and provided that no single Security may be
repurchased in part unless the portion of the principal amount of such
Security to be Outstanding after such repurchase is equal to $1,000 or integral
multiples of U.S. $1,000 in excess thereof), plus interest accrued but unpaid
to, but excluding, such Repurchase Date (the “Repurchase Price”). The
Repurchase Price shall be paid in cash. Whenever in this Indenture (including Section 2.2,
Section 3.1, Section 5.1(1) and Section 5.8) there is a
reference, in any context, to the principal of any Security as of any time,
such reference shall be deemed to include reference to the Repurchase Price
payable in respect of such Security to the extent that such Repurchase Price
is, was or would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Indenture shall not be construed as
excluding the Repurchase Price in those provisions of this Indenture when such
express mention is not made.


 


Section 14.2                                                        Right
to Require Repurchase Upon a Designated Event.


 


In the event that a Designated Event (as hereinafter
defined) shall occur, then each Holder shall have the right, at the Holder’s
option, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, all of such Holder’s Securities not
theretofore called for redemption, or any portion of the principal amount
thereof that is equal to $1,000 or any integral multiple of $1,000 in excess
thereof (provided, however, that no single Security may be repurchased in
part unless the portion of the principal amount of such Security to be
Outstanding after such repurchase is equal to $1,000 or integral multiples of
U.S. $1,000 in excess thereof), on the date (the “Designated Event Repurchase
Date”) that is 35 Business Days after the date of the Company Notice (as
defined in Section 14.4), at a repurchase price equal to 100% of the
principal amount of the Securities to be repurchased plus interest accrued but
unpaid to, but excluding, the Designated Event Repurchase Date, plus, in the
case of a Designated Event that is a Fundamental Change with an Effective Date
that is on or before January 15, 2010, the Make Whole Premium, if any,
determined as set forth in Section 15.1 (the “Designated Event Repurchase
Price”); provided, however, that installments of interest on
Securities whose Stated Maturity is on or prior to the Designated Event
Repurchase Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant Record Date
according to their terms and the provisions of Section 3.7. Such right to
require the repurchase of the Securities shall not continue after a discharge
of the Company from its obligations with respect to the Securities in
accordance with Article IV, unless a Designated Event shall have occurred
prior to such discharge. The Designated Event Repurchase Price shall be paid in
cash, except that any Make Whole Premium may be paid in shares of our Common
Stock or cash. Whenever in this Indenture (including


 


88

















 


Section 2.2, Section 3.1, Section 5.1(1) and
Section 5.8) there is a reference, in any context, to the principal of any
Security as of any time, such reference shall be deemed to include reference to
the Designated Event Repurchase Price payable in respect of such Security to
the extent that such Designated Event Repurchase Price is, was or would be so
payable at such time, and express mention of the Designated Event Repurchase
Price in any provision of this Indenture shall not be construed as excluding
the Designated Event Repurchase Price in those provisions of this Indenture
when such express mention is not made.


 


Section 14.3                                                        RESERVED.


 


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


 


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


 


Each Company Notice shall state:


 


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


 


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


 


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


 


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


 


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


 


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unpaid interest, if any, to the Repurchase Date or the Designated Event
Repurchase Date, as the case may be,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


90

















 


right pursuant to Section 14.2, such delivery shall be on or
before the 35th day after the date of the Company Notice, subject to
extension to comply with applicable law.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(5)                                  If
any Security (or portion thereof) surrendered for repurchase shall not be so
paid on the Repurchase Date or the Designated Event Repurchase Date, as the
case may be, the principal amount of such Security (or portion thereof, as
the case may be) shall, until paid, bear interest to the extent permitted
by applicable law from the Repurchase Date or the Designated Event Repurchase
Date, as the case may be, at the rate then in effect per annum, and each
Security shall remain convertible into Common Stock until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or
duly provided for.


 


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


 


(7)                                  RESERVED


 


(8)                                  RESERVED


 


(9)                                  RESERVED


 


(10)                            RESERVED


 


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


 


Section 14.5                                                        Certain
Definitions.


 


For purposes of this Article,


 


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


 


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


 


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


 


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stock of the Company entitled to vote generally in the elections of
directors, other than any such filing by the Company, any Subsidiary of the
Company or any employee benefit plan of the Company or any Subsidiary; or


 


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


 


(3)                                  a
“Designated Event” shall be deemed to have occurred upon a Fundamental Change
or a Termination of Trading; provided
that a Fundamental Change occurring on or prior to January 15, 2010, shall
not be a Designated Event unless the transaction or event resulting in such
Fundamental Change shall also constitute a Change in Control.


 


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


 


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


 


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


 


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


 


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Section 14.6                                                        Consolidation,
Merger, Etc.


 


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


 


ARTICLE XV

MAKE WHOLE PREMIUM


 


Section 15.1                                                        Determination
of the Make Whole Premium.


 


(1)                                  If
a Fundamental Change occurs on or before January 15, 2010, Holders of
Securities shall be entitled to receive from the Company the Make Whole Premium
upon the repurchase of Securities as described in Section 14.2 and upon
the conversion of Securities upon a Fundamental Change as described in Section 12.1.


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)  If the Effective Date is after January 15,
2010, $0;


 


(b)  If the Stock Price is less than $27.60
(subject to adjustment pursuant to Section 15.3) (the “Stock Price
Threshold”), $0;


 


(c)  If the Stock Price is more than $200.00
(subject to adjustment pursuant to Section 15.3) (the “Stock Price Cap”),
$0; and


 


(d)  Otherwise, (A) in connection with a
conversion of Securities pursuant to Section 12.1, a number of Additional
Shares, which shall be added to the applicable Conversion Rate for each $1,000
principal amount so converted, equal to the percentage set forth on the table
below (the “Make Whole Premium Table”) for the Stock Price and the Effective
Time multiplied by a fraction the numerator of which is $1,000 and the denominator
of which is the Stock Price, or (B) in connection with a repurchase of
Securities pursuant to Section 14.2, either (i) the dollar amount equal to the
percentage set forth on the Make Whole Premium Table below for the Stock Price
and the Effective Time multiplied by $1,000 or (ii) a number of shares equal to
the percentage set forth on the Make Whole Premium Table for the Stock Price
and the Effective Time multiplied by a fraction the numerator of which is
$1,000 and the denominator of which is the Stock Price.


 


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  Effective Date

  of Fundamental

  Change

  	
   

  	
  Stock Price

  	
   

  
	
   

  	
  $27.60

  	
   

  	
  $30.00

  	
   

  	
  $32.50

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $100.00

  	
   

  	
  $200.00

  	
   

  
	
  January 15,
  2006

  	
   

  	
  0.0

  	
  %

  	
  2.8

  	
  %

  	
  7.8

  	
  %

  	
  12.7

  	
  %

  	
  17.6

  	
  %

  	
  15.1

  	
  %

  	
  13.5

  	
  %

  	
  5.4

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2007

  	
   

  	
  0.0

  	
  %

  	
  2.5

  	
  %

  	
  6.8

  	
  %

  	
  11.6

  	
  %

  	
  15.9

  	
  %

  	
  13.7

  	
  %

  	
  11.5

  	
  %

  	
  4.2

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2008

  	
   

  	
  0.0

  	
  %

  	
  1.7

  	
  %

  	
  5.9

  	
  %

  	
  10.1

  	
  %

  	
  14.2

  	
  %

  	
  11.1

  	
  %

  	
  9.3

  	
  %

  	
  2.6

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2009

  	
   

  	
  0.0

  	
  %

  	
  1.1

  	
  %

  	
  4.2

  	
  %

  	
  8.0

  	
  %

  	
  10.4

  	
  %

  	
  7.8

  	
  %

  	
  5.6

  	
  %

  	
  1.3

  	
  %

  	
  0.0

  	
  %

  
	
  January 15,
  2010

  	
   

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  	
  0.0

  	
  %

  



 


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


 


(3)                                  The
Company may from time to time appoint a calculation agent with respect to
the calculation of the Make Whole Premium (the “Calculation Agent”). The
Calculation Agent shall, on behalf of and upon request by the Company or the
Trustee, calculate (A) the Stock Price and (B) the Make Whole Premium
with respect to such Stock Price based on the Effective Date specified by the
Company or the Trustee and shall deliver its calculation of the Stock Price and
Make Whole Premium to the Company and the Trustee within five Business Days of
the request by the Company or the Trustee. The Company, or at the Company’s
request, the Trustee in the name and at the expense of the Company, shall
notify the Holders of the Stock Price and Make Whole Premium with respect to a
Fundamental Change as part of the Designated Event Repurchase Notice or
otherwise in accordance with the notice provisions of the Indenture.


 


(4)                                  Notwithstanding
any provision to the contrary in this Indenture, in no event shall the number
of shares of Common Stock issued upon conversion of the Securities exceed the
Conversion Cap, except as a result of the adjustments to the Conversion Rate
pursuant to Section 12.4, and the Company shall not be required to make any
additional cash payment in lieu of delivering any shares of Common Stock in
excess of the Conversion Cap.


 


Section 15.2                                                        Payment
of the Make Whole Premium.


 


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


 


On or
prior to the Designated Event Repurchase Date, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting as
its own paying agent, set aside, segregate and hold in trust as provided in Section 10.3)
an amount of cash or number of shares of Common Stock sufficient to satisfy the
entitlement of the Holders of Securities under Section 15.1; provided that if such payment is made on
the Designated Event Repurchase Date or Calculation Date, as the case may be,
it must be received by the Paying Agent or the Trustee, as the case may be,
by 10:00 a.m., New York City time, on such date. Payment of the
entitlement pursuant to Section 15.1 to Holders of Securities surrendered
for repurchase (and not withdrawn) prior to the Designated Event Repurchase
Date or surrendered for conversion within the period described in Section 12.1,
will be made promptly (but in no event more than five Business Days) following
the Designated Event Repurchase Date or Calculation Date, as the case may be,
by mailing checks in


 


96

















 


respect of cash or
certificates for shares of common stock. To the extent that the aggregate
amount of cash or shares deposited by the Company pursuant to this Section exceeds
the aggregate entitlement of the Holders of Securities under Section 15.1
that are tendered upon the Designated Event to a Make Whole Premium, then,
promptly after the Designated Event Repurchase Date, the Paying Agent shall
return any such excess to the Company.


 


Section 15.3                                                        Adjustments
Relating to the Make Whole Premium.


 


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


 






 


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


 


97

















 


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


 


	
   

  	
  PRICELINE.COM INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Mylod

  	
   

  
	
   

  	
  Name: Robert J. Mylod

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN STOCK TRANSFER & TRUST

  
	
   

  	
       COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Herbert J. Lemmer

  	
   

  
	
   

  	
  Name: Herbert J. Lemmer

  
	
   

  	
  Title: Vice President

  



 


98