exv4w1



 





Exhibit 4.1












HUMAN GENOME SCIENCES, INC.




21⁄4% Convertible Subordinated Notes




due 2011




INDENTURE




THE BANK OF NEW YORK




Dated as of October 4, 2004




 
















 








CROSS REFERENCE TABLE*




	 	 	 	 	 
	TIA Section	 	Indenture Section
	310(a)(1)
	 	 	 	7.10
	(a)(2)
	 	 	 	N.A.
	(a)(3)
	 	 	 	N.A.
	(a)(4)
	 	 	 	N.A.
	(a)(5)
	 	 	 	N.A.
	(b)
	 	 	 	7.10
	(c)
	 	 	 	N.A.
	311(a)
	 	 	 	7.11
	(b)
	 	 	 	7.11
	(c)
	 	 	 	N.A.
	312(a)
	 	 	 	N.A.
	(b)
	 	 	 	12.03
	(c)
	 	 	 	12.03
	313(a)
	 	 	 	7.06
	(b)
	 	 	 	7.06
	(c)
	 	 	 	N.A.
	(d)
	 	 	 	N.A.
	314(a)
	 	 	 	4.02
	(b)
	 	 	 	N.A.
	(c)(1)
	 	 	 	N.A.
	2(c)(2)
	 	 	 	N.A.
	(c)(3)
	 	 	 	N.A.
	(d)
	 	 	 	N.A.
	(e)
	 	 	 	N.A.
	(f)
	 	 	 	N.A.
	315(a)
	 	 	 	7.01
	(b)
	 	 	 	7.05
	(c)
	 	 	 	N.A.
	(d)(1)
	 	 	 	7.01
	(d)(2)
	 	 	 	7.01
	(d)(3)
	 	 	 	7.01
	(e)
	 	 	 	6.11
	316(a) (last sentence)
	 	 	 	N.A.
	(a)(1)(A)
	 	 	 	6.05
	(a)(1)(B)
	 	 	 	6.04
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	317(a)(1)
	 	 	 	N.A.
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	318(a)
	 	 	 	N.A.













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





 









 










Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE 1
	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	SECTION 1.01 Definitions
	 	 	1	 
	SECTION 1.02 Other Definitions
	 	 	7	 
	SECTION 1.03 Incorporation by Reference of Trust Indenture Act
	 	 	8	 
	SECTION 1.04 Rules of Construction
	 	 	8	 
	SECTION 1.05 Acts of Holders
	 	 	8	 
	ARTICLE 2
	 	 	 	 
	THE SECURITIES
	 	 	 	 
	SECTION 2.01 Form and Dating
	 	 	9	 
	SECTION 2.02 Execution and Authentication
	 	 	11	 
	SECTION 2.03 Registrar, Paying Agent and Conversion Agent
	 	 	11	 
	SECTION 2.04 Paying Agent to Hold Money and Securities in Trust
	 	 	12	 
	SECTION 2.05 Holder Lists
	 	 	12	 
	SECTION 2.06 Transfer and Exchange
	 	 	12	 
	SECTION 2.07 Replacement Securities
	 	 	14	 
	SECTION 2.08 Outstanding Securities; Determinations of Holders’ Action
	 	 	15	 
	SECTION 2.09 Temporary Securities
	 	 	15	 
	SECTION 2.10 Cancellation
	 	 	16	 
	SECTION 2.11 Persons Deemed Owners
	 	 	16	 
	SECTION 2.12 Global Securities
	 	 	16	 
	SECTION 2.13 CUSIP Numbers
	 	 	21	 
	SECTION 2.14 Defaulted Interest
	 	 	21	 
	SECTION 2.15 Registration Default
	 	 	21	 
	ARTICLE 3
	 	 	 	 
	PURCHASES OF SECURITIES
	 	 	 	 
	SECTION 3.01 Purchase of Securities at Option of the Holder upon Change in Control
	 	 	21	 
	SECTION 3.02 Effect of Change in Control Purchase Notice
	 	 	28	 
	SECTION 3.03 Deposit of Change in Control Purchase Price
	 	 	29	 
	SECTION 3.04 Securities Purchased in Part
	 	 	29	 
	SECTION 3.05 Covenant to Comply with Securities Laws upon Purchase of Securities
	 	 	29	 
	SECTION 3.06 Repayment to the Company
	 	 	30	 
	ARTICLE 4
	 	 	 	 
	COVENANTS
	 	 	 	 
	SECTION 4.01 Payment of Principal, Premium, Interest on the Securities
	 	 	30	 
	SECTION 4.02 SEC and Other Reports
	 	 	30	 
	SECTION 4.03 Compliance Certificate and Notice
	 	 	31	 
	SECTION 4.04 Further Instruments and Acts
	 	 	31	 







 









 






	 	 	 	 	 
	 	 	Page
	SECTION 4.05 Maintenance of Office or Agency
	 	 	31	 
	SECTION 4.06 Delivery of Certain Information
	 	 	31	 
	SECTION 4.07 Additional Interest Amounts Notice
	 	 	32	 
	SECTION 4.08 Corporate Existence
	 	 	32	 
	SECTION 4.09 Maintenance of Properties
	 	 	32	 
	SECTION 4.10 Payment of Taxes and Other Claims
	 	 	32	 
	SECTION 4.11 Resale of Certain Securities
	 	 	33	 
	ARTICLE 5
	 	 	 	 
	SUCCESSOR CORPORATION
	 	 	 	 
	SECTION 5.01 When Company May Merge or Transfer Assets
	 	 	33	 
	ARTICLE 6
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	SECTION 6.01 Events of Default
	 	 	34	 
	SECTION 6.02 Acceleration
	 	 	35	 
	SECTION 6.03 Other Remedies
	 	 	36	 
	SECTION 6.04 Waiver of Past Defaults
	 	 	36	 
	SECTION 6.05 Control by Majority
	 	 	36	 
	SECTION 6.06 Limitation on Suits
	 	 	37	 
	SECTION 6.07 Rights of Holders to Receive Payment and to Convert
	 	 	37	 
	SECTION 6.08 Collection Suit by Trustee
	 	 	37	 
	SECTION 6.09 Trustee May File Proofs of Claim
	 	 	37	 
	SECTION 6.10 Priorities
	 	 	38	 
	SECTION 6.11 Undertaking for Costs
	 	 	38	 
	SECTION 6.12 Waiver of Stay, Extension or Usury Laws
	 	 	39	 
	ARTICLE 7
	 	 	 	 
	TRUSTEE
	 	 	 	 
	SECTION 7.01 Duties of Trustee
	 	 	39	 
	SECTION 7.02 Rights of Trustee
	 	 	40	 
	SECTION 7.03 Individual Rights of Trustee
	 	 	42	 
	SECTION 7.04 Trustee’s Disclaimer
	 	 	42	 
	SECTION 7.05 Notice of Defaults
	 	 	42	 
	SECTION 7.06 Reports by Trustee to Holders
	 	 	42	 
	SECTION 7.07 Compensation and Indemnity
	 	 	42	 
	SECTION 7.08 Replacement of Trustee
	 	 	43	 
	SECTION 7.09 Successor Trustee by Merger
	 	 	44	 
	SECTION 7.10 Eligibility; Disqualification
	 	 	44	 
	SECTION 7.11 Preferential Collection of Claims Against Company
	 	 	44	 
	ARTICLE 8
	 	 	 	 
	DISCHARGE OF INDENTURE
	 	 	 	 
	SECTION 8.01 Discharge of Liability on Securities
	 	 	44	 







 









 






	 	 	 	 	 
	 	 	Page
	SECTION 8.02 Repayment of the Company
	 	 	45	 
	SECTION 8.03 Deposited Monies to Be Held in Trust by Trustee
	 	 	45	 
	SECTION 8.04 Reinstatement
	 	 	45	 
	ARTICLE 9
	 	 	 	 
	AMENDMENTS
	 	 	 	 
	SECTION 9.01 Without Consent of Holders
	 	 	45	 
	SECTION 9.02 With Consent of Holders
	 	 	46	 
	SECTION 9.03 Compliance with Trust Indenture Act
	 	 	47	 
	SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions
	 	 	47	 
	SECTION 9.05 Notation on or Exchange of Securities
	 	 	48	 
	SECTION 9.06 Trustee to Sign Supplemental Indentures
	 	 	48	 
	SECTION 9.07 Effect of Supplemental Indentures
	 	 	48	 
	ARTICLE 10
	 	 	 	 
	CONVERSION
	 	 	 	 
	SECTION 10.01 Conversion Right and Conversion Rate
	 	 	48	 
	SECTION 10.02 Exercise of Conversion Right
	 	 	48	 
	SECTION 10.03 Fractions of Shares
	 	 	50	 
	SECTION 10.04 Adjustment of Conversion Rate
	 	 	50	 
	SECTION 10.05 Notice of Adjustments of Conversion Rate
	 	 	57	 
	SECTION 10.06 Notice Prior to Certain Actions
	 	 	57	 
	SECTION 10.07 Company to Reserve Common Stock
	 	 	58	 
	SECTION 10.08 Taxes on Conversions
	 	 	58	 
	SECTION 10.09 Covenant as to Common Stock
	 	 	58	 
	SECTION 10.10 Cancellation of Converted Securities
	 	 	58	 
	SECTION 10.11 Effect of Reclassification, Consolidation, Merger or Sale
	 	 	58	 
	SECTION 10.12 Adjustment for Other Distributions
	 	 	60	 
	SECTION 10.13 Responsibility of Trustee for Conversion Provisions
	 	 	61	 
	SECTION 10.14 Rights Issued in Respect of Common Stock Issued Upon Conversion
	 	 	61	 
	ARTICLE 11
	 	 	 	 
	SUBORDINATION
	 	 	 	 
	SECTION 11.01 Securities Subordinated to Senior Indebtedness
	 	 	62	 
	SECTION 11.02 Subrogation
	 	 	63	 
	SECTION 11.03 Obligation of the Company Is Absolute and Unconditional
	 	 	63	 
	SECTION 11.04 Maturity of or Default on Senior Indebtedness
	 	 	63	 
	SECTION 11.05 Payments on Securities Permitted
	 	 	64	 
	SECTION 11.06 Effectuation of Subordination by Trustee
	 	 	64	 
	SECTION 11.07 Knowledge of Trustee
	 	 	64	 
	SECTION 11.08 Trustee’s Relation to Senior Indebtedness
	 	 	65	 
	SECTION 11.09 Rights of Holders of Senior Indebtedness Not Impaired
	 	 	65	 
	SECTION 11.10 Modification of Terms of Senior Indebtedness
	 	 	65	 
	SECTION 11.11 Certain Conversions Not Deemed Payment
	 	 	65	 







 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE 12
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	SECTION 12.01 Trust Indenture Act Controls
	 	 	66	 
	SECTION 12.02 Notices
	 	 	66	 
	SECTION 12.03 Communication by Holders with Other Holders
	 	 	67	 
	SECTION 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	67	 
	SECTION 12.05 Statements Required in an Officers’ Certificate or Opinion
	 	 	67	 
	SECTION 12.06 Separability Clause
	 	 	68	 
	SECTION 12.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	68	 
	SECTION 12.08 Legal Holidays
	 	 	68	 
	SECTION 12.09 GOVERNING LAW; WAIVER OF JURY TRIAL
	 	 	68	 
	SECTION 12.10 No Recourse Against Others
	 	 	68	 
	SECTION 12.11 Successors
	 	 	68	 
	SECTION 12.12 Multiple Originals
	 	 	69	 
	SECTION 12.13 Force Majeure
	 	 	69	 
	EXHIBITS	 	 	 	 
	Exhibit A Form of Global Security
	 	 	A-1	 
	Exhibit B Form of Certificated Security
	 	 	B-1	 
	Exhibit C Transfer Certificate
	 	 	C-1	 







 









 






          INDENTURE dated as of October 4, 2004 between HUMAN GENOME SCIENCES, INC.,
a Delaware corporation (the “Company”), and THE BANK OF NEW YORK a New York
banking corporation, as Trustee hereunder (the “Trustee”).



RECITALS OF THE COMPANY




          The
Company has duly authorized the creation of an issue of its 21⁄4%
Convertible Subordinated Notes due 2011 (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 and binding
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 1




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




          SECTION 1.01 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 GAAP; 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.



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



 









 





          “30-day Option” means the 30-day option granted by the Company to the
Initial Purchasers to purchase up to an additional $20,000,000 aggregate
principal amount of Securities pursuant to the Purchase Agreement.



          “Additional Interest Amount” means the additional interest amount payable
by the Company upon the occurrence of a Registration Default (as defined in the
Registration Rights Agreement), in the manner and in the amounts provided by
the Registration Rights Agreement.



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



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



          The “Applicable Stock Price” with respect to a Trading Day, is equal to
the volume-weighted average price per share of Common Stock on such Trading
Day. The “volume-weighted average price,” with respect to a Trading Day, means
such price as displayed under the heading “Bloomberg VWAP” on Bloomberg (or any
successor service) page HGSI <equity> AQR (or any successor page) in
respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such
Trading Day; or, if such price is not available, the “Applicable Stock Price”
means the market value per share of the Common Stock on such day as determined
by a nationally recognized independent investment banking firm retained for
this purpose by the Company.



          “Bankruptcy Law” means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.



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



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



          “Business Day” means each day of the year other than a Saturday or a
Sunday on which banking institutions are not required or authorized to close in
The City of New York or the State of Maryland.



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



2









 





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



          “Closing Sale Price” as of any date means the closing per share sale price
(or if no closing sale price is reported, the average of the bid price and ask
prices or, if more than one in either case, the average of the average bid and
average ask prices) on such date as reported by the National Association of
Securities Dealers Automated Quotations System or by the National Quotation
Bureau Incorporated or, if the Common Stock is not so reported, on the New York
Stock Market or such other principal United States securities exchange on which
the Common Stock is traded. In the absence of a quotation, the Company will
determine the sale price on the basis of such quotations as the Company
considers appropriate.



          “Closing Time” has the meaning specified in the Purchase Agreement.



          “Common Stock” means the Common Stock, $0.01 par value per share, of the
Company as it exists on the date of this Indenture. Subject to the provisions
of Section 10.11 and Section 10.14, shares issuable on conversion of Securities
shall include only shares of Common Stock or shares of any class or classes of
common stock resulting from any reclassification or reclassifications thereof;
provided, however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.



          “common stock” means 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.



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



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



          “Conversion Agent” means any person authorized by the Company to convert
Securities in accordance with Article 10 hereof. On the date of this
Indenture, the Company hereby appoints the Trustee as the Conversion Agent.



          “Conversion Price” means $1,000 divided by the applicable Conversion Rate.



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



          “Corporate Trust Office” means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located



3









 





at 101 Barclay Street, Floor 8 West, New York, New York 10286, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time
to time by written notice to the Holders and the Company).



          “Custodian” means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.



          “Date of Delivery” has the meaning specified in the Purchase Agreement.



          “Default” means any event which is, or after notice or passage of time or
both would be, an Event of Default.



          “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.



          “GAAP” means United States generally accepted accounting principles as in
effect from time to time.



          “Global Securities” means Securities that are in the form of the
Securities attached hereto as Exhibit A and, to the extent that such Securities
are required to bear the Legend required by Section 2.06, such Securities will
be in the form of a 144A Global Security.



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



          “Indebtedness” means (i) any obligation of, or any obligation guaranteed
by, the Company for the repayment of borrowed money, whether or not evidenced
by bonds, debentures, notes or other written instruments, (ii) all obligations
of the Company with respect to interest rate hedging agreements to hedge
interest rates relating to Senior Indebtedness of the Company, (iii) any
deferred payment obligation of, or any such obligation guaranteed by, the
Company for the payment of the purchase price of property or assets evidenced
by a note or similar instrument, and (iv) any obligation of, or any such
obligation guaranteed by, the Company for the payment of rent or other amounts
under a lease of property or assets which obligation is required to be
classified and accounted for as a capitalized lease on the balance sheet of the
Company under generally accepted accounting principles.



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



          “Initial Purchasers” mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and Credit Suisse First Boston LLC.



          “Interest Payment Date” means the date specified in the Securities as the
fixed date on which an installment of interest on the Securities is due and
payable.



4









 





          “Interest
Rate” means 21⁄4% per annum.



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



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



          “Officers’ Certificate” means a written certificate containing the
information specified in Section 12.05, signed in the name of the Company by
any two Officers, and delivered to the Trustee. An Officers’ Certificate given
pursuant to Section 4.03 shall be signed by either the Chief Executive Officer,
the President, the Chief Financial Officer or the principal accounting officer
of the Company but need not contain the information specified in Section 12.05.



          “Opinion of Counsel” means a written opinion containing the information
specified in Sections 12.04 and 12.05, from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of, or counsel to,
the Company or the Trustee.



          “person” or “Person” means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof, including any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business.



          “Principal” of a Security means the principal amount due on the Stated
Maturity as set forth on the face of the Security.



          “Purchase Agreement” means the Purchase Agreement, dated as of September
28, 2004, between the Company and the Initial Purchasers.



          “Registration Rights Agreement” means the Registration Rights Agreement
dated as of October 4, 2004 entered into by the Company and the Initial
Purchasers.



          “Regular Record Date” means, with respect to the interest payable on any
Interest Payment Date, the close of business on the April 1 or October 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.



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



5









 





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



          “Rule 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.



          “SEC” means the Securities and Exchange Commission.



          “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.



          “Senior Indebtedness” means the principal of and premium, if any, and
interest on all Indebtedness of the Company, other than the Securities, whether
outstanding on the date of execution of the Indenture or thereafter created,
incurred, guaranteed or assumed, except such Indebtedness that by the terms of
the instrument or instruments by which such Indebtedness was created or
incurred expressly provides that it (i) is junior in right of payment to the
Securities or any other Indebtedness of the Company or (ii) ranks pari passu in
right of payment to the Securities.



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



          “Subsidiary” means, with respect to any person, (1) any corporation of
which at least a majority of the outstanding stock having by the terms thereof
voting power for the election of directors for such corporation under ordinary
circumstances is at the time, directly or indirectly, owned by such person or
(2) any other person of which at least a majority of the outstanding voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such person.



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



          “Trading Day” means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
a national or regional securities exchange, on the National Association of
Securities Dealers Automated Quotation System, or, if the Common Stock is not
quoted on the National Association of Securities Dealers Automated Quotation
System, on the principal other market on which the Common Stock is then traded.



6









 





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



          “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).



          SECTION 1.02 Other Definitions.



	 	 	 	 	 
	Term
	 	Defined in Section

	“Act”
	 	 	1.05(a)	 
	“Additional Interest Amounts Notice
	 	 	4.07	 
	“Agent Members”
	 	 	2.12(f)(5)	 
	“Change in Control”
	 	 	3.01(a)	 
	“Change in Control Purchase Date”
	 	 	3.01(a)	 
	“Change in Control Purchase Notice”
	 	 	3.01(c)	 
	“Change in Control Purchase Price”
	 	 	3.01(a)	 
	“Conversion Date”
	 	 	10.02	 
	“Conversion Rate”
	 	 	10.01	 
	“Current Market Price”
	 	 	10.04(g)	 
	“Depositary”
	 	 	2.01(a)	 
	“dividend threshold amount”
	 	 	10.04(e)	 
	“DTC”
	 	 	2.01(a)	 
	“Effective Date”
	 	 	3.01(a)	 
	“Event of Default”
	 	 	6.01	 
	“Exchange Act”
	 	 	3.01(a)	 
	“excluded securities”
	 	 	10.04(d)	 
	“Expiration Time”
	 	 	10.04(f)	 
	“Ex-Dividend Date”
	 	 	10.12	 
	“fair market value”
	 	 	10.04(g)	 
	“Legal Holiday”
	 	 	12.08	 
	“Legend”
	 	 	2.06(f)	 
	“Make-Whole Premium”
	 	 	3.01(a)	 
	“Non-Electing Share”
	 	 	10.11	 
	“Notice of Default”
	 	 	6.01	 
	“Paying Agent”
	 	 	2.03	 
	“Purchased Shares”
	 	 	10.04(f)	 
	“Post-Distribution Price”
	 	 	10.12	 
	“QIBs”
	 	 	2.01(a)	 
	“Record Date”
	 	 	10.04(g)	 
	“Reference Period”
	 	 	10.04(d)	 
	“Registrar”
	 	 	2.03	 
	“Rights Plan”
	 	 	10.14	 
	“Rule 144A Information”
	 	 	4.06	 
	“Stock Price”
	 	 	3.01(a)	 
	“transfer”
	 	 	2.12(e)	 







7









 








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



          “Commission” means the SEC.



          “indenture Securities” means the Securities.



          “indenture Security holder” means a Holder.



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



          “obligor” on the indenture Securities means the Company.



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



          SECTION 1.04 Rules of Construction. Unless the context otherwise
requires:




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




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




   (c) “or” is not exclusive;




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




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



          SECTION 1.05 Acts of Holders.



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



8









 





of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.



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



          (c) The ownership of Securities shall be proved by the register for the
Securities or by a certificate of the Registrar.



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



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



ARTICLE 2




THE SECURITIES




          SECTION 2.01 Form and Dating. The Securities and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibits A
and B, which are incorporated into and made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The



9









 





Company shall
provide any such notations, legends or endorsements to the Trustee in writing.
Each Security shall be dated the date of its authentication.



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



          (b) Global Securities in General. Except as provided in Section 2.06 or
2.12, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of Certificated Securities. Each Global Security
shall represent such of the outstanding Securities as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate principal amount of outstanding Securities represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges and conversions.



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



          (c) Book-Entry Provisions. This Section 2.01(c) shall apply only to
Global Security deposited with or on behalf of the Depositary.



          The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instructions or held by the Trustee as custodian for such
Depositary and (c) shall bear legends substantially to the following effect:




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



10









 






THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO
OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”



          (d) Certificated Securities. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit B attached hereto.



          SECTION 2.02 Execution and Authentication. An Officer shall sign
the Security for the Company by manual or facsimile signature.



          Securities bearing the manual or facsimile signatures of individuals who
were at the time of the execution of the Securities 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 authentication
of such Securities.



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



          The Trustee shall authenticate and deliver Securities for original issue
in an aggregate principal amount of up to $280,000,000, or an aggregate
principal amount of up to $300,000,000 if the 30-day Option is exercised fully,
upon a Company Order without any further
action by the Company. The aggregate principal amount of Securities
outstanding at any time may not exceed the amount set forth in the foregoing
sentence, except as provided in Section 2.07.



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



          SECTION 2.03 Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange (“Registrar”), an office or agency
where Securities may be presented for purchase or payment (“Paying Agent”) and
an office or agency where Securities may be presented for conversion
(“Conversion Agent”). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more
co-registrars, one or more additional paying agents and one or more additional
conversion agents. The term



11









 





Paying Agent includes any additional paying agent,
including any named pursuant to Section 4.05. The term Conversion Agent
includes any additional conversion agent, including any named pursuant to
Section 4.05.



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



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



          SECTION 2.04 Paying Agent to Hold Money and Securities in Trust.
Except as otherwise provided herein, on or prior to each due date of payments
in respect of any Security, the Company shall deposit with the Paying Agent a
sum of money (in immediately available funds if deposited on the due date)
sufficient to make such payments when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the making of payments in respect of the
Securities and shall promptly notify the Trustee in writing of any default by
the Company in making any such payment. At any time during the continuance of
any such default, the Paying Agent shall, upon the written request of the
Trustee, forthwith pay to the Trustee all money so held in trust. If the
Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for
any funds disbursed by it. Upon doing so, the Paying Agent shall have no
further liability for the money.



          SECTION 2.05 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders. If the Trustee is not the Registrar,
the Company shall cause to be furnished to the Trustee at least semiannually
not more than 13 days after each Regular Record Date during the term of the
Securities a listing of Holders dated as of such Regular Record Date and at
such other times as the Trustee may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of Holders.



          SECTION 2.06 Transfer and Exchange. Subject to Sections 2.01(b),
2.06(b) and 2.12 hereof,



          (a) (i) upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Holder or such Holder’s attorney duly authorized in
writing, at the office or agency of the company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the
Trustee



12









 





shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denomination or denominations, of a like aggregate principal amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the Holder
requesting such transfer or exchange.




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




   (iii) The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities in respect of
which a Change in Control Purchase Notice has been given and not
withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased).



          (b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in
whole, or in part, to nominees of the Depositary or to a successor of the
Depositary or such successor’s nominee.



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



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



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



          (f) If Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends set
forth on the form of Security attached hereto as Exhibits A and B setting forth
such restrictions (collectively, the “Legend”), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the
Legend, or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an



13









 





Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that
such Securities are not “restricted” within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of the sale of such
Security pursuant to a registration statement that is effective at the time of
such sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend.



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



          (h) Neither the Trustee nor any agent shall have any responsibility for
any actions taken or not taken by the Depository.



          SECTION 2.07 Replacement Securities. If (a) any mutilated Security
is surrendered to the Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such Security
or indemnity satisfactory to them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for
any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.



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



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



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



14









 





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



          SECTION 2.08 Outstanding Securities; Determinations of Holders’
Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it or delivered to
it for cancellation, those paid pursuant to Section 2.07 and those described in
this Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate thereof holds the Security;
provided, however, that in determining whether the Holders of the requisite
principal amount of the outstanding Securities have given or concurred in 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 conclusively relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).



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



          If the Paying Agent holds, in accordance with this Indenture, on or prior
to the Business Day following the Change in Control Purchase Date, or on the
Stated Maturity, money
or securities, if permitted hereunder, sufficient to pay Securities
payable on that date, then immediately after such Change in Control Purchase
Date or Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and interest on such Securities shall cease to accrue.



          If a Security is converted in accordance with Article 10, then from and
after the time of conversion on the Conversion Date, such Security shall cease
to be outstanding and interest shall cease to accrue on such Security.



          SECTION 2.09 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.



          If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any



15









 





one or
more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.



          SECTION 2.10 Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion or registration of
transfer or exchange shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not reissue,
reoffer or resell new Securities to replace Securities it has paid or delivered
to the Trustee for cancellation or that any Holder has converted pursuant to
Article 10. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 2.10, except as expressly
permitted by this Indenture. All cancelled Securities shall be disposed of by
the Trustee in accordance with its customary procedures.



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



          SECTION 2.12 Global Securities.



          (a) Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall be
made only in accordance with Sections 2.06 and 2.12(a)(i), (B) transfer of a
beneficial interest in a Global Security for a Certificated Security shall
comply with Sections 2.06 and 2.12(a)(ii) below, and (C) transfers of a
Certificated Security shall comply with Section 2.06 and Sections 2.12(a)(iii)
and (iv) below.




   (i) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any Person other than the Depositary
or a nominee or any successor thereof, and no such transfer to any such
other Person may be registered; provided that this clause (i) shall not
prohibit any transfer of a Security that is issued in exchange for a
Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name
of such Person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective (i) any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Section
2.12(a); and (ii) the transfer and exchange of beneficial interests in a
Global Security effected through the Depositary in accordance with this
Indenture and the procedures of the Depositary.



16









 






   (ii) Restrictions on Transfer of a Beneficial Interest in a Global
Security for a Certificated Security. A beneficial interest in a Global
Security may not be exchanged for a Certificated Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a transfer of a beneficial interest in a Global Security in
accordance with Applicable Procedures for a Certificated Security in the
form satisfactory to the Trustee, together with:




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




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




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



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




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




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




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




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




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




     (2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are



17









 







accompanied by
the following additional information and documents, as applicable:




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




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




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




   (iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below. Upon receipt by
the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form reasonably satisfactory
to the Trustee, together with:




     (1) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit C, that such
Certificated Security is being transferred to a QIB in accordance
with Rule 144A; and




     (2) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase
in the aggregate principal amount of the Securities represented by
the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause,
or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate principal amount of Securities represented
by the Global Security to be increased by the aggregate principal
amount of the Certificated Security to be exchanged, and shall
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers’
Certificate, a new Global Security in the appropriate principal
amount.



          (b) Subject to the succeeding paragraph, every Security shall be subject
to the restrictions on transfer provided in the Legend, including the delivery
of an Opinion of Counsel,



18









 







if so provided. Whenever any Restricted Security is
presented or surrendered for registration of transfer or for exchange for a
Security registered in a name other than that of the Holder, such Security must
be accompanied by a certificate in substantially the form set forth in Exhibit
C, dated the date of such surrender and signed by the Holder of such Security,
as to compliance with such restrictions on transfer. The Registrar shall not
be required to accept for such registration of transfer or exchange any
Security not so accompanied by a properly completed certificate and other
evidence the Registrar may request as to the compliance with the restrictions
set forth in the Legend.



          (c) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 or, if earlier, upon the expiration of the holding
period applicable to sales thereof under Rule 144(k). Any Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144, by an Opinion of Counsel
having substantial experience in practice under the Securities Act and
otherwise reasonably acceptable to the Company, addressed to the Company and in
form acceptable to the Company, to the effect that the transfer of such
Security has been made in compliance with Rule 144 or such successor
provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the restrictive
Legend. The Company shall inform the Trustee of the effective date of any
registration statement registering the Securities under the Securities Act.
The Trustee shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among DTC participants, members or
beneficial owners in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof. The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned opinion of counsel or registration statement.



          (d) In the event that Rule 144(k) as promulgated under the Securities Act
is amended to shorten the two-year restriction period, then restrictions on
transfer on the Securities and the Common Stock will be deemed to refer to the
shortened restriction period. The Company undertakes to inform the Trustee if
such change to Rule 144(k) occurs and the effect (if any) to the restrictions
on transfer applicable to the Securities and Common Stock and shall provide
additional information (including an Opinion of Counsel and/or an Officers’
Certificate) if so requested by the Trustee.



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



19









 





          (f) The provisions of clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities:




     (1) Notwithstanding any other provisions of this Indenture or
the Securities, except as provided in Section 2.12(a)(i), a Global
Security shall not be exchanged in whole or in part for a Security
registered in the name of any Person other than the Depositary or
one or more nominees thereof; provided that a Global Security may
be exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (i) the Depositary
has notified the Company that it is unwilling or unable to continue
as Depositary for such Global Security or such Depositary has
ceased to be a “clearing agency” registered under the Exchange Act,
and a successor Depositary is not appointed by the Company within
90 days or (ii) an Event of Default has occurred and is continuing
with respect to the Securities. Any Global Security exchanged
pursuant to clause (i) above shall be so exchanged in whole and not
in part, and any Global Security exchanged pursuant to clause (ii)
above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security;
provided that any such Security so issued that is registered in the
name of a Person other than the Depositary or a nominee thereof
shall not be a Global Security.




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




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




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




20









 






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



     SECTION 2.13 CUSIP Numbers. The Company in issuing the Securities
may use “CUSIP” numbers; provided that any such notice may state that no
representation is made as to the correctness of such numbers as printed on the
Securities and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly notify the
Trustee in writing of any change in the CUSIP numbers.



     SECTION 2.14 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect
to the payment of any defaulted interest, shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder and to
the Trustee (or cause the Trustee to mail to each Holder) a notice that states
the subsequent special record date, the payment date and the amount of
defaulted interest to be paid.



     SECTION 2.15 Registration Default. The Additional Interest Amount
shall be payable upon the Securities in the case of a Registration Default (as
defined in the Registration Rights Agreement). If a Registration Default
occurs, the Company shall deliver to the Trustee an Officers’ Certificate
stating (1) the Additional Interest Amount payable, (2) when such Additional
Interest Amount began accruing and (3) when such Additional Interest Amount is
payable. Unless and until a Responsible Officer of the Trustee receives such
an Officer’s Certificate, the Trustee shall assume that no Additional Interest
Amount is payable.



ARTICLE 3




PURCHASES OF SECURITIES




     SECTION 3.01 Purchase of Securities at Option of the Holder upon Change
in Control.



21









 





     (a) If there shall have occurred a Change in Control, all or any portion
of the Securities of any Holder equal to $1,000 or a whole multiple of $1,000
shall be purchased by the Company in cash, at the option of such Holder, at a
purchase price equal to 100% of the principal amount of the Securities to be
purchased, together with accrued and unpaid interest, if any, to, but not
including, the purchase date (the “Change in Control Purchase Price”), on the
date (the “Change in Control Purchase Date”) that is not later than 30 Business
Days after the date the Company provides notice of a Change in Control in
accordance with Section 3.01(b) hereof, provided, however, that if the Change
in Control Purchase Date is after a Regular Record Date but on or prior to the
corresponding Interest Payment Date, the accrued and unpaid interest becoming
due on such Interest Payment Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, registered as such on the
relevant Regular Record Date according to their terms, and the Change in
Control Purchase Price shall not include such interest payment.



     If there shall have occurred a Change in Control pursuant to clause (i) or
(ii) of the definition thereof in which more than 10% of the consideration for
the Common Stock in the
transaction or transactions constituting the Change in Control consists of
cash (other than cash payments for fractional shares and cash payments made in
respect of dissenters’ appraisal rights), the Company will pay on the Change in
Control Purchase Date a Make-Whole Premium to the Holders of the Securities in
addition to the Change in Control Purchase Price. The Make-Whole Premium will
also be paid on the Change in Control Purchase Date to the Holders of
Securities who convert their Securities on or after the date on which the
Company has given a notice to all Holders of Securities in accordance with
Section 3.01(b) hereof and on or before the Change in Control Purchase Date.



     The “Make-Whole Premium” will be determined by reference to the table
below and is based on the date on which the Change in Control becomes effective
(the “Effective Date”) and the price (the “Stock Price”) paid per share of the
Company’s Common Stock in the transaction constituting the Change in Control.
If the holders of the Company’s Common Stock receive only cash in the
transaction, the Stock Price shall be the cash amount paid per share of the
Company’s Common Stock. Otherwise, the Stock Price shall be equal to the
average Closing Sale Price per share of the Company’s Common Stock over the
five Trading Day period ending on the Trading Day immediately preceding the
Effective Date.



     The following table shows what the Make-Whole Premium would be for each
hypothetical Stock Price and Effective Date set forth below, expressed as a
percentage of the principal amount of the Securities.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Make-Whole Premium Upon a Change in Control (% of Face Value)

	 	 	Effective Date

	 	 	Stock Price	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	on Effective	 	October	 	October	 	October	 	October	 	October	 	October	 	October	 	October
	 	 	Date
	 	4, 2004
	 	15, 2005
	 	15, 2006
	 	15, 2007
	 	15, 2008
	 	15, 2009
	 	15, 2010
	 	15, 2011

	 
	 	$	11.105	 	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%	 	 	0.0	%
	 
	 	$	12.00	 	 	 	4.8	%	 	 	4.9	%	 	 	4.9	%	 	 	4.8	%	 	 	4.4	%	 	 	3.5	%	 	 	1.8	%	 	 	0.0	%
	 
	 	$	13.00	 	 	 	10.2	%	 	 	10.1	%	 	 	10.0	%	 	 	9.6	%	 	 	8.8	%	 	 	7.5	%	 	 	4.9	%	 	 	0.0	%







22









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Make-Whole Premium Upon a Change in Control (% of Face Value)

	 	 	Effective Date

	 	 	Stock Price	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	on Effective	 	October	 	October	 	October	 	October	 	October	 	October	 	October	 	October
	 	 	Date
	 	4, 2004
	 	15, 2005
	 	15, 2006
	 	15, 2007
	 	15, 2008
	 	15, 2009
	 	15, 2010
	 	15, 2011

	 
	 	$	14.00	 	 	 	15.7	%	 	 	15.5	%	 	 	15.1	%	 	 	14.5	%	 	 	13.5	%	 	 	11.7	%	 	 	8.5	%	 	 	0.0	%
	 
	 	$	15.00	 	 	 	21.3	%	 	 	20.9	%	 	 	20.4	%	 	 	19.6	%	 	 	18.3	%	 	 	16.2	%	 	 	12.4	%	 	 	0.0	%
	 
	 	$	16.00	 	 	 	24.0	%	 	 	23.6	%	 	 	22.9	%	 	 	21.9	%	 	 	20.4	%	 	 	18.0	%	 	 	13.8	%	 	 	0.0	%
	 
	 	$	17.00	 	 	 	23.3	%	 	 	22.8	%	 	 	22.0	%	 	 	20.8	%	 	 	19.1	%	 	 	16.5	%	 	 	12.0	%	 	 	0.0	%
	 
	 	$	18.00	 	 	 	22.7	%	 	 	22.0	%	 	 	21.1	%	 	 	19.9	%	 	 	18.0	%	 	 	15.2	%	 	 	10.5	%	 	 	0.0	%
	 
	 	$	19.00	 	 	 	22.1	%	 	 	21.4	%	 	 	20.4	%	 	 	19.0	%	 	 	17.0	%	 	 	14.0	%	 	 	9.2	%	 	 	0.0	%
	 
	 	$	20.00	 	 	 	21.5	%	 	 	20.7	%	 	 	19.7	%	 	 	18.2	%	 	 	16.0	%	 	 	13.0	%	 	 	8.1	%	 	 	0.0	%
	 
	 	$	22.00	 	 	 	20.5	%	 	 	19.6	%	 	 	18.4	%	 	 	16.7	%	 	 	14.5	%	 	 	11.2	%	 	 	6.4	%	 	 	0.0	%
	 
	 	$	24.00	 	 	 	19.7	%	 	 	18.7	%	 	 	17.3	%	 	 	15.5	%	 	 	13.1	%	 	 	9.8	%	 	 	5.1	%	 	 	0.0	%
	 
	 	$	26.00	 	 	 	19.0	%	 	 	17.9	%	 	 	16.4	%	 	 	14.5	%	 	 	12.1	%	 	 	8.8	%	 	 	4.3	%	 	 	0.0	%
	 
	 	$	28.00	 	 	 	18.3	%	 	 	17.1	%	 	 	15.6	%	 	 	13.7	%	 	 	11.2	%	 	 	7.9	%	 	 	3.6	%	 	 	0.0	%
	 
	 	$	30.00	 	 	 	17.8	%	 	 	16.5	%	 	 	14.9	%	 	 	13.0	%	 	 	10.4	%	 	 	7.2	%	 	 	3.2	%	 	 	0.0	%
	 
	 	$	35.00	 	 	 	16.6	%	 	 	15.2	%	 	 	13.6	%	 	 	11.5	%	 	 	9.0	%	 	 	6.0	%	 	 	2.6	%	 	 	0.0	%
	 
	 	$	40.00	 	 	 	15.7	%	 	 	14.3	%	 	 	12.6	%	 	 	10.5	%	 	 	8.1	%	 	 	5.2	%	 	 	2.3	%	 	 	0.0	%
	 
	 	$	45.00	 	 	 	15.0	%	 	 	13.6	%	 	 	11.8	%	 	 	9.8	%	 	 	7.4	%	 	 	4.8	%	 	 	2.2	%	 	 	0.0	%
	 
	 	$	50.00	 	 	 	14.4	%	 	 	13.0	%	 	 	11.2	%	 	 	9.2	%	 	 	6.9	%	 	 	4.5	%	 	 	2.1	%	 	 	0.0	%
	 
	 	$	55.00	 	 	 	14.0	%	 	 	12.5	%	 	 	10.8	%	 	 	8.8	%	 	 	6.6	%	 	 	4.3	%	 	 	2.1	%	 	 	0.0	%







     The Make-Whole Premiums set forth above are based upon a Closing Sale
Price per share of the Company’s Common Stock of $11.105 on September 28, 2004
and a Conversion Rate of 64.3211 shares per $1,000 principal amount of
Securities, which results in a Conversion Price of approximately $15.55, which
is 40% higher than the Closing Sale Price per share of the Company’s Common
Stock on September 28, 2004.



     The actual Stock Price and Effective Date may not be set forth on the
table, in which case:




	•	 	If the actual Stock Price on the Effective Date is between
two Stock Prices on the table or the actual Effective Date is
between two Effective Dates on the table, the Make-Whole Premium
will be determined by a straight-line interpolation between the
Make-Whole Premiums set forth for the two Stock Prices and the two
Effective Dates on the table based on a 365-day year, as applicable.
	 
	•	 	If the Stock Price on the Effective Date exceeds $55.00 per
share (subject to adjustment described below), no Make-Whole Premium
will be paid.
	 
	•	 	If the Stock Price on the Effective Date is less than $11.105
per share (subject to adjustment described below), no Make-Whole
Premium will be paid.





     The Stock Prices set forth in the first column of the table above will be
adjusted as of any date on which the Conversion Rate is adjusted. The adjusted
Stock Prices will equal the Stock Prices applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to the adjustment giving rise to the Stock Price
adjustment and the denominator of which is the Conversion Rate as so adjusted.



     The Company shall pay, at its option, the Make-Whole Premium in cash,
shares of its Common Stock or the same form of consideration used to pay for
the shares of the Company’s Common Stock in connection with the transaction
constituting the Change in Control.



23









 





     If the Company pays the Make-Whole Premium in shares of its Common Stock,
the value of its Common Stock to be delivered in respect of the Make-Whole
Premium shall be deemed to be equal to the average Closing Sale Price per share
over the ten Trading Day period ending on the Trading Day immediately preceding
the Change in Control Purchase Date. The Company may pay the Make-Whole
Premium in shares of its Common Stock only if the information necessary to
calculate the Closing Sale Price per share is published in a daily newspaper of
general circulation or by other appropriate means.



     In addition, the Company’s right to pay the Make-Whole Premium in shares
of its Common Stock is subject to the satisfaction of the following:




	•	 	listing such common stock on the Nasdaq National Market
or, if not so listed, on the principal United States securities
exchange on which the Common Stock is then listed;
	 
	•	 	the registration of the common stock under the
Securities Act and the Exchange Act, if required; and
	 
	•	 	any necessary qualification or registration under
applicable state securities law or the availability of an
exemption from such qualification and registration.





     If such conditions are not satisfied with respect to a Holder prior to the
close of business on the Change in Control Purchase Date, the Company shall pay
the Make-Whole Premium in cash. The Company may not change the form of
consideration to be paid with respect to the Make-Whole Premium once it has
given notice set forth in Section 3.01(b) to Holders, except as described in
the immediately preceding sentence.



     If the Company pays the Make-Whole Premium in the same form of
consideration used to pay for the shares of the Company’s Common Stock in
connection with the transaction constituting the Change in Control, the value
of the consideration to be delivered in respect of the Make-Whole Premium will
be calculated as follows:




	•	 	securities that are traded on a United States national
securities exchange or approved for quotation on the Nasdaq
National Market or any similar system of automated dissemination
of quotations of securities prices will be valued based on the
average closing price or last Closing Sale Price, as applicable,
over the ten Trading Day period ending on the Trading Day
immediately preceding the Change in Control Purchase Date;
	 
	•	 	other securities, assets or property (other than cash)
will be valued based on 98% of the average of the fair market
value of such securities, assets or property (other than cash) as
determined by two independent nationally recognized investment
banks selected by the trustee; and
	 
	•	 	100% of any cash.





24









 






     A “Change in Control” of the Company shall be deemed to have occurred at
such time after the original issuance of Securities as any of the following
events shall occur:




     (i) the acquisition by any person, including any syndicate or group
deemed to be a “person” under Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), of beneficial ownership,
directly or indirectly, through a purchase, merger (except a merger by
the Company described in clause (ii) below) or other acquisition
transaction or series of transactions, of shares of the Capital Stock of
the Company entitling that person to exercise 50% or more of the total
voting power of all shares of such Capital Stock entitled to vote
generally in elections of directors, other than any acquisition by the
Company, any of its Subsidiaries or any employee benefit plans of the
Company; or




     (ii) any consolidation or merger of the Company with or into any
other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company’s properties and assets to another person,
other than:




               (A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Capital Stock of the Company and
(2) pursuant to which holders of the Capital Stock of the
Company immediately prior to the transaction are entitled to
exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Capital Stock of the
Company entitled to vote generally in the election of
directors of the continuing or surviving person immediately
after the transaction; or




               (B) any merger, share exchange, transfer of assets or
similar transaction solely for the purpose of changing the
Company’s jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares
of Common Stock solely into shares of common stock of
the surviving entity; or




     (iii) during any consecutive two-year period, individuals who at the
beginning of that two-year period constituted the Board of Directors
(together with any new directors whose election to the Board of
Directors, or whose nomination for election by the shareholders of the
Company, was approved by a vote of a majority of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election were previously so approved)
cease for any reason to constitute a majority of the Board of Directors
then in office.



Notwithstanding the foregoing, it will not constitute a “Change in Control” if
at least 90% of the consideration for Common Stock (excluding cash payments for
fractional share and cash payments made in respect of dissenters’ appraisal
rights) in the transaction or transactions constituting the Change in Control
consists of common stock or American Depositary Shares representing shares of
common stock traded on a U.S. national securities exchange or quoted on the
Nasdaq National Market or which will be so traded or quoted when issued or
exchanged in



25








 








connection with the Change in Control, and as a result of such
transaction or transactions, the notes become convertible solely into such
common stock or American Depositary Shares representing shares of common stock;
provided that, with respect to an entity organized under the laws of a
jurisdiction outside the U.S., such entity has a worldwide market
capitalization of its equity securities of at least U.S. $5 billion before
giving effect to the consolidation or merger.




Beneficial ownership shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act.




          (b) Prior to or on the 30th day after the occurrence of a Change in
Control, the Company, or, at the written request and expense of the Company
prior to or on the 30th day after such occurrence, the Trustee, shall give to
all Holders, in the manner provided in Section 12.02 hereof, notice of the
occurrence of the Change in Control and of the purchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy of such
notice of a purchase right to the Trustee. The notice shall include a form of Change
in Control Purchase Notice to be completed by the Holder and shall state:




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




               (2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.01 must be given;




               (3) the Change in Control Purchase Date;




               (4) the Change in Control Purchase Price;




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




               (6) that Securities as to which a Change in Control Purchase
Notice has been given may be converted pursuant to Article 10
hereof only if the Change in Control Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;




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




               (8) that the Change in Control Purchase Price for any Security
as to which a Change in Control Purchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the
Change in Control Purchase Date and the time of surrender of such
Security as described in (7) above;




               (9) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.01;




               (10) briefly, the conversion rights of the Securities,
including the Conversion Rate and any adjustments thereto;



26









 






               (11) the procedures for withdrawing a Change in Control
Purchase Notice;




               (12) the CUSIP number of the Securities;




               (13) whether a Make-Whole Premium shall be paid by the Company
and the form of consideration to be paid in respect of the
Make-Whole Premium; and




               (14) if a Make-Whole Premium is paid by the Company, that a
Make-Whole Premium shall be paid by the Company on the Change of
Control Purchase Date to Holders of Securities who have converted
their Securities into the Company’s Common Stock on or after the
date the Company has given notice to all Holders in accordance with
this Section 3.01(b) and on or before the Change in Control Purchase Date.



          (c) A Holder may exercise its rights specified in Section 3.02(a) hereof
upon delivery of a written notice of purchase (a “Change in Control Purchase
Notice”) to the Paying Agent prior to the Change in Control Purchase Date,
stating:




               (1) the certificate number of the Security, if any, which the
Holder will deliver to be purchased or the appropriate Depositary
procedures if the Securities are not in certificated form;




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




               (3) that such Security shall be purchased pursuant to the
terms and conditions specified in paragraph 5 on the reverse side
of the Securities and in this Indenture.



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



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



          Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.01 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 3.01.



27









 





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



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



          SECTION 3.02 Effect of Change in Control Purchase Notice. Upon
receipt by the Paying Agent of the Change in Control Purchase Notice specified
in Section 3.01(c), the Holder of the Security in respect of which such Change
in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Security. Such Purchase Price (along with the Make-Whole
Premium, if any) shall be paid to such Holder, subject to receipt of
consideration for the Securities by the Paying Agent, promptly following the
later of (x) the Change in Control Purchase Date with respect to such Security
(provided the conditions in Section 3.01(c), as the case may be, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.01(c), as the case may
be. Securities in respect of which a Change in Control Purchase Notice has
been given by the Holder thereof may not be converted pursuant to Article 10
hereof on or after the date of the delivery of such Change in Control Purchase
Notice unless such Change in Control Purchase Notice has first been validly
withdrawn as specified in the following two paragraphs.



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




               (1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted or, if not in
certificated form, the applicable Depositary procedures,




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




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



          There shall be no purchase of any Securities pursuant to Section 3.01 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Change in Control Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Change in Control Purchase
Notice has been withdrawn in



28









 





compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such
Securities) in which case, upon such return, the Change in Control Purchase
Notice with respect thereto shall be deemed to have been withdrawn.




          SECTION 3.03 Deposit of Change in Control Purchase Price. Prior to
11:00 a.m. (New York City time) on the Change in Control Purchase Date, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of cash (in
immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Change in Control Purchase Price of all the Securities or
portions thereof which are to be purchased as of the Change in Control Purchase
Date and an amount in cash or shares of Common Stock sufficient to pay any
Make-Whole Premium.



          If the Trustee or other Paying Agent appointed by the Company, or the
Company or an Affiliate of the Company, if it or such Affiliate is acting as
the Paying Agent, holds cash sufficient to pay the aggregate Change in Control
Purchase Price of all the Securities or portions thereof that are to be
purchased as of the Change in Control Purchase Date, on or after the Change in
Control Purchase Date, and an amount in cash or shares of Common Stock
sufficient to pay any Make-Whole Premium, (i) such Securities will cease to be
outstanding, (ii) interest on such Securities will cease to accrue and (iii)
all other rights of the holders of such Securities will terminate, whether or
not book-entry transfer of the Securities has been made or the Securities have
been delivered to the Trustee or Paying Agent, other than the right to receive
the Change in Control Purchase Price and the Make-Whole Premium, if any, upon
delivery of the Securities.



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



          SECTION 3.05 Covenant to Comply with Securities Laws upon Purchase of
Securities. In connection with any offer to purchase or purchase of
Securities under Section 3.01 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act
at the time of such offer or purchase), the Company shall (i) comply with Rule
13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act which
may then be applicable, (ii) file the related Schedule TO (or any successor
schedule, form or report) or any other schedule required under the Exchange
Act, and (iii) otherwise comply with all federal and state securities laws so
as to permit the rights and obligations under Section 3.01 to be exercised in
the time and in the manner specified in Section 3.01.



29









 





          SECTION 3.06 Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Common Stock that
remains unclaimed as provided in paragraph 10 of the Securities, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change in Control Purchase Price and Make-Whole Premium, if any; provided,
however, that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.03 exceeds the aggregate Change in Control Purchase
Price of the Securities and Make-Whole Premium, if any, or portions thereof which the
Company is obligated to purchase as of the Change in Control Purchase Date then
promptly after the Business Day following the Change in Control Purchase Date
the Trustee shall return any such excess to the Company together with interest
or dividends, if any, thereon.



ARTICLE 4




COVENANTS




          SECTION 4.01 Payment of Principal, Premium, Interest on the
Securities. The Company will duly and punctually pay the principal of and
interest at the Interest Rate in respect of 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 as directed by the Trustee, no later
than 11:00 a.m. (New York City time) on the day of the Stated Maturity of any
Security or on any Interest Payment Date, all payments so due on such date.
Principal amount at Stated Maturity, Change in Control Purchase Price, and cash
interest shall be considered paid on the applicable date due if at 11:00 a.m.
(New York City time) on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, money or securities, if permitted hereunder,
sufficient to pay all such amounts then due. Except as otherwise noted, all
references to the payment of interest include the payment of Additional
Interest Amounts.



          The Company shall, to the extent permitted by law, pay cash interest on
overdue amounts at the rate per annum set forth in paragraph 1 on the reverse
side of the Securities, compounded semiannually, which interest shall accrue
from the date such overdue amount was originally due to the date payment of
such amount, including interest thereon, has been made or duly provided for.
All such overdue interest shall be payable on demand.



          SECTION 4.02 SEC and Other Reports. The Company shall file with
the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If at any time the Company is not
subject to Section 13 or 15(d) of the Exchange Act, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).



          Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein,



30









 





including the Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers’
Certificates).




          SECTION 4.03 Compliance Certificate and Notice. The Company shall
deliver to the Trustee within 90 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on December 31, 2004) an
Officers’ Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.



          The Company shall, so long as any Securities are outstanding, file with
the Trustee a written notice of the occurrence of any Default or Event of
Default within five Business Days of the Company becoming aware of the
occurrence of any Default or Event of Default.



          SECTION 4.04 Further Instruments and Acts. Upon request of the
Trustee or as necessary, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of this Indenture.



          SECTION 4.05 Maintenance of Office or Agency. The Company will
maintain in The Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The New York branch office of the Corporate
Trust Office of the Trustee, shall initially be such office or agency for all
of the aforesaid purposes. The Corporate Trust Office of the Trustee shall
provide appropriate contact information therefor upon request. The Company
shall give prompt written notice to the Trustee of the location, and of any
change in the location, of any such office or agency (other than a change in
the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 12.02.



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



          SECTION 4.06 Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial Holder of Securities or shares of Common
Stock issued upon conversion thereof, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as



31









 





defined below) to such Holder
or any beneficial holder of Securities or holder of shares of Common Stock
issued upon conversion of Securities, or to a prospective purchaser of any such
security designated by any such holder, as the case may be, to the extent
required to permit compliance by such Holder or holder with Rule 144A under the
Securities Act in connection with the resale of any such security. “Rule 144A
Information” shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act.




          SECTION 4.07 Additional Interest Amounts Notice. In the event that
the Company is required to pay Additional Interest Amounts to Holders pursuant
to the Registration Rights Agreement, the Company will provide written notice
(“Additional Interest Amount Notice”) to the Trustee of its obligation to pay
Additional Interest Amounts no later than fifteen (15) days prior to the
proposed payment date for the Additional Interest Amounts, and the Additional
Interest Amounts Notice shall set forth the amount of Additional Interest
Amounts to be paid by the Company on such payment date. The Trustee shall not
at any time be under any duty or responsibility to any Holder to determine the
Additional Interest Amounts, or with respect to the nature, extent or
calculation of the amount of Additional Interest Amounts when made, or with
respect to the method employed in such calculation of the Additional Interest
Amounts.



          SECTION 4.08 Corporate Existence. Subject to Article 5 hereof, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate 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 determines 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 4.09 Maintenance of Properties. The Company will maintain
and keep its properties and every part thereof in such repair, working order
and condition, and make or cause to be made all such needful and proper
repairs, renewals and replacements thereof, as in the judgment of the Company
are necessary in the interests of the Company; provided, however, that nothing
contained in this Section shall prevent the Company from selling, abandoning or
otherwise disposing of any of its properties or discontinuing a part of its
business from time to time if, in the judgment of the Company, such sale,
abandonment, disposition or discontinuance is advisable and does not materially
adversely affect the interests or business of the Company.



          SECTION 4.10 Payment of Taxes and Other Claims. The Company will
promptly pay and discharge or cause to be paid and discharged all material
taxes, assessments and governmental charges or levies lawfully imposed upon it
or upon its income or profits or upon any of its property, real or personal, or
upon any part thereof, as well as all material claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon its
property; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge,
levy or claim if the amount, applicability or validity thereof shall currently
be contested in good faith by appropriate proceedings and if the Company shall
have set aside on its books reserves deemed by it adequate with respect
thereto.



32









 





          SECTION 4.11 Resale of Certain Securities. During the period of
two years after the last date of original issuance of any Securities, the
Company shall not, and shall not permit any of its Affiliates to, resell any
Securities, or shares of Common Stock issuable upon conversion of the
Securities, that constitute “restricted securities” under Rule 144 except
pursuant to an effective registration statement under the Securities Act or an
applicable exemption therefrom. The Trustee shall have no responsibility or
liability in respect of the Company’s performance of its agreement in the
preceding sentence



ARTICLE 5




SUCCESSOR CORPORATION




          SECTION 5.01 When Company May Merge or Transfer Assets. The
Company shall not consolidate with, merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an
entirety to any person, unless:



          (a) the Person formed by such consolidation or into which the Company is
merged or the person which acquires by conveyance, transfer or lease all or
substantially all the properties and assets of the Company substantially as an
entirety is a corporation, limited liability company, partnership or trust that
(i) shall be organized and validly existing under the laws of (x) the United
States or any political subdivision of the United States or (y) a jurisdiction
outside of the United States if the Person has common stock or American
Depositary Shares representing common stock traded on a United States national
securities exchange or quoted on the Nasdaq National Market and a worldwide
total market capitalization of its equity securities of at least U.S.$5 billion
before giving effect to such consolidation, merger, conveyance, transfer or
lease of substantially all of the Company’s properties and assets and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company under the Securities and this Indenture;



          (b) at the time of such transaction, no Event of Default and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing; and



          (c) the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Article 5 and that all conditions precedent herein provided for relating to
such transaction have been satisfied.



          For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another Subsidiary), which, if such assets were owned by the
Company, would constitute all or



33









 





substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.




          The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture pursuant to Section 10.11, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor person shall enter
into a supplemental indenture to evidence the succession and substitution of
such successor person and such discharge and release of the Company.



ARTICLE 6




DEFAULTS AND REMEDIES




          SECTION 6.01 Events of Default. An “Event of Default” occurs if:




               (1) the Company fails to pay when due the principal of or
premium (including without limitation, the Make-Whole Premium), if
any, on any of the Securities at Stated Maturity or exercise of a
repurchase right or otherwise, whether or not such payment is
prohibited by the provisions of Article 11;




               (2) the Company fails to pay an installment of interest
(including without limitation, Additional Interest Amounts, if any)
on any of the Securities that continues for 30 days after the date
when due, whether or not such payment is prohibited by the
provisions of Article 11;




               (3) the Company fails to perform or observe any other term,
covenant or agreement contained in the Securities or this Indenture
and the failure continues for a period of 60 days after written
notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding;




               (4) the Company fails to pay when due the principal of, or
acceleration of, any Indebtedness in an amount in excess of $25
million, because of a default with respect to such Indebtedness
without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled, in
either case, for a period of 10 days after written notice to the
Company by the Trustee or to the Company and the Trustee by Holders
of at least 25% in aggregate principal amount of the Securities
then outstanding;




               (5) the Company fails to provide the Change of Control
Purchase Notice in accordance with the provisions set forth in
Section 3.01;



34









 






               (6) the Company pursuant to or under or within the meaning of
any Bankruptcy Law:




                    (A) commences a voluntary case or proceeding;




                    (B) consents to the entry of an order for relief against
it in an involuntary case or proceeding or the commencement
of any case against it;




                    (C) consents to the appointment of a Custodian of it or
for any substantial part of its property;




                    (D) makes a general assignment for the benefit of its
creditors;




                    (E) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or




                    (F) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian;




               (7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:




                    (A) is for relief against the Company in an involuntary
case or proceeding, or adjudicates the Company insolvent or
bankrupt;




                    (B) appoints a Custodian of the Company or for any
substantial part of its properties; or




                    (C) orders the winding up or liquidation of the Company;




and the order or decree remains unstayed and in effect for 60 days.



          SECTION 6.02 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(6) or (7)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities at the time
outstanding by written notice to the Company and the Trustee, may declare the
Securities due and payable at their principal amount together with accrued and
unpaid interest. Upon a declaration of acceleration, such principal and
accrued and unpaid interest to the date of payment shall be immediately due and
payable.



          If an Event of Default specified in Section 6.01(6) or (7) above occurs
and is continuing, then the principal and the interest on all the Securities
shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.



          With the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding or by the
adoption of a written



35











 





resolution at a meeting of Holders at which a quorum is
present by at least a majority in aggregate principal amount of the Securities
represented at the meeting, by notice to the Trustee (and without notice to any
other Holder) may rescind or annul an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived, except nonpayment of the principal
and any accrued and unpaid cash interest that have become due solely as a
result of acceleration, failure and if all amounts due to the Trustee under
Section 7.07 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.




          SECTION 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal and any accrued cash interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.



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



          SECTION 6.04 Waiver of Past Defaults. With the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding or by the adoption of a written resolution
at a meeting of Holders at which a quorum is present by at least a majority in
aggregate principal amount of the Securities represented at the meeting, by
notice to the Trustee (and without notice to any other Holder), may waive an
existing Default or Event of Default and its consequences except (1) a Default
or an Event of Default described in Section 6.01(1) or (2), (2) a Default or
Event of Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected or (3) a Default or Event
of Default which constitutes a failure to convert any Security in accordance
with the terms of Article 10. When a Default or Event of Default is waived, it
is deemed cured, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right. This Section 6.04
shall be in lieu of Section 316(a)1(B) of the TIA and such Section
316(a)1(B) is hereby expressly excluded from this Indenture, as permitted by
the TIA.



          SECTION 6.05 Control by Majority. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may,
through their written consent or the Holders of a majority in aggregate
principal amount of the Securities then outstanding represented at a meeting at
which a quorum is present, direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability unless the Trustee is
offered indemnity satisfactory to it against loss, liability or expense. This
Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA and such
Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.



36









 





          SECTION 6.06 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Securities unless:




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




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




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




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




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



          A Holder may not use this Indenture to prejudice the rights of any other
Holder or to obtain a preference or priority over any other Holder it being
understood and intended that no one or more of such Holders will 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 (it being understood that the Trustee does not have an affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders).



          SECTION 6.07 Rights of Holders to Receive Payment and to Convert.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal amount, premium, if any, Change in Control
Purchase Price or any accrued and unpaid cash interest in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, and to convert the Securities in accordance with Article 10,
or to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.



          SECTION 6.08 Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.07.



          SECTION 6.09 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal amount, Change in Control
Purchase Price or any accrued and unpaid cash interest in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the



37









 





Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise:




          (a) to file and prove a claim for the whole amount of the principal
amount, Change in Control Purchase Price or any accrued and unpaid cash
interest and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial proceeding, and



          (b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07.



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



          SECTION 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:




          (1) to the Trustee for amounts due under Section 7.07;




          (2) to Holders for amounts due and unpaid on the Securities for the
principal amount, Change in Control Purchase Price or any accrued and
unpaid cash interest (including, Additional Interest Amounts, if any) as
the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and




          (3) the balance, if any, to the Company.



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



          SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee,



38









 





a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10%
in aggregate principal amount of the Securities at the time outstanding. This
Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.




          SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit
or forgive the Company from paying all or any portion of the principal amount,
Change in Control Purchase Price or any accrued and unpaid cash interest in
respect of Securities, or any interest on such amounts, as contemplated herein,
or which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.



ARTICLE 7




TRUSTEE




          SECTION 7.01 Duties of Trustee.



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



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




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




               (2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture, but need
not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.



This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted
by the TIA.




39









 








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




               (1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.01;




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




               (3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.



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




          (d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.



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



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



          SECTION 7.02 Rights of Trustee. Subject to its duties and
responsibilities under the provisions of Section 7.01, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, subject also to its
duties and responsibilities under the TIA:



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



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



          (c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be





40










 




responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;




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



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



          (f) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which may be incurred therein or
thereby;



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



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



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



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



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



41









 





          (l) the Trustee may request that the Company deliver a certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture.



          (m) the Trustee shall not be responsible for information in any notice
provision provided to the Trustee by the Company. Before the Trustee acts or
refrains from acting, it may require an Officer’s Certificate and/or an Opinion
of Counsel. The Trustee shall be protected and it shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.



          SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.



          SECTION 7.04 Trustee’s Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the Securities
or the Pledged Securities, it shall not be accountable for the Company’s use or
application of the proceeds from the Securities, it shall not be responsible
for any statement in the registration statement for the Securities under the
Securities Act or in the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.



          SECTION 7.05 Notice of Defaults. If a Default occurs and if it is
known to a Responsible Officer of the Trustee, the Trustee shall give to each
Holder notice of the Default within 90 days after the occurrence thereof,
unless such Default shall have been cured or waived before the giving of such
notice. Except in the case of a Default described in Section 6.01(1) or (2),
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the best interest of Holders. The second sentence of this Section 7.05 shall
be in lieu of the proviso to Section 315(b) of the TIA and such proviso is
hereby expressly excluded from this Indenture, as permitted by the TIA. The
Trustee shall not be deemed to have knowledge of a Default unless a Responsible
Officer of the Trustee has received written notice of such Default.



          SECTION 7.06 Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).



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



          SECTION 7.07 Compensation and Indemnity. The Company agrees:



42









 





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



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



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



          To secure the Company’s payment obligations in this Section 7.07, the
Holders shall have been deemed to have granted to the Trustee a lien prior to
the Securities on all money or property held or collected by the Trustee,
except for the money and property held in trust to pay the principal amount,
Change in Control Purchase Price, or cash interest, if any, as the case may be,
on particular Securities.



          The Company’s payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(6) or (7), the expenses, including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.



          SECTION 7.08 Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company may remove the Trustee and shall
remove the Trustee if:



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



          (2) the Trustee is adjudged bankrupt or insolvent;



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



          (4) the Trustee otherwise becomes incapable of acting.



43









 





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



          A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company satisfactory in form and substance
to the retiring Trustee and the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
The successor Trustee shall mail a notice of its succession to Holders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.



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



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



          SECTION 7.09 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.



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



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



ARTICLE 8




DISCHARGE OF INDENTURE




          SECTION 8.01 Discharge of Liability on Securities. When all
outstanding Securities will become due and payable within one year of their
Stated Maturity and the Company has deposited with the Trustee cash sufficient
to pay and discharge all outstanding Securities on the date of their Stated
Maturity, then the Company may discharge its obligations



44









 







under this Indenture
while Securities remain outstanding; provided that provisions of Section 2.03,
Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 2.12, Section
4.01, Section 4.05, Section 7.07, Article 10 and this Article 8 shall survive
until the Securities have been paid in full. The Trustee shall join in the
execution of a document prepared by the Company acknowledging satisfaction and
discharge of this Indenture on demand of the Company accompanied by an
Officers’ Certificate and Opinion of Counsel and at the cost and expense of the
Company.



          SECTION 8.02 Repayment of the Company. The Trustee and the Paying
Agent shall promptly return to the Company upon written request (i) any excess
money held by them at any time and (ii) any money or securities held by them
for the payment of any amount with respect to the Securities that remains
unclaimed for two years, subject to applicable unclaimed property law. After
return to the Company, Holders entitled to the money or securities must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Holders with respect to such money or
securities for that period commencing after the return thereof.



          SECTION 8.03 Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 8.02, all monies deposited with the Trustee pursuant to
Section 8.01 shall be held in trust for the sole benefit of the Holders and
such monies shall be applied by the Trustee to the payment, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent), to the Holders for the payment of which such monies have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest.



          SECTION 8.04 Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Sections 8.01 and 8.03 by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such
money in accordance with Sections 8.01 and 8.03; provided, however, that if the
Company makes any payment of interest on or principal of any Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders to receive such payment from the money held by the
Trustee or Paying Agent.



ARTICLE 9




AMENDMENTS




          SECTION 9.01 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Holder for the purposes of, among other things:



45









 






     (1) adding to the Company’s covenants for the benefit of the
Holders;




     (2) surrendering any right or power conferred upon the Company;




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




     (4) providing for the assumption of the Company’s obligations to the
Holders in the case of a merger, consolidation, conveyance, transfer or
lease;




     (5) reducing the Conversion Price; provided that the reduction will
not adversely affect the interests of Holders in any material respect;




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




     (7) making any changes or modifications to this Indenture necessary
in connection with the registration of the Securities under the
Securities Act as contemplated by the Registration Rights Agreement;
provided that this action does not adversely affect the interests of the
Holders in any material respect;




     (8) curing any ambiguity, omission, inconsistency or correcting or
supplementing any defective provision contained in this Indenture;
provided that such modification or amendment does not, in the good faith
opinion of the Board of Directors of the Company and the Trustee,
adversely affect the interests of the Holders in any material respect; or




     (9) adding or modifying any other provisions which the Company and
the Trustee may deem necessary or desirable and which will not adversely
affect the interests of the Holders in any material respect;




     (10) complying with Article 5;




     (11) providing for uncertificated Securities in addition to the
Certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended; or




     (12) providing for the appointment of a successor trustee.



          SECTION 9.02 With Consent of Holders. With the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding or by the adoption of a resolution at a
meeting of Holders at which a quorum is present by at least a majority in
aggregate principal amount of the Securities represented at the meeting, the
Company may modify and amend this Indenture or the Securities and waive
noncompliance by the Company. However, without the consent of each Holder
affected, a modification, amendment or waiver to this Indenture or the
Securities may not:



46









 






     (1) change the maturity of the principal of or any installment of
interest on any Security or any payment of Additional Interest Amounts;




     (2) reduce the principal amount of, or any premium ( including
without limitation, the Make-Whole Premium), if any, or interest on or
any payment of Additional Interest Amounts on, any Security;




     (3) change the currency of payment of principal of, any premium
(including without limitation, the Make-Whole Premium), if any, or
interest on any Security;




     (4) impair the right to institute suit for the enforcement of any
payment on or with respect to, or the conversion of, any security;




     (5) modify the Company’s obligations to maintain an office or agency
in New York City;




     (6) except as otherwise permitted or contemplated by provisions of
this Indenture concerning specified reclassifications or corporate
reorganizations, adversely affect the conversion rights of Holders;




     (7) adversely affect the repurchase option of the Holders upon a
Change in Control;




     (8) modify the subordination provisions of the Notes in a manner
adverse to the Holders;




     (9) reduce the percentage in aggregate principal amount of
Securities outstanding necessary to modify or amend this Indenture or to
waive any past default; or




     (10) reduce the percentage in aggregate principal amount of
Securities outstanding required for the adoption of a resolution or the
quorum required at any meeting of Holders at which a resolution is
adopted.



          It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.



          After an amendment under this Section 9.02 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.



          SECTION 9.03 Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA.



          SECTION 9.04 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent Holder of that Security
or portion of the Security that evidences the same obligation as the consenting
Holder’s Security, even if notation of the consent, waiver or action
is not made on the



47









 







Security. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder’s Security or
portion of the Security if the Trustee receives the notice of revocation before
the date the amendment, waiver or action becomes effective. After an
amendment, waiver or action becomes effective, it shall bind every Holder.



          SECTION 9.05 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.



          SECTION 9.06 Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but
need not, sign such supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of Section
7.01) shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.



          SECTION 9.07 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.



ARTICLE 10




CONVERSION




          SECTION 10.01 Conversion Right and Conversion Rate. A Holder of a
Security may convert the principal amount of such Security (or any portion
thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof)
into Common Stock at any time prior to the close of business on the last
Business Day prior to October 15, 2011, at the Conversion Rate then in effect.
The initial “Conversion Rate” is 64.3211 shares of Common Stock per $1,000
principal amount of the Securities and is subject to adjustment as provided in
this Article 10.



          In addition, a Holder may be entitled to the Make-Whole Premium in
addition to the shares of Common Stock deliverable upon conversion of such
Holder’s Securities in accordance with Section 3.01 hereof.



          SECTION 10.02 Exercise of Conversion Right. To exercise the
conversion right, the Holder of any Security to be converted shall in the case
of Global Securities, comply with the procedures of the Depositary in effect at
that time, and, in the case of Certificated



48









 







Securities, surrender such Security
duly endorsed or assigned to the Company or in blank, at the office of any
Conversion Agent, accompanied by a duly signed conversion notice substantially
in the form attached to the Security to the Company 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. Holders of any
Security to be converted shall also furnish appropriate endorsement and
transfer documents and pay all taxes and duties, if any.



          If the Notes are converted after a Record Date for an Interest Payment
Date but prior to the next Interest Payment Date, those Notes must be
accompanied by funds equal to the interest payable to the Holder of the Notes
on such Record Date on the next Interest Payment Date on the principal amount
so converted; provided, however, that no such payment need be made if (1) the
Company has specified a Change in Control Purchase that is after a Record Date
an prior to the next Interest Payment Date or (2) only to the extent of any
overdue interest, if any overdue interest exists at the time of conversion with
respect to such Security.



          Securities surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date shall be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount
equal to the interest to be received on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion.



          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 (the “Conversion Date”), and at such
time the rights of the Holders of such Securities as Holders shall cease (and
all obligations of the Company with respect thereto shall be deemed satisfied,
including with respect to the principal amount and any accrued and unpaid
interest, including any Additional Interest), 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 cause to be issued and delivered to such Conversion Agent a certificate
or certificates for or, if applicable, other book-entry confirmation
representing 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 10.03 hereof.



          Notwithstanding the foregoing, in lieu of delivery of shares of Common
Stock upon conversion of any Securities, for all or any portion of the
Securities, the Company may elect to pay Holders surrendering Securities for
conversion an amount in cash per Security (or a portion of a Security) equal to
the average of the Applicable Stock Price over the five Trading Day period
starting the third Trading Day following the Conversion Date multiplied by the
Conversion Rate in effect on the Conversion Date. The Company will inform the
Holders through the Trustee no later than two Business Days following the
Conversion Date of its election to deliver shares of Common Stock or to pay
cash in lieu of delivery of the shares of
Common Stock. Shares of Common Stock and cash deliverable upon conversion
will be delivered through the Conversion Agent no later than the third Business
Day following the determination of the Applicable Stock Price. If the Company
elects to pay all of such payment in cash, the payment will be made to Holders
surrendering Securities no later than the tenth Business Day following the
applicable Conversion Date.



49









 





          Except as specifically provided herein, no cash payment or other
adjustment will be made on conversion of any Securities for interest accrued
thereon or for dividends on any Common Stock. Accrued and unpaid interest will
be deemed paid in full rather than canceled, extinguished or forfeited.



          In the case of any Certificated 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 Securities.



          If shares of Common Stock to be issued upon conversion of a Restricted
Security or portion thereof are to be registered in a name other than that of
the Holder of such Restricted Security, such Holder must deliver to the
Conversion Agent a certificate in substantially the form set forth in the form
of Security set forth in Exhibit C annexed hereto, dated the date of surrender
of such Restricted Security and signed by such Holder, 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 Holder shares of Common
Stock or Securities issued upon conversion of any such Restricted Security not
so accompanied by a properly completed certificate.



          SECTION 10.03 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 issued 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 which would otherwise be issued upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction (calculated to
the nearest one-100th of a share) in an amount equal to the same fraction of
the Closing Sale Price per Share of the Common Stock as of the Trading Day
preceding the Conversion Date.



          SECTION 10.04 Adjustment of Conversion Rate. The Conversion Rate
shall be subject to adjustments, calculated by the Company, from time to time
as follows:



          (a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate in effect at the opening of business on the date
following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall
be increased by multiplying such Conversion Rate by a fraction:




     (1) the numerator of which shall be the sum of the number of shares
of Common Stock outstanding at the close of business on the Record Date
fixed for such determination and the total number of shares constituting
such dividend or other distribution, and



50









 






     (2) the denominator of which shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date fixed for
such determination.


Such increase shall become effective immediately after the opening of business
on the Business Day following the Record Date. If any dividend or distribution
of the type described in this Section 10.04(a) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate which
would then be in effect if such dividend or distribution had not been declared.




          (b) In case the 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. In each such case, the
Conversion Rate shall be adjusted by multiplying such Conversion Rate by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately after giving effect to such subdivision or combination
and the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination. Such
reduction or increase, 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.



          (c) In case the Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock (other than as contemplated by Section
10.14) entitling them to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) at a price per share (or having a
Conversion Price per share) less than the Current Market Price per share of
Common Stock on the Record Date fixed for the determination of stockholders
entitled to receive such rights or warrants, the Conversion Rate shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Rate in effect at the opening of business on the date after such
Record Date by a fraction:




     (1) the numerator of which shall be the number of shares of
Common Stock outstanding on the close of business on the Record
Date plus the total number of additional shares of Common Stock so
offered for subscription or purchase (or into which the convertible
securities so offered are convertible) at such below Current Market
Price, and




     (2) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record
Date plus the number of shares which the aggregate offering price
of the total number of shares of Common Stock so offered for
subscription or purchase (or the aggregate Conversion Price of the
convertible securities so offered) would purchase at such Current
Market Price.



51









 




Such adjustment shall be successively made whenever any such rights or warrants
are issued and shall become effective immediately after the opening of business
on the day following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of
Common Stock (or securities convertible into Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of such
rights or warrants the Conversion Rate shall be readjusted to the Conversion
Rate which would then be in effect had the adjustments made upon the issuance
of such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock (or securities convertible into Common Stock)
actually delivered. In the event that such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed.
In determining whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such Current Market Price,
and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such rights or
warrants, the value of such consideration if other than cash, to be determined
by the Board of Directors.




          (d) In case the Company shall, by dividend or otherwise, distribute to all
or substantially all holders of its Common Stock shares of any class of Capital
Stock of the Company (other than any dividends or distributions to which
Section 10.04(a) applies) or evidences of its indebtedness or other assets,
including securities, but excluding (1) any rights or warrants referred to in
Section 10.04(c) or 10.14, (2) any dividends or distributions in connection
with a reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance to which Section 10.11 hereof applies
and (3) dividends and distributions paid exclusively in cash referred to in
Section 10.04(e) (the securities described in foregoing clauses (1), (2) and
(3) hereinafter in this Section 10.04(d) called the “excluded securities”),
then, in each such case, subject to the second succeeding paragraph of this
Section 10.04(d), the Conversion Rate shall be adjusted so that the same shall
be equal to the price determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Record Date with respect to
such distribution by a fraction:




     (1) the numerator of which shall be such Current Market Price
per share of the Common Stock on the Record Date, and




     (2) the denominator of which shall be the Current Market Price
per share of Common Stock on such date, less the then fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution) on such
date of the portion of the securities, evidences of indebtedness or
other assets so distributed (other than excluded securities)
applicable to one share of Common Stock (determined on the
basis of the number of shares of the Common Stock outstanding on
the Record Date).


Such increase shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then fair market value (as so determined) of the portion of the securities,
evidences of indebtedness or other assets so distributed (other than excluded
securities) applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment,


52









 






adequate provision shall be made so that each Holder shall have the
right to receive upon conversion of a Security (or any portion thereof) the
amount of securities, evidences of indebtedness or other assets so distributed
(other than excluded securities) such Holder would have received had such
Holder converted such Security (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate
which would then be in effect if such dividend or distribution had not been
declared.




          If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 10.04(d) by reference to the actual
or when issued trading market for any securities comprising all or part of such
distribution (other than excluded securities), it must in doing so consider the
prices in such market over the same period (the “Reference Period”) used in
computing the Current Market Price pursuant to Section 10.04(g) to the extent
possible, unless the Board of Directors in a Board Resolution determines in
good faith that determining the fair market value during the Reference Period
would not be in the best interests of the Holder.



          For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and
10.04(c), any dividend or distribution to which this Section 10.04(d) is
applicable that also includes shares of Common Stock, a subdivision or
combination of Common Stock to which Section 10.04(b) applies, or rights or
warrants to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) to which Section 10.04(c) applies (or any
combination thereof), shall be deemed instead to be:




     (1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than such
shares of Common Stock, such subdivision or combination or such rights or
warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply,
respectively (and any Conversion Rate increase required by this Section
10.04(d) with respect to such dividend or distribution shall then be
made), immediately followed by




     (2) a dividend or distribution of such shares of Common Stock, such
subdivision or combination or such rights or warrants (and any further
Conversion Rate increase required by Sections 10.04(a), 10.04(b) and
10.04(c) with respect to such dividend or distribution shall then be
made), except:




     (A) the Record Date of such dividend or distribution shall be
substituted as (x) “the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution”, “Record Date fixed for such
determinations” and “Record Date” within the meaning of
Section 10.04(a), (y) “the day upon which such subdivision becomes
effective” and “the day upon which such combination becomes
effective” within the meaning of Section 10.04(b), and (z) as “the
date fixed for the determination of stockholders entitled to
receive such rights or warrants”, “the Record Date fixed for the
determination of the stockholders entitled to receive such rights
or warrants” and such “Record Date” within the meaning of Section
10.04(c), and



53









 






     (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of
business on the Record Date fixed for such determination” within
the meaning of Section 10.04(a) and any increase or reduction in
the number of shares of Common Stock resulting from such
subdivision or combination shall be disregarded in connection with
such dividend or distribution.



          (e) In case the Company shall, by dividend or otherwise, distribute to all
or substantially all holders of its Common Stock, cash (excluding any cash that
is distributed as part of a distribution referred to in Section 10.04(d)
hereof), then and in each such case, immediately after the close of business on
such date, the Conversion Rate shall be increased so that the same shall equal
the price determined by multiplying the Conversion Rate in effect immediately
prior to the close of business on such Record Date by a fraction:




     (i) the numerator of which shall be equal to the Current Market
Price on such Record Date, and




     (ii) the denominator of which shall be equal to the Current Market
Price on the Record Date less an amount equal to the quotient of (x) the
aggregate amount of the cash distributed and (y) the number of shares of
Common Stock outstanding on the Record Date.


In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared.




          (f) In case the Company or any of its Subsidiaries pays holders of the
Common Stock in respect of a tender offer or exchange offer, other than an
odd-lot offer, by the Company or any of its Subsidiaries for shares of Common
Stock to the extent that the cash and fair market value of any other
consideration included in the payment per share of Common Stock exceeds the
Closing Sale Price per share of Common Stock on the Trading Day next succeeding
the last date on which tenders or exchanges may be made pursuant to such tender
offer or exchange offer (the “Expiration Time”), then, and in each such case,
the Conversion Rate shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Rate in effect immediately prior to
close of business on the date of the Expiration Time by a fraction:




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



54









 






     (2) the denominator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Closing Sale Price of the Common Stock
on the Trading Day next succeeding the Expiration Time.


Such increase (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such tender offer or exchange offer had not been made.




          (g) For purposes of this Section 10.04, the following terms shall have the
meanings indicated:



          “Current Market Price” shall mean the average of the daily Closing Sale
Prices per share of Common Stock for the ten consecutive Trading Days ending
not later than the earlier of the date immediately prior to the date in
question and the day before the “ex” date with respect to the issuance,
distribution, subdivision or combination requiring such computation. If
another issuance, distribution, subdivision or combination to which Section
10.04 applies occurs during the period applicable for calculating “Current
Market Price” pursuant to the preceding definition, then “Current Market Price”
shall be appropriately adjusted to reflect the impact of such issuance,
distribution, subdivision or combination on the Closing Sale Price of the
Common Stock during such period. For purposes of this paragraph, the term “ex”
date, when used:




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




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




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


Notwithstanding the foregoing, whenever successive adjustments to the
Conversion Rate are called for pursuant to this Section 10.04, such adjustments
shall be made to the Current Market
Price as may be necessary or appropriate to effectuate the intent of this
Section 10.04 and to avoid unjust or inequitable results as determined in good
faith by the Board of Directors.





     (2) “fair market value” shall mean the amount which a willing buyer
would pay a willing seller in an arm’s length transaction.



55









 






     (3) “Record Date” shall mean for purposes of this Article 10, with
respect to any dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination
of cash, securities or other property, the date fixed for determination
of stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).



          (h) The Company may make such increases in the Conversion Rate, in
addition to those required by Section 10.04(a), (b), (c), (d), (e) or (f), as
the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.



          To the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least 20 days and the increase is irrevocable during the period
and the Board of Directors determines in good faith that such increase would be
in the best interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to the Trustee and
each Holder at the address of such Holder as it appears in the Register a
notice of the increase at least 15 days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.


          Notwithstanding anything in
this Indenture to the contrary, in no event shall the Company or its
Board of Directors increase the Conversion Rate to an amount that
would violate the stockholder approval requirements of the Nasdaq
National Market without first obtaining the approval of the
Company’s stockholders to such increase.


          (i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price then in effect; provided, however, that any adjustments which
by reason of this Section 10.04(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. In the event
that, on the date that is five Business Days prior to the maturity of the
Securities (whether at Stated Maturity or otherwise), an adjustment has been
carried forward pursuant to the preceding sentence but has not yet been taken
into account in an adjustment to the Conversion Rate and notwithstanding the
first sentence of this paragraph (i), an adjustment to the Conversion Rate will
be made on such date in accordance with the relevant paragraph of this Section
10.04. All calculations under this Article 10 shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a share,
as the case may be. No adjustment need be made for a change in the par value
or no par value of the Common Stock. No adjustment in the Conversion Rate
shall be required if the Holders participate in the transactions that would
otherwise lead to an adjustment in the Conversion Rate pursuant to this Section
10.04.



          (j) In any case in which this Section 10.04 provides that an adjustment
shall become effective immediately after a Record Date for an event, the
Company may defer until the occurrence of such event (i) issuing to the Holder
of any Security converted after such Record Date and before the occurrence of
such event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and
(ii)



56









 







paying to such Holder any amount in cash in lieu of any fraction pursuant
to Section 10.03 hereof.



          (k) For purposes of this Section 10.04, 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.



          SECTION 10.05 Notice of Adjustments of Conversion Rate. Whenever
the Conversion Rate is adjusted as herein provided (other than in the case of
an adjustment pursuant to the second paragraph of Section 10.04(h) for which
the notice required by such paragraph has been provided), the Company shall
promptly file with the Trustee and any Conversion Agent other than the Trustee
an Officers’ Certificate setting forth the adjusted Conversion Rate and showing
in reasonable detail the facts upon which such adjustment is based. Promptly
after delivery of such Officers’ Certificate, the Company shall prepare a
notice stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes
effective, and shall mail, or cause the Trustee to mail, at the Company’s
expense, such notice to each Holder at the address of such Holder as it appears
in the Register within 20 days of the effective date of such adjustment.
Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.



          SECTION 10.06 Notice Prior to Certain Actions. In case at any time
after the date hereof:




     (1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its capital
surplus or its consolidated retained earnings;




     (2) the Company shall authorize (other than pursuant to a Rights
Plan) the granting to the holders of its Common Stock of rights or
warrants to subscribe for or purchase any shares of capital stock of any
class (or of securities convertible into shares of capital stock of any
class) or of any other rights;




     (3) there shall occur any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding
Common Stock, a change in par value, a change from par value to no par
value or a change from no par value to par value), or any merger,
consolidation, statutory share exchange or combination to which the
Company is a party and for which approval of any shareholders
of the Company is required, or the sale, transfer or conveyance of
all or substantially all of the assets of the Company; or




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


the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 4.05 hereof, and shall
cause to be provided to the


57









 






Trustee and all Holders in accordance with Section
12.02 hereof, at least 15 days prior to the applicable record or effective date
hereinafter specified, a notice stating:





     (A) the date on which a record is to be taken for the purpose
of such dividend, distribution, rights 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 or warrants are to be determined, or




     (B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale,
transfer, conveyance, 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, merger,
consolidation, statutory share exchange, sale, transfer,
dissolution, liquidation or winding up.



          Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 10.06.



          SECTION 10.07 Company to Reserve Common Stock. The Company shall
at all times use its best efforts to 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
fully paid and nonassessable Common Stock then issuable upon the conversion of
all Securities outstanding.



          SECTION 10.08 Taxes on Conversions. Except as provided in the next
sentence, the Company will pay any and all taxes (other than taxes on income)
and duties that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. A Holder delivering
a Security for conversion shall be liable for and will be required to pay any
tax or duty which may be payable in respect of 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 the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.



          SECTION 10.09 Covenant as to Common Stock. The Company covenants
that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable.



          SECTION 10.10 Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.10.



          SECTION 10.11 Effect of Reclassification, Consolidation, Merger or
Sale. If any of following events occur, namely:



58









 






     (1) any reclassification or change of the outstanding Common Stock
(other than a change as a result of a subdivision or combination),




     (2) any merger, consolidation or combination of the Company with
another corporation, or




     (3) any sale, conveyance or lease of all, or substantially all, the
properties and assets of the Company to any other corporation,


in each case, as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash or any
combination thereof) with respect to or in exchange for such Common Stock, the
Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
TIA as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing that such
Security shall be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash or any combination
thereof) which such Holder would have been entitled to receive upon such
recapitalization, reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance had such Securities been
converted into Common Stock immediately prior to such recapitalization,
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise its rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such recapitalization,
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised (“Non-Electing Share”),
then for the purposes of this Section 10.11 the kind and amount of securities,
cash or other property receivable upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance for
each Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article 10. If, in
the case of any such recapitalization, reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, the
stock or other securities and
assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
recapitalization, reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing, including to the extent practicable the provisions
providing for the purchase rights set forth in Section 3.01 hereof.




          The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the Register, within



59









 







20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.



          The above provisions of this Section 10.11 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.



          If this Section 10.11 applies to any event or occurrence, Section 10.04
hereof shall not apply to such event or occurrence.



          SECTION 10.12 Adjustment for Other Distributions. If, after the
Issue Date of the Securities, the Company pays a dividend or makes a
distribution to all holders of its Common Stock consisting of Capital Stock of
any class or series, or similar equity interests as described in Section
10.04(d), of or relating to a Subsidiary or other business unit of the Company,
the Conversion Rate shall be adjusted in accordance with the formula:



P  ́ = P x 1/(1 + M/F)




where:




     P  ́ = the adjusted Conversion Rate.



     P = the current Conversion Rate.



     F = the fair market value of the securities distributed in respect of each
share of Common Stock, which shall be the number of securities distributed in
respect of each share of Common Stock multiplied by the average of the
Post-Distribution Prices of those securities distributed for the 10 Trading
Days commencing on and including the fifth Trading Day after the Ex-Dividend
Date.



     M = the average of the Post-Distribution Prices of the Common Stock for
the 10 Trading Days commencing on and including the fifth Trading Day after the
date on which “ex-dividend trading” commences for such dividend or distribution
on the Nasdaq National Market or such other national or regional exchange or
market which such securities are then listed or quoted (the “Ex-Dividend
Date”).



          “Post-Distribution Price” of Capital Stock or any similar equity interest
on any date means the closing per unit sale price (or, if no closing sale price
is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on such
date for trading of such units on a “when issued” basis without due bills (or
similar concept) as reported in the composite transactions for the Nasdaq
National Market or such other national or regional exchange or market on which
such Capital Stock or equity interest is traded or, if the Capital Stock or
equity interest, as the case may be, is not listed on a United States national
or regional securities exchange or market, as reported by the Nasdaq system or
by the National Quotation Bureau Incorporated; provided that if on any date
such units have not traded on a “when issued” basis, the Post-Distribution
Price shall be the closing per unit sale price (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on such date



60









 







for trading of such units on a “regular way” basis without due bills (or
similar concept) as reported in the composite transactions for the Nasdaq
National Market or such other national or regional exchange on which such
Capital Stock or equity interest is traded or, if the Capital Stock or equity
interest, as the case may be, is not listed on a United States national or
regional securities exchange, as reported by the Nasdaq system or by the
National Quotation Bureau Incorporated. In the absence of such quotation, the
Company shall be entitled to determine the Post-Distribution Price on the basis
of such quotations, which reflect the post-distribution value of the Capital
Stock or equity interests as it considers appropriate.



          SECTION 10.13 Responsibility of Trustee for Conversion Provisions.
The Trustee and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or intent of any such adjustments when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent
shall be accountable with respect to the validity or value (of the kind or
amount) of any Common Stock, or of any other securities or property, 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 nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
stock or share certificates or other securities or property upon the surrender
of any Security for the purpose of conversion; and the Trustee and any
Conversion Agent shall not be responsible or liable for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article.



          SECTION 10.14 Rights Issued in Respect of Common Stock Issued Upon
Conversion. In the event that the Company implements a new rights plan or
any similar plan (a “Rights Plan”), or the Company’s current Rights Plan is
still in effect, upon conversion of the Securities into Common Stock, to the
extent that any such Rights Plan has been implemented and is still in effect
upon such conversion, the holders of Securities will receive, in addition to
the Common Stock, the rights described therein (unless the rights have
separated from the Common Stock at the time of conversion), subject to the
limitations set forth in the Rights Plan. Any
distribution of rights or warrants pursuant to a Rights Plan complying
with the requirements set forth in the immediately preceding sentence of this
paragraph (including the issuance of the rights, the distribution of separate
certificates representing the rights, the exercise or redemption of such rights
in accordance with the applicable rights agreement and the termination or
invalidation of the rights) shall not constitute a distribution of rights or
warrants pursuant to Section 10.04.



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ARTICLE 11




SUBORDINATION




          SECTION 11.01 Securities Subordinated to Senior Indebtedness. (a) The
Company covenants and agrees, and each Holder of Securities, by such Holder’s
acceptance thereof, likewise covenants and agrees, that the Indebtedness
represented by the Securities and the payment of the principal of and premium
(including the Make-Whole Premium), if any, and interest (including Additional
Interest Amounts, if any) on each and all of the Securities is hereby expressly
subordinated and junior, to the extent and in the manner set forth and as set
forth in this Section 11.01, in right of payment to the prior payment in full
of all Senior Indebtedness; provided, however, that the Securities, the
Indebtedness represented thereby and the payment of the principal of and
premium (including the Make-Whole Premium), if any, and interest (including
Additional Interest Amounts, if any) on the Securities in all respects shall
rank equally with, or prior to, all existing and future Indebtedness of the
Company that is expressly subordinated to any Senior Indebtedness.



          (b) In the event of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, reorganization or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, the holders of all Senior
Indebtedness shall first be entitled to receive payment of the full amount due
thereon in respect of all such Senior Indebtedness and all other amounts due or
provision shall be made for such amount in cash, or other payments satisfactory
to the holders of Senior Indebtedness, before the Holders of any of the
Securities are entitled to receive any payment or distribution of any
character, whether in cash, securities or other property, on account of the
principal of or premium, if any, or interest (including Additional Interest
Amounts, if any) on the Securities.



          (c) In the event of and during the continuance of any default in payment
of the principal of or premium, if any, or interest on, rent or other payment
obligation in respect of, any Senior Indebtedness, unless all such payments due
in respect of such Senior Indebtedness have been paid in full in cash or other
payments satisfactory to the holders of Senior Indebtedness, no payment shall
be made by the Company with respect to the principal of, premium (including the
Make-Whole Premium), if any, or interest (including Additional Interest
Amounts, if any) on the Securities or to acquire any of the Securities
(including any conversion or repurchase pursuant to Article 3). The Company
shall give prompt written notice to the Trustee of any default under any Senior
Indebtedness or under any agreement pursuant to which Senior Indebtedness may
have been issued.



          (d) In the event that, notwithstanding the foregoing provisions of
Sections 11.01(b) and 11.01(c), any payment on account of principal, premium
(including the Make-Whole Premium), if any, or interest (including Additional
Interest Amounts, if any) on the Securities shall be made by or on behalf of
the Company and received by the Trustee, by any



62









 







Holder or by any Paying Agent
(or, if the Company is acting as its own Paying Agent, money for any such
payment shall be segregated and held in trust):




     (i) after the occurrence of an event specified in Section 11.01(b)
then, unless all Senior Indebtedness is paid in full in cash, or
provision shall be made therefor, or




     (ii) after the happening of an event of default of the type
specified in Section 11.01(c) above, then, unless the amount of such
Senior Indebtedness then due shall have been paid in full, or provision
made therefor or such event of default shall have been cured or waived,
such payment (subject, in each case, to the provisions of Section 11.07
hereof) shall be held in trust for the benefit of, and shall be
immediately paid over to, the holders of the Senior Indebtedness or
their representative or representatives or the trustee or trustees under
any indenture under which any instruments evidencing any of the Senior
Indebtedness, as the case may be, may have been issued, as their
interests may appear.



          SECTION 11.02 Subrogation. Subject to the payment in full of all Senior
Indebtedness to which the Indebtedness evidenced by the Securities is in the
circumstances subordinated as provided in Section 11.01 hereof, the Holders of
the Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities, no such payment or distribution made to the holders
of Senior Indebtedness by virtue of this Article which otherwise would have
been made to the holders of the Securities shall be deemed to be a payment by
the Company on account of such Senior Indebtedness; provided, however, that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand.



          SECTION 11.03 Obligation of the Company Is Absolute and Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and premium, if any,
and interest (including Additional Interest Amounts, if any) on the Securities
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything contained herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.



          SECTION 11.04 Maturity of or Default on Senior Indebtedness. Upon the
maturity of any Senior Indebtedness by lapse of time, acceleration or
otherwise, all principal of or premium, if any, or interest on, rent or other
payment obligations in respect of all such



63









 







matured Senior Indebtedness shall
first be paid in full, or such payment shall have been duly provided for,
before any payment on account of principal, or premium, if any, or interest
(including Additional Interest Amounts, if any) is made upon the Securities.



          SECTION 11.05 Payments on Securities Permitted. Except as expressly
provided in this Article, nothing contained in this Article shall affect the
obligation of the Company to make, or prevent the Company from making, payments
of the principal of, or premium, if any, or interest (including Additional
Interest Amounts, if any) on the Securities in accordance with the provisions
hereof and thereof, or shall prevent the Trustee or any Paying Agent from
applying any moneys deposited with it hereunder to the payment of the principal
of, or premium, if any, or interest (including Additional Interest Amounts, if
any) on the Securities.



          SECTION 11.06 Effectuation of Subordination by Trustee. Each Holder of
Securities, by such Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee such Holder’s attorney-in-fact for any and all such
purposes.



          Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization
proceeding affecting the affairs of the Company is pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors, liquidating trustee or agent or other Person making any payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, and as to other facts pertinent to the right of such Persons
under this Article, and if such evidence is not furnished, the Trustee may
defer any payment to such Persons pending judicial determination as to the right of
such Persons to receive such payment.



          SECTION 11.07 Knowledge of Trustee. Notwithstanding the provision of
this Article or any other provisions of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any Senior Indebtedness, of any
default in payment of principal of, premium, if any, or interest on, rent or
other payment obligation in respect of any Senior Indebtedness, or of any facts
which would prohibit the making of any payment of moneys to or by the Trustee,
or the taking of any other action by the Trustee, unless a Responsible Officer
of the Trustee having responsibility for the administration of the trust
established by this Indenture shall have received written notice thereof from
the Company, any Holder of Securities, any Paying or Conversion Agent of the
Company or the holder or representative of any class of Senior Indebtedness,
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such default or facts exist;
provided, however, that unless on the third Business Day prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
the Trustee shall have received the notice provided for in this Section 11.07,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and apply the same
to the



64









 







purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.



          SECTION 11.08 Trustee’s Relation to Senior Indebtedness. The Trustee
shall be entitled to all the rights set forth in this Article with respect to
any Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness and nothing in this Indenture shall deprive the
Trustee or any Authenticating Agent of any of its rights as such holder.


Nothing contained in this Article shall apply to claims of or payments to the
Trustee under or pursuant to Section 7.07 hereof.



With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not
be liable to any holder of Senior Indebtedness if it shall pay over or deliver
to Holders, the Company or any other Person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.




          SECTION 11.09 Rights of Holders of Senior Indebtedness Not Impaired. No
right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any noncompliance
by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.



          SECTION 11.10 Modification of Terms of Senior Indebtedness. Any renewal
or extension of the time of payment of any Senior Indebtedness or the exercise
by the holders of Senior Indebtedness of any of their rights under any
instrument creating or evidencing Senior Indebtedness, including without
limitation the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee.



          No compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions or any applicable
document, shall in any way alter or affect any of the provisions of this
Article or of the Securities relating to the subordination thereof.



          SECTION 11.11 Certain Conversions Not Deemed Payment. For the purposes
of this Article 11 only:



65









 





          (1) the issuance and delivery of junior securities upon conversion of
Securities in accordance with Article 10 hereof shall not be deemed to
constitute a payment or distribution on account of the principal of,
premium(including the Make-Whole Premium), if any, or interest (including
Additional Interest Amounts, if any) on Securities or on account of the
purchase or other acquisition of Securities, and



          (2) the payment, issuance or delivery of cash (except in satisfaction of
fractional shares pursuant to Section 10.03 hereof), property or securities
(other than junior securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of, premium, if any, or interest
(including Additional Interest Amounts, if any) on such Security.



For the purposes of this Section 11.11, the term “junior securities” means:




          (a) shares of any Common Stock of the Company or



          (b) other securities of the Company that are subordinated in right of
payment to all Senior Indebtedness that may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article.



          Nothing contained in this Article 11 or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors (other than holders of Senior Indebtedness) and the Holders of
Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article 10 hereof.



ARTICLE 12




MISCELLANEOUS




          SECTION 12.01 Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control. If any provision of this Indenture expressly modifies or
excludes any provision of the TIA that may be so modified or excluded, the
Indenture provision so modifying or excluding such provision of the TIA shall
be deemed to apply.



          SECTION 12.02 Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows, or, other
than notices to the Company, transmitted by facsimile transmission (confirmed
by guaranteed overnight courier) to the following facsimile numbers:



66









 






	 	 	if to the Company:






	 	 	Human Genome Sciences, Inc.

14200 Shady Grove Road

Rockville, Maryland 20850

Attention: James H. Davis, Ph.D

Facsimile: (301) 517-8831






	 	 	if to the Trustee:






	 	 	The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Corporate Trust Administration

Facsimile: 212-815-5707





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



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



          Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not received by the addressee.



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



          SECTION 12.03 Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else
shall have the protection of TIA Section 312(c).



          SECTION 12.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.



          SECTION 12.05 Statements Required in an Officers’ Certificate or
Opinion. Each Officers’ Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:




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



67









 






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




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




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



          SECTION 12.06 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



          SECTION 12.07 Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of Holders. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.



          SECTION 12.08 Legal Holidays. A “Legal Holiday” is any day other
than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding
day that is not a Legal Holiday, and, if the action to be taken on such date is
a payment in respect of the Securities, no interest, if any, shall accrue for
the intervening period.



          SECTION 12.09 GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE
AND THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.



          SECTION 12.10 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Securities.



          SECTION 12.11 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.



68









 





          SECTION 12.12 Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.



          SECTION 12.13 Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts
which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



69









 





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


	 	 	 	 	 
	 	HUMAN GENOME SCIENCES, INC.

 	 
	 	By:  	/s/ Steven C. Mayer	 
	 	 	Name:  Steven C. Mayer	 
	 	 	Title:    Executive Vice President and

             Chief Financial Officer	 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK

as Trustee

 	 
	 	By:  	/s/ Geovanni Barris	 
	 	 	Name:   Geovanni Barris	 
	 	 	Title:     Vice President	 
	 




Signature Page to Indenture





 










 





EXHIBIT A




[FORM OF GLOBAL NOTE]




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



          TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



          THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.



          THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH HUMAN GENOME SCIENCES,
INC. OR ANY AFFILIATE OF HUMAN GENOME SCIENCES, INC. WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO HUMAN GENOME
SCIENCES, INC. OR ANY SUBSIDIARY THEREOF OR (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A



A-1









 







UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A OR (C) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO HUMAN GENOME SCIENCES, INC.’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) ABOVE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.



A-2









 





HUMAN GENOME SCIENCES, INC.

21⁄4% Convertible Subordinated Securities due 2011




CUSIP NO. 444903 AJ 7




No.:




Issue Date: October 4, 2004




          HUMAN GENOME SCIENCES, INC., a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the principal sum of Two Hundred and Eighty
Million Dollars ($280,000,000) on October 15, 2011.



          This Security shall bear interest as specified on the other side of this
Security. This Security is convertible as specified on the other side of this
Security.



          Additional provisions of this Security are set forth on the other side of
this Security.


	 	 	 	 	 
	Dated: 	HUMAN GENOME SCIENCES, INC.

 	 
	 	By	 	



	 
	 	 	 	Name:	 
	 	 	 	Title:	 




TRUSTEE’S CERTIFICATE OF

AUTHENTICATION


The Bank of New York, as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture (as defined on the other side of
this Security).




	 	 	 	 	 
	By

	 	


	 	 
	

	 	Authorized Signatory	 	 







	 	 	 	 	 
	Dated:

	 	


	 	 







A-3









 








[FORM OF REVERSE SIDE OF NOTE]




21⁄4% Convertible Subordinated Securities due 2011




     Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture (the “Indenture”) dated October 4, 2004
between the Company and The Bank of New York (the “Trustee”) unless otherwise
indicated.




	1.	 	Cash Interest.





     The Company promises to pay interest at the Interest Rate in cash on the
principal amount of this Security. The Company will pay cash interest
semiannually in arrears on April 15 and October 15 of each year (each an
“Interest Payment Date”), beginning on April 15, 2005, to Holders of record at
the close of business on the preceding April 1 and October 1 (whether or not a
business day) (each a “Regular Record Date”), as the case may be, immediately
preceding such Interest Payment Date. Cash interest on the Securities will
accrue from the most recent date to which interest has been paid or duly
provided or, if no interest has been paid, from the Issue Date. Cash interest
will be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay cash interest on overdue principal at the rate borne by the
Securities, and it shall pay interest in cash on overdue installments of cash
interest at the same rate to the extent lawful. All such overdue cash interest
shall be payable on demand. Upon conversion, accrued and unpaid interest shall
be deemed paid in full rather than cancelled, extinguished or forfeited.




	2.	 	Method of Payment.





     Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, and cash interest on this
Security and in respect of the Change in Control Purchase Price and the
Make-Whole Premium, if any, to Holders who surrender Securities to a Paying
Agent to collect such payments in respect of the Securities. The Company will
pay cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
make such cash payments by check or wire transfer payable in such money.
Notwithstanding the foregoing, so long as this Security is registered in the
name of a Depositary or its nominee, all payments hereon shall be made by wire
transfer of immediately available funds to the account of the Depositary or its
nominee. Any payment required to be made on any day that is not a Business Day
will be made on the next succeeding Business Day.




	3.	 	Paying Agent, Conversion Agent and Registrar.





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



A-4









 






	4.	 	Indenture.





     The Company issued the Securities under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the “TIA”). The Securities are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms.



     The Securities are general unsecured subordinated obligations of the
Company limited to $280,000,000 aggregate principal amount (subject to Section
2.07 and Section 2.02 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.



     No sinking fund is provided for the Securities.




	5.	 	Purchase by the Company at the Option of the Holder upon Change in
Control.





     If there shall have occurred a Change in Control (subject to certain
conditions provided for in the Indenture), each Holder, at such Holder’s
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to purchase its Securities (or any portion of
the principal amount hereof that is at least $1,000 or any whole multiple
thereof, provided that the portion of the principal amount of this Security to
be outstanding after such purchase is at least equal to $1,000) at the Change
in Control Purchase Price in cash plus any accrued and unpaid interest to but
not including the Change in Control Purchase Date.



     If there shall have occurred a Change in Control pursuant to clause (i) or
(ii) of the definition thereof in which more than 10% of the consideration for
the Common Stock in the transaction or transactions constituting the Change in
Control consists of cash (other than cash payments for fractional shares and
cash payments made in respect of dissenters’ rights), and a Holder surrenders
such Securities for purchase, the Company shall pay to such Holder a Make-Whole
Premium in addition to the Change in Control Purchase Price. The Make-Whole
Premium will also be paid on the Change in Control Purchase Date to the Holders
of the Securities who convert their Securities on or after the date on which
the Company has given a notice to all Holders of Securities in accordance with
Section 3.01 of the Indenture and on or before the Change in Control Purchase
Date.



     A written notice of the Change in Control will be given to the Holders as
provided in the Indenture. To exercise a purchase right, a Holder must deliver
to the Trustee a Change in Control Purchase Notice as provided in the
Indenture.



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




	6.	 	Subordination.





     The Indebtedness evidenced by this Security and the payment of the
principal of and premium (including the Make-Whole Premium), if any, and
interest (including Additional



A-5









 







Interest Amounts, if any) on each and all of the Securities is expressly
subordinated and junior, to the extent and in the manner set forth and as set
forth in the Indenture, in right of payment to the prior payment in full of all
Senior Indebtedness; provided, however, that the Securities, the Indebtedness
represented thereby and the payment of the principal of and premium (including
the Make-Whole Premium), if any, and interest (including Additional Interest
Amounts, if any) on the Securities in all respects shall rank equally with, or
prior to, all existing and future Indebtedness of the Company that is expressly
subordinated to any Senior Indebtedness. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on such Holder’s behalf to take such action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all
such purposes




	7.	 	Conversion.





     Subject to the Article 10 of the Indenture, a Holder of a Security may
convert such Security (or any portion thereof equal to $1,000 or any integral
multiple of $1,000 in excess thereof) into Common Stock at any time prior to
the close of business on the last Business Day prior to October 15, 2011 or
such earlier date set forth in the Indenture, at the Conversion Rate then in
effect. Subject to certain conditions provided for in the Indenture, in
certain circumstances, a Holder may receive an amount in cash equal to the
Make-Whole Premium, in addition to the shares of Common Stock issuable, or cash
payments, on conversion of such Security.



     The initial “Conversion Rate” is 64.3211 shares of Common Stock per $1,000
principal amount of the Securities and is subject to adjustment as provided in
the Indenture. A Security in respect of which a Holder has delivered a Change
in Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if such Change in
Control Purchase Notice is withdrawn in accordance with the terms of the
Indenture. The Company shall pay a cash adjustment as provided in the
Indenture in lieu of any fractional share of Common Stock.



     To convert a Certificated Security, a Holder must (1) complete and
manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee, (4) pay all funds required, if any, relating to
interest on the Securities to be converted to which the Holder is not entitled
and (5) pay any transfer or similar tax, if required. To convert a Global
Security, a Holder must comply with the procedures of the Depositary in effect
at such time.




	8.	 	Denominations; Transfer; Exchange.





     The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any



A-6









 







Securities in respect of which a Change in Control Purchase Notice has
been given and not withdrawn (except, in the case of a Security to be purchased
in part, the portion of the Security not to be purchased).




	9.	 	Persons Deemed Owners.





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




	10.	 	Unclaimed Money or Securities.





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




	11.	 	Amendment; Waiver.





     Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding and (ii) certain Defaults and Events of
Default may be waived with the written consent of the Holders of not less than
a majority in aggregate principal amount of the Securities at the time
outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company and the Trustee may amend the Indenture
or the Securities to, among other things, cure any ambiguity, omission, defect
or inconsistency, or to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change that does not adversely affect the rights of any Holder,
or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.




	12.	 	Defaults and Remedies.





     Under the Indenture, Events of Default include (1) failure by the Company
to pay when due the principal of or premium, if any, on any of the Securities
at maturity, upon exercise of a repurchase right or otherwise, whether or not
such payment is prohibited by Article 11 of the Indenture; (2) failure by the
Company to pay an installment of interest (or Additional Interest Amounts, if
any) on any of the Securities that continues for 30 days after the date when
due, whether or not such payment is prohibited by Article 11 of the Indenture;
(3) failure by the Company to provide the Change of Control Notice in
accordance with the provisions set forth in Section 3.01 of the Indenture; (4)
failure by the Company to perform or observe any other term, covenant or
agreement contained in the Securities or the Indenture for a period of 60 days
after written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding (a “Notice of Default”); (5) failure by the Company
to pay when due the principal of, or acceleration of, any Indebtedness in an
amount in excess of $25 million, because of a default with respect to such
Indebtedness



A-7









 







without such Indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled, in either case, for a period
of 10 days after the date of a Notice of Default; (6) certain events of
bankruptcy, insolvency or reorganization with respect to the Company; and (7)
the Company’s filing of a voluntary petition seeking liquidation,
reorganization arrangement, readjustment of debts or for any other relief under
the federal bankruptcy code. If an Event of Default (other than an Event of
Default specified in clause (6) or (7) of Section 6.01 of the Indenture) occurs
and is continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding, may declare all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.



     Holders may not enforce the Indenture or the Securities, except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(1) or (2) above) if it determines that withholding notice is in their
interests as provided in the Indenture.




	13.	 	Trustee Dealings with the Company.





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




	14.	 	No Recourse Against Others.





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




	15.	 	Authentication.





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




	16.	 	Abbreviations.





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



A-8









 






	17.	 	GOVERNING LAW.





     THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.









A-9









 








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



	 	 	 
	 

	 	Human Genome Sciences, Inc.
	

	 	14200 Shady Grove Road
	

	 	Rockville, Maryland 20850
	

	 	Attention: James H. Davis, Ph.D







A-10









 






ASSIGNMENT FORM




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



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



	 	 	 	 	 
	 

	 	[   ]
	 	A transfer of the Surrendered Security is made
to the Company; or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security
complies with Rule 144A under the U.S. Securities Act of 1933,
as amended (the “Securities Act”); or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security is
pursuant to an effective registration statement under the
Securities Act, or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security is
pursuant to another available exemption from the registration
requirement of the Securities Act,






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




	 	 	 	 	 
	 

	 	[   ]
	 	The transferee is an Affiliate of the Company.







	 	 	 	 	 
	Dated:

	 	



	 	



	 
	 	 	 	 
	 
	 	 	 	

	

	 	 	 	Signature(s)
	 
	 	 	 	 
	

	 	 	 	Signature(s) must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined







A-11









 






	 	 	 	 	 
	

	 	 	 	by the Securities registrar
in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.








A-12









 








CONVERSION NOTICE



To convert this Security into Common Stock of the Company, check the box:



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




$                                      



If you want the stock certificate made out in another person’s name, fill in
the form below:
















(Insert other person’s social sec. or tax ID no.)








































(Print or type other person’s name, address and zip code)




	 	 	 
	[   ]

	 	If you want the stock certificate made out
in another person’s name, you are required
to complete and deliver to the Conversion
Agent a duly completed Transfer Certificate
(which is in the form of Exhibit C to the
Indenture) as required thereby.







A-13









 






OPTION TO ELECT PURCHASE



UPON A CHANGE IN CONTROL




To: Human Genome Sciences, Inc.



o     The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from the Company as to the occurrence of a
Change in Control with respect to the Company and requests and instructs the
Company to redeem the entire principal amount of this Security, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Security at the
Change in Control Purchase Price, including accrued interest, if any, up to,
but excluding, such date, to the registered Holder hereof.




	 	 	 	 
	Dated:

	
	 	

	 
	
	 	 
	

	 	 	

	

	 	 	Signature(s)
	 
	 	 	 
	

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

	 	 	

	

	 	 	Signature Guaranty
	 
	 	 	 
	Principal amount to be redeemed (in
an integral multiple of $1,000, if
less than all):
	 	 











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.




A-14









 








EXHIBIT B




[FORM OF CERTIFICATED NOTE]




          THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.



          THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH HUMAN GENOME SCIENCES,
INC. OR ANY AFFILIATE OF HUMAN GENOME SCIENCES, INC. WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO HUMAN GENOME
SCIENCES, INC. OR ANY SUBSIDIARY THEREOF OR (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (C) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO HUMAN GENOME SCIENCES, INC.’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) ABOVE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.



B-1









 





HUMAN GENOME SCIENCES, INC.




21⁄4% Convertible Subordinated Securities due 2011




CUSIP NO. 444903 AJ 7




No.:




Issue Date: October 4, 2004




          HUMAN GENOME SCIENCES, INC., a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the principal sum of Two Hundred and Eighty
Million Dollars ($280,000,000) on October 15, 2011.



          This Security shall bear interest as specified on the other side of this
Security. This Security is convertible as specified on the other side of this
Security.



          Additional provisions of this Security are set forth on the other side of
this Security.


	 	 	 	 	 
	Dated: 	HUMAN GENOME SCIENCES, INC.

 	 
	 	By	 	



	 
	 	 	 	Name:	 
	 	 	 	Title:	 




TRUSTEE’S CERTIFICATE OF

AUTHENTICATION


The Bank of New York, as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture (as defined on the other side of
this Security).




	 	 	 	 	 
	By

	 	



	 	 
	

	 	Authorized Signatory	 	 







	 	 	 	 	 
	Dated:

	 	



	 	 








B-2









 








[FORM OF REVERSE SIDE OF NOTE]




21⁄4% Convertible Subordinated Securities due 2011




     Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture (the “Indenture”) dated October 4, 2004
between the Company and The Bank of New York (the “Trustee”) unless otherwise
indicated.




	1.	 	Cash Interest.





     The Company promises to pay interest at the Interest Rate in cash on the
principal amount of this Security. The Company will pay cash interest
semiannually in arrears on April 15 and October 15 of each year (each an
“Interest Payment Date”), beginning on April 15, 2005, to Holders of record at
the close of business on the preceding April 1 and October 1 (whether or not a
business day) (each a “Regular Record Date”), as the case may be, immediately
preceding such Interest Payment Date. Cash interest on the Securities will
accrue from the most recent date to which interest has been paid or duly
provided or, if no interest has been paid, from the Issue Date. Cash interest
will be computed on the basis of a 360-day year of twelve 30-day months. The
Company shall pay cash interest on overdue principal at the rate borne by the
Securities, and it shall pay interest in cash on overdue installments of cash
interest at the same rate to the extent lawful. All such overdue cash interest
shall be payable on demand. Upon conversion, accrued and unpaid interest shall
be deemed paid in full rather than cancelled, extinguished or forfeited.




	2.	 	Method of Payment.





     Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, and cash interest on this
Security and in respect of the Change in Control Purchase Price and the
Make-Whole Premium, if any, to Holders who surrender Securities to a Paying
Agent to collect such payments in respect of the Securities. The Company will
pay cash amounts in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
make such cash payments by check or wire transfer payable in such money.
Notwithstanding the foregoing, so long as this Security is registered in the
name of a Depositary or its nominee, all payments hereon shall be made by wire
transfer of immediately available funds to the account of the Depositary or its
nominee. Any payment required to be made on any day that is not a Business Day
will be made on the next succeeding Business Day.


3. Paying Agent, Conversion Agent and Registrar.




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



B-3









 






	4.	 	Indenture.





     The Company issued the Securities under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the “TIA”). The Securities are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms.



     The Securities are general unsecured subordinated obligations of the
Company limited to $280,000,000 aggregate principal amount (subject to Section
2.07 and Section 2.02 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.



     No sinking fund is provided for the Securities.




	5.	 	Purchase by the Company at the Option of the Holder upon Change in
Control.





     If there shall have occurred a Change in Control (subject to certain
conditions provided for in the Indenture), each Holder, at such Holder’s
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to purchase its Securities (or any portion of
the principal amount hereof that is at least $1,000 or any whole multiple
thereof, provided that the portion of the principal amount of this Security to
be outstanding after such purchase is at least equal to $1,000) at the Change
in Control Purchase Price in cash plus any accrued and unpaid interest to but
not including the Change in Control Purchase Date.



     If there shall have occurred a Change in Control pursuant to clause (i) or
(ii) of the definition thereof, in which more than 10% of the consideration for
the Common Stock in the transaction or transactions constituting the Change in
Control consists of cash (other than cash payments for fractional shares and
cash payments made in respect of dissenters’ rights) and a Holder surrenders
such Securities for purchase, the Company shall pay to such Holder a Make-Whole
Premium in addition to the Change in Control Purchase Price. The Make-Whole
Premium will also be paid on the Change in Control Purchase Date to the Holders
of the Securities who convert their Securities on or after the date on which
the Company has given a notice to all Holders of Securities in accordance with
Section 3.01 of the Indenture and on or before the Change in Control Purchase
Date.



     A written notice of the Change in Control will be given to the Holders as
provided in the Indenture. To exercise a purchase right, a Holder must deliver
to the Trustee a Change in Control Purchase Notice as provided in the
Indenture.



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




	6.	 	Subordination.





     The Indebtedness evidenced by this Security and the payment of the
principal of and premium (including the Make-Whole Premium), if any, and
interest (including Additional



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Interest Amounts, if any) on each and all of the Securities is expressly
subordinated and junior, to the extent and in the manner set forth and as set
forth in the Indenture, in right of payment to the prior payment in full of all
Senior Indebtedness ; provided, however, that the Securities, the Indebtedness
represented thereby and the payment of the principal of and premium (including
the Make-Whole Premium), if any, and interest (including Additional Interest
Amounts, if any) on the Securities in all respects shall rank equally with, or
prior to, all existing and future Indebtedness of the Company that is expressly
subordinated to any Senior Indebtedness. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on such Holder’s behalf to take such action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all
such purposes.




	7.	 	Conversion.





     Subject to the Article 10 of the Indenture, a Holder of a Security may
convert such Security (or any portion thereof equal to $1,000 or any integral
multiple of $1,000 in excess thereof) into Common Stock at any time prior to
the close of business on the last Business Day prior to October 15, 2011 or
such earlier date set forth in the Indenture, at the Conversion Rate then in
effect. Subject to certain conditions provided for in the Indenture, in
certain circumstances, a Holder may receive an amount in cash equal to the
Make-Whole Premium, in addition to the shares of Common Stock issuable, or cash
payment, on conversion of such Security.



     The initial “Conversion Rate” is 64.3211 shares of Common Stock per $1,000
principal amount of the Securities and is subject to adjustment as provided in
the Indenture. A Security in respect of which a Holder has delivered a Change
in Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if such Change in
Control Purchase Notice is withdrawn in accordance with the terms of the
Indenture. The Company shall pay a cash adjustment as provided in the
Indenture in lieu of any fractional share of Common Stock.



     To convert a Certificated Security, a Holder must (1) complete and
manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee, (4) pay all funds required, if any, relating to
interest on the Securities to be converted to which the Holder is not entitled
and (5) pay any transfer or similar tax, if required. To convert a Global
Security, a Holder must comply with the procedures of the Depositary in effect
at such time.




	8.	 	Denominations; Transfer; Exchange.





     The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or any
Securities



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in respect of which a Change in Control Purchase Notice has been given and
not withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased).




	9.	 	Persons Deemed Owners.





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




	10.	 	Unclaimed Money or Securities.





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




	11.	 	Amendment; Waiver.





     Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding and (ii) certain Defaults and Events of
Default may be waived with the written consent of the Holders of not less than
a majority in aggregate principal amount of the Securities at the time
outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company and the Trustee may amend the Indenture
or the Securities to, among other things, cure any ambiguity, omission, defect
or inconsistency, or to comply with Article 5 of the Indenture, to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change that does not adversely affect the rights of any Holder,
or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.




	12.	 	Defaults and Remedies.





     Under the Indenture, Events of Default include (1) failure by the Company
to pay when due the principal of or premium, if any, on any of the Securities
at maturity, upon exercise of a repurchase right or otherwise, whether or not
such payment is prohibited by Article 11 of the Indenture; (2) failure by the
Company to pay an installment of interest (or Additional Interest Amounts, if
any) on any of the Securities that continues for 30 days after the date when
due whether or not such payment is prohibited by Article 11 of the Indenture;
(3) failure by the Company to provide the Change of Control Notice in
accordance with the provisions set forth in Section 3.01 of the Indenture; (4)
failure by the Company to perform or observe any other term, covenant or
agreement contained in the Securities or the Indenture for a period of 60 days
after written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding (a “Notice of Default”); (5) failure by the Company
to pay when due the principal of, or acceleration of, any Indebtedness in an
amount in excess of $25 million, because of a default with respect to such
Indebtedness



B-6









 







without such Indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled, in either case, for a period
of 10 days after the date of a Notice of Default; (6) certain events of
bankruptcy, insolvency or reorganization with respect to the Company; and (7)
the Company’s filing of a voluntary petition seeking liquidation,
reorganization arrangement, readjustment of debts or for any other relief under
the federal bankruptcy code. If an Event of Default (other than an Event of
Default specified in clause (6) or (7) of Section 6.01 of the Indenture) occurs
and is continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding, may declare all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.



     Holders may not enforce the Indenture or the Securities, except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(1) or (2) above) if it determines that withholding notice is in their
interests as provided in the Indenture.




	13.	 	Trustee Dealings with the Company.





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




	14.	 	No Recourse Against Others.





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




	15.	 	Authentication.





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




	16.	 	Abbreviations.





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



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	17.	 	GOVERNING LAW.





     THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.









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



	 	 	 
	 

	 	Human Genome Sciences, Inc.
	

	 	14200 Shady Grove Road
	

	 	Rockville, Maryland 20850
	

	 	Attention: James H. Davis, Ph.D








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ASSIGNMENT FORM




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



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



	 	 	 	 	 
	 

	 	[   ]
	 	A transfer of the Surrendered Security is made
to the Company; or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security
complies with Rule 144A under the U.S. Securities Act of 1933,
as amended (the “Securities Act”); or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security is
pursuant to an effective registration statement under the
Securities Act, or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Security is
pursuant to another available exemption from the registration
requirement of the Securities Act,






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




	 	 	 	 	 
	 

	 	[   ]
	 	The transferee is an Affiliate of the Company.







	 	 	 	 	 
	Dated:

	 	



	 	



	 
	 	 	 	 
	

	 	 	 	

	

	 	 	 	Signature(s)
	 
	 	 	 	 
	

	 	 	 	Signature(s) must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined







B-10









 






	 	 	 	 	 
	

	 	 	 	by the Securities registrar
in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.








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CONVERSION NOTICE



To convert this Security into Common Stock of the Company, check the box:



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




$                                      



If you want the stock certificate made out in another person’s name, fill in
the form below:
















(Insert other person’s social sec. or tax ID no.)








































(Print or type other person’s name, address and zip code)




	 	 	 
	[   ]

	 	If you want the stock certificate made out
in another person’s name, you are required
to complete and deliver to the Conversion
Agent a duly completed Transfer Certificate
(which is in the form of Exhibit C to the
Indenture) as required thereby.







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OPTION TO ELECT PURCHASE



UPON A CHANGE IN CONTROL




To: Human Genome Sciences, Inc.



o     The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from the Company as to the occurrence of a
Change in Control with respect to the Company and requests and instructs the
Company to redeem the entire principal amount of this Security, or the portion
thereof (which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Security at the
Change in Control Purchase Price, including accrued interest, if any, up to,
but excluding, such date, to the registered Holder hereof.












	 	 	 	 
	Dated:	

	 	



	 	 	 	 
	 	 	 	

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

	 	 	 	Signature Guaranty
	Principal amount to be redeemed (in
an integral multiple of $1,000, if
less than all):
	 	 












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.




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EXHIBIT C




Transfer Certificate




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



	 	 	 	 	 
	 

	 	[   ]
	 	A transfer of the Surrendered Securities is
made to the Company or any Subsidiaries; or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Securities
complies with Rule 144A under the U.S. Securities Act of 1933,
as amended (the “Securities Act”); or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Securities is
pursuant to an effective registration statement under the
Securities Act, or
	 
	 	 	 	 
	 

	 	[   ]
	 	The transfer of the Surrendered Securities is
pursuant to another available exemption from the registration
requirement of the Securities Act,






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




	 	 	 	 	 
	 

	 	[   ]
	 	The transferee is an Affiliate of the Company.







	 	 	 	 	 
	DATE:

	 	



	 	 







	 	 	 
	 

	 	

	

	 	Signature(s)







(If the registered owner is a corporation, partnership or



fiduciary, the title of the Person signing on behalf of



such registered owner must be stated.)





C-1