Exhibit 4.8


 


deCODE genetics, Inc.


 


 


3.5% Senior Convertible Notes due 2011


 




 





INDENTURE


 


Dated as of
April 14, 2004 


 


 


The Bank of
New York


 


TRUSTEE 


 




 




















 


 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.1 Definitions

  	
   

  
	
  Section 1.2 Other Definitions

  	
   

  
	
  Section 1.3 Incorporation by Reference of
  Trust Indenture Act

  	
   

  
	
  Section 1.4 Rules of Construction

  	
   

  
	
  Section 1.5 Acts of Holders

  	
   

  
	
   

  	
   

  
	
  ARTICLE II THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 2.1 Form and Dating.

  	
   

  
	
  Section 2.2 Execution and Authentication.

  	
   

  
	
  Section 2.3 Registrar, Paying Agent and
  Conversion Agent.

  	
   

  
	
  Section 2.4 Paying Agent to Hold Money and
  Securities in Trust.

  	
   

  
	
  Section 2.5 Securityholder Lists

  	
   

  
	
  Section 2.6 Transfer and Exchange

  	
   

  
	
  Section 2.7 Replacement Securities.

  	
   

  
	
  Section 2.8 Outstanding Securities;
  Determinations of Holders’ Action

  	
   

  
	
  Section 2.9 Temporary Securities.

  	
   

  
	
  Section 2.10 Cancellation

  	
   

  
	
  Section 2.11 Persons Deemed Owners

  	
   

  
	
  Section 2.12 Global Securities.

  	
   

  
	
  Section 2.13 CUSIP Numbers

  	
   

  
	
   

  	
   

  
	
  ARTICLE III REDEMPTION AND PURCHASES

  	
   

  
	
   

  	
   

  
	
  Section 3.1 Company’s Right to Redeem;
  Notices to Trustee

  	
   

  
	
  Section 3.2 Selection of Securities to Be
  Redeemed.

  	
   

  
	
  Section 3.3 Notice of Redemption.

  	
   

  
	
  Section 3.4 Effect of Notice of Redemption

  	
   

  
	
  Section 3.5 Deposit of Redemption Price.

  	
   

  
	
  Section 3.6 Securities Redeemed in Part

  	
   

  
	
  Section 3.7 Purchase of Securities at
  Option of the Holder upon Change of Control

  	
   

  
	
  Section 3.8 Effect of Change of Control
  Purchase Notice; Withdrawal

  	
   

  
	
  Section
  3.9 Deposit of Change of Control Purchase Price

  	
   

  
	
  Section
  3.10 Securities Purchased in Part.

  	
   

  
	
  Section
  3.11 Covenant to Comply With Securities Laws Upon Purchase of Securities.

  	
   

  
	
  Section
  3.12 Repayment to the Company.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  4.1 Payment of Securities

  	
   

  
	
  Section
  4.2 SEC and Other Reports.

  	
   

  



 

















 


	
  Section
  4.3 Compliance Certificate

  	
   

  
	
  Section
  4.4 Further Instruments and Acts.

  	
   

  
	
  Section
  4.5 Maintenance of Office or Agency

  	
   

  
	
  Section
  4.6 Delivery of Certain Information

  	
   

  
	
  Section
  4.7 Treatment of Securities.

  	
   

  
	
   

  	
   

  
	
  ARTICLE V SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  
	
  Section
  5.1 When Company May Merge or Transfer Assets

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section
  6.1 Events of Default

  	
   

  
	
  Section
  6.2 Acceleration.

  	
   

  
	
  Section
  6.3 Other Remedies

  	
   

  
	
  Section
  6.4 Waiver of Past Defaults

  	
   

  
	
  Section
  6.5 Control by Majority

  	
   

  
	
  Section
  6.6 Limitation on Suits

  	
   

  
	
  Section
  6.7 Rights of Holders to Receive Payment.

  	
   

  
	
  Section
  6.8 Collection Suit by Trustee

  	
   

  
	
  Section
  6.9 Trustee May File Proofs of Claim

  	
   

  
	
  Section
  6.10 Priorities.

  	
   

  
	
  Section
  6.11 Undertaking for Costs.

  	
   

  
	
  Section
  6.12 Waiver of Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section
  7.1 Duties of Trustee.

  	
   

  
	
  Section
  7.2 Rights of Trustee.

  	
   

  
	
  Section
  7.3 Individual Rights of Trustee

  	
   

  
	
  Section
  7.4 Trustee’s Disclaimer.

  	
   

  
	
  Section
  7.5 Notice of Defaults.

  	
   

  
	
  Section
  7.6 Reports by Trustee to Holders

  	
   

  
	
  Section
  7.7 Compensation and Indemnity

  	
   

  
	
  Section
  7.8 Replacement of Trustee

  	
   

  
	
  Section
  7.9 Successor Trustee by Merger.

  	
   

  
	
  Section
  7.10 Eligibility; Disqualification

  	
   

  
	
  Section
  7.11 Preferential Collection of Claims Against Company

  	
   

  
	
  Section
  7.12 Force Majeure.

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII AMENDMENTS

  	
   

  
	
   

  	
   

  
	
  Section
  8.1 Without Consent of Holders

  	
   

  
	
  Section
  8.2 With Consent of Holders

  	
   

  
	
  Section
  8.3 Compliance with Trust Indenture Act

  	
   

  
	
  Section
  8.4 Revocation and Effect of Consents, Waivers and Actions

  	
   

  
	
  Section
  8.5 Notation on or Exchange of Securities

  	
   

  
	
  Section
  8.6 Trustee to Sign Supplemental Indentures

  	
   

  
	
  Section
  8.7 Effect of Supplemental Indentures

  	
   

  



 


ii

















 


	
  ARTICLE IX CONVERSIONS

  	
   

  
	
   

  	
   

  
	
  Section
  9.1 Conversion Privilege

  	
   

  
	
  Section
  9.2 Conversion Procedure; Conversion Price; Fractional Shares.

  	
   

  
	
  Section
  9.3 Adjustment of Conversion Price.

  	
   

  
	
  Section 9.4 Consolidation or Merger of the
  Company

  	
   

  
	
  Section 9.5 Notice of Adjustment.

  	
   

  
	
  Section 9.6 Notice in Certain Events.

  	
   

  
	
  Section 9.7 Company To Reserve Stock:
  Registration; Listing

  	
   

  
	
  Section 9.8 Taxes on Conversion

  	
   

  
	
  Section 9.9 Conversion After Record Date

  	
   

  
	
  Section 9.10 Company Determination Final

  	
   

  
	
  Section 9.11 Responsibility of Trustee for
  Conversion Provisions.

  	
   

  
	
  Section 9.12 Unconditional Right of Holders
  to Convert.

  	
   

  
	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 10.1 Trust Indenture Act Controls.

  	
   

  
	
  Section 10.2 Notices

  	
   

  
	
  Section 10.3 Communication by Holders with
  Other Holders.

  	
   

  
	
  Section 10.4 Certificate and Opinion as to
  Conditions Precedent.

  	
   

  
	
  Section 10.5 Statements Required in
  Certificate or Opinion.

  	
   

  
	
  Section 10.6 Separability Clause

  	
   

  
	
  Section 10.7 Rules by Trustee, Paying
  Agent, Conversion Agent and Registrar.

  	
   

  
	
  Section 10.8 Legal Holidays.

  	
   

  
	
  Section 10.9 Governing Law

  	
   

  
	
  Section 10.10 Waiver of Jury Trial.

  	
   

  
	
  Section 10.11 No Recourse Against Others

  	
   

  
	
  Section 10.12 Successors.

  	
   

  
	
  Section 10.13 Multiple Originals.

  	
   

  
	
  Section 10.14 Effect of Headings and Table
  of Contents.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A 

  	
  Form of Global Security

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B 

  	
  Form of Certificated Security

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C 

  	
  Transfer Certificate

  	
   

  



 


iii

















 


INDENTURE
dated as of April 14, 2004 between deCODE genetics, Inc., a Delaware
corporation (“Company”), and THE BANK OF NEW YORK, a New York banking
corporation (“Trustee”).


 


Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Company’s 3.5% Senior Convertible Notes
due 2011:


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1 Definitions “144A Global
Security” means a permanent Global Security in the form of the Security
attached hereto as Exhibit A, and that is deposited with and registered in the
name of the Depositary, representing Securities sold in reliance on Rule 144A
under the Securities Act.


 


“Additional
Amounts” shall have the meaning ascribed to it in the Registration Rights
Agreement.


 


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


 


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


 


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


 


“Board
Resolution” means a resolution of the Board of Directors.


 


“Business Day”
means, with respect to any Security, a day that in The City of New York, is not
a day on which banking institutions are authorized by law or regulation to
close.


 


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


 


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


 

















 


“Common Stock”
shall mean the Common Stock, $0.001 par value per share, of the Company
existing on the date of this Indenture or any other shares of Capital Stock of
the Company into which such Common Stock shall be reclassified or changed.


 


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


 


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


 


“Conversion
Price” means initially $ 14.00, subject to adjustment as set forth herein.


 


“Corporate
Trust Office” means the principal office of the Trustee at which at any time
its corporate trust business shall be administered, which office at the date
hereof is located at 101 Barclay Street, Floor 21 West, New York, New York
10286, Attention:  Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor (or such other address as a successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


“Default”
means an event which, with the giving of notice or the lapse of time, or both,
would become an Event of Default.


 


“Ex-Dividend
Time” means, with respect to any issuance or distribution on shares of Common
Stock, the first date on which the shares of Common Stock trade regular way on
the principal securities market on which the shares of Common Stock are then
traded without the right to receive such issuance or distribution.


 


“Global
Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit A, and that are registered in the register of Securities in
the name of a Depositary or a nominee thereof, and to the extent that such
Securities are required to bear the Legend required by Section 2.6 hereof, such
Securities will be in the form of a 144A Global Security.


 


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


 


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


 


“Initial
Purchasers” means Lehman Brothers Inc., J.P. Morgan Securities Inc., Piper
Jeffrey & Co., Deutsche Bank Securities Inc. and Think Equity Partners LLC.


 


2

















 


 


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


 


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


 


“Officers’
Certificate” means a written certificate containing the information specified
in Sections 10.4 and 10.5, signed in the name of the Company by any two
Officers, and delivered to the Trustee. An Officers’ Certificate given pursuant
to Section 4.3 shall be signed by the principal executive Officer, principal
financial Officer or principal accounting Officer of the Company but need not
contain the information specified in Sections 10.4 and 10.5.


 


“Opinion of
Counsel” means a written opinion containing the information specified in
Sections 10.4 and 10.5, from legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company.


 


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


 


“Redemption
Date” or “redemption date” shall mean the date specified in a notice of
redemption on which the Securities may be redeemed in accordance with the terms
of the Securities and this Indenture.


 


“Redemption
Price” or “redemption price” shall have the meaning set forth in Section 5 of
the Securities.


 


“Registration
Rights Agreement” means the Resale Registration Rights Agreement, dated as of
the date hereof, among the Company, J. P. Morgan Securities Inc. and Lehman
Brothers Inc. as representatives of the Initial Purchasers.


 


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


 


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


 


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


 


“Sale Price”
of a security on any date of determination means:


 


3

















 


 


(i)            the closing sales price as reported
by the Nasdaq Stock Market, Inc.;


 


(ii)           if such security is not so reported
on any such date, the closing sale price as reported in the composite
transactions for the principal U.S. securities exchange on which such security
is so listed;


 


(iiii)         if such security is not so reported,
the last price quoted by Interactive Data Corporation for such security on such
date or, if Interactive Data Corporation is not quoting such price, a similar
quotation service selected by the Company;


 


(iv)          if such security is not so quoted, the
average of the mid-point of the last bid and ask prices for such security on
such date from at least two dealers recognized as market-makers for such
security selected by the Company for this purpose; or


 


(v)           if such security is not so quoted,
the average of that last bid and ask prices for such security on such date from
a dealer engaged in the trading of convertible securities selected by the
Company for this purpose.


 


“SEC” means
the Securities and Exchange Commission.


 


“Securities”
means any of the Company’s 3.5% Senior Convertible Notes due 2011, as amended
or supplemented from time to time, issued under this Indenture.


 


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


 


“Significant
Subsidiary” shall have the meaning ascribed to such term in Rule 405 of the
Securities Act.


 


“Stated
Maturity”, when used with respect to any Security, means April 15, 2011.


 


“Subsidiary”
means any Person of which at least a majority of the outstanding Voting Stock
shall at the time directly or indirectly be owned or controlled by the Company
or by one or more Subsidiaries or by the Company and one or more Subsidiaries.


 


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


 


“Trading Day”
means a day during which trading in securities generally occurs on the Nasdaq
Stock Market, Inc. or, if the Common Stock is not quoted on the Nasdaq Stock
Market, Inc., on the principal other national or regional securities exchange
on which the Common Stock then is listed or, if the Common Stock is not traded
on the Nasdaq Stock Market, Inc. or listed on a national or regional securities
exchange, on the principal other market on which the Common Stock is then traded
or quoted.


 


“Trustee”
means the party named as the “Trustee” in the first paragraph of this Indenture
until a successor replaces it pursuant to the applicable provisions of this
Indenture and,


 


4

















 


thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.


 


“Voting Stock”
of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Person (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).


 


Section 1.2 Other Definitions.


 


	
  Term:

  	
   

  	
  Section in
  which the term is

  defined:

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  1.5

  
	
  “Agent Members”

  	
   

  	
  2.12(e)

  
	
  “beneficial owner”

  	
   

  	
  3.7(a)

  
	
  “Change of Control”

  	
   

  	
  3.7(a)

  
	
  “Change of Control Purchase Date”

  	
   

  	
  3.7(a)

  
	
  “Change of Control Purchase Notice”

  	
   

  	
  3.7(c)

  
	
  “Change of Control Purchase Price”

  	
   

  	
  3.7(a)

  
	
  “Common Stock Restrictive Legend”

  	
   

  	
  2.6(f)

  
	
  “Continuing Director”

  	
   

  	
  3.7(a)

  
	
  “Conversion Agent”

  	
   

  	
  2.3

  
	
  “Current Market Price”

  	
   

  	
  9.3(g)

  
	
  “Depositary”

  	
   

  	
  2.1(a)

  
	
  “distributed assets”

  	
   

  	
  9.3(d)

  
	
  “DTC”

  	
   

  	
  2.1(a)

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Exchange Act”

  	
   

  	
  2.12(e)

  
	
  “Expiration Time”

  	
   

  	
  9.3(f)

  
	
  “Fair Market Value”

  	
   

  	
  9.3(g)

  
	
  “issuer tender offer”

  	
   

  	
  3.11

  
	
  “Legal Holiday”

  	
   

  	
  10.8

  
	
  “Legend”

  	
   

  	
  2.6(f)

  
	
  “Non-Electing Share”

  	
   

  	
  9.4

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “QIB”

  	
   

  	
  2.1(a)

  
	
  “Record Date”

  	
   

  	
  9.3(g)

  
	
  “Reference Period”

  	
   

  	
  9.3(d)

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Rule 144A Information”

  	
   

  	
  4.6

  
	
  “Securities Act”

  	
   

  	
  2.6(f)

  
	
  “Spin-Off”

  	
   

  	
  9.3(d)

  
	
  “transfer”

  	
   

  	
  2.12(d)

  
	
  “Trigger Event”

  	
   

  	
  9.3(d)

  



 


5

















 


Section 1.3 Incorporation by Reference of
Trust Indenture Act.   Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:


 


“Commission”
means the SEC.


 


“indenture
securities” means the Securities.


 


“indenture
security holder” means a Securityholder.


 


“indenture to
be qualified” means this Indenture.


 


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


 


“obligor” on
the indenture securities means the Company.


 


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


 


Section 1.4 Rules of Construction.
Unless the context otherwise requires:


 


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


 


(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. generally accepted accounting principles as in effect from
time to time;


 


(3) “or” is
not exclusive;


 


(4)
“including” means including, without limitation; and


 


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


 


Section 1.5 Acts of Holders.  
(a)  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company, as described in Section 10.2.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.


 


6

















 


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


 


(c) The
principal amount and serial number of any Security and the ownership of
Securities shall be proved by the register for the Securities.


 


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


 


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


 


ARTICLE II


 


THE SECURITIES


 


Section 2.1 Form and Dating.
  The Securities and the Trustee’s certificate of authentication
shall be substantially in the form of Exhibits A and B, which are a part of
this Indenture.  The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage (provided that any such notation, legend or endorsement required by usage
is in a form acceptable to the Company). 
The Company shall provide any such notations, legends or endorsements to
the Trustee in writing.  Each Security
shall be dated the date of its authentication.


 


7

















 


 


(a) 144A
Global Securities.  Securities
offered and sold within the United States to qualified institutional buyers as
defined in Rule 144A (“QIBs” ) in reliance on Rule 144A shall be issued
initially in the form of a 144A Global Security, which shall be deposited with
the Trustee at its Corporate Trust Office, as custodian for the Depositary (as
defined below) and registered in the name of The Depository Trust Company
(“DTC”) or the nominee thereof (DTC, or any successor thereto, and any such
nominee being hereinafter referred to as the “Depositary”), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the 144A
Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary as
hereinafter provided.


 


(b) Global
Securities in General.  Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions, repurchases and conversions.


 


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


 


(c) Book-Entry
Provisions.  This Section 2.1(c)
shall apply only to Global Securities deposited with or on behalf of the
Depositary.


 


The Company
shall execute and the Trustee shall, in accordance with this Section 2.1(c),
authenticate and deliver initially one or more Global Securities that (a) shall
be registered in the name of the Depositary, (b) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (c)
shall be substantially in the form of Exhibit A attached hereto; provided that
the Legend (other than the first and second paragraphs thereof) may be removed
from such Global Security on satisfaction of the conditions specified in this
Indenture.


 


(d) Certificated
Securities.  Securities not issued
as interests in the Global Securities will be issued in certificated form
substantially in the form of Exhibit B attached hereto; provided that the
Legend may be removed from such Securities on satisfaction of the conditions
specified in this Indenture.


 


Section 2.2 Execution and Authentication.
The Securities shall be executed on behalf of the Company by any Officer.  The signature of the Officer on the
Securities may be manual or facsimile.


 


Securities
bearing the manual or facsimile signatures of individuals who were, at the time
of the execution of the Securities, Officers shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and


 


8

















 


delivery of such Securities or did not hold
such offices at the date of authentication of such Securities.


 


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


 


The Trustee
shall authenticate and deliver the Securities for original issue in an
aggregate principal amount of $150,000,000 (of which $125,000,000 represents
the original issue and $25,000,000 is issued pursuant to the exercise by the
Initial Purchasers of their option to purchase up to $25,000,000 aggregate
principal amount of additional Securities) upon one or more Company Orders
without any further action by the Company (other than as contemplated in
Section 10.4 and Section 10.5 hereof). 
The aggregate principal amount of the Securities due at the Stated
Maturity thereof outstanding at any time may not exceed the amount set forth in
the foregoing sentence.


 


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


 


Section 2.3 Registrar, Paying Agent and
Conversion Agent.  The Company shall maintain an office or agency where Securities
may be presented for registration of transfer or for exchange (“Registrar”), an
office or agency where Securities may be presented for purchase or payment
(“Paying Agent”) and an office or agency where Securities may be presented for
conversion (“Conversion Agent”).  The
Registrar shall keep a register of the Securities and of their transfer and
exchange.  The Company may have one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents.  The term
Paying Agent includes any additional paying agent, including any named pursuant
to Section 4.5. The term Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.5.


 


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


 


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


 


Section 2.4 Paying Agent to Hold Money and
Securities in Trust.  Except as otherwise provided herein, on or
prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available


 


9

















 


funds if deposited on the due date)
sufficient to make such payments when so becoming due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any default by the Company in making any such
payment.  At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money so held in
trust.  If the Company, a Subsidiary or
an Affiliate of either of them acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
and Common Stock disbursed by it.  Upon
doing so, the Paying Agent shall have no further liability for the money.


 


Section 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of
Securityholders.  If the Trustee is not
the Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on April 1 and October 1 a listing of Securityholders dated within
15 days of the date on which the list is furnished and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.


 


Section 2.6 Transfer and Exchange.
(a)  Subject to Section 2.12, upon
surrender for registration of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar pursuant
to Section 2.3, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of any authorized denomination or denominations, of a like
aggregate principal amount.  The Company
shall not charge a service charge for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection with
the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange.


 


At the option
of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount
upon surrender of the Securities to be exchanged, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly authorized in writing, at
such office or agency.  Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.


 


The Company
shall not be required to make, and the Registrar need not register, transfers
or exchanges of Securities selected for redemption (except, in the case of
Securities to be redeemed in part, the portion thereof not to be redeemed) or
any Securities in respect of which a Change of Control Purchase Notice has been
given and not withdrawn by the Holder thereof in accordance with the terms of
this Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be redeemed.


 


10

















 


(b)
Notwithstanding any provision to the contrary herein, so long as a Global
Security remains outstanding and is held by or on behalf of the Depositary, (i)
transfers of beneficial interests in a Global Security, in whole or in part,
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent) in accordance with Applicable Procedures,
(ii) ownership of a beneficial interest in the Security shall be required to be
reflected in book entry and (iii) transfers of Global Securities or beneficial
interests in Global Securities shall be made only in accordance with Section
2.12 and this Section 2.6(b).  Transfers
of a Global Security shall be limited to transfers of such Global Security in
whole or in part, to the Depositary, to nominees of the Depositary or to a
successor of the Depositary or such successor’s nominee.


 


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


 


(d) Any
Registrar appointed pursuant to Section 2.3 shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon transfer or exchange of
Securities.


 


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


 


(f) If
Securities are issued upon the transfer, exchange or replacement of Securities
subject to restrictions on transfer and bearing the legends set forth on the
forms of Security attached hereto as Exhibits A and B setting forth such
restrictions (collectively, the “Legend”), or if a request is made to remove the
Legend on a Security, the Securities so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless there is delivered to
the Company and the Registrar such satisfactory evidence, which shall include
an opinion of counsel, as may be reasonably required by the Company and the
Registrar and the Trustee (if not the same Person as the Trustee), that neither
the Legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144A or Rule
144 under the Securities Act of 1933, as amended (“Securities Act”) or that
such Securities are not “restricted” within the meaning of Rule 144 under the
Securities Act.  Upon (i) provision of
such satisfactory evidence, or (ii) notification by the Company to the Trustee
and Registrar of the sale of such Security pursuant to a registration statement
that is effective at the time of such sale, the Trustee, at the written
direction of the Company, shall authenticate and deliver a Security that does
not bear the Legend.  If the Legend is
removed from the face of a Security and the Security is subsequently held by
the Company or an Affiliate of the Company, the Legend shall be reinstated.


 


In the event
Rule 144(k) as promulgated under the Securities Act is amended to shorten the
two-year period under Rule 144(k), then, the references in the Legend to “TWO
YEARS”, and in the corresponding transfer restrictions described above, will be
deemed to refer to such shorter period, from and after receipt by the Trustee
of an Officers’ Certificate and an Opinion of Counsel to that effect.  As soon as practicable after the Company
knows of the effectiveness of any such amendment to shorten the two-year period
under Rule 144(k), unless


 


11

















 


such changes would otherwise be prohibited
by, or would cause a violation of, the federal securities laws applicable at
the time, the Company will provide to the Trustee an Officers’ Certificate and
an Opinion of Counsel as to the effectiveness of such amendment and the
effectiveness of such change to the restrictive legends and transfer
restrictions.


 


Until the
Legend on any Restricted Security has been removed in compliance with this
Section 2.6(f), all shares of Common Stock (or other securities issuable upon
conversion as a result of the provisions of this Indenture) issued upon
conversion of such Restricted Security shall bear a legend substantially in the
form of the Legend (the “Common Stock Restrictive Legend”) and shall be subject
to the same restrictions on transfer as such Restricted Security.  At any time following the time when the
restrictions on transfer set forth in the Common Stock Restrictive Legend shall
have expired in accordance with their terms or shall have terminated under
applicable law, the holder of such Common Stock may, upon a surrender of the
certificate representing such Common Stock exchange to the Company’s transfer
agent in accordance with such agent’s customary procedures (accompanied, in the
event that such restrictions on transfer have terminated by reason of a
transfer in compliance with Rule 144 or any successor provision, by an opinion
of counsel having substantial experience in practice under the Securities Act
and otherwise reasonably acceptable to the Company, addressed to the Company
and in form acceptable to the Company, to the effect that the transfer of such
Common Stock has been made in compliance with Rule 144 or such successor
provision), may receive a new certificate representing such Common Stock, in
like amount, which shall not bear the Common Stock Restrictive Legend.


 


Section 2.7 Replacement Securities.  If (a) any mutilated Security is surrendered
to the Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a certificate number not
contemporaneously outstanding.


 


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


 


Upon the
issuance of any new Securities under this Section 2.7, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.


 


Every new
Security issued pursuant to this 
Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time


 


12

















 


enforceable by anyone, and shall be entitled
to all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.


 


The provisions
of this Section 2.7 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


 


Section 2.8 Outstanding Securities;
Determinations of Holders’ Action.   Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those cancelled by it, those paid pursuant to  Section 2.7, those delivered to it for
cancellation and those described in this Section 2.8 as not outstanding.  A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite principal
amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent, waiver, or other Act 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 request, demand, authorization, direction,
notice, consent, waiver or other Act, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded.  Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation, determinations
pursuant to Articles VI and VIII hereof).


 


If a Security
is replaced pursuant to Section 2.7, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser.


 


If the Paying
Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day following a Change of Control Purchase Date, or on Stated
Maturity, money sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Change of Control Purchase Date or
Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and interest, including Additional Amounts, if any, on such
Securities shall cease to accrue; 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.


 


If a Security
is converted in accordance with Article IX, then from and after the time of
conversion on the date of conversion, such Security shall cease to be
outstanding and interest, including Additional Amounts, if any, shall cease to
accrue on such Security.


 


Section 2.9 Temporary Securities.   Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.


 


13

















 


If temporary
Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. 
After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.3, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations.  Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.


 


Section 2.10 Cancellation.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless the same are
delivered to the Trustee for cancellation. 
All Securities surrendered for payment, purchase by the Company pursuant
to Article III, conversion, redemption or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. 
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. 
The Company may not issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article IX.  No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture.  All cancelled Securities
held by the Trustee shall be disposed of by the Trustee in accordance with the
Trustee’s customary procedure.


 


Section 2.11 Persons Deemed Owners.  Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of the Security or the payment of any Redemption Price or Change of Control
Purchase Price in respect thereof, and interest thereon, for the purpose of
conversion and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.


 


Section 2.12 Global Securities.  (a) 
Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall be
made only in accordance with Section 2.6 and Section 2.12(a)(i), (B) transfers
or exchanges of a beneficial interest in a Global Security for an interest in
the same or another Global Security shall comply with Section 2.6 and Section
2.12(a)(ii) below, (C) transfers or exchanges of a beneficial interest in a
Global Security for a Certificated Security shall comply with Section 2.6,
Section 2.12(a)(iii) below and Section 2.12(e)(i) below, and (D) transfers or
exchanges of a Certificated Security shall comply with Section 2.6 and Sections
2.12(a)(iv) and (a)(v) below.


 


(i)            Transfer of Global Security.  A Global Security may not be transferred, in
whole or in part, to any Person other than the Depositary or a nominee or any
successor thereof, and no such transfer to any such other Person may be
registered; provided that this clause (i) shall not prohibit any transfer of a
Certificated Security that


 


14

















 


is issued in
exchange for a Global Security.  No
transfer of a Global Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been registered
in the name of such Person.  Nothing in
this Section 2.12(a)(i) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with the other
provisions of this Section 2.12.


 


(ii)           Transfer or
Exchange of a Beneficial Interest in a Global Security for a Beneficial
Interest in the Same or Another Global Security.


 


(x)  A beneficial interest in a Global Security
may not be transferred or exchanged for a beneficial interest in another Global
Security except upon satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a request to
transfer or exchange of a beneficial interest in a Global Security in
accordance with Applicable Procedures for a beneficial interest in another
Global Security, together with:


 


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


 


(B) written
instructions to the Trustee to make, or direct the Registrar to make, in the
case of a transfer or exchange of a beneficial interest in a Global Security
for a beneficial interest in another Global Security, an adjustment on its
books and records with respect to such Global Securities to reflect a decrease
and increase in the aggregate principal amount of the Securities represented by
such Global Securities, such instructions to contain information regarding the
Depositary accounts to be credited with such decrease and increase; and


 


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


 


then the
Trustee, (1) shall cause, or direct the Registrar to cause, in accordance with
the standing instructions and procedures existing between the Depositary and
the Registrar, the aggregate principal amount of the Securities represented by
the appropriate Global Security to be decreased by the aggregate principal
amount that the other Global Security is increased and (2) in accordance with
the standing instructions and procedures existing between the Depositary and
the Registrar and Applicable Procedures, shall debit and credit or cause to be
debited or credited, as appropriate, to the accounts of the persons specified
in such instructions a beneficial interest in the Global Security or Global
Securities, as appropriate, equal to the amount of the beneficial interests so
transferred or exchanged.


 


(y)           Beneficial interests
in a Global Security may be transferred to Persons who take delivery in the
same Global Security in accordance with the Applicable Procedures and, if the
Global Security is a Restricted Security, in accordance with the transfer
restrictions set forth in the Legend. 
No written


 


15

















 


orders or
instructions shall be required to be delivered to the Registrar or the Trustee
to effect the transactions described in this Section 2.12(a)(ii)(y).


 


(z)            Other than
transfers to the Company or to an Affiliate of the Company, beneficial
interests in a Global Security that is not a Restricted Security may not be
transferred to Person who takes delivery thereof in the form a beneficial
interest in a Global Security that is a Restricted Security.


 


(iii)          Transfer or Exchange of a
Beneficial Interest in a Global Security for a Certificated Security.  A beneficial interest in a Global Security
may not be exchanged for a Certificated Security except upon satisfaction of
the requirements set forth below and in Section 2.12(e)(1) below.  Upon receipt by the Trustee of a transfer of
a beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory to the Trustee,
together with:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


(2)           so long as such Securities are
Restricted Securities, such Securities are being transferred or exchanged
pursuant to an effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:


 


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


 


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


 


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


 


(v)           Transfer of a
Certificated Security for a Beneficial Interest in a Global Security.  A Certificated Security may not be exchanged
for a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below.


 


Upon receipt
by the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:


 


(I)            so long as the Securities are
Restricted Securities, certification, in the form set forth in Exhibit C, that
such Certificated Security is being transferred to a QIB in accordance with
Rule 144A, or to an institutional accredited investor within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D of the Securities Act; and


 


(II)           written instructions directing the
Trustee to make, or to direct the Registrar to make, an adjustment on its books
and records with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee shall cancel such
Certificated Security and cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and


 


17

















 


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


 


(b) Subject to
the succeeding Section (c), every Security shall be subject to the restrictions
on transfer provided in the Legend and herein including the delivery of an
opinion of counsel, if so provided. 
Whenever any Restricted Security is presented or surrendered for
transfer or for exchange, such Security must be accompanied by a certificate in
substantially the form set forth in Exhibit C, dated the date of such surrender
and signed by the Holder of such Security, as to compliance with such
restrictions on transfer.  The Registrar
shall not be required to accept for such transfer or exchange any Security not
so accompanied by a properly completed certificate.


 


(c) The
restrictions imposed by the Legend upon the transferability of any Security
shall cease and terminate when such Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision).  Any Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 or any successor provision,
by an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend.  The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under
the Securities Act.  The Trustee shall
not be liable for any action taken or omitted to be taken by it in good faith
in accordance with the aforementioned opinion of counsel or registration
statement.


 


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


 


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


 


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(1)           Notwithstanding any other provisions
of this Indenture or the Securities, a Global Security shall not be exchanged
in whole or in part for a Security registered in the name of any Person other
than the Depositary or one or more nominees thereof, provided that a Global
Security may be exchanged for Securities registered in the names of any Person
designated by the Depositary in the event that (i) the Depositary has notified
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a “clearing agency”
registered under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and a successor Depositary is not appointed by the Company within 90
days or (ii) an Event of Default has occurred and is continuing with respect to
the Securities.  Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged in whole and not
in part, and any Global Security exchanged pursuant to clause (ii) above may be
exchanged in whole or from time to time in part as directed by the Depositary.  Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided that any
such Security so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Security.


 


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


 


(3)           Subject to the provisions of clause
(5) below, the registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members (as defined below) and Persons that may hold
interests through Agent Members, to take any action which a holder is entitled
to take under this Indenture or the Securities.


 


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


 


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(5)           Neither any members of, or
participants in, the Depositary (collectively, the “Agent Members”) nor any
other Persons on whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and
the Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Security for all purposes
whatsoever.  Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or such nominee, as
the case may be, or impair, as between the Depositary, its Agent Members and
any other Person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights of a
holder of any Security.


 


(f)            By its acceptance of any Security
bearing the Legend, each Holder of such Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and agrees that it
will transfer such Security only as provided in this Indenture.


 


Section 2.13 CUSIP Numbers.  The Company may issue the Securities with
one or more “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers.  The Company will promptly
notify the Trustee of any change in the CUSIP numbers.


 


ARTICLE III


 


REDEMPTION AND
PURCHASES


 


Section 3.1 Company’s Right to Redeem;
Notices to Trustee. Prior to April 20, 2009, the Securities will not be
redeemable at the Company’s option. 
Beginning on April 20, 2009, the Company, at its option, may redeem the
Securities, subject to and in accordance with the terms and conditions of
Section 5 of the Securities, for cash, as a whole or in part, at a redemption
price equal to the principal amount of those Securities plus any accrued and
unpaid interest, including Additional Amounts, if any, on those Securities to
the Redemption Date.  If the Company
elects to redeem Securities pursuant to Section 5 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the principal amount of
Securities to be redeemed and the Redemption Price.


 


The Company
shall give the notice to the Trustee of its intention to exercise its right to
redeem the Securities as provided for in this Section 3.1 by a Company Order at
least ten (10) Business Days prior to the day the Redemption Notice is to be
mailed.


 


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Section 3.2 Selection of Securities to Be
Redeemed. If less than all the Securities
are to be redeemed, unless the procedures of the Depositary provide otherwise,
the Trustee shall select the Securities to be redeemed by lot, on a pro rata
basis or by another method the Trustee considers fair and appropriate (so long
as such method is not prohibited by the rules of any stock exchange on which
the Securities are then listed).  The
Trustee shall make the selection within five Business Days after it receives
the notice provided for in Section 3.1 from outstanding Securities not
previously called for redemption. The Trustee may select for redemption
portions of the principal amount of Securities that have denominations larger
than $1,000.


 


Securities and
portions of Securities that the Trustee selects shall be in principal amounts
of $1,000 or an integral multiple of $1,000. 
Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.  The Trustee shall notify the Company
promptly of the Securities or portions of the Securities to be redeemed.


 


Securities and
portions of Securities that are to be redeemed are convertible by the Holder
until the close of business on the second Business Day prior to the Redemption
Date unless the Company fails to pay the Redemption Price on the Redemption
Date.  If any Security selected for
partial redemption is converted in part before termination of the conversion
right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption.  Securities
which have been converted during a selection of Securities to be redeemed may
be treated by the Trustee as outstanding for the purpose of such selection.


 


Section 3.3 Notice of Redemption.
At least 20 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed.


 


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


 


(1)           the Redemption Date;


 


(2)           the Redemption Price;


 


(3)           the Conversion Price;


 


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


 


(5)           that Securities called for redemption
may be converted at any time before the close of business on the second
Business Day prior to the Redemption Date;


 


(6)           that Holders who wish to convert
their Securities must satisfy the requirements set forth in Section 8 of the
Securities;


 


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


 


21

















 


(8)           if fewer than all of the outstanding
Securities are to be redeemed, the certificate numbers, if any, and principal
amounts of the particular Securities to be redeemed;


 


(9)           that, unless the Company defaults in
making payment of such Redemption Price, interest, including Additional
Amounts, if any, on Securities called for redemption will cease to accrue
interest on and after the Redemption Date; and


 


(10)         the CUSIP number(s) of the Securities.


 


At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense, provided that the Company makes
such request at least ten Business Days prior to the date by which such notice
of redemption is to be given to Holders in accordance with this Section 3.3,
unless the Trustee agrees to a shorter period.


 


Section 3.4 Effect of Notice of Redemption.  Once notice of redemption is given,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price stated in the notice except for Securities which
are converted in accordance with the terms of this Indenture. Upon surrender to
the Paying Agent, such Securities shall be paid at the Redemption Price stated
in the notice.


 


Section 3.5 Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of either of them is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the applicable Redemption Price of all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which on or prior thereto have been delivered
by the Company to the Trustee for cancellation or have been converted.  The Paying Agent shall as promptly as
practicable return to the Company any money not required for that purpose
because of conversion of Securities pursuant to Article IX.  If such money is then held by the Company in
trust and is not required for such purpose, it shall be discharged from such
trust.


 


Section 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder a new
Security in an authorized denomination equal in principal amount to the
unredeemed portion of the Security surrendered.


 


Section 3.7 Purchase of Securities at
Option of the Holder upon Change of Control.
(a) (1) If a Change of Control occurs (subject to certain exceptions set forth
below), the Securities not previously purchased by the Company shall be
purchased by the Company for cash, at the option of the Holder thereof, at a
purchase price specified in Section 6 of the Securities (the “Change of Control
Purchase Price”), as of the date that is between 30 and 60 days after the date
of a notice of Change of Control delivered by the Company pursuant to Section
3.7(b) (the “Change of Control Purchase Date”), subject to satisfaction by or
on behalf of the Holder of the requirements set forth in Section 3.7(c).


 


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A “Change of
Control” will be deemed to have occurred at such time after the Securities are
originally issued when any of the following events shall occur:


 


(i)            the acquisition by
any Person, including any syndicate or group deemed to be a “person” under
Section 13(d)(3) of the Exchange Act, of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of purchases, mergers or other acquisition transactions of shares of the
Capital Stock of the Company entitling that Person to exercise 50% or more of
the total voting power of all shares of the Capital Stock of the Company
entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its subsidiaries or any of its employee
benefit plans; or


 


(ii)           the first day on
which a majority of the members of the board of directors of the Company does
not consist of Continuing Directors; or


 


(iii)          the Company consolidates or merges
with or into any other Person, any merger of another Person into the Company,
or any conveyance, transfer, sale, lease or other disposition of all or substantially
all of the Company’s properties and assets to another Person, other than:  (A) any transaction:  (1) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
the Company’s Capital Stock; and (2) pursuant to which the holders of 50% or
more of the total voting power of the Company’s Capital Stock entitled to vote
generally in elections of directors immediately prior to the transaction have
the entitlement to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of Capital Stock entitled to vote generally in
elections of directors of the continuing or surviving Person immediately after
giving effect to such issuance; and (B) any merger primarily for the purpose of
changing the Company’s jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares of Common Stock,
if at all, solely into shares of common stock of the surviving entity.


 


A “Continuing
Director” shall mean, as of any date of determination, any member of the Board
of Directors who:


 


(i)            was a member of the
Board of Directors of the Company on April 14, 2004; or


 


(ii)           was nominated for
election or elected to the Board of Directors with the approval of a majority
of the Continuing Directors who were members of the Board of Directors at the
time of the new director’ss nomination or election.


 


(2)           Notwithstanding the
provisions of Section 3.7(a)(1), the Company shall not be required to purchase
the Securities of the Holders upon a Change of Control pursuant to this Section
3.7 (and a Change of Control shall be deemed not to have occurred) if:


 


(i)            the Sale Price per share of Common
Stock for any five Trading Days within (1) the period of 10 consecutive Trading
Days ending immediately after the later of the Change of Control or the public
announcement of the Change of Control, in the case of a Change of Control under
clause (i) or


 


23

















 


(ii) of the
definition of “Change of Control” above, or (2) the period of 10 consecutive
Trading Days ending immediately before the Change of Control, in the case of a
Change of Control under clause (iii) of the definition of “Change of Control”
above, equals or exceeds 110% of the Conversion Price of the Securities in
effect on each of those five Trading Days; or


 


(ii)           90% or more of the consideration in
the transaction or transactions (other than cash payments for fractional shares
and cash payments made in respect of dissenters’ appraisal rights) constituting
a Change of Control consists of shares of common stock traded or to be traded
immediately following a Change of Control on a national securities exchange or
the Nasdaq Stock  Market, Inc., and, as
a result of the transaction or transactions, the Securities become convertible
solely into that common stock (and any rights attached thereto).


 


For the purposes of this Section 3.7, (x)
whether a Person is a “beneficial owner” shall be determined in accordance with
Rule 13d-3 and Rule 13d-5 under the Exchange Act (except that any of those
Persons shall be deemed to have beneficial ownership of all securities it has
the right to acquire, whether the right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition) and (y) the
term “Person” includes any syndicate or group that would be deemed to be a
“person” under Section 13(d)(3) of the Exchange Act.


 


(b) No later
than 30 days after the occurrence of a Change of Control, the Company shall
mail a written notice of the Change of Control by first class mail to the
Trustee and to each Holder (and to beneficial owners as required by applicable
law).  The notice shall include a form
of Change of Control Purchase Notice to be completed by the Holder and shall state:


 


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


 


(2)     the date by which the Change of Control
Purchase Notice pursuant to this Section 3.7 must be delivered to the Paying
Agent in order for a Holder to exercise the repurchase rights;


 


(3)     the Change of Control Purchase Date;


 


(4)     the Change of Control Purchase Price;


 


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


 


(6)     the Conversion Price and any adjustments
thereto;


 


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


 


24

















 


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


 


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


 


(10)   briefly, the procedures the Holder must
follow to exercise rights under this Section 3.7;


 


(11)   briefly, the conversion rights of the
Securities;


 


(12)   the procedures for withdrawing a Change of
Control Purchase Notice;


 


(13)   that, unless the Company defaults in making
payment of such Change of Control Purchase Price, interest, if any, on
Securities surrendered for purchase by the Company will cease to accrue on and
after the Change of Control Purchase Date; and


 


(14)   the CUSIP number(s) of the Securities.


 


Without
otherwise limiting the Company’s obligations pursuant to this Section 3.7 in
any way, the Company shall also issue a press release through Dow Jones &
Company, Inc. or Bloomberg Business News containing the relevant information
and otherwise make this information available on the Company’s web site or
through another public medium as the Company may use at that time.


 


(c) A Holder
may exercise its rights specified in Section 3.7(a) upon delivery of a written
notice of purchase (a “Change of Control Purchase Notice”) to the Paying Agent
at any time on or prior to the close of business on the second Business Day
preceding the Change of Control Purchase Date (unless the Company shall specify
a later date), specifying:


 


(1)     the certificate number of the Security
which the Holder will deliver to be purchased or the appropriate depositary
procedures if Certificated Securities have not been issued;


 


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


 


(3)     that such Security shall be purchased
pursuant to the terms and conditions specified in Section 6 of the Securities
and in this Indenture.


 


The delivery
of such Security to the Paying Agent with the Change of Control Purchase Notice
(together with all necessary endorsements) at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Change of Control
Purchase Price


 


25

















 


therefor; provided, however, that such Change
of Control Purchase Price shall be so paid pursuant to this Section 3.7 and
Section 3.8 only if the Security so delivered to the Paying Agent shall conform
in all respects to the description thereof set forth in the related Change of
Control Purchase Notice.


 


The Company
shall purchase from the Holder thereof, pursuant to this Section 3.7 and
Section 3.8, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.


 


Any purchase
by the Company contemplated pursuant to the provisions of this Section 3.7 and
Section 3.8 shall be consummated by the delivery of the consideration to be
received by the Holder.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Change of Control Purchase Notice contemplated by this Section 3.7(c) shall
have the right to withdraw such Change of Control Purchase Notice at any time
prior to the close of business on the last Business Day immediately preceding
the Change of Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.8.


 


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


 


Section 3.8 Effect of Change of Control
Purchase Notice; Withdrawal. Upon receipt
by the Paying Agent of the Change of Control Purchase Notice specified in
Section 3.7(c), the Holder of the Security in respect of which such Change of
Control Purchase Notice was given shall (unless such Change of Control Purchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Security.  Such Change of Control
Purchase Price shall be paid to such Holder, subject to the receipt of funds by
the Paying Agent, promptly following the later of (x) the Change of Control
Purchase Date with respect to such Security (provided the conditions in Section
3.7(c) have been satisfied) and (y) the time of delivery of such Security to
the Paying Agent by the Holder thereof in the manner required by Section
3.7(c).  Securities in respect of which
a Change of Control Purchase Notice has been given by the Holder thereof may
not be converted pursuant to Article IX hereof on or after the date of the
delivery of such Change of Control Purchase Notice unless such Change of
Control Purchase Notice has first been validly withdrawn as specified in the
following two paragraphs.


 


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


 


(1)     the certificate number, if any, of the
Security in respect of which such notice of withdrawal is being submitted,


 


26



















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


 


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


 


There shall be
no purchase of any Securities pursuant to Section 3.7 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Change of Control Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Change of Control Purchase Price with respect to such Securities). The Paying
Agent will promptly return to the respective Holders thereof any Securities (x)
with respect to which a Change of Control Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the Change of Control
Purchase Price with respect to such Securities) in which case, upon such
return, the Change of Control Purchase Notice with respect thereto shall be
deemed to have been withdrawn.


 


Section 3.9 Deposit of Change of Control
Purchase Price.  Prior to 10:00
a.m., New York City time, on the Business Day following the Change of Control
Purchase Date, the Company shall deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is
acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 2.4) an amount of cash (in immediately available funds if deposited on
such Business Day) sufficient to pay the aggregate Change of Control Purchase
Price of all the Securities or portions thereof which are to be purchased as of
the Change of Control Purchase Date.


 


Section 3.10  Securities Purchased in Part.  Any Certificated Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so
surrendered which is not purchased.


 


Section 3.11  Covenant to Comply With
Securities Laws Upon Purchase of Securities.  When complying with the provisions of Section 3.7 (provided that
such offer or purchase constitutes an “issuer tender offer” for purposes of
Rule 13e-4 (which term, as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such offer or purchase), and
subject to any exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under
Section 3.7 to be exercised in the time and in the manner specified in Section
3.7.


 


27

















 


Section 3.12  Repayment to the Company.  The Trustee and the Paying Agent shall
return to the Company any cash that remains unclaimed as provided in Section 11
of the Securities, together with interest or dividends, if any, thereon
(subject to the provisions of Section 7.1(f)), held by them for the payment of
the Change of Control Purchase Price; provided, however, that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section
3.9 exceeds the aggregate Change of Control Purchase Price of the Securities or
portions thereof which the Company is obligated to purchase as of the Change of
Control Purchase Date, then, unless otherwise agreed in writing with the
Company, promptly after the Business Day following the Change of Control
Purchase Date, the Trustee shall return any such excess to the Company together
with interest thereon (subject to the provisions of Section 7.1(f)).


 


ARTICLE IV


 


COVENANTS


 


Section 4.1  Payment of Securities.  The Company shall promptly make all payments
in respect of the Securities on the dates and in the manner provided in the
Securities or pursuant to this Indenture. 
Any amounts of cash to be given to the Trustee or Paying Agent, shall be
deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time,
by the Company.  Principal amount plus
accrued interest, if any, including Additional Amounts, if any, the Redemption
Price, the Change of Control Purchase Price and cash interest, if any, shall be
considered paid on the applicable date due if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due.


 


Section 4.2  SEC and Other Reports.  The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act.  In the event the Company
is at any time no longer subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, it shall continue to provide the Trustee with
reports containing substantially the same information as would have been
required to be filed with the SEC had the Company continued to have been
subject to such reporting requirements. 
In such event, such reports shall be provided at the times the Company
would have been required to provide reports had it continued to have been
subject to such reporting requirements. 
The Company also shall comply with the other provisions of TIA Section
314(a).  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers’
Certificates).


 


Section 4.3  Compliance Certificate.  The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company (beginning
with the fiscal year ending on December 31, 2004) an Officers’ Certificate,
stating whether or not to the knowledge of the signers thereof, the Company is
in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or


 


28

















 


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.


 


Section 4.4  Further Instruments and Acts.  Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.


 


Section 4.5  Maintenance of Office or
Agency.  The Company will maintain
in the Borough of Manhattan, the City of New York, an office or agency of the
Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served.  The
office of The Bank of New York, 101 Barclay Street, Floor 21W, New York, New
York  10286 (Attention:  Corporate Trust Trustee Administration),
shall initially be such office or agency for all of the aforesaid
purposes.  The Company shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee).  If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.2.


 


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


 


Section 4.6  Delivery of Certain
Information.  At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information
(as defined below) to such Holder or any beneficial owner of Securities or
holder or beneficial owner of shares of Common Stock, or to a prospective
purchaser of any such security designated by any such holder, as the case may
be, to the extent required to permit compliance by such Holder or holder with
Rule 144A under the Securities Act in connection with the resale of any such
security. “Rule 144A Information” shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act.  Whether a Person is a beneficial owner shall be determined by the
Company to the Company’s reasonable satisfaction.


 


Section 4.7  Treatment of Securities.  Each Holder, by acceptance of a Security,
and beneficial owner, by acceptance of a beneficial ownership interest in a
Security, agrees to treat the Securities as indebtedness of the Company for
U.S. federal income tax purposes and not to take any action inconsistent with
such treatment.


 


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ARTICLE V


 


SUCCESSOR CORPORATION


 


Section 5.1  When Company May Merge or
Transfer Assets.  The Company shall
not consolidate with or merge with or into any other Person or convey,
transfer, sell, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person, unless:


 


(a) either (1)
the Company shall be the continuing corporation or (2) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer or lease all or
substantially all of the properties and assets of the Company substantially as
an entirety (i) shall be organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture;


 


(b)
immediately after giving effect to such transaction, no Default or Event of
Default, shall have occurred and be continuing; and


 


(c) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Article V
and that all conditions precedent herein provided for relating to such transaction
have been satisfied.


 


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


 


The successor
Person formed by such consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor had
been named as the Company herein; and thereafter, except in the case of a lease
and obligations the Company may have under a supplemental indenture, the
Company shall be discharged from all obligations and covenants under this
Indenture and the Securities.  Subject
to Section 8.6, the Company, the Trustee and the successor Person shall enter
into a supplemental indenture to evidence the succession and substitution of
such successor Person and such discharge and release of the Company.


 


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ARTICLE VI


 


DEFAULTS AND REMEDIES


 


Section 6.1  Events of Default.  So long as any Securities are outstanding,
each of the following shall be an “Event of Default”:


 


(1) the Company defaults in the payment of the principal amount on any
Security when the same becomes due and payable at its Stated Maturity;


 


(2) the
Company defaults in its obligation to repurchase any Security, or any portion
thereof, upon the exercise by the Holder of such Holder s right to require the
Company to purchase such Securities pursuant to and in accordance with Section
3.7 hereof;


 


(3) the
Company defaults in its obligation to redeem any Security, or any portion
thereof, called for redemption by the Company pursuant to and in accordance
with Section 3.1 hereof;


 


(4) the
Company defaults in the payment of any accrued and unpaid interest, including
Additional Amounts, if any, on any Security, in each case when due and payable,
and continuance of such default for a period of 30 days;


 


(5) the
Company fails to comply with any of its covenants or agreements in the
Securities or this Indenture (other than those referred to in clauses (1)
through (4) above) and such failure continues for 60 days after receipt by the
Company of a Notice of Default;


 


(6) a default
under any indebtedness for money borrowed by the Company or any Significant
Subsidiary in an aggregate outstanding principal amount of $5.0 million or
more, for a period of 30 days after written notice of default is given to the
Company by the Trustee or to the Company and the Trustee by Holders of not less
than 25% in aggregate principal amount of the Securities then outstanding,
which default (A) is caused by the failure to pay principal or interest when
due on such indebtedness by the end of the applicable grace period, if any,
unless such indebtedness is discharged, or (B) results in the acceleration of
such indebtedness, unless such acceleration is waived, cured, rescinded or
annulled or unless such indebtedness is discharged;


 


(7) the entry
by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any of its Subsidiaries that is a Significant
Subsidiary, in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company or any of its Subsidiaries that is a Significant
Subsidiary, as 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 of its Subsidiaries that is a Significant Subsidiary,
under any applicable law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or


 


31

















 


(8) the
commencement by the Company or any of its Subsidiaries that is a Significant
Subsidiary, of a voluntary case or proceeding under any applicable 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 the
Company or any of its Subsidiaries that is a Significant Subsidiary, to the
entry of a decree or order for relief in respect of the Company or any of its
Subsidiaries that is a Significant Subsidiary, in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company or any of its
Subsidiaries that is a Significant Subsidiary, of a petition or answer or
consent seeking reorganization or relief under any applicable law, or the
consent by the Company to the filing of such petition or to the appointment of
or the taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or the making by the Company or any of its
Subsidiaries that is a Significant Subsidiary, of an assignment for the benefit
of creditors, or the admission by the Company or any of its Subsidiaries that is
a Significant Subsidiary, 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 of its Subsidiaries that is a Significant Subsidiary, expressly in
furtherance of any such action.


 


A Default
under clause (5) above is not an Event of Default until the Trustee notifies
the Company, or the Holders of at least 25% in aggregate principal amount of
the Securities at the time outstanding notify the Company and the Trustee, of
the Default and the Company does not cure such Default (and such Default is not
waived) within the time specified in clause (5) above after actual receipt of
such notice. Any such notice must specify the Default, require that it be
remedied and state that such notice is a “Notice of Default.”


 


The Trustee
shall, within 90 days of the occurrence of a Default or Event of Default, give
to the Holders of the Securities notice of all uncured Defaults or Events of
Default known to it, its status and what action the Company is taking or
proposes to take with respect thereto; provided, however, the Trustee shall be
protected in withholding such notice if it, in good faith, determines that the
withholding of such notice is in the best interest of such Holders, except in
the case of a Default or Event of Default under clause (1), (2), (3) or (4)
above.


 


Section 6.2  Acceleration.  If an Event of Default (other than an Event
of Default specified in Section 6.1(7) or (8) with respect to the Company)
occurs and is continuing (the Event of Default not having been cured or waived
as provided in this Article VI), the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding by notice to the Company and the Trustee, may declare the
principal amount plus accrued and unpaid interest, including Additional
Amounts, if any, on all the Securities to be immediately due and payable.  Upon such a declaration, such accelerated
amount shall be due and payable immediately.  If an Event of Default specified in Section 6.1(7) or (8) occurs
(with respect to the Company) and is continuing, the principal amount plus
accrued and unpaid interest, including Additional Amounts, if any, on all the
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Securityholders.  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any


 


32

















 


judgment or decree and if all existing Events
of Default have been cured or waived except nonpayment of the principal amount
plus accrued and unpaid interest, including Additional Amounts, if any, that
have become due solely as a result of acceleration and if all amounts due to
the Trustee under Section 7.7 have been paid. 
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.


 


Section 6.3  Other Remedies.  If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount plus accrued and unpaid interest, including Additional
Amounts, if any, on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.


 


The Trustee
may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding.  A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. 
No remedy is exclusive of any other remedy.  All available remedies are cumulative.


 


Section 6.4 Waiver of Past Defaults.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Securityholder), may waive an existing
Default and its consequences except (i) an Event of Default described in
Section 6.1(1), 6.1(2), 6.1(3) or 6.1(4), (ii) a Default in respect of a
provision that under Section 8.2 cannot be amended without the consent of each
Securityholder affected or (iii) a Default which constitutes a failure to
convert any Security in accordance with the terms of Article IX.  When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.  This
Section 6.4 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.


 


Section 6.5  Control by Majority.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee is offered indemnity satisfactory to it.  This Section 6.5 shall be in lieu of Section
316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture, as permitted by the TIA.


 


Section 6.6  Limitation on Suits.  A Securityholder may not pursue any remedy
with respect to this Indenture or the Securities unless:


 


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


 


33

















 


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


 


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


 


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


 


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


 


A
Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other
Securityholder.


 


Section 6.7  Rights of Holders to Receive
Payment.  Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the
principal amount, Redemption Price, Change of Control Purchase Price or
interest, including Additional Amounts, if any, in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the Securities
or any Redemption Date, and to convert the Securities in accordance with
Article IX, or to bring suit for the enforcement of any such payment on or
after such respective dates or the right to convert, shall not be impaired or
affected adversely without the consent of such Holder.


 


Section 6.8  Collection Suit by Trustee.  If an Event of Default described in Section
6.1(1), (2), (3) or (4) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.7.


 


Section 6.9  Trustee May File Proofs of
Claim.  In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount, Redemption Price, Change of Control Purchase
Price or interest, including Additional Amounts, if any, in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


(a) to file
and prove a claim for the whole amount of the principal amount, Redemption
Price, Change of Control Purchase Price, or interest, including Additional
Amounts, if any, and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.7) and of the Holders allowed in such judicial proceeding, and


 


34

















 


(b) to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.7.


 


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


 


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


 


FIRST: to the
Trustee for amounts due under Section 7.7;


 


SECOND: to
Securityholders for amounts due and unpaid on the Securities for the principal
amount, Redemption Price, Change of Control Purchase Price or interest,
including Additional Amounts, if any, as the case may be, ratably, without
preference or priority of any kind, according to such amounts due and payable
on the Securities; and


 


THIRD: the
balance, if any, to the Company.


 


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


 


Section 6.11  Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section
6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in aggregate principal amount
of the Securities at the time outstanding. 
This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such
Section 315(e) is hereby expressly excluded from this Indenture, as permitted
by the TIA.


 


Section 6.12  Waiver of Stay, Extension or
Usury Laws.  The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount, Redemption
Price or Change of Control Purchase Price in respect of Securities, or any
interest,


 


35

















 


including Additional Amounts, if any, on such
amounts, as contemplated herein, or which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


ARTICLE VII


 


TRUSTEE


 


Section 7.1  Duties of Trustee.  (a) 
If an Event of Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person’s own affairs.


 


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


 


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


 


(2)          in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in 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 examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein. 
This Section 7.1(b) shall be in lieu of Section 315(a) of the TIA and
such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.


 


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


 


(1)          this Section (c) does
not limit the effect of Section (b) of this Section 7.1;


 


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


 


(3)          the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.5.


 


36

















 


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


 


(d) Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c), (e) and (f) of this Section 7.1.


 


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


 


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


 


Section 7.2  Rights of Trustee.  Subject to its duties and responsibilities
under the TIA,


 


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


 


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


 


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


 


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


 


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


 


(f) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders, pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee security or


 


37

















 


indemnity satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby;


 


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


 


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


 


(i) the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;


 


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


 


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


 


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


 


Section 7.3  Individual Rights of Trustee.  The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it
were not Trustee.  Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like
rights.  However, the Trustee must
comply with Sections 7.10 and 7.11.


 


Section 7.4  Trustee’s Disclaimer.  The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company’s use or application of the proceeds from the
Securities, it shall not be responsible for


 


38

















 


any statement in the registration statement
for the Securities under the Securities Act or in any offering document for the
Securities, the Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.


 


Section 7.5  Notice of Defaults.  If a Default occurs and if it is known to
the Trustee, the Trustee shall give to each Securityholder notice of the
Default within 90 days after it occurs or, if later, within 15 days after it is
known to the Trustee, unless such Default shall have been cured or waived
before the giving of such notice. 
Notwithstanding the preceding sentence, except in the case of a Default
described in Section 6.1(1), (2), (3) or (4), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interest of the
Securityholders.  The preceding sentence
shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso
is hereby expressly excluded from this Indenture, as permitted by the TIA.  The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default, which notice specifically references this Indenture
and the Securities.


 


Section 7.6  Reports by Trustee to Holders.  Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that complies with
TIA Section 313(a), if required by such Section 313(a).  The Trustee also shall comply with TIA
Section 313(b).


 


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


 


Section 7.7  Compensation and Indemnity.  The Company agrees:


 


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


 


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


 


(c) to
indemnify the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any loss, damage, claim, liability, cost or expense
(including attorney’s fees and expenses, and taxes (other than taxes based
upon, measured by or determined by the income of the Trustee and any and all
franchise taxes of the Trustee)) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any
claim


 


39

















 


(whether asserted by the Company or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


To secure the
Company’s payment obligations in this Section 7.7, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay the principal amount, Redemption
Price, Change of Control Purchase Price or interest, including Additional
Amounts, if any, as the case may be, on particular Securities.


 


The Company’s
payment obligations pursuant to this Section 7.7 shall survive the discharge of
this Indenture and the resignation or removal of the Trustee.  When the Trustee incurs expenses or renders
services after the occurrence of a Default specified in Section 6.1(6) or (7),
the expenses including the reasonable charges and expenses of its counsel, and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.


 


Section 7.8  Replacement of Trustee.  The Trustee may resign by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section
7.8.  The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may remove
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:


 


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


 


(2) the
Trustee is adjudged bankrupt or insolvent;


 


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


 


(4) the
Trustee otherwise becomes incapable of acting.


 


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


 


A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring
Trustee and the Company. Thereupon the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture.  The successor Trustee shall mail a notice of
its succession to Securityholders.  The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7.


 


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


 


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


 


Section 7.9  Successor Trustee by Merger.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.


 


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


 


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


 


Section 7.12  Force Majeure.  In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations under
this Indenture arising out of or caused by, directly or indirectly, forces
beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of god, and interruptions, loss or
malfunctions or utilities, communications or computer (software or hardware)
services.


 


ARTICLE VIII


 


AMENDMENTS


 


Section 8.1  Without Consent of Holders.  The Company and the Trustee may amend,
modify or supplement this Indenture or the Securities without the consent of
any Securityholder to:


 


(a) add to the
covenants of the Company for the benefit of the Holders of Securities;


 


(b) surrender
any right or power herein conferred upon the Company;


 


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


 


(d) provide
for the assumption of the Company’s obligations to the Holders of Securities in
the case of a merger, consolidation, conveyance, transfer or lease pursuant to
Article V hereof;


 


41

















 


(e) reduce the
Conversion Price; provided, however: (i) that the Conversion Price shall not be
reduced below $10.37, (ii) that such reduction in the Conversion Price shall
not adversely affect the interests of the Holders of Securities (after taking
into account tax and other consequences of such reduction), and (iii) that the
Conversion Price shall not be reduced without seeking and obtaining the consent
of the holders of the Common Stock, if such consent is required pursuant to the
rules of the Nasdaq Stock Market, Inc. or any exchange or other market on which
the Common Stock is then listed or traded;


 


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


 


(g) cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein or which is otherwise defective;
provided, however, that such action pursuant to this clause (g) does not, in
the good faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution), adversely affect the interests of the Holders of
Securities in any material respect; and


 


(h) add or
modify any other provisions herein with respect to matters or questions arising
hereunder which the Company and the Trustee may deem necessary or desirable and
that will not, in the good faith opinion of the Board of Directors of the
Company (as evidenced by a Board Resolution), adversely affect the interests of
the Holders of Securities.


 


Section 8.2  With Consent of Holders.  Except as provided below in this Section
8.2, this Indenture or the Securities may be amended, modified or supplemented,
and noncompliance in any particular instance with any provision of this
Indenture or the Securities may be waived, in each case with the written
consent of the Holders of at least a majority of the principal amount of the
Securities at the time outstanding.


 


Without the
written consent or the affirmative vote of each Holder of Securities affected
thereby, an amendment or waiver under this Section 8.2 may not:


 


(a) change the
maturity of the principal amount of, or the date any installment of interest,
including Additional Amounts, is due on, any Security;


 


(b) reduce the
principal amount of, or interest, including Additional Amounts payable on, or
the Redemption Price or Change of Control Purchase Price of, any Security;


 


(c) change the
currency of any amount owed or owing under the Security or any interest thereon
from U.S. Dollars;


 


(d) impair the
right of any Holder to institute suit for the enforcement of any payment or
with respect to, or conversion of, any Security;


 


(e) modify the
obligation of the Company to maintain an office or agency in The City of New
York pursuant to Section 4.5;


 


(f) except as
otherwise permitted or contemplated by the provisions of this Indenture,
adversely affect the repurchase right of the Holders of the Securities as
provided in


 


42

















 


Article 
III or the right of the Holders of the Securities to convert any
Security as provided in Article IX;


 


(g) modify the
provisions of Article V in a manner adverse to the Holders of the Securities;


 


(h) modify any
of the provisions of this Section 8.2, or reduce the principal amount of
outstanding Securities required to waive a default, except 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


 


(i) reduce the
percentage of the 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 provided for in this Indenture.


 


It shall not
be necessary for the consent of the Holders under this Section 8.2 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent approves the substance thereof.


 


After an
amendment under this Section 8.2 becomes effective, the Company shall mail to
each Holder a notice briefly describing the amendment.


 


Nothing in
this Section 8.2 shall impair the ability of the Company and the Trustee to
amend this Indenture or the Securities without the consent of any Securityholder
to provide for the assumption of the Company’s obligations to the Holders of
Securities in the case of a merger, consolidation, conveyance, transfer or
lease pursuant to Article V hereof.


 


Section 8.3  Compliance with Trust Indenture
Act.  Every supplemental indenture
executed pursuant to this Article shall comply with the TIA.


 


Section 8.4  Revocation and Effect of
Consents, Waivers and Actions. 
Until an amendment, waiver or other action by Holders becomes effective,
a consent thereto by a Holder of a Security hereunder is a continuing consent
by the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder s
Security, even if notation of the consent, waiver or action is not made on the
Security.  However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder’s
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment, waiver or action becomes
effective.  After an amendment, waiver
or action becomes effective, it shall bind every Securityholder.


 


Section 8.5  Notation on or Exchange of
Securities.  Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.


 


43

















 


Section 8.6  Trustee to Sign Supplemental
Indentures.  The Trustee shall sign
any supplemental indenture authorized pursuant to this Article VIII if the
amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
If it does, the Trustee may, but need not, sign such supplemental
indenture.  In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of Section
7.1) shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.


 


Section 8.7  Effect of Supplemental
Indentures.  Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


ARTICLE IX


 


CONVERSIONS


 


Section 9.1  Conversion Privilege.  (a) 
Subject to and upon compliance with the provisions of this Article IX, a
Holder of a Security shall have the right, at such Holder’s option, to convert
all or any portion (if the portion to be converted is $1,000 or an integral
multiple of $1,000) of such Security into shares of Common Stock at the
Conversion Price in effect on the date of conversion, at any time prior to the
close of business on the Business Day prior to the Stated Maturity of the
Securities.


 


Section 9.2  Conversion Procedure;
Conversion Price; Fractional Shares. 
(a)  Each Security shall be
convertible at the office of the Conversion Agent into fully paid and
nonassessable shares (calculated to the nearest 1/100th of a share) of Common
Stock.  The Security will be converted
into shares of Common Stock at the Conversion Price therefor.  No payment or adjustment shall be made in
respect of dividends on the Common Stock or accrued interest on a converted Security,
except as described in Section 9.9 hereof. 
The Company shall not issue any fraction of a share of Common Stock in
connection with any conversion of Securities, but instead shall, subject to
Section 9.3(k) hereof, make a cash payment (calculated to the nearest cent)
equal to such fraction multiplied by the Sale Price of the Common Stock on the
last Trading Day prior to the date of conversion.  Notwithstanding the foregoing, a Security in respect of which a
Holder has delivered a Change of Control Purchase Notice exercising such
Holder’s option to require the Company to repurchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with the
Section 3.8 hereof.


 


(b) Before any
Holder of a Security shall be entitled to convert the same into Common Stock,
such Holder shall, in the case of Global Securities, comply with the procedures
of the Depositary in effect at that time, and in the case of Certificated
Securities, surrender such Securities, duly endorsed to the Company or in
blank, at the office of the Conversion Agent, and shall give written notice to
the Company at said office or place that such Holder elects to convert the same
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 Common Stock to be issued.


 


44

















 


Before any
such conversion, a Holder also shall pay all funds required, if any, relating
to interest on the Securities, as provided in Section 9.9, and all taxes or
duties, if any, as provided in Section 9.8.


 


If more than
one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
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.  Subject to the
next succeeding sentence, the Company will, as soon as practicable thereafter,
issue and deliver at said office or place to such Holder of a Security, or to
such Holder’s nominee or nominees, certificates for the number of full shares
of Common Stock to which such Holder shall be entitled as aforesaid, together
with cash in lieu of any fraction of a share to which such Holder would
otherwise be entitled.  The Company
shall not be required to deliver certificates for shares of Common Stock while
the stock transfer books for such stock or the security register are duly
closed for any purpose, but certificates for shares of Common Stock shall be
issued and delivered as soon as practicable after the opening of such books or
security register.


 


(c) A Security
shall be deemed to have been converted as of the close of business on the date
of the surrender of such Securities for conversion as provided above, and the
Person or Persons entitled to receive the Common Stock issuable upon such
conversion shall be treated for all purposes as the record Holder or Holders of
such Common Stock as of the close of business on such date.


 


(d) 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 (subject to the provisions of Section 9.8 hereof), a new Security or
Securities in authorized denominations in an aggregate principal amount equal
to the unconverted portion of the surrendered Securities.


 


Section 9.3  Adjustment of Conversion Price.  The Conversion Price shall be adjusted from
time to time as follows:


 


(a) In case
the Company shall, at any time or from time to time while any of the Securities
are outstanding, pay a dividend or make a distribution in shares of Common
Stock to all holders of its outstanding shares of Common Stock, then the
Conversion Price in effect at the opening of business on the date following the
record date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction:


 


(1) the
numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on the Record Date fixed for such determination; and


 


(2) the
denominator of which shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution.


 


Such reduction
shall become effective immediately after the opening of business on the day
following the Record Date fixed for such determination.  If any dividend or distribution of the type
described in this Section 9.3(a) is declared but not so paid or made, the


 


45

















 


Conversion Price shall again be adjusted to
the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.


 


(b) In case
the Company shall, at any time or from time to time while any of the Securities
are outstanding, subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, then the Conversion Price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and conversely,
in case the Company shall, at any time or from time to time while any of the
Securities are outstanding, combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock, then the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased.


 


Such reduction
or increase, as the case may be, shall become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.


 


(c) In case
the Company shall, at any time or from time to time while any of the Securities
are outstanding, issue rights or warrants (other than any rights or warrants
referred to in Section 9.3(d)) to all or substantially all holders of its
shares of Common Stock entitling them to subscribe for or purchase, for a
period of up to 45 days, shares of Common Stock (or securities convertible into
shares of Common Stock) at a price per share (or having a conversion price per
share) less than the Sale Price on the Business Day immediately preceding the
date of the announcement of such issuance (treating the conversion price per
share of the securities convertible into Common Stock as equal to (x) the sum
of (i) the price for a unit of the security convertible into Common Stock and
(ii) any additional consideration initially payable upon the conversion of such
security into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), then the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such date of announcement by a fraction:


 


(1)           the numerator of which shall be the
number of shares of Common Stock outstanding on the close of business on the
date of announcement, plus the number of shares or securities which the aggregate
offering price of the total number of shares or securities so offered for
subscription or purchase (or the aggregate conversion price of the convertible
securities so offered) would purchase at such Sale Price of the Common Stock;
and


 


(2)           the denominator of which shall be the
number of  shares of Common Stock
outstanding at the close of business on the date of announcement, plus the
total number of additional shares of Common Stock so offered for subscription
or purchase (or into which the convertible securities so offered are
convertible).


 


Such
adjustment shall become effective immediately after the opening of business on
the day following the date of announcement of such issuance.  To the extent that shares of Common Stock
(or securities convertible into shares of Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of such
rights or warrants,


 


46

















 


the Conversion Price shall be readjusted to
the Conversion Price which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock (or securities
convertible into shares of Common Stock) actually delivered.  In the event that such rights or warrants
are not so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if the date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed.  In determining whether
any rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such Sale Price, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into
account any consideration received for such rights or warrants, the value of
such consideration if other than cash, to be determined by the Board of
Directors.


 


(d) In case
the Company shall, at any time or from time to time while any of the Securities
are outstanding, by dividend or otherwise, distribute to all or substantially
all holders of its shares of Common Stock (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation and the Common Stock is not changed or exchanged), cash
(other than any dividends or distributions consisting exclusively of cash to
which Section 9.3(e) applies), shares of Common Stock (other than any dividends
or distributions to which Section 9.3(a) applies), evidences of its
indebtedness or other assets, including securities, but excluding (i) any
rights or warrants referred to in Section 9.3(c) and (ii) dividends or
distributions of stock, securities or other property or assets (including cash)
in connection with a reclassification, consolidation, merger, statutory share
exchange, combination, sale or conveyance to which Section 9.4 applies (such
capital stock, evidence of its indebtedness, and other assets or securities
being distributed hereinafter in this Section 9.3(d) called the distributed
assets ), then, in each such case, subject to the second and third succeeding
paragraphs and the last paragraph of this Section 9.3(d), the Conversion Price
shall be reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect immediately prior to the close of
business on the Record Date with respect to such distribution by a fraction:


 


(1)           the numerator of which shall be the
Current Market Price of the Common Stock, less the Fair Market Value on such
date of the portion of the distributed assets so distributed applicable to one
share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding on the record date)(determined as provided in Section
9.3(g)); and


 


(2)           the denominator of which shall be
such Current Market Price.


 


Such reduction shall become effective
immediately prior to the opening of business on the day following the Record
Date for such distribution.  In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.


 


If the Board
of Directors determines the Fair Market Value of any distribution for purposes
of this Section 9.3(d) by reference to the actual or when issued trading market
for any distributed assets comprising all or part of such distribution, it must
in doing so consider the prices in such market over the same period (the
Reference Period ) used in computing the


 


47

















 


Current Market Price pursuant to Section
9.3(g) to the extent possible, unless the Board of Directors determines in good
faith that determining the Fair Market Value during the Reference Period would
not be in the best interest of the Holders. 
In the event any such distribution consists of shares of capital stock
of, or similar equity interests in, one or more of the Company’s Subsidiaries
(a “Spin-Off”), the Conversion Price shall be reduced so that the same shall be
equal to the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the Record Date with respect to
such distribution by a fraction:


 


(1)           the numerator of which shall be the
Current Market Price on such date; and


 


(2)           the denominator of which shall be the
Current Market Price of the Common Stock, plus the Fair Market Value on such
date of the portion of the distributed assets so distributed applicable to one
share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding on the record date) (determined as set forth in the
second and third succeeding sentences).


 


Such reduction shall become effective
immediately prior to the opening of business on the day following the Record
Date for such distribution.  In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.  In the case of a Spin-Off, the Fair Market
Value of the securities to be distributed shall equal the average of the
closing sale prices of such securities on the principal securities market on
which such securities are traded for the five consecutive Trading Days
commencing on and including the sixth day of trading of those securities after
the effectiveness of the Spin-Off, and the Current Market Price shall be
measured for the same period.  In the
event, however, that an underwritten initial public offering of the securities
in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of
the securities distributed in the Spin-Off shall mean the initial public
offering price of such securities and the Current Market Price shall mean the
Sale Price for the Common Stock on the same Trading Day.


 


Rights or
warrants distributed by the Company to all holders of its shares of Common
Stock entitling them to subscribe for or purchase shares of the Company’s
capital stock (either initially or under certain circumstances), which rights
or warrants, until the occurrence of a specified event or events (“Trigger
Event”), (i) are deemed to be transferred with such shares of Common Stock,
(ii) are not exercisable and (iii) are also issued in respect of future
issuances of shares of Common Stock shall be deemed not to have been
distributed for purposes of this Section 9.3(d) (and no adjustment to the
Conversion Price under this Section 9.3(d) will be required) until the
occurrence of the earliest Trigger Event. 
If such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to purchase
different distributed assets, evidences of indebtedness or other assets, or
entitle the holder to purchase a different number or amount of the foregoing or
to purchase any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of issuance and
record date with respect to a new right or warrant (and a termination or
expiration of the existing right or warrant without exercise by the holder
thereof).  In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any


 


48

















 


Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this Section 9.3(d)):


 


(1)           in the case of any such rights or
warrants which shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Price 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 shares of Common
Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of shares of Common
Stock as of the date of such redemption or repurchase; and


 


(2)           in the case of such rights or
warrants which shall have expired or been terminated without exercise, the
Conversion Price shall be readjusted as if such rights and warrants had never
been issued.


 


For purposes
of this Section 9.3(d) and Section 9.3(a), 9.3(b) and 9.3(c), any dividend or
distribution to which this Section 9.3(d) is applicable that also includes (i)
shares of Common Stock, (ii) a subdivision or combination of shares of Common
Stock to which Section 9.3(b) applies or (iii) rights or warrants to subscribe
for or purchase shares of Common Stock to which Section 9.3(c) applies (or any
combination thereof), shall be deemed instead to be:


 


(1)           a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or warrants,
other than such shares of Common Stock, such subdivision or combination or such
rights or warrants to which Section 9.3(a), 9.3(b) and 9.3(c) apply,
respectively (and any Conversion Price reduction required by this Section
9.3(d) with respect to such dividend or distribution shall then be made),
immediately followed by


 


(2)           a dividend or distribution of such
shares of Common Stock, such subdivision or combination or such rights or
warrants (and any further Conversion Price reduction required by Sections
9.3(a), 9.3(b), and 9.3(d) with respect to such dividend or distribution shall
then be made), except:


 


(A)          the Record Date of such dividend or
distribution shall be substituted as (i)“the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution,”
“Record Date fixed for such determinations” and “Record Date” within the
meaning of Section 9.3(a) and 9.3(b), (ii) “the day upon which such subdivision
becomes effective” and “the day upon which such combination becomes effective”
within the meaning of Section 9.3(b), and (iii) as “the date fixed for the
determination of stockholders entitled to receive such rights or warrants,”
“the Record Date fixed for the determination of the stockholders entitled to
receive such rights or warrants” and such “Record Date” within the meaning of
Section 9.3(c); and


 


(B)           any shares of Common Stock included
in such dividend or distribution shall not be deemed “outstanding at the close
of business on the date


 


49

















 


fixed for such
determination” within the meaning of Section 9.3(a) and any reduction or
increase in the number of shares of Common Stock resulting from such
subdivision or combination shall be disregarded in connection with such
dividend or distribution.


 


In the event
of any distribution referred to in this Section 9.3(d) in which (i) the value
of such distributions per share of Common Stock equals or exceeds the average
of the Sale Prices of the Common Stock over the ten consecutive Trading Day
period ending on the Record Date for such distribution, or (ii) such average of
the Sale Prices of the Common Stock exceeds the Fair Market Value applicable to
one share of Common Stock (as determined by the Board of Directors) by less
than $1.00, then, in each such case, in lieu of an adjustment to the Conversion
Price, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion of a Security, in addition to shares of Common
Stock, the kind and amount of such distribution such Holder would have received
had such Holder converted such Security immediately prior to the Record Date
for determining the shareholders entitled to receive the distribution.


 


No adjustment
to the Conversion Price or the ability of a Holder of a Security to convert
will be made if the Holder will otherwise participate in such distribution
without conversion.


 


(e) In case
the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock cash (excluding any dividend or distribution in
connection with the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary), then, in such case, the Conversion Price
shall be reduced so that the same shall equal the rate determined by dividing
the Conversion Price in effect on the applicable record date by a fraction,


 


(1)           the numerator of which shall be the
Current Market Price on such record date; and


 


(2)           the denominator of which shall be the
Current Market Price minus the amount distributed per ordinary share of Common
Stock.


 


Such adjustment
shall become effective immediately after the opening of business on the day
following the Record Date fixed for the determination of the stockholders
entitled to receive such cash dividend or other distribution consisting
exclusively of cash.  If any dividend or
distribution of the type described in this Section 9.3(e) is declared but not
so paid or made, the Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such dividend or distribution had not
been declared.


 


(f) In case a
tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to stockholders
of consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) that as of the last
time (the “Expiration Time”) tenders or exchanges may be made


 


50

















 


pursuant to such tender or exchange offer (as
it may be amended) exceeds the Closing Sale Price of a share of Common Stock on
the Trading Day next succeeding the Expiration Time, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction,


 


(1) the
numerator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied
by the Sale Price of a share of Common Stock on the Trading Day next succeeding
the Expiration Time such adjustment to become effective immediately prior to
the opening of business on the day following the Expiration Time; and


 


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


 


If the Company is obligated to purchase
shares pursuant to any such tender or exchange offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price that would then be in effect if such tender or
exchange offer had not been made.


 


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


 


“Current
Market Price” on any date means the average of the daily Sale Prices per share
of Common Stock for the ten consecutive Trading Days immediately prior to such
date; provided, however, that if:


 


(1)           the “ex” date (as hereinafter
defined) for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 9.3(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive
Trading Days, the Sale Price for each Trading Day prior to the “ex” date for
such other event shall be adjusted by dividing such Sale Price by the same
fraction by which the Conversion Price is so required to be adjusted as a
result of such other event;


 


(2)           the “ex” date for any event (other
than the issuance or distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 9.3(a), (b), (c), (d),
(e) or (f) occurs on or after the “ex” date for the issuance or distribution
requiring such computation and prior to the day in question, the Sale Price for
each Trading Day on and after the “ex” date for such other event shall be
adjusted by


 


51

















 


dividing such
Sale Price by the reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event; and


 


(3)           the “ex” date for the issuance or
distribution requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (1) or (2) of
this proviso, the Sale Price for each Trading Day on or after such “ex” date
shall be adjusted by adding thereto the amount of any cash and the Fair Market
Value (as determined by the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 9.3(d), (e) or (f)) of the
evidences of indebtedness, shares of capital stock or assets being distributed
applicable to one share of Common Stock as of the close of business on the day
before such “ex” date.


 


For purposes of any computation under Section
9.3(f), if the “ex” date for any event (other than the tender offer requiring
such computation) that requires an adjustment to the Conversion Price pursuant
to Section 9.3(a), (b), (c), (d), (e) or (f) occurs on or after the Expiration
Time for the tender or exchange offer requiring such computation and prior to
the day in question, the Sale Price for each Trading Day on and after the “ex”
date for such other event shall be adjusted by dividing such Sale Price by the
reciprocal of the fraction by which the Conversion Price is so required to be
adjusted as a result of such other event. 
For purposes of this paragraph, the term “ex” date, when used:


 


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


 


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


 


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


 


Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called for pursuant to this
Section 9.3, such adjustments shall be made to the Current Market Price as may
be necessary or appropriate to effectuate the intent of this Section 9.3 and to
avoid unjust or inequitable results as determined in good faith by the Board of
Directors.


 


“Fair Market
Value” shall mean the amount that a willing buyer would pay a willing seller in
an arm’s-length transaction (as determined by the Board of Directors, whose
determination shall be conclusive).


 


“Record Date”
shall mean, with respect to any dividend, distribution or other transaction or
event in which the holders of shares of Common Stock have the right to receive
any cash, securities or other property or in which the shares of Common Stock
(or other applicable security) is exchanged for or converted into any
combination of cash, securities or


 


52



















other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).


 


(h) The
Company shall be entitled to make such additional reductions in the Conversion
Price, in addition to those required by Section 9.3(a), (b), (c), (d), (e) or
(f), as shall be necessary in order that any dividend or distribution of Common
Stock, any subdivision, reclassification or combination of shares of Common
Stock or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income tax
purposes.


 


(i) To the
extent permitted by applicable law, the Company may, from time to time, reduce
the Conversion Price by any amount for any period of time, if such period is at
least 20 days and the reduction is irrevocable during the period.  Whenever the Conversion Price is reduced pursuant
to the preceding sentence, the Company shall mail to the Trustee and each
Holder at the address of such Holder as it appears in the register of the
Securities maintained by the Registrar, at least 15 days prior to the date the
reduced Conversion Price takes effect, a notice of the reduction stating the
reduced Conversion Price and the period during which it will be in effect.


 


(j) In any
case in which this Section 9.3 shall require that any adjustment be made
effective as of or retroactively immediately following a Record Date, the
Company may elect to defer (but only for five Trading Days following the filing
of the statement referred to in Section 9.5) issuing to the Holder of any
Securities converted after such Record Date the shares of Common Stock issuable
upon such conversion over and above the shares of Common Stock issuable upon
such conversion on the basis of the Conversion Price prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due bill or
other appropriate instrument evidencing such Holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.


 


(k) All
calculations under this Section 9.3 shall be made to the nearest cent or
one-hundredth of a share, with one-half cent and 0.005 of a
share, respectively, being rounded upward.


 


(l) In the
event that at any time, as a result of an adjustment made pursuant to this
Section 9.3, the Holder of any Securities thereafter surrendered for conversion
shall become entitled to receive any shares of stock of the Company other than
shares of Common Stock into which the Securities originally were convertible,
the Conversion Price of such other shares so receivable upon conversion of any
such Security shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in subparagraphs (a) through (k) of this Section 9.3,
and the provision of Sections 9.1, 9.2 and 9.4 through 9.9 with respect to the
Common Stock shall apply on like or similar terms to any such other shares and
the determination of the Board of Directors as to any such adjustment shall be
conclusive.


 


(m) No
adjustment shall be made pursuant to this Section 9.3 (i) if the effect thereof
would be to reduce the Conversion Price below $10.37, or (ii) if the Holders of
the


 


53

















 


 


Securities may participate in the transaction
that would otherwise give rise to an adjustment pursuant to this Section 9.3,
or (iii) if the consent of the holders of the Common Stock would be required
for the issuance of, or the Company’s agreement to issue, the Common Stock at
the adjusted Conversion Price pursuant to the rules of the Nasdaq Stock Market,
Inc. or any exchange or other market on which the Common Stock is then listed
or traded and the Company has not obtained such consent in compliance with the
applicable rules.


 


Section 9.4 Consolidation or Merger of the
Company. If any of the following events
occurs, namely:


 


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


 


(2)           any merger,
consolidation, statutory share exchange or combination of the Company with
another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock; or


 


(3)           any sale or
conveyance of the properties and assets of the Company as, or substantially as,
an entirety to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock;


 


the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental
indenture (which shall comply with the Trust Indenture Act as in force at the
date of execution of such supplemental indenture, if such supplemental
indenture is then required to so comply) providing that such Securities shall
be convertible into the kind and amount of shares of stock and other securities
or property or assets (including cash) which such Holder would have been
entitled to receive upon such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance had such Securities
been converted into Common Stock immediately prior to such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance assuming such holder of Common Stock did not exercise its rights of
election, if any, as to the kind or amount of securities, cash or other
property receivable upon such merger, consolidation, statutory share exchange,
sale or conveyance (provided, that if the kind or amount of securities, cash or
other property receivable upon such merger, consolidation, statutory share
exchange, sale or conveyance is not the same for each share of Common Stock in
respect of which such rights of election shall not have been exercised (
Non-Electing Share ), then for the purposes of this Section 9.4, the kind and
amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance for each
Non-Electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-Electing Shares).  Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article IX.  If, in the case
of any such reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance, the stock or other securities and
assets receivable thereupon by a holder of Common Stock includes shares of
stock or other securities and assets of a corporation


 


54

















 


other than the successor or purchasing
corporation, as the case may be, in such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing, including to the extent practicable the
provisions providing for the conversion rights set forth in this Article IX.


 


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


 


The above
provisions of this Section 9.4 shall similarly apply to successive reclassifications,
mergers, consolidations, statutory share exchanges, combinations, sales and
conveyances.


 


If this
Section 9.4 applies to any event or occurrence, Section 10.3 shall not apply.


 


Section 9.5 Notice of Adjustment.
Whenever an adjustment in the Conversion Price with respect to the Securities
is required:


 


(1)           the Company shall
forthwith place on file with the Trustee and any Conversion Agent for such
securities a certificate of the Treasurer of the Company, stating the adjusted
Conversion Price determined as provided herein and setting forth in reasonable
detail such facts as shall be necessary to show the reason for and the manner
of computing such adjustment; and


 


(2)           a notice stating
that the Conversion Price has been adjusted and setting forth the adjusted
Conversion Price shall forthwith be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company, to each
Holder in the manner provided in Section 10.2. 
Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.


 


In addition, whenever an adjustment in the
Conversion Price with respect to the Securities is required, the Company will
issue a press release through Dow Jones & Company, Inc. or Bloomberg
Business News containing the relevant information and make this information
available on the Company’s web site or through another public medium as it may
use at that time.


 


Section 9.6 Notice in Certain Events.
In case:


 


(1)           of a consolidation
or merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or conveyance to
another Person or entity or group of Persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group (within the meaning
of Rule 13d-3 under the Exchange Act) of all or substantially all of the
property and assets of the Company; or


 


55

















 


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


 


(3)           of any action
triggering an adjustment of the Conversion Price referred to in clauses (x) or
(y) below;


 


then, in each case, the Company shall cause
to be filed with the Trustee and the Conversion Agent, and shall cause to be
given, to the Holders of the Securities in the manner provided in Section 10.2,
at least 15 days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of any
distribution or grant of rights or warrants triggering an adjustment to the
Conversion Price pursuant to this Article 
IX, or, if a record is not to be taken, the date as of which the holders
of record of Common Stock entitled to such distribution, rights or warrants are
to be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article IX 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 Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger sale, conveyance, dissolution, liquidation or winding up.


 


Failure to
give such notice or any defect therein shall not affect the legality or
validity of the proceedings described in clause (1), (2) or (3) of this Section
9.6.


 


Section 9.7 Company To Reserve Stock:
Registration; Listing.


 


(a) The
Company shall, in accordance with the laws of the State of Delaware, at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, for the purpose of effecting
the conversion of the Securities, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all Securities then outstanding into such Common Stock at any time (assuming
that, at the time of the computation of such number of shares or securities,
all such Securities would be held by a single Holder); provided, however, that
nothing contained herein shall preclude the Company from satisfying its
obligations in respect of the conversion of the Securities by delivery of
purchased shares of Common Stock which are then held in the treasury of the
Company.  The Company covenants that all
shares of Common Stock which may be issued upon conversion of Securities will
upon issue be fully paid and nonassessable and free from all liens and charges
and, except as provided in Section 9.8, taxes with respect to the issue
thereof.


 


(b) If any
shares of Common Stock which would be issuable upon conversion of Securities
hereunder require registration with or approval of any governmental authority
before such shares or securities may be issued upon such conversion, the
Company will in good faith and as expeditiously as possible endeavor to cause
such shares or securities to be duly registered or approved, as the case may
be.  The Company further covenants that
so long as the Common Stock shall be listed on the Nasdaq Stock Market, Inc.,
the Company will, if permitted by the rules of such exchange, list and keep
listed all Common Stock issuable upon conversion of the Securities, and the
Company will endeavor to list the shares of Common Stock required to be


 


56

















 


delivered upon conversion of the Securities
prior to such delivery upon any other national securities exchange upon which
the outstanding Common Stock is listed at the time of such delivery.


 


Section 9.8 Taxes on Conversion.
The issue of stock certificates on conversion of Securities shall be made
without charge to the converting Holder for any documentary, stamp or similar
issue or transfer taxes in respect of the issue thereof, and the Company shall
pay any and all documentary, stamp or similar issue or transfer taxes 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 such tax which may be payable in respect of any transfer involved in
the issue or delivery of shares of Common Stock or the portion, if any, of the
Securities which are not so converted in a name other than that in which the
Securities so converted were registered, 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 such tax or has established to the satisfaction of the Company
that such tax has been paid.


 


Section 9.9 Conversion After Record Date.
Except as provided below, if any Securities are surrendered for conversion on
any day other than an Interest Payment Date, the Holder of such Securities
shall not be entitled to receive any interest that has accrued on such
Securities since the prior Interest Payment Date.  By delivery to the Holder of the number of shares of Common Stock
or other consideration issuable upon conversion in accordance with this Article
IX, any accrued and unpaid interest on such Securities will be deemed to have
been paid in full.


 


If any
Securities are surrendered for conversion subsequent to the Record Date
preceding an Interest Payment Date but on or prior to  such Interest Payment Date, the Holder of such Securities at
the close of business on such Record Date shall receive the interest payable on
such Securities on such Interest Payment Date notwithstanding the conversion
thereof.  Securities surrendered for conversion
during the period from the close of business on any Record Date preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (except in the case of Securities which have been called for redemption
on a Redemption Date between such Record Date and the third Business Day after
such Interest Payment Date) be accompanied by payment by Holders, for the
account of the Company, in New York Clearing House funds or other funds of an
amount equal to the interest payable on such Interest Payment Date on the
Securities being surrendered for conversion. 
Except  as provided in this
Section 9.9, no adjustments in respect of payments of interest on Securities
surrendered for conversion or  any
dividends or distributions or interest on the Common Stock issued upon
conversion shall be made upon the conversion of any Securities.


 


Section 9.10 Company Determination Final.    Any determination that the Company or the
Board of Directors must make pursuant to this Article IX shall be conclusive if
made in good faith and in accordance with the provisions of this Article,
absent manifest error, and set forth in a Board Resolution.


 


Section 9.11 Responsibility of Trustee for
Conversion Provisions. The Trustee has no
duty to determine when an adjustment under this Article IX should be made, how
it should be made or what it should be. 
The Trustee makes no representation as to the validity or


 


57

















 


value of any securities or assets issued upon
conversion of Securities.  The Trustee
shall not be responsible for any failure of the Company to comply with this
Article IX.  Each Conversion Agent other
than the Company shall have the same protection under this Section 9.11 as the
Trustee.


 


The rights, privileges,
protections, immunities and benefits given to the Trustee under the Indenture
including, without limitation, its rights to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each Paying Agent or Conversion Agent acting hereunder.


 


Section 9.12 Unconditional Right of
Holders to Convert. Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to convert its Security in
accordance with this Article IX and to bring an action for the enforcement of
any such right to convert, and such rights shall not be impaired or affected
without the consent of such Holder.


 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.


 


Section 10.2 Notices. Any
request, demand, authorization, notice, waiver, consent or communication shall
be in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following facsimile numbers:


 


if to the
Company:


 


deCODE
genetics Inc.


Sturlungata 8


Reykjavik,
Iceland


Attention:              Corporate Counsel


Facsimile
No.:   +354-570-1806


 


With a
copy  to:


 


Stevens &
Lee, P.C.


600 College
Road East


Suite 4400


Attention:              Marsha E. Novick


Facsimile
No.:  (610) 371-7929


 


58

















 


if to the
Trustee:


 


The Bank of
New York


101 Barclay
Street, Floor 21 West


New York, New
York 10286


Facsimile No.
(212) 815-5707


Attention:  Corporate Trust Administration


 


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


 


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


 


Failure to
mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders.  If a notice or communication is mailed in
the manner provided above, it is duly given, whether or not received by the
addressee; provided that all notices to the Trustee shall be deemed effective
upon actual receipt thereof.


 


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


 


Section 10.3 Communication by Holders with
Other Holders. Securityholders may
communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar, the
Paying Agent, the Conversion Agent and anyone else shall have the protection of
TIA Section 312(c).


 


Section 10.4 Certificate and Opinion as to
Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:


 


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


 


(2) an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


 


Section 10.5 Statements Required in
Certificate or Opinion. Each Officers’
Certificate or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:


 


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


 


59

















 


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


 


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


 


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


 


Section 10.6 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


Section 10.7 Rules by Trustee, Paying
Agent, Conversion Agent and  Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.


 


Section 10.8 Legal Holidays. A
“Legal Holiday” is any day other than a Business Day. If any specified date
(including a date for giving notice) is a Legal Holiday, the action shall be
taken on the next succeeding day that is not a Legal Holiday, and, if the
action to be taken on such date is a payment in respect of the Securities, no
interest, if any, shall accrue for the intervening period.


 


Section 10.9 Governing Law. THIS
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


Section 10.10 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 10.11 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.  By
accepting a Security, each Securityholder shall waive and release all such
liability.  The waiver and release shall
be part of the consideration for the issue of the Securities.


 


Section 10.12 Successors. All
agreements of the Company in this Indenture and the Securities shall bind its
successor.  All agreements of the
Trustee in this Indenture shall bind its successor.


 


60

















 


Section 10.13 Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement.  One signed copy is enough to
prove this Indenture.


 


Section 10.14 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.


 


61

















 


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


 


	
   

  	
  deCODE genetics, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  	
   

  
	
   

  	
  As Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


62

















 


EXHIBIT A


 


[FORM OF FACE OF GLOBAL SECURITY]


 


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


 


TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE
DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 


THE SECURITY
EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ACQUISITION HEREOF, THE HOLDER:


 


(1)                                REPRESENTS
THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT;


 


(2)                                  AGREES
THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT, IF AVAILABLE, (E) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM


 

















 


REGISTRATION
UNDER THE SECURITIES ACT, IF AVAILABLE, OR (F) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND


 


(3)                                  AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


The foregoing
legend may be removed from this Security on satisfaction of the conditions
specified in the Indenture.


 


A-2

















 


deCODE genetics, Inc.


 


3.5% Senior Convertible Notes due 2011


 


	
  No.:
                               

  	
   

  	
  CUSIP: 
  243586AA2 

  
	
  Issue Date: April 14, 2004

  	
   

  	
  ISIN: 
  US243586AA22

  
	
   

  	
   

  	
  Principal Amount: 
  $                             

  



 


deCODE
genetics, Inc., a Delaware corporation, promises to pay to Cede & Co. or
registered assigns, the principal amount of
                                        dollars
($              )
on April 15, 2011.


 


Interest
Payment Dates:  April 15 and October 15,
commencing October 15, 2004.


 


Record
Dates:  April 1 and October 1.


 


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


 


IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.


 


	
  Dated:
                ,  200     

  	
  deCODE genetics, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


THE BANK OF NEW YORK,


as Trustee, certifies that this
is one


of the Securities referred to
in the


within mentioned Indenture.


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  
	
  Dated:                        ,  200     

  



 


A – 3

















 


[FORM OF REVERSE OF GLOBAL SECURITY]


 


3.5% Senior Convertible Notes due 2011


 


This Security
is one of a duly authorized issue of the 3.5% Senior Convertible Notes due 2011
(the “Securities”) of deCODE genetics, Inc., a Delaware corporation (including
any successor corporation under the Indenture hereinafter referred to, the
“Company”), issued under an Indenture, dated as of April 14, 2004 (the
“Indenture”), between the Company and The Bank of New York, as trustee (the
“Trustee”).  The terms of the Security
include those stated in the Indenture, those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (“TIA”), and those set
forth in this Security.  This Security
is subject to all such terms, and Holders are referred to the Indenture and the
TIA for a statement of all such terms. 
To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the
Indenture, the terms of the Indenture shall control.  Capitalized terms used but not defined herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.


 


1.               Interest


 


The Company
promises to pay interest on the principal amount of the Securities at the
interest rate of 3.5% (the “Interest Rate”) from the date of issuance until
repayment in full at April 15, 2011, or until an earlier conversion, redemption
or repurchase.  The Company will pay
interest on this Security semi-annually in arrears on April 15 and October 15
of each year (each, an “interest payment date”), commencing October 15, 2004.


 


The Securities
shall bear interest from April 14, 2004 until the principal amount thereof is
paid or made available for payment, or until such date on which the Securities
are converted, redeemed or purchased as provided herein at a rate of 3.5% per
annum.


 


Interest on
the Securities shall be computed (i) for any full semi-annual period for which
a particular Interest Rate is applicable, on the basis of a 360-day year of
twelve 30-day months and (ii) for any period for which a particular Interest
Rate is applicable for less than a full semiannual period for which interest is
calculated, on the basis of a 30-day month and, for such periods of less than a
month, the actual number of days elapsed over a 30-day month.


 


If this
Security is redeemed or repurchased by the Company on a date that is after the
record date and prior to the corresponding interest payment date, interest and
Additional Amounts, if any, accrued and unpaid hereon to but not including the
applicable Redemption Date or Change of Control Purchase Date, as the case may
be, will be paid to the same Holder to whom the Company pays the principal of
this Security.


 


Interest on
Securities converted after a record date but prior to the corresponding
interest payment date will be paid to the Holder of the Securities on the
record date but, upon conversion, the Holder must pay the Company the interest
and Additional Amounts, if any, which have accrued and will be paid on such
interest payment date; provided, that no such


 


A – 4

















 


payment need be made with respect to
Securities which will be redeemed by the Company after a record date and prior
to the third Business Day after the corresponding interest payment date.


 


If the
principal amount hereof or any portion of such principal amount or any
interest, including Additional Amounts, if any, on any Security is not paid
when due (whether upon acceleration pursuant to Section 6.2 of the Indenture,
upon the date set for payment of the Redemption Price pursuant to Section 5
hereof or the Change of Control Purchase Price pursuant to Section 6 hereof or
upon the Stated Maturity of this Security), then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at the Interest
Rate, compounded semi-annually, which interest shall accrue from the date on
which such overdue amount was originally due until the date on which payment of
such amount, including interest thereon, has been made or duly provided
for.  All such interest shall be payable
on demand.


 


2.               Method
of Payment.


 


Except as
provided below, interest will be paid (i) on the Global Securities to The
Depository Trust Company (“DTC”) or its nominee in immediately available funds,
(ii) on any definitive Securities having an aggregate principal amount of
$5,000,000 or less, by check mailed to the Holders of such Securities, and
(iii) on any definitive Securities having an aggregate principal amount of more
than $5,000,000, by wire transfer in immediately available funds at the
election of the Holders of such Securities.


 


At Stated
Maturity, the Company will pay interest on definitive Securities at the
Company’s office or agency in New York City, which initially will be the
Corporate Trust Office of the Trustee in New York City.


 


Principal on
Global Securities will be paid to DTC or its nominee in immediately available
funds.  Principal on definitive
Securities will be payable, upon Stated Maturity or when due, at the office or
agency of the Company in New York City, maintained for such purpose, initially
the Corporate Trust Office of the Trustee in New York City.


 


Subject to the
terms and conditions of the Indenture, the Company will make payments in cash
in respect of Redemption Prices, Change of Control Purchase Prices and at
Stated Maturity to Holders who surrender Securities to a Paying Agent to
collect such payments in respect of the Securities. The Company will pay cash
amounts in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may make
such cash payments by check payable in such money.


 


3.               Paying
Agent, Conversion Agent and Registrar.


 


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


 


A – 5

















 


4.               Indenture.


 


The Securities
are senior unsecured obligations of the Company limited to $150,000,000
aggregate principal amount (of which $125,000,000 represents the original issue
and $25,000,000 is issued pursuant to the exercise by the Initial Purchasers of
their option to purchase up to $25,000,000 aggregate principal amount of
additional Securities).  The Indenture
does not limit other indebtedness of the Company, secured or unsecured.


 


5.               Redemption
at the Option of the Company.


 


No sinking
fund is provided for the Securities. The Securities are not redeemable by the
Company prior to April 20, 2009.  The
Securities are redeemable for cash at the option of the Company, in whole or in
part, at any time or from time to time, on or after April 20, 2009 upon not
less than 20 nor more than 60 days’ notice (the “Redemption Notice”) by mail
for a redemption price equal to the principal amount of those Securities plus
accrued and unpaid interest, including Additional Amounts, if any, up to the
Redemption Date.


 


6.               Purchase
By the Company at the Option of the Holder.


 


At the option
of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to offer to purchase the Securities held by such
Holder within 30 days after the occurrence of a Change of Control of the
Company for a Change of Control Purchase Price equal to the principal amount
plus accrued and unpaid interest, including Additional Amounts, if any, of such
Security on the Change of Control Purchase Date.  The Change of Control Purchase Date shall be between 30 and 60
days of the Company’s delivery of the notice described in the preceding
sentence. The Change of Control Purchase Price shall be paid in cash.


 


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


 


If cash
sufficient to pay the Change of Control Purchase Price of all Securities, or
portions thereof to be purchased as of the Change of Control Purchase Date, is
deposited with the Paying Agent on the Business Day following the Change of
Control Purchase Date, interest will cease to accrue on such Securities (or
portions thereof) immediately after such Change of Control Purchase Date, and
the Holder thereof shall have no other rights as such other than the right to
receive the Change of Control Purchase Price upon surrender of such Security.


 


7.               Notice
of Redemption.


 


Notice of redemption
pursuant to Section 5 of this Security will be mailed at least 20 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at the Holder’s registered address. If money sufficient to pay the
Redemption Price of all Securities (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, immediately after such Redemption Date interest ceases to
accrue on such Securities or portions thereof. Securities in denominations


 


A – 6

















 


larger than $1,000 of principal amount may be
redeemed in part but only in integral multiples of $1,000 of principal amount.


 


8.               Conversion.


 


Subject to and
in compliance with the provisions of the Indenture, a Holder is entitled, at
such Holder’s option, to convert the Holder’s Security (or any portion of the
principal amount thereof that is $1,000 or an integral multiple of $1,000),
into fully paid and nonassessable shares of Common Stock at the Conversion
Price in effect at the time of conversion.


 


A Security in
respect of which a Holder has delivered a Change of Control Purchase Notice,
exercising the option of such Holder to require the Company to purchase such
Security, may be converted only if such Change of Control Purchase Notice is
withdrawn in accordance with the terms of the Indenture.


 


The initial
Conversion Price is $14.00, subject to adjustment in certain events described
in the Indenture. No fractional shares of Common Stock shall be issued upon
conversion of any Security. A Holder that surrenders Securities for conversion
will receive cash or a check in lieu of any fractional share of Common Stock.


 


To surrender a
Security for conversion, a Holder must (i) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (ii) surrender the
Security to the Conversion Agent, (iii) furnish appropriate endorsements and
transfer documents and (iv) pay any transfer or similar tax, if required by the
Indenture.


 


If the Company
(i) is a party to a consolidation, merger or binding share exchange, (ii)
reclassifies the Common Stock or (iii) conveys, transfers or leases its properties
and assets substantially as an entirety to any Person, the right to convert a
Security into shares of Common Stock may be changed into a right to convert it
into securities, cash or other assets of the Company or such other Person, in
each case in accordance with the Indenture.


 


9.               Denominations;
Transfer; Exchange.


 


The Securities
are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000.  A Holder may transfer or exchange Securities in accordance with
the Indenture.  The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture.  The Registrar need not
transfer or exchange any Securities selected for redemption (except, in the
case of a Security to be redeemed in part, the portion of the Security not to
be redeemed) or any Securities in respect of which a Change of Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to
be purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.


 


A – 7

















 


10.         Persons
Deemed Owners.


 


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


 


11.  Unclaimed
Money or Securities.


 


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


 


12.  Amendment;
Waiver.


 


Subject to
certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities and (ii)
certain Defaults may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities.  The Indenture and the Securities may also be
amended by the Company and the Trustee, without the consent of any Holder, in
certain circumstances set forth in the Indenture; provided, that certain provisions
of the Indenture and the Securities may not be amended without the consent of
each affected  Holder.


 


13.  Defaults
and Remedies.


 


If any Event
of Default with respect to Securities shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.


 


14.  Trustee
Dealings with the Company.


 


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


 


15.  No
Recourse Against Others.


 


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


 


A – 8

















 


16.  Treatment
of Securities.


 


Each holder,
by acceptance of a Security, and beneficial owner, by acceptance of a
beneficial ownership interest in a Security, agrees to treat the Securities as
indebtedness of the Company for U.S. federal income tax purposes and to not
take any action inconsistent with such treatment.


 


17.  Authentication.


 


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


 


18.  Abbreviations.


 


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


 


19.  GOVERNING
LAW.


 


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


 


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


 


deCODE
genetics, Inc.


Sturlungata 8


Reykjavik,
Iceland


Attn:
Corporate Counsel


Facsimile
No.:  +354-570-1806


 


20.  Registration
Rights.


 


The Holders of
the Securities are entitled to the benefits of the Registration Rights
Agreement, dated as of April 14, 2004, among the Company, and J. P. Morgan
Securities Inc. and Lehman Brothers Inc., as representatives of the Initial
Purchasers including the receipt of Additional Amounts upon a registration
default (as defined in such agreement).


 


A – 9

















 


	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign this Security, fill in the

  form below:

  	
   

  	
  To convert this Security into

  Common Stock of the Company,

  check the box o

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  I or we assign and transfer this

  	
   

  	
  To convert only part of this

  
	
  Security to

  	
   

  	
   Security, state the principal

  
	
   

  	
   

  	
  amount to be converted (which

  
	
   

  	
   

  	
  must be $1,000 or an integral

  
	
  (Insert assignee’s soc. sec. or tax ID no.)

  	
   

  	
  multiple of $1,000):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If you want the stock certificate

  
	
  (Print or type assignee’s name,

  	
   

  	
  made out in another person’s name

  
	
  address and zip code)

  	
   

  	
  fill in the form below:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  and irrevocably appoint

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Insert the other person’s soc. sec. tax ID
  no.)

  
	
                                                 agent
  to

  	
   

  	
   

  
	
  transfer this Security on the books of

  	
   

  	
   

  	
   

  
	
  the Company.  The agent may

  	
   

  	
   

  	
   

  
	
  substitute another to act for him.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print or type other person’s name,

  
	
   

  	
   

  	
  address and zip code)

  



 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  
	
   

  	
   

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

  
	
   

  
	
  Signature Guaranteed

  
	
   

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
										



 


A – 10

















 


SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY


 


Initial Principal Amount of Global Security:
                  
($                ).


 


	
  Date

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of

  Global Security

  	
   

  	
  Amount of

  Decrease in

  Principal

  Amount of

  Global Security

  	
   

  	
  Principal

  Amount of

  Global Security

  After Increase or

  Decrease

  	
   

  	
  Notation
  by

  Registrar or

  Security

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  `

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A – 11

















 


EXHIBIT B


 


[FORM OF FACE OF CERTIFICATED SECURITY]


 


THE SECURITY
EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE, BY
ACQUISITION HEREOF, THE HOLDER:


 


(1)                                  REPRESENTS
THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT;


 


(2)                                  AGREES
THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT,  (C)
TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, (E) TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IF
AVAILABLE, OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER; AND


 


(3)                                  AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


The foregoing
legend may be removed from this Security on satisfaction of the conditions
specified in the Indenture.


 

















 


deCODE genetics, Inc.


 


3.5% Senior Convertible Notes due 2011


 


	
  No.: 

  	
   

  	
   

  	
   

  	
  CUSIP: 
  243586AA2

  
	
  Issue Date: [ • ]

  	
   

  	
   

  	
   

  	
  ISIN: 
  US243586AA22

  
	
   

  	
   

  	
   

  	
   

  	
  Principal Amount:  $

  	
   

  	
   

  



 


deCODE
genetics, Inc., a Delaware corporation, promises to pay to
                                     .
or registered assigns, the principal amount of
[                   
dollars
($                  )]
on [ •
].


 


Interest
Payment Dates:  April 15 and October 15,
commencing October 15, 2004.


 


Record
Dates:  April 1 and October 1.


 


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


 


IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.


 


	
  Dated:       
  , 200  

  	
  deCODE genetics, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


THE BANK OF NEW YORK,


as Trustee,
certifies that this


is one of the
Securities referred


to in the
within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 


B-2


 

















 


 


[FORM OF
REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]


 

















 


EXHIBIT C


 


3.5% Senior Convertible Notes due 2011


 


Transfer Certificate


 


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


 


o                                    A transfer of the
Surrendered Securities is made to the Company or any subsidiaries; or


 


o                                    The transfer of the
Surrendered Securities complies with Rule 144A under the Securities Act; or


 


o                                    The transfer of the
Surrendered Securities complies with Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act; or


 


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


 


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


 


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


 


o                                    The transferee is
an Affiliate of the Company.


 


	
  Dated:
                ,
  200    

  	
   

  
	
   

  	
  Signature(s)

  



 


 

















 


	
  Signature Guarantee:

  
	
   

  
	
   

  	
   

  
	
  Signature must be guaranteed by a

  
	
  participant in a recognized signature

  
	
  guaranty medallion program or other

  
	
  signature guarantor acceptable to the

  
	
  Trustee.

  



 


C-2