Exhibit 4.5


 












 


GILEAD
SCIENCES, INC.


 


ISSUER


 


TO


 


J.P.
MORGAN TRUST COMPANY, NATIONAL ASSOCIATION


 


TRUSTEE


 












 


INDENTURE


 


Dated
as of December 18, 2002


 












 


2.00%
CONVERTIBLE SENIOR NOTES DUE DECEMBER 15, 2007


 












 


 


 

















 


CROSS-REFERENCE TABLE*


	
  TRUST
  INDENTURE ACT SECTION

  	
   

  	
  INDENTURE SECTION

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.08

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  6.08

  
	
  (b)

  	
   

  	
  6.13

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  6.14

  
	
  (b)

  	
   

  	
  6.14

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  14.01

  
	
  (b)

  	
   

  	
  14.01

  
	
  (c)

  	
   

  	
  14.02

  
	
  313(a)

  	
   

  	
  14.03

  
	
  (b)(1)

  	
   

  	
  14.03

  
	
  (b)(2)

  	
   

  	
  14.03

  
	
  (c)

  	
   

  	
  14.03

  
	
  (d)

  	
   

  	
  14.04

  
	
  314(a)

  	
   

  	
  14.04

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  1.02

  
	
  (c)(2)

  	
   

  	
  1.02

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  1.02

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  6.01

  
	
  (b)

  	
   

  	
  6.02; 10.08

  
	
  (c)

  	
   

  	
  6.03

  
	
  (d)

  	
   

  	
  6.01

  
	
  (e)

  	
   

  	
  5.14

  
	
  316(a)(last
  sentence)

  	
   

  	
  12.04

  
	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  5.08

  
	
  (c)

  	
   

  	
  2.02

  
	
  317(a)(1)

  	
   

  	
  5.03

  
	
  (a)(2)

  	
   

  	
  5.04

  
	
  (b)

  	
   

  	
  6.02

  
	
  318(a)

  	
   

  	
  1.13

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  1.13

  













* This Cross-Reference Table
is not part of the Indenture.

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
  SECTION 1.2

  	
  Compliance Certificates
  And Opinions

  	
  9

  
	
  SECTION 1.3

  	
  Form of Documents
  Delivered to the Trustee

  	
  9

  
	
  SECTION 1.4

  	
  Acts of Holders of
  Securities

  	
  10

  
	
  SECTION 1.5

  	
  Notices, Etc. to the
  Trustee and Company

  	
  12

  
	
  SECTION 1.6

  	
  Notice to Holders of
  Securities; Waiver

  	
  12

  
	
  SECTION 1.7

  	
  Effect of Headings and
  Table of Contents

  	
  13

  
	
  SECTION 1.8

  	
  Successors and Assigns

  	
  13

  
	
  SECTION 1.9

  	
  Separability Clause

  	
  13

  
	
  SECTION
  1.10

  	
  Benefits of Indenture

  	
  13

  
	
  SECTION
  1.11

  	
  Governing Law

  	
  13

  
	
  SECTION
  1.12

  	
  Legal Holidays

  	
  13

  
	
  SECTION
  1.13

  	
  Conflict With Trust
  Indenture Act

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SECURITY
  FORMS

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Form Generally

  	
  14

  
	
  SECTION 2.2

  	
  Form of Security

  	
  15

  
	
  SECTION 2.3

  	
  Form of Certificate of
  Authentication

  	
  29

  
	
  SECTION 2.4

  	
  Form of Conversion Notice

  	
  30

  
	
  SECTION 2.5

  	
  Form of Assignment

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  THE SECURITIES

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Title and Terms

  	
  32

  
	
  SECTION 3.2

  	
  Denominations

  	
  33

  
	
  SECTION 3.3

  	
  Execution, Authentication,
  Delivery and Dating

  	
  33

  
	
  SECTION 3.4

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

  	
  33

  
	
  SECTION 3.5

  	
  Registration; Registration
  of Transfer and Exchange; Restrictions on Transfer

  	
  35

  
	
  SECTION 3.6

  	
  Mutilated, Destroyed, Lost
  or Stolen Securities

  	
  38

  
	
  SECTION 3.7

  	
  Payment of Interest;
  Interest Rights Preserved

  	
  39

  
	
  SECTION 3.8

  	
  Persons Deemed Owners

  	
  40

  
	
  SECTION 3.9

  	
  Cancellation

  	
  40

  
	
  SECTION
  3.10

  	
  Computation of Interest

  	
  40

  
	
  SECTION
  3.11

  	
  CUSIP Numbers

  	
  40

  



 


 


 


-i-

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Satisfaction and Discharge
  of Indenture

  	
  41

  
	
  SECTION 4.2

  	
  Application of Trust Money

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REMEDIES

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Events of Default

  	
  42

  
	
  SECTION 5.2

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  44

  
	
  SECTION 5.3

  	
  Collection of Indebtedness
  and Suits for Enforcement by Trustee

  	
  45

  
	
  SECTION 5.4

  	
  Trustee May File Proofs of
  Claim

  	
  45

  
	
  SECTION 5.5

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  46

  
	
  SECTION 5.6

  	
  Application of Money
  Collected

  	
  46

  
	
  SECTION 5.7

  	
  Limitation on Suits

  	
  47

  
	
  SECTION 5.8

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

  	
  47

  
	
  SECTION 5.9

  	
  Restoration of Rights and
  Remedies

  	
  47

  
	
  SECTION
  5.10

  	
  Rights and Remedies
  Cumulative

  	
  48

  
	
  SECTION
  5.11

  	
  Delay or Omission Not
  Waiver

  	
  48

  
	
  SECTION
  5.12

  	
  Control by Holders of
  Securities

  	
  48

  
	
  SECTION
  5.13

  	
  Waiver of Past Defaults

  	
  48

  
	
  SECTION
  5.14

  	
  Undertaking for Costs

  	
  49

  
	
  SECTION
  5.15

  	
  Waiver of Stay, Usury or
  Extension Laws

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  THE TRUSTEE

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Certain Duties and
  Responsibilities

  	
  49

  
	
  SECTION 6.2

  	
  Notice of Defaults

  	
  50

  
	
  SECTION 6.3

  	
  Certain Rights of Trustee

  	
  51

  
	
  SECTION 6.4

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
  52

  
	
  SECTION 6.5

  	
  May Hold Securities, Act
  as Trustee under Other Indentures

  	
  52

  
	
  SECTION 6.6

  	
  Money Held in Trust

  	
  52

  
	
  SECTION 6.7

  	
  Compensation and Reimbursement

  	
  52

  
	
  SECTION 6.8

  	
  Corporate Trustee
  Required; Eligibility

  	
  53

  
	
  SECTION 6.9

  	
  Resignation and Removal;
  Appointment of Successor

  	
  53

  
	
  SECTION
  6.10

  	
  Acceptance of Appointment
  by Successor

  	
  55

  



 


 


-ii-

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.11

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  55

  
	
  SECTION
  6.12

  	
  Authenticating Agents

  	
  55

  
	
  SECTION
  6.13

  	
  Disqualification;
  Conflicting Interests

  	
  58

  
	
  SECTION
  6.14

  	
  Preferential Collection of
  Claims Against Company

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
  LEASE

  	
  58

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Company May Consolidate,
  Etc. Only on Certain Terms

  	
  58

  
	
  SECTION 7.2

  	
  Successor Substituted

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  SUPPLEMENTAL INDENTURES

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Supplemental Indentures
  Without Consent of Holders of Securities

  	
  59

  
	
  SECTION 8.2

  	
  Supplemental Indentures
  with Consent of Holders of Securities

  	
  60

  
	
  SECTION 8.3

  	
  Execution of Supplemental
  Indentures

  	
  61

  
	
  SECTION 8.4

  	
  Effect of Supplemental
  Indentures

  	
  61

  
	
  SECTION 8.5

  	
  Reference in Securities to
  Supplemental Indentures

  	
  61

  
	
  SECTION 8.6

  	
  Notice of Supplemental
  Indentures

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  MEETINGS OF HOLDERS OF SECURITIES

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Purposes for Which
  Meetings May Be Called

  	
  62

  
	
  SECTION 9.2

  	
  Call, Notice and Place of
  Meetings

  	
  62

  
	
  SECTION 9.3

  	
  Persons Entitled to Vote
  at Meetings

  	
  62

  
	
  SECTION 9.4

  	
  Quorum; Action

  	
  63

  
	
  SECTION 9.5

  	
  Determination of Voting
  Rights; Conduct and Adjournment of Meetings

  	
  63

  
	
  SECTION 9.6

  	
  Counting Votes and
  Recording Action of Meetings

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  COVENANTS

  	
  65

  
	
   

  	
   

  	
   

  
	
  SECTION
  10.1

  	
  Payment of Principal,
  Premium and Interest

  	
  65

  
	
  SECTION
  10.2

  	
  Maintenance of Offices or
  Agencies

  	
  65

  
	
  SECTION
  10.3

  	
  Money for Security
  Payments to Be Held in Trust

  	
  66

  
	
  SECTION
  10.4

  	
  Existence

  	
  67

  



 


 


-iii-

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION
  10.5

  	
  [INTENTIONALLY LEFT BLANK]

  	
  67

  
	
  SECTION
  10.6

  	
  Payment of Taxes and Other
  Claims

  	
  67

  
	
  SECTION
  10.7

  	
  Registration and Listing

  	
  67

  
	
  SECTION
  10.8

  	
  Statement by Officers as
  to Default

  	
  67

  
	
  SECTION
  10.9

  	
  Delivery of Certain
  Information

  	
  68

  
	
  SECTION
  10.10

  	
  Resale of Certain
  Securities

  	
  68

  
	
  SECTION
  10.11

  	
  Registration Rights

  	
  68

  
	
  SECTION
  10.12

  	
  Waiver of Certain
  Covenants

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  REDEMPTION OF SECURITIES

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION
  11.1

  	
  Right of Redemption

  	
  70

  
	
  SECTION
  11.2

  	
  Applicability of Article

  	
  70

  
	
  SECTION
  11.3

  	
  Election to Redeem; Notice
  to Trustee

  	
  70

  
	
  SECTION
  11.4

  	
  Selection by Trustee of
  Securities to Be Redeemed

  	
  70

  
	
  SECTION
  11.5

  	
  Notice of Redemption

  	
  71

  
	
  SECTION
  11.6

  	
  Deposit of Redemption
  Price

  	
  72

  
	
  SECTION
  11.7

  	
  Securities Payable on
  Redemption Date

  	
  72

  
	
  SECTION
  11.8

  	
  Conversion Arrangement on
  Call for Redemption

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  CONVERSION OF SECURITIES

  	
  73

  
	
   

  	
   

  	
   

  
	
  SECTION
  12.1

  	
  Conversion Privilege and
  Conversion Rate

  	
  73

  
	
  SECTION
  12.2

  	
  Exercise of Conversion
  Privilege

  	
  74

  
	
  SECTION
  12.3

  	
  Fractions of Shares

  	
  76

  
	
  SECTION
  12.4

  	
  Adjustment of Conversion
  Rate

  	
  76

  
	
  SECTION
  12.5

  	
  Notice of Adjustments of
  Conversion Rate

  	
  81

  
	
  SECTION
  12.6

  	
  Notice of Certain
  Corporate Action

  	
  81

  
	
  SECTION
  12.7

  	
  Company to Reserve Common
  Stock

  	
  82

  
	
  SECTION
  12.8

  	
  Taxes on Conversions

  	
  82

  
	
  SECTION
  12.9

  	
  Covenant as to Common
  Stock

  	
  83

  
	
  SECTION
  12.10

  	
  Cancellation of Converted
  Securities

  	
  83

  
	
  SECTION
  12.11

  	
  Provision in Case of
  Consolidation, Merger or Sale of Assets

  	
  83

  
	
  SECTION
  12.12

  	
  Rights Issued in Respect
  of Common Stock

  	
  84

  
	
  SECTION
  12.13

  	
  Responsibility of Trustee
  for Conversion Provisions

  	
  84

  



 


 


-iv-

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  REPURCHASE OF SECURITIES AT THE OPTION OF THE
  HOLDER UPON A CHANGE IN CONTROL

  	
  85

  
	
   

  	
   

  	
   

  
	
  SECTION
  13.1

  	
  Right to Require
  Repurchase

  	
  85

  
	
  SECTION
  13.2

  	
  Conditions to the
  Company’s Election to Pay the Repurchase Price in Common Stock

  	
  86

  
	
  SECTION
  13.3

  	
  Notices; Method of Exercising
  Repurchase Right, Etc.

  	
  86

  
	
  SECTION
  13.4

  	
  Certain Definitions

  	
  89

  
	
  SECTION
  13.5

  	
  Consolidation, Merger,
  etc.

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY;
  NON-RECOURSE

  	
  91

  
	
   

  	
   

  	
   

  
	
  SECTION
  14.1

  	
  Company to Furnish Trustee
  Names and Addresses of Holders

  	
  91

  
	
  SECTION
  14.2

  	
  Preservation of
  Information

  	
  92

  
	
  SECTION
  14.3

  	
  Reports by Trustee

  	
  92

  
	
  SECTION
  14.4

  	
  Reports by Company

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
  AND DIRECTORS

  	
  93

  
	
   

  	
   

  	
   

  
	
  SECTION
  15.1

  	
  Indenture and Securities
  Solely Corporate Obligations

  	
  93

  



 


 


-v-

















 


INDENTURE, dated as of
December 18, 2002, between GILEAD SCIENCES, INC., a corporation duly organized
and existing under the laws of the State of Delaware, having its principal
office at 333 Lakeside Drive, Foster City, California 94404 (herein called the
“Company”), and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association, as Trustee hereunder (herein called the “Trustee”).


RECITALS OF THE COMPANY


The
Company has duly authorized the creation of an issue of its 2.00% Convertible
Senior Notes due December 15, 2007 (herein called the “Securities”) of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.


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


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


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


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


SECTION 1.1                                                  Definitions.


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


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


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


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


 

















 


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


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


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


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


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


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


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


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


“Change
in Control” has the meaning specified in Section 13.4(2).


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


“Code”
has the meaning specified in Section 2.l.


2

















 


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


“Common
Stock” means the Common Stock, par value $0.001 per share, of the Company
authorized at the date of this Indenture as originally executed or as such
stock may be constituted from time to time (including upon a change in the par
value of such securities).  Subject to
the provisions of Section 12.11, shares issuable on conversion of Securities
shall include only shares of Common Stock or shares of any class or classes of
common stock resulting from any reclassification or reclassifications thereof;
provided, however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications and further provided
that all references to “Common Stock” payable in connection with the purchase
of Securities upon a Change in Control in accordance with the terms of Section
13.2 shall be deemed to include common stock of any entity, including the
parent company of any such entity, that we consolidate or merge with or into,
that is merged into us, or to which we sell or transfer all or substantially
all of our assets.


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


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


“Company
Notice” has the meaning specified in Section 13.3.


“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by an Officer of the Company and delivered to the Trustee.


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


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


“Conversion
Price” has the meaning specified in Section 13.4(3).


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


“Corporate
Trust Office” means the office of the Trustee at which at any particular time
the trust created by this Indenture shall be principally administered (which at
the date of this 


3

















 


Indenture
is located at 560 Mission Street, 13th Floor, San Francisco, California 94105,
Attention:  Institutional Trust
Services.


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


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


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


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


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


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


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


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


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


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


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


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


“Initial
Purchaser” means Goldman, Sachs & Co.


“Initial
Purchaser Option” has the meaning specified in Section 3.1.


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


“Issue
Date” means December 18, 2002.


“Liquidated
Damages” has the meaning specified in Section 2.2.


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“Make-Whole
Payment” has the meaning specified in Section 2.2.


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


“Non-electing
Share” has the meaning specified in Section 12.11.


“Notice
Date” has the meaning specified in Section 2.2.


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


“Officer”
means the Chairman or any Co-Chairman of the Board of Directors, any Vice
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Operating Officer, the President, any Executive Vice President, any Vice
President or the Chief Financial Officer of the Company.


“Officer’s
Certificate” means a certificate signed by an Officer of the Company, and
delivered to the Trustee.


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


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


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


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


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


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


provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding Securities
are present at a meeting of Holders of Securities for quorum purposes or 


5

















 


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


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


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


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


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


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


“Provisional
Redemption” has the meaning specified in Section 2.2.


“Purchase
Agreement” means the Purchase Agreement, dated as of December 13, 2002, between
the Company and the Initial Purchaser, as such agreement may be amended from
time to time.


“Qualified
Institutional Buyer” shall mean a “qualified institutional buyer” as defined in
Rule 144A.


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


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


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


6

















 


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


“Registrable
Securities” has the meaning specified in Section 10.11.


“Registration
Default” has the meaning specified in Section 2.2.


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of December
18, 2002, between the Company and the Initial Purchaser, as such agreement may
be amended from time to time in accordance with its terms.


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


“Repurchase
Date” has the meaning specified in Section 13.1.


“Repurchase
Price” has the meaning specified in Section 13.1.


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


“Restricted
Global Security” has the meaning specified in Section 2.1.


“Restricted
Securities” means all Securities required pursuant to Section 3.5(3) to bear
any Restricted Securities Legend. Such term includes the Restricted Global
Security.


“Restricted
Securities Legend” means, collectively, the legends substantially in the forms
of the legends required in the form of Security set forth in Section 2.2 to be
placed upon each Restricted Security.


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


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


“Rule
144A Information” has the meaning specified in Section 10.9.


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


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


7

















 


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


 “Shelf Registration Statement” has the
meaning specified in Section 2.2.


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


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


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


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


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


“Surrender
Certificate” means a certificate substantially in the form set forth in Annex
B.


“Trading
Day” means (i) if the Common Stock is quoted on The Nasdaq National Market or
any other system of automated dissemination of quotations of securities prices,
days on which trades may be effected through such system, (ii) if the Common
Stock is listed or admitted for trading on any national or regional securities
exchange, days on which such national or regional securities exchange is open
for business, or (iii) if the Common Stock is not listed on a national or
regional securities exchange or quoted on The Nasdaq National Market or any other
system of automated dissemination of quotation of securities prices, days on
which the Common Stock is traded regular way in the over-the-counter market and
for which a closing bid and a closing asked price for the Common Stock are
available.


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


8

















 


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


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


“Unrestricted
Securities Certificate” means a certificate substantially in the form set forth
in Annex A.


SECTION 1.2                                                  Compliance
Certificates And Opinions.


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


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


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


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


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


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


SECTION 1.3                                                  Form of
Documents Delivered to the Trustee.


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


9

















 


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


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


SECTION 1.4                                                  Acts of Holders
of Securities.


(1)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders of Securities may be embodied in
and evidenced by (A) one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent or proxy duly appointed in
writing by such Holders or (B) the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article IX. Such action shall become effective when such
instrument or instruments or record is delivered to the Trustee and, where it
is hereby expressly required, to the Company. The Trustee shall promptly
deliver to the Company copies of all such instruments and records delivered to
the Trustee. Such instrument or instruments and records (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders of Securities signing such instrument or instruments and
so voting at such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent or proxy, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 6.1) conclusive in favor of the Trustee and the Company if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 9.6.


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


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


(4)           The fact and date of execution of any
such instrument or writing and the authority of the Person executing the same
may also be proved in any other manner which the Trustee 


10

















 


deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section 1.4.


(5)           The Company may set any day as the
record date for the purpose of determining the Holders entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted by this Indenture to
be given or taken by Holders. Promptly and in any case not later than ten days
after setting a record date, the Company shall notify the Trustee and the
Holders of such record date. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 14.1) prior to such
first solicitation or vote, as the case may be. With regard to any record date,
the Holders on such date (or their duly appointed agents or proxies), and only
such Persons, shall be entitled to give or take, or vote on, the relevant
action, whether or not such Holders remain Holders after such record date.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any notice,
declaration or direction referred to in the next paragraph.


Upon
receipt by the Trustee from any Holder of (i) any notice of default or breach referred
to in Section 5.1(4), if such default or breach has occurred and is continuing
and the Trustee shall not have given such a notice to the Company, (ii) any
declaration of acceleration referred to in Section 5.2, if an Event of Default
has occurred and is continuing and the Trustee shall not have given such a
declaration to the Company, or (iii) any direction referred to in Section 5.12,
if the Trustee shall not have taken the action specified in such direction,
then, with respect to clauses (ii) and (iii), a record date shall automatically
and without any action by the Company or the Trustee be set for determining the
Holders entitled to join in such declaration or direction, which record date
shall be the close of business on the tenth day (or, if such day is not a
Business Day, the first Business Day thereafter) following the day on which the
Trustee receives such declaration or direction, and, with respect to clause
(i), the Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in such notice of default. Promptly
after such receipt by the Trustee of any such declaration or direction referred
to in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable thereafter, the Trustee shall
notify the Company and the Holders of any such record date so fixed. The
Holders on such record date (or their duly appointed agents or proxies), and
only such Persons, shall be entitled to join in such notice, declaration or
direction, whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration or direction shall have become
effective by virtue of Holders of the requisite principal amount of Securities
on such record date (or their duly appointed agents or proxies) having joined
therein on or prior to the 90th day after such record date, such notice,
declaration or direction shall automatically and without any action by any
Person be canceled and of no further effect. Nothing in this paragraph shall be
construed to prevent a Holder (or a duly appointed agent or proxy thereof) from
giving, before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration or direction
to which such record date relates, in which event a new record date in respect
thereof shall be set pursuant to this paragraph. In addition, nothing in this
paragraph shall be construed to render ineffective any notice, declaration or
direction of the type referred to in this paragraph given at any time to the
Trustee and the 


11

















 


Company
by Holders (or their duly appointed agents or proxies) of the requisite
principal amount of Securities on the date such notice, declaration or
direction is so given.


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


(7)           The provisions of this Section 1.4
are subject to the provisions of Section 9.5.


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


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


(1)           the Trustee by any Holder of
Securities or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with a Responsible Officer of
the Trustee and received at its Corporate Trust Office, Attention:
Institutional Trust Services.


(2)           the Company by the Trustee or by any
Holder of Securities shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed, first-class postage
prepaid, or telecopied and confirmed by mail, first-class postage prepaid, or
delivered by hand or overnight courier, addressed to the Company at 333
Lakeside Drive, Foster City, California 94404, Attention:  Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Company.


SECTION 1.6                                                  Notice to
Holders of Securities; Waiver.


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


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


12

















 


Such
notice shall be deemed to have been given three (3) days after mailing, if by
mail, one day (1) after mailing if by overnight courier, and on the date the
notice is furnished if by telecopy or by hand.


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


SECTION 1.7                                                  Effect of
Headings and Table of Contents.


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


SECTION 1.8                                                  Successors and
Assigns.


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


SECTION 1.9                                                  Separability
Clause.


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


SECTION 1.10                                            Benefits of
Indenture.


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


SECTION 1.11                                            Governing Law.


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


SECTION 1.12                                            Legal Holidays.


In
any case where any Interest Payment Date, Redemption Date, Repurchase Date or
Stated Maturity of any Security or the last day on which a Holder of a Security
has a right to convert his Security shall not be a Business Day at a Place of
Payment or Place of Conversion, as the case may be, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal
of, premium, if any, or interest on, or the payment of the Redemption Price or
Repurchase Price (whether the same is payable in cash or in shares of Common
Stock or a combination thereof in the case of the Repurchase Price) with
respect to, or delivery for conversion of, such Security need not be made at
such Place of Payment or Place of Conversion, 


13

















 


as
the case may be, on or by such day, but may be made on or by the next
succeeding Business Day at such Place of Payment or Place of Conversion, as the
case may be, with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Repurchase Date, or at the Stated Maturity or by such
last day for conversion; provided, however, that in the case that payment is
made on such succeeding Business Day, no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Repurchase Date, Stated Maturity or last day for conversion, as the case
may be.


SECTION 1.13                                            Conflict With
Trust Indenture Act.


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


ARTICLE II



SECURITY FORMS


SECTION 2.1                                                  Form Generally.


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


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


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


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


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


14

















 


Upon
their original issuance, Securities issued as contemplated by the Purchase
Agreement to Qualified Institutional Buyers in reliance on Rule 144A shall be
issued in the form of one or more Global Securities in definitive, fully
registered form without interest coupons and bearing the Restricted Securities
Legend.  Such Global Security shall be
registered in the name of DTC, as Depositary, or its nominee and deposited with
the Trustee, as custodian for DTC, for credit by DTC to the respective accounts
of beneficial owners of the Securities represented thereby (or such other
accounts as they may direct). Such Global Security, together with its Successor
Securities which are Global Securities, are collectively herein called the
“Restricted Global Security.”


SECTION 2.2                                                  Form of
Security.


[FORM OF
FACE]


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


THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION
OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR
ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (3) 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 (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.


THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON 


15

















 


RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES
TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY.  THE HOLDER OF
THIS NOTE AND ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE
AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]


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


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


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


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


16

















 


GILEAD SCIENCES, INC.,


2.00% CONVERTIBLE SENIOR
NOTE DUE DECEMBER 15, 2007


	
  No.____________

  	
   

  	
  $_____________

  



 


CUSIP
NO.  375558 AC 7


Gilead
Sciences, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Company,” which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of ________ United States Dollars (U.S.$______ ) [if this Security is a Global Security, then insert
— (which principal amount may from time to time be increased or decreased to
such other principal amounts (which, taken together with the principal amounts
of all other Outstanding Securities, shall not exceed $300,000,000 (or
$345,000,000 if the Initial Purchaser Option is exercised in full)) by
adjustments made on the records of the Trustee hereinafter referred to in
accordance with the Indenture)] on December 15, 2007 and to pay interest
thereon, from December 18, 2002, or from the most recent Interest Payment Date
(as defined below) to which interest has been paid or duly provided for,
semi-annually in arrears on June 15 and December 15 in each year (each, an
“Interest Payment Date”), commencing June 15, 2003, at the rate of 2.00% per
annum, until the principal hereof is due, and at the rate of 2.00% per annum on
any overdue principal and premium, if any, and, to the extent permitted by law,
on any overdue interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the June 1 or December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date.  Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Company, notice whereof shall be given to Holders of Securities not less
than 10 days prior to the Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any automated
quotation system or securities exchange on which the Securities may be quoted
or listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. Payments of principal shall be made upon
the surrender of this Security at the option of the Holder at the Corporate
Trust Office of the Trustee, or at such other office or agency of the Company
as may be designated by it for such purpose in the Borough of Manhattan, The
City of New York, in such lawful monies of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, or at such other offices or agencies as the Company may designate, by
United States Dollar check drawn on, or wire transfer to, a United States
Dollar account (such a wire transfer to be made only to a Holder of an
aggregate principal amount of Securities in excess of U.S. $2,000,000 and only
if such Holder shall have furnished wire instructions in writing to the Trustee
no later than 15 days prior to the relevant payment date). Payment of interest
on this Security may be made by United States Dollar check mailed to the
address of the Person entitled 


17

















 


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


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


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


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


18

















 


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


	
   

  	
  GILEAD SCIENCES, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION


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


Dated:


J.P. MORGAN TRUST COMPANY,

NATIONAL ASSOCIATION

as Trustee


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


 


19























 


[FORM OF REVERSE]


This
Security is one of a duly authorized issue of securities of the Company
designated as its “2.00% Convertible Senior Notes due December 15, 2007”
(herein called the “Securities”), limited in aggregate principal amount to U.S.
$300,000,000 (or $345,000,000 if the Initial Purchaser’s Option is exercised in
full), issued and to be issued under an Indenture, dated as of December 18,
2002 (herein called the “Indenture”), between the Company and J.P. Morgan Trust
Company, National Association, as Trustee (herein called the “Trustee,” which
term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.  As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of any authorized denominations as requested by the Holder surrendering the
same upon surrender of the Security or Securities to be exchanged, at the
Corporate Trust Office of the Trustee. 
The Trustee upon such surrender by the Holder will issue the new
Securities in the requested denominations.


No
sinking fund is provided for the Securities.


The
Securities are subject to provisional redemption by the Company (a “Provisional
Redemption”), in whole or in part, at any time after June 20, 2004 and prior to
December 20, 2005, upon notice as set forth in Section 11.5 of the Indenture,
at a redemption price equal to the principal amount of the Securities to be
redeemed plus accrued and unpaid interest, if any, to the Redemption Date if
(i) the Closing Price Per Share of the Common Stock shall have exceeded 150% of
the Conversion Price then in effect for at least 20 Trading Days in any
consecutive 30-Trading Day period ending on the Trading Day prior to the date
of mailing of the notice of redemption pursuant to Section 11.5 of the
Indenture (the “Notice Date”) and (ii) the Shelf Registration Statement
covering resales of the Securities and the Common Stock is effective and
available for use and is expected to remain effective and available for use for
the 30 days following the Redemption Date, unless registration is no longer
required. Upon any such redemption, the Company shall make an additional
payment (the “Make-Whole Payment”) with respect to the Securities called for
redemption to Holders on the Notice Date in an amount equal to $60.00 per
$1,000 in principal amount of the Securities, less the amount of any interest
actually paid or accrued and unpaid on such Securities prior to the Redemption
Date. The Company shall make the Make-Whole Payment on all Securities called
for redemption, including any Securities converted into Common Stock pursuant
to the terms of the Indenture after the Notice Date and prior to the Redemption
Date. The Make-Whole Payment on Securities converted into Common Stock pursuant
to the terms of the Indenture after the Notice Date and prior to the Redemption
Date shall not be reduced by accrued and unpaid interest unless the Redemption
Date occurs on or after the Business Day following the Record Date and prior to
the next succeeding Interest Payment Date, in which case the Make-Whole Payment
shall be reduced by the interest due on such Interest Payment Date. The Company
may make the Make-Whole Payment (x) in cash or (y) subject to fulfillment by
the Company of the conditions (A) through (D) set forth in the following
paragraph, in shares of Common Stock, or a combination of cash and Common
Stock, and the Company shall specify the type of consideration for the
Make-Whole Payment in the Company Notice. 
For purposes of this paragraph, the fair market value of 


20

















 


shares
of Common Stock shall be determined by the Company and shall be equal to 95% of
the average of the Closing Prices Per Share for the five consecutive Trading
Days ending on the third Trading Day prior to the Redemption Date.


The
following shall constitute the conditions to any election by the Company to pay
the Make-Whole Payment (or any portion thereof) in shares of Common Stock:


(A)
the shares of Common Stock to be issued in payment of the Make-Whole Payment
(or any portion thereof) hereunder shall not require registration under any
Federal securities law before such shares may be freely transferable without
being subject to any transfer restrictions under the Securities Act upon
repurchase, or if registration is required, such registration shall be
completed and shall become effective prior to or on the Redemption Date (and
the Company shall state in the notice of Provisional Redemption that the
Company expects that such registration statement shall remain effective for at
least 30 days following the Redemption Date);


(B)
the shares of Common Stock to be issued in payment of the Make-Whole Payment
(or any portion thereof) hereunder shall not require registration with, or
approval of, any governmental authority under any state law or any other
Federal law before such shares may be validly issued or delivered upon
repurchase, or if such registration is required or such approval must be
obtained, such registration shall be completed or such approval shall be
obtained prior to or on the Redemption Date;


(C)
the shares of Common Stock to be issued in payment of the Make-Whole Payment
(or any portion thereof) hereunder are, or shall have been approved for
quotation on The Nasdaq National Market or listed on a national securities
exchange, in either case, prior to or on the Redemption Date;


(D)
all shares of Common Stock that may be issued in payment of the Make-Whole
Payment (or any portion thereof) will be issued out of the Company’s authorized
but unissued Common Stock and will, upon issue, be duly and validly issued and
fully paid and non-assessable and free of any preemptive or similar rights; and


(E)
if any of the conditions set forth in clauses (A) through (D) above are not
satisfied in accordance with the terms thereof, the Make-Whole Payment shall be
paid by the Company only in cash.


The
Securities are also subject to redemption at the option of the Company at any
time on or after December 20, 2005, in whole or in part, upon not less than 30
nor more than 60 days’ notice to the Holders prior to the Redemption Date at
the Redemption Prices (expressed as percentages of the principal amount) as set
forth below for Securities redeemed during the following periods described
below:


 


	
  PERIOD

  	
   

  	
  REDEMPTION
  PRICE

  
	
  Beginning on December 20, 2005 through December 14, 2006

  	
   

  	
  100.80%

  
	
  Beginning on December 15, 2006 through December 14, 2007

  	
   

  	
  100.40%

  



 


21

















 


and
thereafter at a Redemption Price equal to 100% of the principal amount,
together, in each case, with accrued interest to, but excluding, the Redemption
Date; provided, however, that interest installments on Securities whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.


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


In
any case where the due date for the payment of the principal of, premium, if
any, interest, or Liquidated Damages on any Security or the last day on which a
Holder of a Security has a right to convert his Security shall be, at any Place
of Payment or Place of Conversion as the case may be, a day on which banking
institutions at such Place of Payment or Place of Conversion are authorized or
obligated by law or executive order to close, then payment of principal,
premium, if any, interest, or Liquidated Damages, or delivery for conversion of
such Security need not be made on or by such date at such place but may be made
on or by the next succeeding day at such place which is not a day on which
banking institutions are authorized or obligated by law or executive order to
close, with the same force and effect as if made on the date for such payment
or the date fixed for redemption or repurchase, or by such last day for
conversion, and no interest shall accrue on the amount so payable for the
period after such date.


Subject
to and upon compliance with the provisions of the Indenture, the Holder of this
Security is entitled, at his option, at any time on or before the close of
business on the date of Maturity, or in case this Security or a portion hereof
is called for redemption or the Holder hereof has exercised his right to
require the Company to repurchase this Security or such portion hereof, then in
respect of this Security until the second Business Day immediately preceding,
but (unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be) not after, the close of business on the second
Business Day immediately preceding the Redemption Date or the Repurchase Date,
as the case may be, to convert this Security (or any portion of the principal
amount hereof that is an integral multiple of U.S.$1,000, provided that the
unconverted portion of such principal amount is U.S.$1,000 or any integral
multiple of U.S.$1,000 in excess thereof) into fully paid and nonassessable
shares of Common Stock of the Company at an initial Conversion Rate of 21.2766
shares of Common Stock for each U.S.$1,000 principal amount of Securities (or
at the current adjusted Conversion Rate if an adjustment has been made as
provided in the Indenture) by surrender of this Security, duly endorsed or
assigned to the Company or in blank and, in case such surrender shall be made
during the period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date (except if this Security or portion thereof has been called for
redemption on a Redemption Date or is repurchasable on a Repurchase Date 


22

















 


occurring,
in either case, during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the close of business
on the third Business Day following such Interest Payment Date and, as a
result, the right to convert this Security would otherwise terminate in such
period if not exercised), also accompanied by payment in New York Clearing
House or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this
Security then being converted, and also the conversion notice hereon duly executed,
to the Company at the Corporate Trust Office of the Trustee, or at such other
office or agency of the Company, subject to any laws or regulations applicable
thereto and subject to the right of the Company to terminate the appointment of
any Conversion Agent (as defined below) as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate (each a “Conversion Agent”),
provided, further, that if this Security or portion hereof has been called for
redemption (except pursuant to a call for Provisional Redemption) on a
Redemption Date or is repurchasable on a Repurchase Date occurring, in either
case, during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the close of business on the third
Business Day following such Interest Payment Date, and as a result, the right
to convert this Security would otherwise terminate in such period if not
exercised and this Security is surrendered for conversion during such period,
then the Holder of this Security on such Regular Record Date will be entitled
to receive the interest accruing hereon from the Interest Payment Date next
preceding the date of such conversion to such succeeding Interest Payment Date
and the Holder of this Security who converts this Security or a portion hereof
during such period shall not be required to pay such interest upon surrender of
this Security for conversion.  Subject
to the provisions of the preceding sentence and, in the case of a conversion
after the close of business on the Regular Record Date next preceding any
Interest Payment Date and on or before the close of business on the third
Business Day following such Interest Payment Date, to the right of the Holder
of this Security (or any Predecessor Security of record as of such Regular
Record Date) to receive the related installment of interest to the extent and
under the circumstances provided in the Indenture, no cash payment or adjustment
is to be made on conversion for interest accrued hereon from the Interest
Payment Date next preceding the day of conversion, or for dividends on the
Common Stock issued on conversion hereof. 
The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and such delivery will be
deemed to satisfy the Company’s obligation to pay the principal amount of this
Security. No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest (calculated to
the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party (other than a
consolidation or merger that does not result in any reclassification,
conversion, exchange or cancellation of the Common Stock) or the conveyance,
transfer, sale or lease (other than a mere grant of security interest) of all
or substantially all of the property and assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so that
this Security, if then Outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, transfer, sale or lease by a holder of the
number of 


23

















 


shares
of Common Stock of the Company into which this Security could have been
converted immediately prior to such consolidation, merger, conveyance,
transfer, sale or lease (assuming such holder of Common Stock is not a
Constituent Person or an Affiliate of a Constituent Person, failed to exercise
any rights of election and received per share the kind and amount received per
share by a plurality of Non-electing Shares). 
No adjustment in the Conversion Rate will be made until such adjustment
would require an increase or decrease of at least one percent of such rate,
provided that any adjustment that would otherwise be made will be carried
forward and taken into account in the computation of any subsequent adjustment.


If
this Security is a Registrable Security (as defined in the Indenture), then the
Holder of this Security [if this security is a global security, then insert
(including any Person that has a beneficial interest in this Security)] and the
Common Stock of the Company issuable upon conversion hereof is entitled to the
benefits of a Registration Rights Agreement, dated as of December 18, 2002 (the
“Registration Rights Agreement”) between the Company and the Initial
Purchaser.  Pursuant to the Registration
Rights Agreement, the Company has agreed for the benefit of the Holders from
time to time of the Registrable Securities that it will, at its expense, (a)
within 90 days after the Issue Date file a shelf registration statement (the
“Shelf Registration Statement”) with the Commission with respect to resales of
the Registrable Securities, (b) use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission within
180 days after the Issue Date of the Securities, provided, however, that the
Company may, upon written notice to all the Holders, postpone having the Shelf
Registration Statement declared effective for a reasonable period not to exceed
90 days if the Company possesses material non-public information, the
disclosure of which would have a material adverse effect on the Company and its
subsidiaries taken as a whole, and (c) use its reasonable best efforts to
maintain such Shelf Registration Statement effective under the Securities Act
until the earliest of (i) two years after the effective date of the Shelf
Registration Statement, (ii) the expiration of the period referred to in Rule
144(k) of the Securities Act with respect to Registrable Securities held by
non-affiliates of the Company and (iii) until there are no outstanding
Registrable Securities (the “Effectiveness Period”). The Company will be
permitted to suspend the use of the prospectus which is part of the Shelf
Registration Statement during certain periods of time as provided in the
Registration Rights Agreement.


If
(i) on or prior to the 90th day following the Issue Date, a Shelf Registration
Statement has not been filed with the Commission, or (ii) on or prior to the
180th day following the Issue Date, such Shelf Registration Statement is not
declared effective (each, a “Registration Default”), additional interest
(“Liquidated Damages”) will accrue on this Restricted Security from and
including the day following such Registration Default to but excluding the day
on which such Registration Default has been cured. Liquidated Damages will be
paid semi-annually in arrears, with the first semi-annual payment due on the
first Interest Payment Date, as applicable, in respect of the Restricted
Securities following the date on which such Liquidated Damages begin to accrue,
and will accrue at a rate per annum equal to one-quarter of one percent (0.25%)
of the principal amount of the Restricted Securities to and including the 90th
day following such Registration Default and at a rate per annum equal to
one-half of one percent (0.50%) thereof from and after the 91st day following
such Registration Default. Pursuant to the Registration Rights Agreement, in
the event that the Shelf Registration Statement ceases to be effective (or the
Holders of Registrable Securities are otherwise prevented or restricted by the
Company from effecting sales pursuant thereto) (an “Effective Failure”) during
the Effectiveness 


24

















 


Period
for more than 30 days, whether or not consecutive, during any 90-day period or
for more than 90 days, whether or not consecutive, during any 12-month period,
then the Liquidated Damages will accrue at a rate per annum equal to an
additional one-half of one percent (0.50%) of the principal amount of the
Restricted Securities from the 31st day of the applicable 90-day period or the
91st day of the applicable 12-month period until the earlier of (A) such time
as the Effective Failure is cured or (B) the Effectiveness Period expires.


Whenever
in this Security there is a reference, in any context, to the payment of the
principal of, premium, if any, or interest on, or in respect of, any Security,
such mention shall be deemed to include mention of the payment of Liquidated
Damages payable as described in the preceding paragraph to the extent that, in
such context, Liquidated Damages are, were or would be payable in respect of
such Security and express mention of the payment of Liquidated Damages (if
applicable) in any provisions of this Security shall not be construed as
excluding Liquidated Damages in those provisions of this Security where such
express mention is not made.


If
this Security is a Registrable Security and the Holder of this Security [if
this security is a global security, then insert (including any Person that has
a beneficial interest in this security)] elects to sell this Security pursuant
to the Shelf Registration Statement then, by its acceptance hereof, such Holder
of this Security agrees to be bound by the terms of the Registration Rights
Agreement relating to the Registrable Securities which are the subject of such
election.


If
a Change in Control occurs, the Holder of this Security, at the Holder’s
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion
of the principal amount hereof that is at least $1,000 or an integral multiple
of $1,000 in excess thereof, provided that the portion of the principal amount
of this Security to be Outstanding after such repurchase is at least equal to
U.S.$1,000) at a Repurchase Price equal to 100% of the principal amount thereof
plus interest accrued but unpaid to but excluding the Repurchase Date. At the
option of the Company, the Repurchase Price may be paid in cash or, subject to
the conditions provided in the Indenture, by delivery of shares of Common Stock
having a fair market value equal to the Repurchase Price (less any cash
payments) or a combination thereof. For purposes of this paragraph, the fair
market value of shares of Common Stock shall be determined by the Company and
shall be equal to 95% of the average of the Closing Prices Per Share for the
five consecutive Trading Days ending on the third Trading Day prior to the
Repurchase Date.


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


[The following paragraph shall appear in each Global
Security:


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


25

















 


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


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


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


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


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


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


26

















 


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


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


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


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


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


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


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


27

















 


ABBREVIATIONS


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


	
  TEN COM

  	
   

  	
  as tenant in common

  	
   

  	
  UNIF GIFT MIN ACT

  	
   

  	
  ____ Custodian ____

  
	
  TEN ENT

  	
   

  	
  as tenants by the
  entireties (Cust)

  	
   

  	
   

  	
   

  	
  (Cust)           (Minor)

  
	
  JT TEN

  	
   

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

  	
   

  	
   

  	
   

  	
  under Uniform Gifts to
  Minors Act _____

  (State)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



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


 


 


28

















 


ELECTION OF HOLDER TO
REQUIRE REPURCHASE


(1)           Pursuant to Section 13.1 of the
Indenture, the undersigned hereby elects to have this Security repurchased by
the Company.


(2)           The undersigned hereby directs the
Trustee or the Company to pay it or ______________ an amount in cash or, at the
Company’s election, Common Stock valued as set forth in the Indenture, equal to
100% of the principal amount to be repurchased (less any cash payments) (as set
forth below), or a combination of cash and Common Stock, plus interest accrued
to, but excluding, the Repurchase Date, as provided in the Indenture.


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature(s)

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guaranteed

  	
   

  
	
   

  	
   

  
	
  Principal amount to be
  repurchased (at least U.S. $1,000 or an integral multiple of $1,000 in excess
  thereof):__________________________________

  	
   

  
	
   

  	
   

  
	
  Remaining principal amount
  following such repurchase (not less than U.S. $1,000):

  	
   

  
	
  ______________

  	
   

  
	
   

  	
   

  



 


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


SECTION 2.3                                                  Form of
Certificate of Authentication.


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


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


	
  Dated:______________

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  J.P. MORGAN TRUST COMPANY,

  NATIONAL ASSOCIATION

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


29

















 


SECTION 2.4                                                  Form of
Conversion Notice.


CONVERSION NOTICE


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


	
  Dated:________________

  	
   

  
	
   

  	
  Signature(s)

  



 


If
shares or Securities are to be registered in the

name of a Person other than the Holder, please

print such Person’s name and address:


	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Social Security or other
  Identification

  Number, if any

  	
   

  
	
   

  	
   

  



30

















 


Signature(s) must be guaranteed by an


Eligible Guarantor Institution with


membership in an approved signature


guarantee program pursuant to Rule 17Ad -


15 under the Securities Exchange Act of


1934.


	
   

  	
   

  
	
  [Signature Guaranteed]

  	
   

  



 


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


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


2.                                       Principal
amount and denomination of Securities

representing unconverted principal amount to be issued:


Amount:
U.S. $___________                           Denominations:
U.S. $____________


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


SECTION 2.5                                                  Form of Assignment.


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


	
  Dated:__________________

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guaranteed

  



 


31























 


ARTICLE III


THE SECURITIES


SECTION 3.1                                                  Title and Terms.


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to U.S. $300,000,000 (or $345,000,000
if the Initial Purchaser Option set forth in Section 2 of the Purchase
Agreement is exercised in full (the “Initial Purchaser Option”)), except for
Securities authenticated and delivered pursuant to Section 3.4, 3.5, 3.6, 8.5,
12.2 or 13.3(5) in exchange for, or in lieu of, other Securities previously
authenticated and delivered under this Indenture.


The
Securities shall be known and designated as the “2.00% Convertible Senior Notes
due December 15, 2007” of the Company. 
Their Stated Maturity shall be December 15, 2007 and they shall bear
interest on their principal amount from December 18, 2002, payable
semi-annually in arrears on June 15 and December 15 in each year, commencing
June 15, 2003, at the rate of 2.00% per annum until the principal thereof is
due and at the rate of 2.00% per annum on any overdue principal and, to the
extent permitted by law, on any overdue interest; provided, however, that
payments shall only be made on a Business Day as provided in Section 1.12.


The
principal of, premium, if any, and interest on the Securities shall be payable
as provided in the form of Security set forth in Section 2.2, and the
Repurchase Price, whether payable in cash or in shares of Common Stock or a
combination thereof, shall be payable at such places as are identified in the
Company Notice given pursuant to Section 13.3 (any city in which any Paying
Agent is located being herein called a “Place of Payment”).


The
Registrable Securities are entitled to the benefits of a Registration Rights
Agreement as provided by Section 10.11 and in the form of Security set forth in
Section 2.2. The Securities are entitled to the payment of Liquidated Damages
as provided by Section 10.11.


At
any time after June 20, 2004 and before December 20, 2005, the Securities shall
be subject to Provisional Redemption by the Company, in whole or in part,
subject to the conditions and as otherwise provided in Article XI and in the
form of Security set forth in Section 2.2.


At
any time on or after December 20, 2005, the Securities shall be redeemable at
the option of the Company, in whole or in part, subject to the conditions and
as otherwise provided in Article XI and in the form of Security set forth in
Section 2.2.


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


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


32

















 


SECTION 3.2                                                  Denominations.


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


SECTION 3.3                                                  Execution,
Authentication, Delivery and Dating.


The
Securities shall be executed on behalf of the Company by an Officer of the
Company. Any such signature may be manual or facsimile.


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


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


Each
Security shall be dated the date of its authentication.


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


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


(1)           Global
Securities


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


(ii)           Except for exchanges of Global
Securities for definitive, non-Global Securities at the sole discretion of the
Company, no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling, unable or no longer qualified to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency
registered as such under the Exchange Act or announces an intention permanently
to cease business or does in fact do so or (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.  In such event, if a successor Depositary for
such Global Security is not appointed by the Company within 90 days 


33

















 


after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of an
Officer’s Certificate directing the authentication and delivery of Securities,
will authenticate and deliver, Securities, in any authorized denominations in
an aggregate principal amount equal to the principal amount of such Global
Security in exchange for such Global Security.


(iii)          If any Global Security is to be
exchanged for other Securities or canceled in whole, it shall be surrendered by
or on behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancellation, as provided in this Article III. If
any Global Security is to be exchanged for other Securities or canceled in
part, or if another Security is to be exchanged in whole or in part for a
beneficial interest in any Global Security, in each case, as provided in
Section 3.5, then either (A) such Global Security shall be so surrendered for
exchange or cancellation, as provided in this Article III, or (B) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Trustee, as Security Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to
Section 3.5(3) and as otherwise provided in this Article III, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may
be directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Company shall promptly make available
to the Trustee a reasonable supply of Securities that are not in the form of
Global Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Depositary or its authorized representative which
is given or made pursuant to this Article III if such order, direction or
request is given or made in accordance with the Applicable Procedures.


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


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


34

















 


(2)           Non-global
Securities


Securities
issued upon the events described in Section 3.4(l)(ii) shall be in definitive,
fully registered form, without interest coupons, and shall bear the Restricted
Securities Legend if and as required by this Indenture.


SECTION 3.5                                                  Registration;
Registration of Transfer and Exchange; Restrictions on Transfer.


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


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


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


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


No
service charge shall be made to a Holder for any registration of transfer or
exchange of Securities except as provided in Section 3.6, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.4, 8.5, 12.2
or 13.3 (other than where the shares of Common Stock are to be issued or
delivered in a name other than that of the Holder of the Security) not
involving any transfer and other than any stamp and other duties, if any, which
may be imposed in connection with any such transfer or exchange by the United
States or any political subdivision thereof or therein, which shall be paid by
the Company.


In
the event of a redemption of the Securities, neither the Company nor the
Securities Registrar will be required (a) to register the transfer of or
exchange Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the 


35

















 


Securities
called for such redemption or (b) to register the transfer of or exchange any
Security, or portion thereof, called for redemption.


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


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


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


(iii)          Exchanges Between Global Security
and Non-global Security.  A
beneficial interest in a Global Security may be exchanged for a Security that
is not a Global Security only as provided in Section 3.4 or only if such
exchange occurs in connection with a transfer effected in accordance with
Clause 2(i) above, provided that, if such interest is a beneficial interest in
the Restricted Global Security, then such interest shall be exchanged for a
Restricted Security (subject in each case to Section 3.5(3)). A Security that
is not a Global 


36

















 


Security may be exchanged for a beneficial interest in a Global
Security only if such exchange occurs in connection with a transfer effected in
accordance with Clause (2)(ii) above.


(3)           Securities Act Legends. All
Securities issued pursuant to this Indenture, and all Successor Securities,
shall bear the Restricted Securities Legend and shall be subject to the
restrictions on transfer specified therein, subject to the following:


(i)            subject to the following Clauses of
this Section 3.5(3), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof shall bear
the Restricted Securities Legend borne by such Global Security for which the
Security was exchanged;


(ii)           subject to the following Clauses of
this Section 3.5(3), a new Security that is not a Global Security and is issued
in exchange for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Restricted Securities
Legend borne by the Security for which the new Security was exchanged;


(iii)          any Securities that are sold or
otherwise disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement), together with
their Successor Securities shall not bear a Restricted Securities Legend; the
Company shall inform the Trustee in writing of the effective date of any such
registration statement registering the Securities under the Securities Act and
shall notify the Trustee, in writing, at any time when prospectuses must be
delivered with respect to Securities to be sold pursuant to such registration
statement. 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 registration
statement;


(iv)          at any time after the Securities may
be freely transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act, a new
Security that does not bear a Restricted Securities Legend may be issued in
exchange for or in lieu of a Security (other than a Global Security) or any
portion thereof that bears such a legend if the Trustee has received an
Unrestricted Securities Certificate, satisfactory to the Trustee and duly
executed by the Holder of such Security bearing a Restricted Securities Legend
or his attorney duly authorized in writing, and after such date and receipt of
such certificate, the Trustee shall authenticate and deliver such new Security
in exchange for or in lieu of such other Security as provided in this Article
III;


(v)           a new Security that does not bear a
Restricted Securities Legend may be issued in exchange for or in lieu of a
Security or any portion thereof that bears such a legend if, in the Company’s
judgment, placing such a legend upon such new Security is not necessary to
ensure compliance with the registration requirements of the Securities Act, and
the Trustee, at the direction of the Company, shall authenticate and deliver
such a new Security as provided in this Article III; and


(vi)          notwithstanding the foregoing
provisions of this Section 3.5(3), a Successor Security of a Security that does
not bear a Restricted Securities Legend shall not bear such legend unless the
Company has reasonable cause to believe that such Successor Security is 


37

















 


a “restricted security” within the meaning of Rule 144, in which
case the Trustee, at the direction of the Company, shall authenticate and
deliver a new Security bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article III.


(4)           Any stock certificate representing
shares of Common Stock issued upon conversion of the Securities shall bear the
Restricted Securities Legend borne by such Securities, to the extent required
by this Indenture, unless such shares of Common Stock have been sold pursuant
to a registration statement that has been declared effective under the
Securities Act (and that continues to be effective at the time of such
transfer) or sold pursuant to Rule 144(k) of the Securities Act, or unless
otherwise agreed by the Company in writing with written notice thereof to the
transfer agent for the Common Stock. 
With respect to the transfer of shares of Common Stock issued upon
conversion of the Securities that are restricted hereunder, any deliveries of
certificates, legal opinions or other instruments that would be required to be
made to the Security Registrar in the case of a transfer of Securities, as
described above, shall instead be made to the transfer agent for the Common
Stock.


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


SECTION 3.6                                                  Mutilated,
Destroyed, Lost or Stolen Securities.


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


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


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


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


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


Upon
the issuance of any new Security under this Section 3.6, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto (other than any stamp and other
duties, if any, which may be imposed in connection therewith by the United
States or any political subdivision thereof or therein, 


38

















 


which
shall be paid by the Company) and any other expenses (including the fees and
expenses of the Trustee) connected therewith.


Every
new Security issued pursuant to this Section 3.6 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and such
new Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued hereunder.


The
provisions of this Section 3.6 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies of any Holder with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.


SECTION 3.7                                                  Payment of
Interest; Interest Rights Preserved.


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


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


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


39

















 


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


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


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


SECTION 3.8                                                  Persons Deemed
Owners.


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


SECTION 3.9                                                  Cancellation.


All
Securities surrendered for payment, redemption, repurchase, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities so delivered to
the Trustee shall be canceled promptly by the Trustee (or its agent). No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section 3.9. The Trustee shall dispose of all
canceled Securities in accordance with applicable law and its customary
practices in effect from time to time.


SECTION 3.10                                            Computation of
Interest.


Interest
on the Securities (including any Liquidated Damages) shall be computed on the
basis of a 360-day year of twelve 30-day months.


SECTION 3.11                                            CUSIP Numbers.


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


40

















 


ARTICLE IV



SATISFACTION AND DISCHARGE


SECTION 4.1                                                  Satisfaction
and Discharge of Indenture.


This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion, or registration of transfer or exchange,
or replacement of Securities herein expressly provided for and any right to
receive Liquidated Damages as provided in the Registration Rights Agreement and
in the form of Security set forth in Section 2.2 and the Company’s obligations
to the Trustee pursuant to Section 6.7), and the Trustee, at the expense of the
Company, shall execute proper instruments in form and substance reasonably
satisfactory to the Trustee acknowledging satisfaction and discharge of this
Indenture, when


(1)           Either


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


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


(a)           have become due and payable, or


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


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


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


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


41

















 


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


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.12, the obligation of the Company to pay
Liquidated Damages, if money shall have been deposited with the Trustee
pursuant to clause (1)(ii) of this Section 4.1, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 and the obligations of
the Company and the Trustee under Section 3.5 and Article XII shall survive.


SECTION 4.2                                                  Application of
Trust Money.


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


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


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


ARTICLE V



REMEDIES


SECTION 5.1                                                  Events of
Default.


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


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


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


42

















 


(3)           failure by the Company to give a
Company Notice in accordance with Section 13.3; or


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


(5)           a default in the payment when due
(either at its stated maturity or upon acceleration thereof, and after
expiration of any applicable grace period) under any bonds, debentures, notes
or other evidences of indebtedness for money borrowed (or guarantee thereof) by
the Company or any Significant Subsidiary (an “Instrument”) with an aggregate
principal amount in excess of U.S. $75,000,000, whether such indebtedness now
exists or shall hereafter be created, and such indebtedness is not discharged,
or such acceleration is not rescinded or annulled, within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such default to be cured or waived or such acceleration
to be rescinded or annulled and stating that such notice is a “Notice of
Default” hereunder; or


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


(7)           the commencement by the Company or
any Significant Subsidiary of a voluntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by either to the entry of a decree or order for
relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against either,
or the filing by either of a petition or answer or consent seeking
reorganization or similar relief under any applicable Federal or state law, or
the consent by either to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of 


 


43

















 


either, or the making by either of an assignment for the benefit of
creditors, or the admission by either in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action.


SECTION 5.2                                                  Acceleration of
Maturity; Rescission and Annulment.


If
an Event of Default (other than an Event of Default specified in Section 5.1(6)
or 5.1(7) with respect to the Company) occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities may declare the principal of all the Securities
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by the Holders), and upon any such declaration such
principal and all accrued interest thereon shall become immediately due and
payable. If an Event of Default specified in Section 5.1(6) or 5.1(7) with
respect to the Company occurs, the principal of, and accrued interest on, all
the Securities shall become immediately due and payable without any declaration
or other Act of the Holders or any act on the part of the Trustee.


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


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


(i)            all overdue interest on all
Securities,


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


(iii)          to the extent permitted by applicable
law, interest upon overdue interest at a rate of 2.00% per annum, and


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


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


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


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


44

















 


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


The
Company covenants that if:


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


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


the
Company will, upon demand of the Trustee pay to it, for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for principal and interest (including any Liquidated Damages) and
interest on any overdue principal and premium, if any, and, to the extent
permitted by applicable law, on any overdue interest (including any Liquidated
Damages), at a rate of 2.00% per annum, and in addition thereto, such further
amount as shall be sufficient to cover the reasonable costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


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


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


SECTION 5.4                                                  Trustee May
File Proofs of Claim.


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or the creditors of
either, the Trustee (irrespective of whether the principal of, and any interest
on, the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,


(1)           to file and prove a claim for the
whole amount of principal, premium, if any, and interest owing and unpaid in
respect of the Securities and take such other actions, including participating
as a member, voting or otherwise, of any official committee of creditors
appointed in such matter, and to file such other papers or documents, in each
of the foregoing cases, as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the 


 


45

















 


reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities allowed in
such judicial proceeding, and


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


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


SECTION 5.5                                                  Trustee May
Enforce Claims Without Possession of Securities.


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


SECTION 5.6                                                  Application of
Money Collected.


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


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


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


THIRD:  To such other Person or Persons, if any, to
the extent entitled thereto; and


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


46

















 


SECTION 5.7                                                  Limitation on
Suits.


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


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


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


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


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


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


SECTION 5.8                                                  Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert.


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, and (subject to Section 3.7) interest (including
Liquidated Damages, if any) on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date, as the case may be), and
to convert such Security in accordance with Article XII, and to institute suit
for the enforcement of any such payment and right to convert, and such rights
shall not be impaired without the consent of such Holder.


SECTION 5.9                                                  Restoration of
Rights and Remedies.


If
the Trustee or any Holder of a Security has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities shall be restored severally and respectively to their former
positions 


47

















 


hereunder
and thereafter all rights and remedies of the Trustee and such Holders shall
continue as though no such proceeding had been instituted.


SECTION 5.10                                            Rights and
Remedies Cumulative.


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


SECTION 5.11                                            Delay or Omission
Not Waiver.


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


SECTION 5.12                                            Control by
Holders of Securities.


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


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


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


(3)           the Trustee need not take any action
that might involve it in personal liability or be unjustly prejudicial to the
Holders of Securities not consenting.


SECTION 5.13                                            Waiver of Past
Defaults.


The
Holders, either (i) through the written consent of not less than a majority in
principal amount of the Outstanding Securities or (ii) by the adoption of
a resolution, at a meeting of Holders of the Outstanding Securities at which a
quorum is present, by the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities represented at such meeting, may on behalf
of the Holders of all the Securities waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of,
premium, if any, or interest (including Liquidated Damages) on any Security, or
(B) in respect of a covenant or 


48

















 


provision
hereof which under Article VIII cannot be modified or amended without the
consent of the Holder of each Outstanding Security affected.


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


SECTION 5.14                                            Undertaking for
Costs.


All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by
any Holder of any Security for the enforcement of the payment of the principal
of, premium, if any, or interest on any Security on or after the respective
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption or repurchase, on or after the Redemption Date or Repurchase Date,
as the case may be) or for the enforcement of the right to convert any Security
in accordance with Article XII.


SECTION 5.15                                            Waiver of Stay,
Usury or Extension Laws.


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


ARTICLE VI



THE TRUSTEE


SECTION 6.1                                                  Certain Duties
and Responsibilities.


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


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


49

















 


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


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


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


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


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


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


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


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


(5)           The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory
to it against any loss, liability or expense.


SECTION 6.2                                                  Notice of
Defaults.


Within
90 days after the occurrence of any default hereunder as to which the Trustee
has received written notice, the Trustee shall give to all Holders of
Securities, in the manner provided in Section 1.6, notice of such default,
unless such default shall have been cured or 


50

















 


waived;
provided, however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Security the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders; and provided, further, that in the
case of any default of the character specified in Section 5.1(4), no such
notice to Holders of Securities shall be given until at least 60 days after the
occurrence thereof or, if applicable, the expiration of the cure period
specified therein. For the purpose of this Section, the term “default” means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.


SECTION 6.3                                                  Certain Rights
of Trustee.


Subject
to the provisions of Section 6.1:


(1)           the Trustee may rely, and shall be
protected in acting or refraining from acting, upon any resolution, Officer’s
Certificate, other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document (collectively, the
“Documents”) believed by it to be genuine and to have been signed or presented
by the proper party or parties, and the Trustee need not investigate any fact
or matter stated in such Documents;


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


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


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


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


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


51

















 


or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney; and


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


SECTION 6.4                                                  Not Responsible
for Recitals or Issuance of Securities.


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


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


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


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


SECTION 6.6                                                  Money Held in
Trust.


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


SECTION 6.7                                                  Compensation
and Reimbursement.


The
Company agrees:


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


(2)           except as otherwise expressly
provided herein, to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee (including
costs and expenses of enforcing this Indenture and defending itself against any
claim (whether asserted by the Company, any Holder of Securities or any other
Person) or liability in 


52

















 


connection with the exercise of any of its powers or duties hereunder)
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and


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


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


When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1(6) or Section 5.1(7), the expenses (including
the reasonable charges of its counsel) and the compensation for the services
are intended to constitute expenses of the administration under any applicable
Federal or state bankruptcy, insolvency or other similar law.


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


SECTION 6.8                                                  Corporate
Trustee Required; Eligibility.


There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and the Trustee
and its parent corporation shall have (or be part of a holding company group
with) a combined capital and surplus of at least U.S. $50,000,000, subject to
supervision or examination by Federal or state authority, and in good standing.
The Trustee or an Affiliate of the Trustee shall maintain an established place
of business in the Borough of Manhattan, The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article and a successor shall be appointed pursuant to Section 6.9.


SECTION 6.9                                                  Resignation and
Removal; Appointment of Successor.


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


53

















 


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


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


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


(5)           If at any time:


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


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


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


(6)           If the Trustee shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with the applicable
requirements of this Section and Section 6.10. If no successor Trustee shall
have been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by this Section and Section 6.10, any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.


54

















 


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


SECTION 6.10                                            Acceptance of
Appointment by Successor.


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


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


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


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


SECTION 6.12                                            Authenticating
Agents.


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


Securities
authenticated by an Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder, and every reference in this Indenture
to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate 


55

















 


of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be subject to acceptance by the Company and
shall at all times be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent and subject to
supervision or examination by government or other fiscal authority. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.12.


Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.


The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.12.


If
an Authenticating Agent is appointed with respect to the Securities pursuant to
this Section 6.12, the Securities may have endorsed thereon, in addition to or
in lieu of the Trustee’s certification of authentication, an alternative
certificate of authentication in the following form:


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


	
   

  	
  J.P. MORGAN TRUST COMPANY,

  NATIONAL ASSOCIATION

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  



 


56























 


SECTION 6.13                                            Disqualification;
Conflicting Interests.


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


SECTION 6.14                                            Preferential
Collection of Claims Against Company.


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


ARTICLE VII



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


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


The
Company shall not consolidate with or merge into any other Person or convey,
transfer, sell or lease (other than a mere grant of security interest) all its
properties and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer, sell or lease (other than a mere grant of security
interest) such Person’s properties and assets substantially as an entirety to
the Company unless:


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


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


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


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SECTION 7.2                                                  Successor
Substituted.


Upon
any consolidation of the Company with, or merger of the Company into any other
Person or any conveyance, transfer or lease (other than a mere grant of
security interest) of all or substantially all the properties and assets of the
Company in accordance with Section 7.1, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such
conveyance, transfer or lease (other than a mere grant of security interest) is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.


ARTICLE VIII



SUPPLEMENTAL INDENTURES


SECTION 8.1                                                  Supplemental
Indentures Without Consent of Holders of Securities.


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


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


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


(3)           to secure the Securities; or


(4)           to make provision with respect to the
conversion rights of Holders of Securities pursuant to Section 12.11 or to make
provision with respect to the repurchase rights of Holders of Securities
pursuant to Section 13.5; or


(5)           to make any changes or modifications
to this Indenture necessary in connection with the registration of any
Registrable Securities under the Securities Act as contemplated by Section
10.11, provided such action pursuant to this clause (5) shall not adversely
affect the interests of the Holders of Securities in any material respect; or


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


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


(8)           to provide for uncertificated
Securities; or


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(9)           to cure any ambiguity, to correct or
supplement any provision herein that may be inconsistent with any other
provision herein or that is otherwise defective, or to make any other
provisions with respect to matters or questions arising under this Indenture as
the Company and the Trustee may deem necessary or desirable, provided such
action pursuant to this clause (9) shall not adversely affect the interests of
the Holders of Securities in any material respect.


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


Notwithstanding
any other provision of the Indenture or the Securities, the Registration Rights
Agreement and the obligation to pay Liquidated Damages thereunder may be
amended, modified or waived in accordance with the provisions of the
Registration Rights Agreement.


SECTION 8.2                                                  Supplemental
Indentures with Consent of Holders of Securities.


Except
as set forth in Section 8.1, with either (i) the written consent of the Holders
of not less than a majority in principal amount of the Outstanding Securities,
by the Act of said Holders delivered to the Company and the Trustee, or (ii) by
the adoption of a resolution, at a meeting of Holders of the Outstanding
Securities at which a quorum is present, by the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities represented at such
meeting, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent or affirmative vote of the
Holder of each Outstanding Security affected thereby,


(1)           change the Stated Maturity of the
principal of, or any installment of interest on, any Security, or reduce the
principal amount of, or the premium, if any, or the rate of interest payable
thereon, or reduce the amount payable upon a redemption or mandatory
repurchase, or change the place or currency of payment of the principal of,
premium, if any, or interest on any Security (including any payment of
Liquidated Damages (except as may be effected through an amendment of the
Registration Rights Agreement in accordance with its terms) or Redemption Price
or Repurchase Price in respect of such Security) or impair the right to
institute suit for the enforcement of any payment in respect of any Security on
or after the Stated Maturity thereof (or, in the case of redemption or any
repurchase, on or after the Redemption Date or Repurchase Date, as the case may
be); or


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


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(3)           modify any of the provisions of this
Section or Section 5.13 or 10.12, except to increase any percentage contained
herein or therein or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby;


(4)           modify the ranking of the Securities
in a manner adverse to the Holders; or


(5)           modify the Company’s right to redeem
the Securities in a manner adverse to the Holders; or


(6)           modify the provisions of Article XII
or XIII in a manner adverse to the Holders; or


(7)           modify the provisions of Section 10.9
in a manner adverse to the Holder.


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


SECTION 8.3                                                  Execution of
Supplemental Indentures.


In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Sections 6.1 and 6.3) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that such supplemental indenture
has been duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which adversely
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


SECTION 8.4                                                  Effect of
Supplemental Indentures.


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


SECTION 8.5                                                  Reference in
Securities to Supplemental Indentures.


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


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SECTION 8.6                                                  Notice of Supplemental
Indentures.


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


ARTICLE IX



MEETINGS OF HOLDERS OF SECURITIES


SECTION 9.1                                                  Purposes for
Which Meetings May Be Called.


A
meeting of Holders of Securities may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities.


SECTION 9.2                                                  Call, Notice
and Place of Meetings.


(1)           The Trustee, with the Company’s
consent (prior to an Event of Default but not thereafter), may at any time call
a meeting of Holders of Securities for any purpose specified in Section 9.1, to
be held at such time and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine. Notice of every meeting of Holders of
Securities, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.6, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.


(2)           In case at any time the Company,
pursuant to a Board Resolution, or, in an Event of Default, the Holders of at
least 10% in principal amount of the Outstanding Securities, shall have
requested the Trustee to call a meeting of the Holders of Securities for any
purpose specified in Section 9.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or, in an Event of Default, the
Holders of Securities in the amount specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (1) of this Section.


SECTION 9.3                                                  Persons
Entitled to Vote at Meetings.


To
be entitled to vote at any meeting of Holders of Securities, a Person shall be
(i) a Holder of one or more Outstanding Securities, or (ii) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one
or more Outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel, any 


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representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


SECTION 9.4                                                  Quorum; Action.


The
Persons entitled to vote a majority in principal amount of the Outstanding
Securities shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting
(subject to repeated applications of this sentence). Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 9.2(1), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the principal amount of the Outstanding
Securities that shall constitute a quorum.


Subject
to the foregoing, at the reconvening of any meeting adjourned for a lack of a
quorum, the Persons entitled to vote 25% in principal amount of the Outstanding
Securities at the time shall constitute a quorum for the taking of any action
set forth in the notice of the original meeting.


At
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid, any resolution and all matters (except as limited by the
proviso to Section 8.2 and except to the extent Section 10.12 requires a
different vote) shall be effectively passed and decided if passed or decided by
the lesser of (i) the Holders of not less than a majority in principal amount
of Outstanding Securities and (ii) the Persons entitled to vote not less than a
majority in aggregate principal amount of Outstanding Securities represented
and entitled to vote at such meeting.


Any
resolution passed or decisions taken at any meeting of Holders of Securities
duly held in accordance with this Section shall be binding on all the Holders
of Securities whether or not present or represented at the meeting. The Trustee
shall, in the name and at the expense of the Company, notify all the Holders of
Securities of any such resolutions or decisions pursuant to Section 1.6.


SECTION 9.5                                                  Determination
of Voting Rights; Conduct and Adjournment of Meetings.


(1)           Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities in regard to proof of
the holding of Securities and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in
Section 1.4 


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and the appointment of any proxy shall be proved in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy guaranteed by any bank, broker or other eligible institution
participating in a recognized medallion signature guarantee program.


(2)           The Trustee shall, by an instrument
in writing, appoint a temporary chairman (which may be the Trustee) of the
meeting, unless the meeting shall have been called by the Company or by Holders
of Securities as provided in Section 9.2(1), in which case the Company or the
Holders of Securities calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities represented
at the meeting.


(3)           At any meeting, each Holder of a
Security or proxy shall be entitled to one vote for each U.S. $1,000 principal
amount of Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.


(4)           Any meeting of Holders of Securities
duly called pursuant to Section 9.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities represented at the meeting, and the
meeting may be held as so adjourned without further notice.


SECTION 9.6                                                  Counting Votes
and Recording Action of Meetings.


The
vote upon any resolution submitted to any meeting of Holders of Securities
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amounts at Stated Maturity and serial numbers of the Outstanding Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record, at least in duplicate, of the proceedings of each
meeting of Holders of Securities shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 9.2 and, if applicable, Section 9.4. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.


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ARTICLE X



COVENANTS


SECTION 10.1                                            Payment of
Principal, Premium and Interest.


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


SECTION 10.2                                            Maintenance of
Offices or Agencies.


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


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


The
Company hereby initially designates the Trustee as Paying Agent, Security
Registrar and Conversion Agent, and the Corporate Trust Office of the Trustee
as one such office or agency of the Company for each of the aforesaid purposes.


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


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


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


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


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


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


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


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


Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and 


65

















 


all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.


SECTION 10.4                                            Existence.


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


SECTION 10.5                                            [INTENTIONALLY
LEFT BLANK].


 


SECTION 10.6                                            Payment of
Taxes and Other Claims.


The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary, and, subject to Sections 12.8 and
13.3(2), all stamps and other duties, if any, which may be imposed by the
United States or any political subdivision thereof or therein in connection
with the issuance, transfer, exchange or conversion of any Securities or with
respect to this Indenture except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not adverse
in any material respect to the Holders.


SECTION 10.7                                            Registration
and Listing.


The
Company will effect all registrations with, and obtain all approvals by, all
governmental authorities that may be necessary under any United States Federal
or state law (including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) before the shares of Common Stock issuable upon
conversion of Securities are issued and delivered, and qualified or listed as
contemplated under the Registration Rights Agreement.


Nothing
in this Section will limit the application of Section 10.11.


SECTION 10.8                                            Statement by
Officers as to Default.


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


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The
Company will deliver to the Trustee, forthwith upon becoming aware of any
default or any Event of Default under the Indenture, an Officer’s Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto.  For the purpose of
this Section, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default.


Any
notice required to be given under this Section 10.8 shall be delivered to the
Trustee at its Corporate Trust Office.


SECTION 10.9                                            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 of a Restricted Security or the holder 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 of Restricted Securities or such holder of shares of
Common Stock issued upon conversion of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder or
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 (or any successor
provision thereto) in connection with the resale of any such security;
provided, however, that the Company shall not be required to furnish such
information in connection with any request made on or after the date that is
two years from the later of (i) the date such a security (or any such
predecessor security) was last acquired from the Company or (ii) the date such
a security (or any such predecessor security) was last acquired from an
“affiliate” of the Company within the meaning of Rule 144 under the Securities
Act (or any successor provision thereto). “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).


SECTION 10.10                                      Resale of
Certain Securities.


During
the period beginning on the last date of original issuance of the Securities
and ending on the date that is two years from such date (or such shortened
period under Rule 144(k) under the Securities Act or any successor rule), the
Company will not, and will not permit any of its subsidiaries or other
“affiliates” (as defined under Rule 144 under the Securities Act or any
successor provision thereto) to, resell (i) any Securities that constitute “restricted
securities” under Rule 144 or (ii) any securities into which the Securities
have been converted under this Indenture that constitute “restricted
securities” under Rule 144, that in either case have been reacquired by any of
them.  The Trustee shall have no
responsibility in respect of the Company’s performance of its agreement in the
preceding sentence.


SECTION 10.11                                      Registration
Rights.


The
Company agrees that the Holders from time to time of Registrable Securities (as
defined below) are entitled to the benefits of the Registration Rights
Agreement.


Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of, premium, if any, or interest on, or in respect of, any Security,
such mention shall be 


67

















 


deemed
to include mention of the payment of Liquidated Damages provided for in this
Section to the extent that, in such context, Liquidated Damages are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of Liquidated Damages (if applicable) in any
provisions hereof shall not be construed as excluding Liquidated Damages in
those provisions hereof where such express mention is not made.


For
the purposes of the Registration Rights Agreement, “Registrable Securities”
means all or any portion of the Securities issued from time to time under this
Indenture in registered form and the shares of Common Stock issuable upon
conversion, repurchase or redemption of such Securities; provided, however,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.


If
a Security, or the shares of Common Stock issuable upon conversion of a
Security, is a Registrable Security, and the Holder thereof elects to sell such
Registrable Security pursuant to the Shelf Registration Statement then, by its
acceptance thereof, the Holder of such Registrable Security will have agreed to
be bound by the terms of the Registration Rights Agreement relating to the
Registrable Securities which are the subject of such election.


For
the purposes of the Registration Rights Agreement, the term “Holder” means any
Person that is the record owner of Registrable Securities (and includes any
Person that has a beneficial interest in any Registrable Security in book entry
form).


If
Liquidated Damages are payable under the Registration Rights Agreement, the
Company shall deliver to the Trustee a certificate to that effect stating (i)
the amount of Liquidated Damages that is payable and (ii) the date on which
Liquidated Damages are payable.  Unless
and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that no
Liquidated Damages are payable.  If
Liquidated Damages have been paid by the Company directly to the persons
entitled to them, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.


SECTION 10.12                                      Waiver of
Certain Covenants.


The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 10.4 (other than with respect to the existence
of the Company (subject to Article VII)) and 10.6, inclusive (other than a
covenant or condition which under Article VIII cannot be modified or amended
without the consent of the Holder of each Outstanding Security affected), if
before the time for such compliance the Holders shall, through (i) the written
consent of not less than a majority in principal amount of the Outstanding
Securities or (ii) the adoption of a resolution at a meeting of Holders of the
Outstanding Securities at which a quorum is present by the Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities represented
at such meeting, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee or any Paying or
Conversion Agent in respect of any such covenant or condition shall remain in
full force and effect.


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ARTICLE XI



REDEMPTION OF SECURITIES


SECTION 11.1                                            Right of
Redemption.


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


SECTION 11.2                                            Applicability
of Article.


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


SECTION 11.3                                            Election to
Redeem; Notice to Trustee.


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


SECTION 11.4                                            Selection by
Trustee of Securities to Be Redeemed.


If
less than all the Securities are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee within five Business Days after it
receives the notice described in 11.3, from the Outstanding Securities not
previously called for redemption, by lot or by such other method as the Trustee
may deem fair and appropriate.


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


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


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SECTION 11.5                                            Notice of
Redemption.


Notice
of redemption shall be given in the manner provided in Section 1.6 to the
Holders of Securities to be redeemed not less than 30 nor more than 60 days
prior to the Redemption Date, and such notice shall be irrevocable.


All
notices of redemption shall state:


(1)           the Redemption Date,


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


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


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


(5)           whether the redemption is a
Provisional Redemption or an optional redemption,


(6)           if the redemption is a Provisional
Redemption, the amount of the Make-Whole Payment,


(7)           whether the Make-Whole Payment will
be paid in Common Stock, cash or a combination of cash of Common Stock (and the
applicable ratio of cash and Common Stock),


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


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


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


Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s written request (which request
shall be delivered to the Trustee simultaneously with notification of the
Redemption Date pursuant to Section 11.3), by the Trustee in the name of and at
the expense of the Company. Notice of redemption of Securities to be redeemed
at the election of the Company received by the Trustee shall be given by the
Trustee to each Paying Agent in the name of and at the expense of the Company.


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SECTION 11.6                                            Deposit of
Redemption Price.


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


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


SECTION 11.7                                            Securities Payable
on Redemption Date.


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price, including accrued interest)
such Securities shall cease to bear interest. Upon surrender of any Security
for redemption in accordance with said notice such Security shall be paid by
the Company at the Redemption Price together with accrued and unpaid interest
(including Liquidated Damages, if any) to but excluding the Redemption Date;
provided, however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the provisions of
Section 3.7.


If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal amount of, premium, if any, and, to the extent
permitted by applicable law, accrued interest on such Security shall, until
paid, bear interest from the Redemption Date at a rate of 2.00% per annum and
such Security shall remain convertible until the Redemption Price of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.


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


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requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.


SECTION 11.8                                            Conversion
Arrangement on Call for Redemption.


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


ARTICLE XII



CONVERSION OF SECURITIES


SECTION 12.1                                            Conversion
Privilege and Conversion Rate.


Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, each U.S. $1,000 principal amount of Securities may be
converted into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Common Stock of the Company at
the Conversion Rate, determined as hereinafter provided, in effect at the time
of conversion.  Such conversion right shall
commence on the initial issuance date of the Securities and expire at the close
of business on the date of Maturity (unless such 


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Securities
have been previously redeemed or repurchased), subject, in the case of
conversion of any Global Security, to any Applicable Procedures. In case a
Security or portion thereof is called for redemption at the election of the
Company or the Holder thereof exercises his right to require the Company to
repurchase the Security, such conversion right in respect of the Security, or
portion thereof so called, shall expire at the close of business on the second
Business Day immediately preceding the Redemption Date or the Repurchase Date,
as the case may be, unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be (in each case subject as aforesaid
to any Applicable Procedures with respect to any Global Security).


The
rate at which shares of Common Stock shall be delivered upon conversion (herein
called the “Conversion Rate”) shall be initially 21.2766 shares of Common Stock
for each U.S.$1,000 principal amount of Securities. The Conversion Rate shall
be adjusted in certain instances as provided in this Article XII.


SECTION 12.2                                            Exercise of
Conversion Privilege.


In
order to exercise the conversion privilege, the Holder of any Security to be
converted shall surrender such Security, duly endorsed in blank, at any office
or agency of the Company maintained for that purpose pursuant to Section 10.2,
accompanied by a duly signed conversion notice substantially in the form set
forth in Section 2.4 stating that the Holder elects to convert such Security
or, if less than the entire principal amount thereof is to be converted, the
portion thereof to be converted. Each Security surrendered for conversion (in
whole or in part) during the Record Date Period shall (except in the case of
any Security or portion thereof which has been called for redemption, except
pursuant to a call for Provisional Redemption, on a Redemption Date, or is repurchasable
on a Repurchase Date, occurring, in either case, during the period from the
close of business on any Regular Record Date next preceding any Interest
Payment Date to the close of business on the third Business Day following such
Interest Payment Date and, as a result, the right to convert such Security
would otherwise terminate in such period if not exercised) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security (or part thereof, as the case may
be) being surrendered for conversion. The interest so payable on such Interest
Payment Date with respect to any Security (or portion thereof, if applicable)
that is surrendered for conversion during the Record Date Period shall be paid
to the Holder of such Security as of such Regular Record Date in an amount
equal to the interest that would have been payable on such Security if such
Security had been converted as of the close of business on such Interest
Payment Date.  Interest payable on any
Interest Payment Date in respect of any Security surrendered for conversion on
or after such Interest Payment Date shall be paid to the Holder of such Security
as of the Regular Record Date next preceding such Interest Payment Date,
notwithstanding the exercise of the right of conversion.  Except as provided in this paragraph and
subject to the last paragraph of Section 3.7, no cash payment or adjustment
shall be made upon any conversion on account of any interest accrued from the
Interest Payment Date next preceding the conversion date, in respect of any
Security (or part thereof, as the case may be) surrendered for conversion, or
on account of any dividends on the Common Stock issued upon conversion. The
Company’s delivery to the Holder of the number of shares of Common Stock (and
cash in lieu of fractions thereof, as 


73

















 


provided
in this Indenture) into which a Security is convertible will be deemed to
satisfy the Company’s obligation to pay the principal amount of the Security.


Securities
shall be deemed to have been converted immediately prior to the close of
business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver to the Trustee, for delivery to the Holder (unless a
different Person is indicated on the Conversion Notice), a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 12.3.


All
shares of Common Stock delivered upon such conversion of Restricted Securities
shall bear restrictive legends substantially in the form of the legends
required to be set forth on the Restricted Securities pursuant to Section 3.5
and shall be subject to the restrictions on transfer provided in such legends.
Neither the Trustee nor any agent maintained for the purpose of such conversion
shall have any responsibility for the inclusion or content of any such
restrictive legends on such Common Stock; provided, however, that the Trustee
or any agent maintained for the purpose of such conversion shall have provided,
to the Company or to the Company’s transfer agent for such Common Stock, prior
to or concurrently with a request to the Company to deliver such Common Stock,
written notice that the Securities delivered for conversion are Restricted
Securities.


In
the case of any Security which is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the principal amount of such Security. A Security may be
converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of U.S. $1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.


If
shares of Common Stock to be issued upon conversion of a Restricted Security,
or Securities to be issued upon conversion of a Restricted Security in part
only, are to be registered in a name other than that of the beneficial owner of
such Restricted Security, then such Holder must deliver to the Conversion Agent
a Surrender Certificate, dated the date of surrender of such Restricted
Security and signed by such beneficial owner, as to compliance with the
restrictions on transfer applicable to such Restricted Security. Neither the
Trustee nor any Conversion Agent, Registrar or Transfer Agent shall be required
to register in a name other than that of the beneficial owner, shares of Common
Stock or Securities issued upon conversion of any such Restricted Security not
so accompanied by a properly completed Surrender Certificate.


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SECTION 12.3                                            Fractions of
Shares.


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


SECTION 12.4                                            Adjustment of
Conversion Rate.


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


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


(2)           In case the Company shall issue
rights, options or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in paragraph (8) of
this Section 12.4) of the Common Stock on the date fixed for the determination
of stockholders entitled to receive such rights, options or warrants (other
than any rights, options or warrants that by their terms will also be issued to
any Holder upon conversion of a Security into shares of Common Stock without
any action required by the Company or any other Person), the Conversion Rate in
effect at the opening of business on the day following the date fixed for such
determination shall be increased by dividing the Conversion Rate in effect
immediately prior to such date by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common Stock
that the aggregate of the offering price of the total number of shares of 


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Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. If, after any such date fixed for determination, any such
rights, options or warrants are not in fact issued, or are not exercised prior
to the expiration thereof, the Conversion Rate shall be immediately readjusted,
effective as of the date such rights, options or warrants expire, or the date
the Board of Directors determines not to issue such rights, options or
warrants, to the Conversion Rate that would have been in effect if the
unexercised rights, options or warrants had never been granted or such determination
date had not been fixed, as the case may be. 
For the purposes of this paragraph (2), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.  The Company will not issue any rights,
options or warrants in respect of shares of Common Stock held in the treasury
of the Company.


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


(4)           In case the Company shall, by dividend
or otherwise, distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock or other property (including
cash or assets or securities, but excluding (i) any rights, options or warrants
referred to in paragraph (2) of this Section, (ii) any dividend or distribution
paid exclusively in cash, other than those referred to in paragraphs 5 and 6
below, (iii) any dividend or distribution referred to in paragraph (1) of this
Section and (iv) any consideration distributed in any merger or consolidation
to which Section 12.11 applies), the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Conversion Rate in
effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (8) of this Section 12.4) of the Common
Stock on the date fixed for such determination less the then fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of the
portion of the assets, shares or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
distribution.  If after any such date
fixed for determination, any such distribution is not in fact made, the
Conversion Rate shall be immediately readjusted, effective as 


76

















 


of the date that the Board of Directors determines not to make such
distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed.


In the event the then fair market value (as
so determined) of the portion of the evidences of indebtedness, shares of any
class of capital stock or other property so distributed is equal to or greater
than the current market price per share of the Common Stock on such date, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder of a Security shall have the right to receive upon conversion the amount
of such evidences of indebtedness, shares of any class of capital stock or
other property such Holder would have received had such Holder converted each
Security on such date.


 


(5)           In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock cash
(excluding cash distributed upon a merger or consolidation to which Section
12.11 applies) in an aggregate amount that, combined together with (I) the
aggregate amount of any other all-cash distributions to all holders of its
Common Stock made exclusively in cash within the 365-day period preceding the
date of payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section 12.4 has been
made and (II) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) of any non-cash consideration payable in
respect of any tender offer by the Company or any of its Subsidiaries for all
or any portion of the Common Stock concluded within the 365-day period
preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the
“combined cash and tender amount”) exceeds 10% of the product of the current
market price per share (determined as provided in paragraph (8) of this Section
12.4) of the Common Stock on the date for the determination of holders of
shares of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date (the “aggregate current
market price”), then, and in each such case, immediately after the close of
business on such date for determination, the Conversion Rate shall be adjusted
so that the same shall equal the rate determined by dividing the Conversion
Rate in effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by a
fraction (i) the numerator of which shall be equal to the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for such determination less an amount equal to
the quotient of (x) the excess of such combined cash and tender amount over 10%
of such aggregate current market price divided by (y) the number of shares of
Common Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section 12.4) of the Common
Stock on such date fixed for determination.


(6)           In case a tender offer made by the
Company or any Subsidiary for all or any portion of the Common Stock shall
expire and such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as defined
below)) of an aggregate consideration having a fair market value (as determined
by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined together with (I) the aggregate
of the cash plus the fair market value (as determined by the Board 


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of Directors, whose determination shall be conclusive and described in
a Board Resolution), as of the expiration of such tender offer, of any non-cash
consideration payable in respect of any other tender offer by the Company or
any Subsidiary for all or any portion of the Common Stock expiring within the
365-day period preceding the expiration of such tender offer and in respect of
which no adjustment pursuant to this paragraph (6) or paragraph (5) of this
Section 12.4 has been made and (II) the aggregate amount of any cash distributions
to all holders of the Common Stock within 365-day period preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to paragraph (5) of this Section has been made (the “combined tender and cash
amount”) exceeds 10% of the product of the current market price per share of
the Common Stock (determined as provided in paragraph (8) of this Section 12.4)
as of the last time (the “Expiration Time”) tenders could have been made
pursuant to such tender offer (as it may be amended) times the number of shares
of Common Stock outstanding (including any tendered shares) as of the
Expiration Time, then, and in each such case immediately prior to the opening
of business on the day after the date of the Expiration Time, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to the close of business on the
date of the Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (I) the current market price per share of the
Common Stock (determined as provided in paragraph (8) of this Section 12.4) on
the date of the Expiration Time multiplied by (II) the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time
less (B) the combined tender and cash amount, and (ii) the denominator of which
shall be equal to the product of (A) the current market price per share of the
Common Stock (determined as provided in paragraph (8) of this Section 12.4) on
the date of the Expiration Time multiplied by (B) the number of shares of
Common Stock outstanding (including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered 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”).


(7)           The reclassification of Common Stock
into securities other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 12.11 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be “the date fixed for the determination of stockholders entitled
to receive such distribution” and “the date fixed for such determination”
within the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be “the day upon which such subdivision
becomes effective” or “the day upon which such combination becomes effective,”
as the case may be, and “the day upon which such subdivision or combination
becomes effective” within the meaning of paragraph (3) of this Section 12.4).


(8)           For the purpose of any computation under
paragraphs (2), (4), (5) or (6) of this Section 12.4, the current market price
per share of Common Stock on any date shall be calculated by the Company and be
the average of the daily Closing Prices Per Share for the five consecutive
Trading Days selected by the Company commencing not more than 10 Trading Days
before, and ending not later than the earlier of the day in question and the
day before the “ex date” with respect to the issuance or distribution requiring
such computation. For purposes of 


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this paragraph, the term “‘ex date,” when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable securities
exchange without the right to receive such issuance or distribution.


(9)           No adjustment in the Conversion Rate
shall be required unless such adjustment (plus any adjustments not previously
made by reason of this paragraph (9)) would require an increase or decrease of
at least one percent in such rate; provided, however, that any adjustments
which by reason of this paragraph (9) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations
under this Article shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.


(10)         The Company may make such increases in
the Conversion Rate, for the remaining term of the Securities or any shorter
term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and
(6) of this Section 12.4, as it considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of Common Stock resulting from
any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income
tax purposes. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (10) and its actions in so doing shall,
absent manifest error, be final and conclusive.


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


(12)         To the extent permitted by applicable
law, the Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least twenty (20) days, the
increase is irrevocable during such period, and the Board of Directors shall
have made a determination that such increase would be in the best interests of
the Company, which determination shall be conclusive; provided, however, that
no such increase shall be taken into account for purposes of determining (i)
whether the Closing Price Per Share of the Common Stock equals or exceeds 105%
of the Conversion Price in connection with an event which would otherwise be a
Change of Control pursuant to Section 13.4 or (ii) whether the Closing Price
Per Share of the Common Stock exceeds 150% of the Conversion Price in
connection with redemption of the Securities in accordance with the provisions
in the form of Security set forth in Section 2.2 hereof.  Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall give notice of the
increase to the Holders in the manner provided in Section 1.6 at least fifteen
(15) days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period during
which it will be in effect.


(13)          If Holders of the Securities exercise
the right of conversion after the date the rights issued under the Company’s
stock rights agreement, dated as of October 21, 1999, separate from the
underlying Common Stock and are therefore not entitled to receive the common
stock rights that would otherwise be attributable to the shares of Common Stock



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received upon conversion, the Conversion Rate will be adjusted as
though such rights were being distributed to holders of Common Stock on the
date of such separation.  If such an
adjustment is made and such rights are later redeemed, invalidated or
terminated, then a corresponding reversing adjustment will be made to the
Conversion Rate on an equitable basis.


SECTION 12.5                                            Notice of
Adjustments of Conversion Rate.


Whenever
the Conversion Rate is adjusted as herein provided:


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


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


Neither
the Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate or the information and calculations
contained therein, except to exhibit the same to any Holder of Securities
desiring inspection thereof at its office during normal business hours, and
shall not be deemed to have knowledge of any adjustment in the Conversion Rate
unless and until a Responsible Officer of the Trustee shall have received such
a certificate.  Until a Responsible
Officer of the Trustee receives such a certificate, the Trustee and each
Conversion Agent may assume without inquiry that the last Conversion Rate of
which the Trustee has knowledge remains in effect.


SECTION 12.6                                            Notice of
Certain Corporate Action.


In
case:


(1)           the Company shall declare a dividend
(or any other distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that would require
any adjustment pursuant to Section 12.4; or


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


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


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


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then
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.2, and shall cause
to be provided to all Holders in accordance with Section 1.6, at least 20 days
(or 10 days in any case specified in clause (1) or (2) above and 30 days for
clause (3) above) prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, conveyance, transfer, sale, lease (other than a mere
grant of security interest), dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, sale, lease,
dissolution, liquidation or winding up. Neither the failure to give such notice
or the notice referred to in the following paragraph nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(1) through (4) of this Section 12.6. If at the time the Trustee shall not be
the Conversion Agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.


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


SECTION 12.7                                            Company to
Reserve Common Stock.


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


SECTION 12.8                                            Taxes on
Conversions.


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


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SECTION 12.9                                            Covenant as to
Common Stock.


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


SECTION 12.10                                      Cancellation of
Converted Securities.


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


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


In
case of any consolidation or merger of the Company with or into any other
Person or any merger of another Person with or into the Company (other than a
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any conveyance,
sale, transfer or lease (other than a mere grant of security interest) of all
or substantially all of the assets of the Company (other than a sale of all or
substantially all of the assets of the Company that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then Outstanding shall have the right
thereafter, during the period such Security shall be convertible as specified
in Section 12.1, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (other than a mere grant of security
interest) by a holder of the number of shares of Common Stock of the Company
into which such Security might have been converted immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease (other than a mere
grant of security interest), assuming such holder of Common Stock of the
Company (i) is not (A) a Person with which the Company consolidated or merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease (other than a mere grant of security
interest) was made, as the case may be (a “Constituent Person”), or (B) an
Affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease (other than a mere grant of security interest) (provided that if the
kind or amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease (other than a mere
grant of security interest) is not the same for each share of Common Stock of
the Company held immediately prior to such consolidation, merger, conveyance,
sale, transfer or lease (other than a mere grant of security interest) by
others than a Constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised (“Non-electing
Share”), then for the purpose of this Section 12.11 the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (other than a mere grant of security
interest) by the holders of each Non-electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the 


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Non-electing Shares). Such supplemental indenture shall provide for
adjustments that, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above provisions of this
Section 12.11 shall similarly apply to successive consolidations, mergers,
conveyances, sales, transfers or leases (other than a mere grant of security
interest). Notice of the execution of such a supplemental indenture shall be
given by the Company to the Holder of each Security as provided in
Section 1.6 promptly upon such execution.


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


SECTION 12.12                                      Rights Issued
in Respect of Common Stock.


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


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


(ii)           are not exercisable, and


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


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


SECTION 12.13                                      Responsibility
of Trustee for Conversion Provisions.


The
Trustee, subject to the provisions of Section 6.1, and any Conversion Agent
shall not at any time be under any duty or responsibility to any Holder of
Securities to determine whether 


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


ARTICLE XIII



REPURCHASE OF SECURITIES AT THE OPTION OF THE

HOLDER UPON A CHANGE IN CONTROL


SECTION 13.1                                            Right to
Require Repurchase.


In
the event that a Change in Control (as hereinafter defined) shall occur, then each
Holder shall have the right, at the Holder’s option, but subject to the
provisions of Section 13.2, to require the Company to repurchase, and upon the
exercise of such right the Company shall repurchase, all of such Holder’s
Securities not theretofore called for redemption, or any portion of the
principal amount thereof that is equal to U.S. $1,000 or any integral multiple
of U.S. $1,000 in excess thereof (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to U.S. $1,000 or integral
multiples of U.S. $1,000 in excess thereof), on the date (the “Repurchase
Date”) that is 45 days after the date of the Company Notice (as defined in
Section 13.3) at a purchase price equal to 100% of the principal amount of the
Securities to be repurchased plus interest accrued but unpaid to, but
excluding, the Repurchase Date (the “Repurchase Price”); provided, however,
that installments of interest on Securities whose Stated Maturity is on or
prior to the Repurchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Date according to their terms and the provisions of Section
3.7. Such right to require the repurchase of the Securities shall not continue
after a discharge of the Company from its obligations with respect to the
Securities in accordance with Article IV, unless a Change in Control shall have
occurred prior to such discharge. At the option of the Company, the Repurchase
Price may be paid in cash or, subject to the fulfillment by the Company of the
conditions set forth Section 13.2, by delivery of shares of Common Stock having
a fair market value equal to the Repurchase Price (less any cash payments), or
a combination of cash and Common Stock. Whenever in this Indenture (including
Sections 2.2, 3.1, 5.1(1) and 5.8) there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Repurchase Price payable in respect of such Security
to the extent that such Repurchase Price is, was or would be so payable at such
time, and express mention of the Repurchase Price in any 


84

















 


provision of this Indenture shall not be construed as excluding the
Repurchase Price in those provisions of this Indenture when such express
mention is not made.


SECTION 13.2                                            Conditions to
the Company’s Election to Pay the Repurchase Price in Common Stock.


The
Company may, at its option, pay the Repurchase Price in cash, in Common Stock
or a combination thereof.  To the extent
the Repurchase Price is paid in Common Stock, the Company may elect to pay such
amount by delivery of shares of Common Stock pursuant to Section 13.1 if and
only if the following conditions shall have been satisfied:


(1)           The shares of Common Stock
deliverable in payment of the Repurchase Price less any cash payments shall
have a fair market value as of the Repurchase Date of not less than the
Repurchase Price less any cash payments. For purposes of Section 13.1 and this
Section 13.2, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share of the Common Stock for the five consecutive Trading
Days ending on the third Trading Day prior to the Repurchase Date;


(2)           The Repurchase Price shall be paid
only in cash in the event any shares of Common Stock to be issued upon
repurchase of Securities hereunder (i) require registration under any Federal
securities law before such shares may be freely transferable without being
subject to any transfer restrictions under the Securities Act upon repurchase
and if such registration is not completed or does not become effective prior to
the Repurchase Date, and/or (ii) require registration with or approval of any
governmental authority under any state law or any other Federal law before such
shares may be validly issued or delivered upon repurchase and if such
registration is not completed or does not become effective or such approval is
not obtained prior to the Repurchase Date;


(3)           Payment of the Repurchase Price may
not be made in Common Stock unless such stock is, or shall have been, listed on
a national securities exchange or approved for quotation on The Nasdaq National
Market, in either case, on or prior to the Repurchase Date; and


(4)           All shares of Common Stock that may
be issued upon repurchase of Securities will be issued out of the Company’s
authorized but unissued Common Stock and, will upon issue, be duly and validly
issued and fully paid and non-assessable and free of any preemptive or similar
rights.


If
all of the conditions set forth in this Section 13.2 are not satisfied in
accordance with the terms thereof, the Repurchase Price shall be paid by the
Company only in cash.


SECTION 13.3                                            Notices; Method
of Exercising Repurchase Right, Etc.


(1)           Unless the Company shall have
theretofore called for redemption all of the Outstanding Securities, on or
before the 30th day after the occurrence of a Change in Control, the Company
or, at the request (and expense) of the Company on or before the 15th day after
such occurrence, the Trustee, shall give to all Holders of Securities, in the
manner provided in Section 1.6, notice (the “Company Notice”) of the occurrence
of the Change of Control and of the 


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repurchase right set forth herein arising as a result thereof .  The Company shall also deliver a copy of
such Company Notice to the Trustee.


Each
Company Notice shall state:


(i)            the Repurchase Date,


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


(iii)          the Repurchase Price, and whether the
Repurchase Price shall be paid by the Company in cash or by delivery of shares
of Common Stock or a combination thereof (and the applicable ratio of cash and
Common Stock),


(iv)          a description of the procedure that a
Holder must follow to exercise a repurchase right, and the place or places
where such Securities are to be surrendered for payment of the Repurchase Price
and accrued interest (including Liquidated Damages, if any), if any to the
Repurchase Date,


(v)           that on the Repurchase Date the
Repurchase Price, and accrued interest (including Liquidated Damages, if any),
if any to the Repurchase Date, will become due and payable upon each such
Security designated by the Holder to be repurchased, and that interest thereon
shall cease to accrue on and after said date,


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


(vii)         the place or places that the Security
certificate with the Election of Holder to Require Repurchase as specified in
Section 2.2 shall be delivered, and if the Security is a Restricted Securities
certificate the place or places that the Surrender Certificate required by
Section 13.3(9) shall be delivered.


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


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


(2)           To exercise a repurchase right, a
Holder shall deliver to the Trustee on or before the 30th day after the date of
the Company Notice (i) irrevocable written notice of the Holder’s exercise of
such right, which notice shall set forth the name of the Holder, the principal
amount of the Securities to be repurchased (and, if any Security is to
repurchased in part, the serial number thereof, the portion of the principal
amount thereof to be repurchased and the name of the Person in which the
portion thereof to remain Outstanding after such repurchase is to be
registered) and a statement that an election to exercise the repurchase right
is being made thereby, and, in the event that any portion of the Repurchase
Price shall be paid in shares of Common Stock, the name or names (with
addresses) in which the certificate or certificates for 


86

















 


shares of Common Stock shall be issued, and (ii) the Securities
with respect to which the repurchase right is being exercised. Such written
notice shall be irrevocable, except that the right of the Holder to convert the
Securities with respect to which the repurchase right is being exercised shall
continue until the close of business on the second Business Day before the
Repurchase Date.


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


(4)           If any Security (or portion thereof)
surrendered for repurchase shall not be so paid on the Repurchase Date, the
principal amount of such Security (or portion thereof, as the case may be)
shall, until paid, bear interest to the extent permitted by applicable law from
the Repurchase Date at the rate of 2.00% per annum, and each Security shall
remain convertible into Common Stock until the principal of such Security (or portion
thereof, as the case may be) shall have been paid or duly provided for.


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


(6)           Any issuance of shares of Common
Stock in respect of any portion of the Repurchase Price shall be deemed to have
been effected immediately prior to the close of business on the Repurchase Date
and the Person or Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such repurchase
shall be deemed to have become on the Repurchase Date the holder or holders of
record of the shares represented thereby; provided, however, that any surrender
for repurchase on a date when the stock transfer books of the Company shall be
closed shall constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open. No payment or
adjustment shall be made for dividends or distributions on any Common Stock
issued upon repurchase of any Security declared prior to the Repurchase Date.


(7)           No fractions of shares shall be
issued upon repurchase of Securities. If more than one Security shall be
repurchased from the same Holder and any portion of the Repurchase Price shall
be payable in shares of Common Stock, the number of full shares that shall be
issuable 


87

















 


upon such repurchase shall be computed on the basis of the aggregate
principal amount of the Securities so repurchased. Instead of any fractional
share of Common Stock that would otherwise be issuable on the repurchase of any
Security or Securities, the Company will deliver to the applicable Holder its
check for the current market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying the current market
price of a full share by the fraction, and rounding the result to the nearest
cent. For purposes of this Section, the current market price of a share of
Common Stock is the Closing Price Per Share of the Common Stock on the Trading
Day immediately preceding the Repurchase Date.


(8)           Any issuance and delivery of
certificates for shares of Common Stock on repurchase of Securities shall be
made without charge to the Holder of Securities being repurchased for such
certificates or for any tax or duty in respect of the issuance or delivery of
such certificates or the securities represented thereby; provided, however,
that the Company shall not be required to pay any tax or duty that may be
payable in respect of (i) income of the Holder or (ii) any transfer involved in
the issuance or delivery of certificates for shares of Common Stock in a name
other than that of the Holder of the Securities being repurchased, and no such
issuance or delivery shall be made unless and until the Person requesting such
issuance or delivery has paid to the Company the amount of any such tax or duty
or has established, to the satisfaction of the Company, that such tax or duty
has been paid.


(9)           If shares of Common Stock to be
delivered upon repurchase of a Security are to be registered in a name other
than that of the beneficial owner of such Security, then such Holder must
deliver to the Trustee a Surrender Certificate, dated the date of surrender of
such Restricted Security and signed by such beneficial owner, as to compliance
with the restrictions on transfer applicable to such Restricted Security.
Neither the Trustee nor any Registrar or Transfer Agent or other agents shall
be required to register in a name other than that of the beneficial owner
shares of Common Stock issued upon repurchase of any such Restricted Security
not so accompanied by a properly completed Surrender Certificate.


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


SECTION 13.4                                            Certain
Definitions.


For
purposes of this Article XIII,


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


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


(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
transactions, of 


88

















 


shares of capital stock of the Company entitling such person to
exercise 50% or more of the total voting power of all shares of capital stock
of the Company entitled to vote generally in the elections of directors, other
than any such acquisition by the Company, any Subsidiary of the Company or any
employee benefit plan of the Company; or


(ii)           any consolidation of the Company
with, or merger of the Company into, any other Person, any merger of another
Person into the Company, or any conveyance, sale, transfer or lease (other than
a mere grant of security interest) of all or substantially all of the assets of
the Company to another Person (other than (a) any such transaction (x) that
does not result in any reclassification, conversion, exchange or cancellation
of outstanding shares of capital stock of the Company and (y) pursuant to which
the holders of 50% or more of the total voting power of all shares of the
Company’s capital stock entitled to vote generally in the election of directors
immediately prior to such transaction have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all shares of
capital stock entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after such transaction or (b)
any transaction which is effected solely to change the jurisdiction of
incorporation of the Company and results in a reclassification, conversion or
exchange of outstanding shares of Common Stock into solely shares of common
stock of the surviving entity);


(iii)          provided, however, that a Change in
Control shall not be deemed to have occurred if (I) the Closing Price Per Share
of the Common Stock for any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the date of the
Change in Control or the date of the public announcement of the Change in
Control (in the case of a Change in Control under clause (i) above) or the
period of 10 consecutive Trading Days ending immediately before the Change in
Control (in the case of a Change in Control under clause (ii) above) shall, in
the case of each of such five Trading Days, equal or exceed 105% of the Conversion
Price of the Securities in effect on each of such five Trading Days or (II) all
of the consideration (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights) in a merger or
consolidation otherwise constituting a Change of Control under clause (i)
and/or clause (ii) above consists of shares of common stock, depository
receipts or other certificates representing common equity interests traded on a
national securities exchange or quoted on The Nasdaq National Market (or will
be so traded or quoted immediately following such merger or consolidation) and
as a result of such merger or consolidation the Securities become convertible
solely into such common stock, depository receipts or other certificates representing
common equity interests;


(3)           the term “Conversion Price” shall
equal U.S.$1,000 divided by the Conversion Rate (rounded to the nearest cent);
and


(4)           for purposes of Section 13.4(2)(i),
the term “person” shall include any syndicate or group which would be deemed to
be a “person” under Section 13(d)(3) of the Exchange Act, as in effect on the
date of the original execution of this Indenture.


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SECTION 13.5                                            Consolidation,
Merger, etc.


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


ARTICLE XIV



HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE


SECTION 14.1                                            Company to
Furnish Trustee Names and Addresses of Holders.


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


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


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


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


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SECTION 14.2                                            Preservation of
Information.


(1)           The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 14.1 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list, if any,
furnished to it as provided in Section 14.1 upon receipt of a new list so
furnished.


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


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


SECTION 14.3                                            Reports by
Trustee.


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


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


SECTION 14.4                                            Reports by
Company.


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


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ARTICLE XV



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


SECTION 15.1                                            Indenture and
Securities Solely Corporate Obligations.


No
recourse for the payment of the principal of or premium, if any, or interest
(including Liquidated Damages, if any) on any Security and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or
in any supplemental indenture or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any past, present or
future incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, of the Company or of any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.


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


92

















 


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


	
   

  	
  GILEAD
  SCIENCES, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  JOHN MILLIGAN

  
	
   

  	
   

  	
  Name:
  John Milligan

  
	
   

  	
   

  	
  Title:
  Sr. VP and CFO

  
	
   

  	
   

  	
   

  
	
   

  	
  J.P.
  MORGAN TRUST COMPANY, NATIONAL ASSOCIATION

  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  JAMES NAGY

  
	
   

  	
   

  	
  Name:
  James Nagy

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  	
   

  



 


93

















 


ANNEX A — Form of Unrestricted
Securities Certificate


UNRESTRICTED SECURITIES
CERTIFICATE


(For removal of Restricted
Securities Legend pursuant to Section 3.5(3))


J.P.
MORGAN TRUST COMPANY, NATIONAL ASSOCIATION

560 Mission Street, 13th Floor

San Francisco, California 94105


JPMorgan

Institutional Trust Services Window

4 New York Plaza, Ground Floor

New York, New York 10004-2413


RE:          2.00% CONVERTIBLE SENIOR NOTES DUE
DECEMBER 15, 2007 OF GILEAD SCIENCES, INC. (THE “SECURITIES”)


Reference
is made to the Indenture, dated as of December 18, 2002 (the “Indenture”), from
Gilead Sciences, Inc. (the “Company”) to J.P. Morgan Trust Company, National
Association, as Trustee.  Terms used
herein and defined in the Indenture or in Rule 144 under the U.S. Securities
Act of 1933 (the “Securities Act”) are used herein as so defined.


This
certificate relates to U.S.$_______________ principal amount of Securities,
which are evidenced by the following certificate(s) (the “Specified
Securities”):


CUSIP
No.  375558 AC 7


CERTIFICATE
No(s). _________________


The
person in whose name this certificate is executed below (the “Undersigned”)
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
“Owner”. If the Specified Securities are represented by a Global Security, they
are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. 
If the Specified Securities are not represented by a Global Security,
they are registered in the name of the Undersigned, as or on behalf of the
Owner.


The
Owner has requested that the Specified Securities be exchanged for Securities
bearing no Restricted Securities Legend pursuant to Section 3.5(3) of the
Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a period of at least two years has elapsed
since the Issue Date, and the Owner is not, and during the preceding three
months has not been, an affiliate of the Company.  The Owner also acknowledges that any future transfers of the
Specified Securities must comply with all applicable securities laws of the
States of the United States and other jurisdictions.


 

















 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchaser.


Dated:
______________


(Print
the name of the Undersigned, as such term is defined in the third paragraph of
this certificate.)


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


(If
the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)


 


 


2

















 


ANNEX B — Form of Surrender Certificate


 


In
connection with the certification contemplated by Section 12.2 or 13.3(9)
relating to compliance with certain restrictions relating to transfers of
Restricted Securities, such certification shall be provided substantially in
the form of the following certificate, with only such changes thereto as shall
be approved by the Company and Goldman, Sachs & Co.:


CERTIFICATE


GILEAD SCIENCES, INC.


2.00% CONVERTIBLE SENIOR NOTES
DUE DECEMBER 15, 2007


This
is to certify that as of the date hereof with respect to U.S. $______ principal
amount of the above-captioned securities surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for conversion or
repurchase where the securities issuable upon such conversion or repurchase are
to be registered in a name other than that of the undersigned Holder (each such
transaction being a “transfer”), the undersigned Holder (as defined in the
Indenture) certifies that the transfer of Surrendered Securities associated
with such transfer complies with the restrictive legend set forth on the face
of the Surrendered Securities for the reason checked below:


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


_________           The transfer of the Surrendered
Securities complies with Rule 144 under the United States Securities Act of
1933, as amended (the “Securities Act”); or


_________           The transfer of the Surrendered Securities
has been made to an institution that is an “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act in a
transaction exempt from the registration requirements of the Securities Act and
a signed letter containing certain representations and agreements relating to
restrictions on transfer of the Securities has been delivered (and if such
transfer is for an aggregate principal amount less than $250,000 an opinion of
counsel acceptable to the Company if requested by the Company, that such
transfer is exempt from registration); or


_________           The transfer of the Surrendered
Securities has been made pursuant to an exemption from registration under the
Securities Act and an opinion of counsel has been delivered to the Company with
respect to such transfer.


[Name
of Holder]


Dated:                                                    

*To be dated the date of surrender