Exhibit 4.1


 


APEX SILVER MINES LIMITED,


 


as Issuer,


 


and


 


THE BANK OF NEW YORK,


 


as Trustee


 


4.0% Convertible Senior Subordinated Notes due 2024


 


INDENTURE


 


Dated as of October 15, 2004


 





















 


CROSS REFERENCE TABLE*


 


	
  TIA Section

  	
   

  	
  Indenture
  Section

  
	
  310(a)(1)

  	
  7.10

  
	
   

  	
  (a)(2)

  	
  7.10

  
	
   

  	
  (a)(3)

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
  N.A.

  
	
   

  	
  (b)

  	
  7.08; 7.10

  
	
   

  	
  (c)

  	
  N.A.

  
	
  311(a)

  	
  7.11

  
	
   

  	
  (b)

  	
  7.11

  
	
   

  	
  (c)

  	
  N.A.

  
	
  312(a)

  	
  2.05

  
	
   

  	
  (b)

  	
  13.03

  
	
   

  	
  (c)

  	
  13.03

  
	
  313(a)

  	
  7.06

  
	
   

  	
  (b)(1)

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
  7.06

  
	
   

  	
  (c)

  	
  13.02

  
	
   

  	
  (d)

  	
  7.06

  
	
  314(a)

  	
  4.02; 4.03; 13.02

  
	
   

  	
  (b)

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
  13.04

  
	
   

  	
  (c)(2)

  	
  13.04

  
	
   

  	
  (c)(3)

  	
  N.A.

  
	
   

  	
  (d)

  	
  N.A.

  
	
   

  	
  (e)

  	
  14.05

  
	
   

  	
  (f)

  	
  N.A.

  
	
  315(a)

  	
  7.01

  
	
   

  	
  (b)

  	
  7.05; 13.02

  
	
   

  	
  (c)

  	
  7.01

  
	
   

  	
  (d)

  	
  7.01

  
	
   

  	
  (e)

  	
  6.11

  
	
  316(a)
  (last sentence)

  	
  2.08

  
	
   

  	
  (a)(1)(A)

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
  6.04

  
	
   

  	
  (a)(2)

  	
  N.A.

  
	
   

  	
  (b)

  	
  6.07

  
	
  317(a)(1)

  	
  6.08

  
	
   

  	
  (a)(2)

  	
  6.09

  
	
   

  	
  (b)

  	
  2.04

  
	
  318(a)

  	
  13.01

  
				



 


N.A. means Not Applicable.


 










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


 


1





















 


TABLE OF
CONTENTS*


 


	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
  SECTION 1.01

  	
  Definitions

  	
   

  
	
  SECTION 1.02

  	
  Other Definitions

  	
   

  
	
  SECTION 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
  SECTION 1.04

  	
  Rules of Construction

  	
   

  
	
  SECTION 1.05

  	
  Acts of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  THE SECURITIES

  	
   

  
	
  SECTION 2.01

  	
  Form and Dating

  	
   

  
	
  SECTION 2.02

  	
  Execution and Authentication

  	
   

  
	
  SECTION 2.03

  	
  Registrar, Paying Agent and Conversion
  Agent.

  	
   

  
	
  SECTION 2.04

  	
  Paying Agent to Hold Money and Securities
  in Trust

  	
   

  
	
  SECTION 2.05

  	
  Securityholder Lists

  	
   

  
	
  SECTION 2.06

  	
  Transfer and Exchange

  	
   

  
	
  SECTION 2.07

  	
  Replacement Securities

  	
   

  
	
  SECTION 2.08

  	
  Outstanding Securities; Determinations of
  Holders’ Action

  	
   

  
	
  SECTION 2.09

  	
  Temporary Securities

  	
   

  
	
  SECTION 2.10

  	
  Cancellation

  	
   

  
	
  SECTION 2.11

  	
  Persons Deemed Owners

  	
   

  
	
  SECTION 2.12

  	
  Global Securities

  	
   

  
	
  SECTION 2.13

  	
  CUSIP Numbers

  	
   

  
	
  SECTION 2.14

  	
  Additional Securities

  	
   

  
	
  SECTION 2.15

  	
  Additional Interest Under the Registration
  Rights Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  REDEMPTION AND PURCHASES

  	
   

  
	
  SECTION 3.01

  	
  Right to Redeem; Provisional Redemption;
  Optional Redemption; Notices to Trustee

  	
   

  



 










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


 


i





















 


	
  SECTION 3.02

  	
  Selection of Securities to Be Redeemed

  	
   

  
	
  SECTION 3.03

  	
  Notice of Redemption

  	
   

  
	
  SECTION 3.04

  	
  Effect of Notice of Redemption

  	
   

  
	
  SECTION 3.05

  	
  Deposit of Redemption Price

  	
   

  
	
  SECTION 3.06

  	
  Securities Redeemed in Part

  	
   

  
	
  SECTION 3.07

  	
  Conversion Arrangement on Call for
  Redemption

  	
   

  
	
  SECTION 3.08

  	
  Repurchase of Securities at Option of the
  Holder

  	
   

  
	
  SECTION 3.09

  	
  Company’s Right to Elect Manner of Payment
  of Make Whole Payment and Repurchase Price

  	
   

  
	
  SECTION 3.10

  	
  Effect of Repurchase Notice

  	
   

  
	
  SECTION 3.11

  	
  Deposit of Repurchase Price

  	
   

  
	
  SECTION 3.12

  	
  Securities Repurchased in Part

  	
   

  
	
  SECTION 3.13

  	
  Repayment to the Company

  	
   

  
	
  SECTION 3.14

  	
  Redemption of Securities at Option of the
  Holder upon Fundamental Change

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  COVENANTS

  	
   

  
	
  SECTION 4.01

  	
  Payment of Securities

  	
   

  
	
  SECTION 4.02

  	
  SEC and Other Reports

  	
   

  
	
  SECTION 4.03

  	
  Compliance Certificate

  	
   

  
	
  SECTION 4.04

  	
  Further Instruments and Acts

  	
   

  
	
  SECTION 4.05

  	
  Maintenance of Office or Agency

  	
   

  
	
  SECTION 4.06

  	
  Delivery of Certain Information

  	
   

  
	
  SECTION 4.07

  	
  Covenant to Comply With Securities Laws
  Upon Purchase of Securities

  	
   

  
	
  SECTION 4.08

  	
  Limitation on Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  CONSOLIDATION,
  MERGER, SALE, CONVEYANCE AND LEASE

  	
   

  
	
  SECTION
  5.01

  	
  Company
  May Consolidate on Certain Terms

  	
   

  
	
  SECTION
  5.02

  	
  Successor
  to be Substituted

  	
   

  
	
  SECTION
  5.03

  	
  Opinion
  of Counsel to be Given Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  DEFAULTS
  AND REMEDIES

  	
   

  
	
  SECTION 6.01

  	
  Events of Default

  	
   

  



 


ii





















 


	
  SECTION 6.02

  	
  Acceleration

  	
   

  
	
  SECTION 6.03

  	
  Other Remedies

  	
   

  
	
  SECTION 6.04

  	
  Waiver of Past
  Defaults

  	
   

  
	
  SECTION 6.05

  	
  Control by Majority

  	
   

  
	
  SECTION 6.06

  	
  Limitation on Suits

  	
   

  
	
  SECTION
  6.07

  	
  Rights
  of Holders to Receive Payment

  	
   

  
	
  SECTION 6.08

  	
  Collection
  Suit by Trustee

  	
   

  
	
  SECTION
  6.09

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
  SECTION 6.10

  	
  Priorities

  	
   

  
	
  SECTION 6.11

  	
  Undertaking for
  Costs

  	
   

  
	
  SECTION 6.12

  	
  Waiver of Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  TRUSTEE

  	
   

  
	
  SECTION 7.01

  	
  Duties of Trustee

  	
   

  
	
  SECTION 7.02

  	
  Rights of Trustee

  	
   

  
	
  SECTION
  7.03

  	
  Individual
  Rights of Trustee

  	
   

  
	
  SECTION 7.04

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  SECTION 7.05

  	
  Notice of Defaults

  	
   

  
	
  SECTION
  7.06

  	
  Reports
  by Trustee to Holders

  	
   

  
	
  SECTION 7.07

  	
  Compensation
  and Indemnity

  	
   

  
	
  SECTION 7.08

  	
  Replacement of
  Trustee

  	
   

  
	
  SECTION
  7.09

  	
  Successor
  Trustee by Merger

  	
   

  
	
  SECTION
  7.10

  	
  Eligibility;
  Disqualification

  	
   

  
	
  SECTION
  7.11

  	
  Preferential
  Collection of Claims Against Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  DISCHARGE
  OF INDENTURE

  	
   

  
	
  SECTION
  8.01

  	
  Discharge
  of Liability on Securities

  	
   

  
	
  SECTION 8.02

  	
  Repayment to
  the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  AMENDMENTS

  	
   

  
	
  SECTION 9.01

  	
  Without
  Consent of Holders

  	
   

  
	
  SECTION 9.02

  	
  With Consent of
  Holders

  	
   

  
	
  SECTION
  9.03

  	
  Compliance
  with Trust Indenture Act

  	
   

  



 


iii





















 


	
  SECTION
  9.04

  	
  Revocation
  and Effect of Consents, Waivers and Actions

  	
   

  
	
  SECTION
  9.05

  	
  Notation
  on or Exchange of Securities

  	
   

  
	
  SECTION
  9.06

  	
  Trustee
  to Sign Supplemental Indentures

  	
   

  
	
  SECTION
  9.07

  	
  Effect
  of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
   

  
	
  CONVERSION

  	
   

  
	
  SECTION 10.01

  	
  Conversion
  Privilege

  	
   

  
	
  SECTION 10.02

  	
  Conversion
  Procedure

  	
   

  
	
  SECTION 10.03

  	
  Fractional Shares

  	
   

  
	
  SECTION 10.04

  	
  Taxes on
  Conversion

  	
   

  
	
  SECTION
  10.05

  	
  Company
  to Provide Ordinary Shares

  	
   

  
	
  SECTION
  10.06

  	
  Adjustment
  for Change in Capital Stock

  	
   

  
	
  SECTION
  10.07

  	
  Adjustment
  for Rights Issue

  	
   

  
	
  SECTION
  10.08

  	
  Adjustment
  for Other Distributions

  	
   

  
	
  SECTION
  10.09

  	
  Adjustment
  for Company Tender Offer

  	
   

  
	
  SECTION
  10.10

  	
  When
  Adjustment May Be Deferred

  	
   

  
	
  SECTION
  10.11

  	
  When No
  Adjustment Required

  	
   

  
	
  SECTION 10.12

  	
  Notice of
  Adjustment

  	
   

  
	
  SECTION 10.13

  	
  Voluntary Increase

  	
   

  
	
  SECTION
  10.14

  	
  Notice
  of Certain Transactions

  	
   

  
	
  SECTION
  10.15

  	
  Reorganization
  of Company; Special Distributions

  	
   

  
	
  SECTION
  10.16

  	
  Company
  Determination Final

  	
   

  
	
  SECTION 10.17

  	
  Trustee’s Adjustment Disclaimer

  	
   

  
	
  SECTION 10.18

  	
  Simultaneous Adjustments

  	
   

  
	
  SECTION 10.19

  	
  Successive Adjustments

  	
   

  
	
  SECTION 10.20

  	
  Rights Issued in Respect of Ordinary
  Shares Issued Upon Conversion

  	
   

  
	
  SECTION 10.21

  	
  Withholding Tax Liability on Adjustment
  of Conversion Rate

  	
   

  
	
  SECTION 10.22

  	
  Conversion After a Public Acquirer Change
  of Control

  	
   

  
	
  SECTION 10.23

  	
  Adjustment for Conversion Upon a Cash
  Take-Over Transaction

  	
   

  



 


iv





















 


	
  ARTICLE
  11

  	
   

  
	
  PAYMENT
  OF INTEREST

  	
   

  
	
  SECTION 11.01

  	
  Interest Payments

  	
   

  
	
  SECTION 11.02

  	
  Defaulted Interest

  	
   

  
	
  SECTION 11.03

  	
  Interest Rights Preserved

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
   

  
	
  SUBORDINATION

  	
   

  
	
  SECTION 12.01

  	
  Securities Subordinated to the Project
  Indebtedness

  	
   

  
	
  SECTION 12.02

  	
  Subrogation

  	
   

  
	
  SECTION 12.03

  	
  Obligation of the Company is Absolute and
  Unconditional

  	
   

  
	
  SECTION 12.04

  	
  Maturity of or Default on Project
  Indebtedness

  	
   

  
	
  SECTION 12.05

  	
  Payments on Securities Permitted

  	
   

  
	
  SECTION 12.06

  	
  Effectuation of Subordination by Trustee

  	
   

  
	
  SECTION 12.07

  	
  Knowledge of Trustee

  	
   

  
	
  SECTION 12.08

  	
  Trustee’s Relation to Project
  Indebtedness

  	
   

  
	
  SECTION 12.09

  	
  Rights of Holders of Project Indebtedness
  Not Impaired

  	
   

  
	
  SECTION 12.10

  	
  Modification of Terms of Project
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
  SECTION 13.01

  	
  Trust Indenture Act Controls

  	
   

  
	
  SECTION 13.02

  	
  Notices

  	
   

  
	
  SECTION 13.03

  	
  Communication by Holders with Other
  Holders

  	
   

  
	
  SECTION 13.04

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  SECTION 13.05

  	
  Statements Required in Certificate or
  Opinion

  	
   

  
	
  SECTION 13.06

  	
  Separability Clause

  	
   

  
	
  SECTION 13.07

  	
  Rules by Trustee, Paying Agent,
  Conversion Agent and Registrar

  	
   

  
	
  SECTION 13.08

  	
  Calculations

  	
   

  
	
  SECTION 13.09

  	
  Legal Holidays

  	
   

  
	
  SECTION 13.10

  	
  GOVERNING LAW

  	
   

  
	
  SECTION 13.11

  	
  No Recourse Against Others

  	
   

  
	
  SECTION 13.12

  	
  Successors

  	
   

  
	
  SECTION 13.13

  	
  Multiple Originals

  	
   

  



 


v





















 


	
  ARTICLE
  14

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01

  	
  Security

  	
   

  



 


	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
  Exhibit A-1

  	
  Form of 144A/ Reg S Global Security

  	
   

  
	
  Exhibit A-2

  	
  Form of Certificated Security

  	
   

  
	
  Exhibit A-3

  	
  Form of Unrestricted Global Security

  	
   

  
	
  Exhibit B

  	
  Transfer Certificate

  	
   

  
				



 


vi





















 


INDENTURE, dated as of October 15, 2004, between
APEX SILVER MINES LIMITED, a Cayman Islands company (the “Company”), and THE BANK OF NEW
YORK, as trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly authorized the creation of an
issue of 4.0% Convertible Senior Subordinated Notes due 2024, to be issued
under this Indenture and as amended or supplemented from time to time (the “Securities”
or the “Notes”), having the terms, tenor, amount and other provisions 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 duly executed by the Company and are authenticated and delivered
hereunder and duly issued by the Company, 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.  In addition, all things necessary to duly
authorize the issuance of the Ordinary Shares of the Company issuable upon the
conversion of the Securities, and to duly reserve for issuance the number of
Ordinary Shares issuable upon such conversion, have been done.


 


The Notes will be partially secured pursuant to the
terms of one or more Pledge Agreements (as defined herein) by the Pledged
Securities as provided for by this Indenture.


 


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 INCORPORATION BY
REFERENCE


 


SECTION 1.01   Definitions.


“Additional Securities” means the Company’s  4.0%  Convertible Senior Subordinated Notes due
2024 originally issued after the Issue Date pursuant to Section 2.14,
including any replacement Securities as specified in the relevant Additional
Securities Board Resolutions or Additional Securities Supplemental Indenture
issued therefor in accordance with this Indenture.


 


“Additional Securities Board Resolutions”
means resolutions duly adopted by the Board of Directors of the Company and delivered to the Trustee
in an Officers’ Certificate providing for the issuance of Additional
Securities.


 


“Additional Securities Supplemental Indenture”
means a supplement to this Indenture duly executed and delivered by the Company
and the Trustee pursuant to Article IX providing for the issuance
of Additional Securities.


 





















 


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


 


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


 


“Average Sale Price” means the average of the
Closing Sale Prices of the Ordinary Shares for the shorter of


 


(i)            30 consecutive trading days ending
on the last full trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of which the Average
Sale Price is being calculated, or


 


(ii)           the period (x) commencing on the date
next succeeding the first public announcement of (a) the issuance of rights,
warrants or options or (b) the distribution, in each case, in respect of which
the Average Sale Price is being calculated and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Sale Price
is being calculated (excluding days within such period, if any, which are not
trading days), or


 


(iii)          the period, if any, (x) commencing on
the date next succeeding the Ex-Dividend Time with respect to the next
preceding (a) issuance of rights, warrants or options or (b) distribution, in
each case, for which an adjustment is required by the provisions of Section
10.06(c), 10.07 or 10.08 and (y) proceeding through the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Sale Price is being
calculated (excluding days within such period, if any, which are not trading
days).


 


In the event that the Ex-Dividend Time (or in the
case of a subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 10.06(a), (b), (d) or (e) applies occurs
during the period applicable for calculating “Average Sale Price”
pursuant to the definition in the preceding sentence, “Average Sale Price”
shall be calculated for such period in a manner determined by the Board of
Directors to reflect the impact of such dividend, subdivision, combination or
reclassification on the Closing Sale Price of the Ordinary Shares during such
period.


 


2





















 


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


 


“Business Day” means each day of the year
other than a Saturday or a Sunday or other day on which banking institutions in
The City of New York are required or authorized to close.


 


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


 


“Certificated Securities” means any of the
Securities that are in the form of the Securities attached hereto as Exhibit
A-2.


 


“Closing Sale Price” of Capital Stock on any
date means (a) the closing per share 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 on the United States principal national securities exchange on which the Capital
Stock is traded or, if the Capital Stock is not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated or (b) in the absence of such quotation, such
price as the Company shall determine on the basis of such quotations as the
Company considers appropriate.


 


“Collateral Account” means an account
established with the Collateral Agent pursuant to the terms of any Pledge
Agreement for the deposit of Pledged Securities to be purchased by the Company
with a portion of the net proceeds from the sale of the Notes.


 


“Collateral Agent” means The Bank of New
York, as collateral agent under any Pledge Agreement.


 


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


 


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


 


“Conversion Price” means an amount equal to
U.S.$1,000 divided by the Conversion Rate (rounded to the nearest cent).


 


“Corporate Trust Office” means the principal
office of the Trustee at which at any time its corporate trust business shall
be administered, which office at the date hereof is located at 101 Barclay
Street, Fl. 8W, New York, New York 10286, Attention:  Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the
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
notice to the Company).


 


3





















 


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


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended.


 


“Global Securities” means any of the
Securities that are in the form of the Securities attached hereto as Exhibit
A-1 and A-3, and that are deposited with and registered in the name of the
Depositary, representing Securities sold in reliance on Rule 144A and
Regulation S under the Securities Act.


 


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


 


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


 


“Initial Purchasers” means the several
parties named in Schedule I of the Purchase Agreement.


 


“Interest Payment Date” means March 15 and
September 15 of each year, commencing September 15, 2004.


 


“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.


 


“Issue Price” of any Security means, in
connection with the original issuance of such Security, the initial issue price
at which the Security is sold as set forth on the face of the Security.


 


“Lien” means any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind.


 


“Majority Owned” means having “beneficial
ownership” (as defined in Rule 13d-3 under the Exchange Act) of more than 50%
of the total voting power of all shares of the respective entity’s Capital
Stock that are entitled to vote generally in the election of directors.  “Majority Owner” has the correlative meaning.


 


“Make-Whole Payment” shall have the meaning
set forth in Section 3.01(a).


 


“Notes” shall have the meaning set forth in
the Recitals.


 


“Officer” means the Chairman of the Board of
Directors, 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.


 


4





















 


“Officers’ Certificate” means a written
certificate containing the information specified in Sections 13.04 and 13.05,
signed in the name of the Company, as applicable, by any two Officers, and
delivered to the Trustee.  An Officers’
Certificate given pursuant to Section 4.03 shall be signed by the principal
executive, financial or accounting officer of the Company, but need not contain
the information specified in Sections 13.04 and 13.05.


 


“Opinion of Counsel” means a written opinion
containing the information specified in Sections 13.04 and 13.05, from legal
counsel who is reasonably acceptable to the Trustee.  The counsel may be an employee of, or counsel
to, the Company.


 


“Optional Redemption” shall have the meaning
set for in Section 3.01(b).


 


“Ordinary Shares” shall mean the ordinary
shares, $0.01 par value, of the Company as it exists on the date of this
Indenture or any other shares of Capital Stock of the Company into which the
Ordinary Shares shall be reclassified or changed.  References to Ordinary Shares include all
rights attaching to Ordinary Shares under any stockholder rights plan in
effect.


 


“Original Issue Date” means October 15, 2004.


 


“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.


 


“Pledge Agreement” means the Collateral
Pledge and Security Agreement, dated as of October 15, 2004 (the “Initial
Pledge Agreement”), among the Company, the Trustee and the Collateral Agent, as
such agreement may be amended, restated, supplemented or otherwise modified
from time to time and a collateral pledge and security agreement in
substantially the same form as the initial Pledge Agreement entered into on
each Issue Date.


 


“Pledged Securities” means the U.S.
Government Obligations to be purchased by the Company and held in the
Collateral Account in accordance with each Pledge Agreement.


 


“Principal”, “Principal Amount” or “principal
amount” of a Security on any date means the principal amount of such
Security on such date.


 


“Project Indebtedness” means (i) any
unsubordinated indebtedness incurred by the Company specifically for the
purpose of construction and development of the San Cristobal Project which is
secured by the property, property assets or other assets of the Company or any
of its Subsidiaries, and (ii) any guarantee of the indebtedness described in
(i) by the Company, its Affiliates or its Subsidiaries, for the period such
guarantee is in effect.


 


“Provisional Redemption” shall have the
meaning set forth in Section 3.01(a).


 


“Public Acquirer Change of Control” means any
event constituting a Cash Take-Over Transaction that would otherwise result in
an increase of the Conversion Rate pursuant to Section 10.23 and the acquirer
has a class of common stock traded on any U.S. national securities exchange or
quoted on the Nasdaq National Market or which will be so traded or 


 


5





















 


quoted when issued or exchanged in connection with
such Fundamental Change (the “Public Acquirer Common Stock”).  If an acquirer does not itself have a class
of common stock satisfying the foregoing requirement, it will be deemed to have
Public Acquirer Common Stock if either (1) a direct or indirect Majority Owned
subsidiary of acquirer or (2) a corporation that directly or indirectly is the
Majority Owner of the acquirer, has a class of common stock satisfying the
foregoing requirement; in such case, all references to Public Acquirer Common
Stock shall refer to such class of common stock.


 


“Public Acquirer Common Stock” has the
meaning assigned to it in the definition of Public Acquirer Change of Control.


 


“Purchase Agreement” means the Purchase
Agreement dated October 11, 2004 between the Company and the Initial
Purchasers.


 


“Record Date” means either a Regular Record
Date or a Special Record Date.


 


“Redemption Date” or “redemption date”
means the date specified for redemption of the Securities in accordance with
the terms of the Securities and this Indenture.


 


“Redemption Price” or “redemption price”
means, with respect to any Securities subject to Provisional Redemption or
Optional Redemption, 100% of the principal amount of the Securities to be
redeemed plus accrued and unpaid interest, if any, to but excluding the
applicable Redemption Date (except if such Redemption Date for any Securities
falls after a Record Date and on or prior to the corresponding Interest Payment
Date, the Redemption Price paid on the applicable Redemption Date shall equal
only 100% of the principal amount of such Securities subject to such redemption
and no payment shall be made for any accrued and unpaid interest).


 


“Regular Record Date” means each March 1 and
September 1 (whether or not a Business Day).


 


“Regulation S” means Regulation S under the
Securities Act (or any successor regulation having substantially similar
provisions), as it may be amended from time to time.


 


“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, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular
subject and who, in each case, shall have direct responsibility for the
administration of this Indenture.


 


“Restricted Security” means a Security
required to bear the restrictive legend set forth in the form of Security set
forth in Exhibits A-1 and A-2 of this Indenture.


 


“Restricted Subsidiary” means any Subsidiary
other than an Unrestricted Subsidiary.


 


6





















 


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


 


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


 


“SEC” means the United States Securities and
Exchange Commission.


 


“Securities” has the meaning set forth in the
Recitals.


 


“Securities Act” means the Securities Act of
1933, as amended.


 


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


 


“Significant Subsidiary” means “significant
subsidiary”, as such term is defined in Rule 1-02 of Regulation S-X under the
Securities Act of 1933, as amended.


 


“Special Record Date” means, with respect to,
the payment of any Defaulted Interest, the date fixed by the Trustee pursuant to
Section 11.02.


 


“Specified Indebtedness” means any
indebtedness for borrowed money that (i) is in the form of, or represented by,
bonds or other securities (other than promissory notes or similar evidence of
indebtedness under bank loans or similar financing agreements) or any guarantee
thereof and (ii) is, or may be, quoted, listed or purchased and sold on any
stock exchange, automated securities trading system or over-the-counter or
other securities market (including, without prejudice to the generality of the
foregoing, the market for securities eligible for resale pursuant to Rule 144A
under the Securities Act); provided, that,
for the avoidance of doubt, in no event shall any receivables financing
facility or arrangement pursuant to which any Subsidiary purchases or otherwise
acquires accounts receivable of the Company or any Restricted Subsidiaries and
enters into third party financing thereof be considered Specified Indebtedness.


 


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


 


“Subsidiary” means (i) a corporation, a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is, at the date of determination, directly or
indirectly owned by the Company, by one or more Subsidiaries of the Company or
by the Company and one or more Subsidiaries of the Company, (ii) a partnership
in which the Company or a Subsidiary of the Company holds a majority interest
in the equity capital or profits of such partnership, or (iii) any other person
(other than a corporation or a partnership) in which the Company, a Subsidiary
of the Company or the Company and one or more Subsidiaries of the Company,
directly or indirectly, at the date of determination, has (x) at least a
majority ownership interest or (y) the power to elect or direct the election of
a majority of the directors or other governing body of such person.


 


7





















 


“TIA” or “Trust Indenture Act” 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.


 


“Time of Determination” means the time and
date of the earlier of (i) the determination of stockholders entitled to
receive rights, warrants or options or a distribution, in each case, to which
Section 10.07 or 10.08 applies and (ii) the time (“Ex-Dividend Time”)
immediately prior to the commencement of “ex-dividend” trading for such rights,
warrants or options or distribution on the American Stock Exchange or such
other national or regional exchange or market on which the Ordinary Shares are
then listed or quoted.


 


“trading day” means a day during which the
American Stock Exchange is open for trading or, if the applicable security is
traded on such other national or regional exchange or quoted on the Nasdaq
National Market, a day on which trades may be made on such exchange or market
or, if the applicable security is not so listed, admitted for trading or
quoted, any Business Day.


 


“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.


 


“Unrestricted Subsidiary” means any
Subsidiary 50% or less of the Voting Stock of which is owned directly by the
Company and/or one or more Restricted Subsidiaries.


 


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


 


“U.S. Government Obligations” means U.S.
Treasury STRIPS maturing on or as close as possible but prior to the dates set
forth below:


 


	
  Maturity Dates

  	
   

  	
  CUSIP

  
	
  15-Feb-05

  	
   

  	
  912820BM8

  
	
  15-Aug-05

  	
   

  	
  912833CN8

  
	
  15-Feb-06

  	
   

  	
  912833CP3

  
	
  15-Aug-06

  	
   

  	
  912833CQ1

  
	
  15-Feb-07

  	
   

  	
  912833CR9

  
	
  15-Aug-07

  	
   

  	
  912833CS7

  



 


“Voting Stock” means, as applied to the stock
(or the equivalent thereof) of any corporation, means stock (or the equivalent
thereof) of any class or classes, however designated, having ordinary voting
power for the election of a majority of the directors of such corporation, other
than stock (or such equivalent) having such power only by reason of the
happening of a contingency.


 


8





















 


SECTION 1.02  
Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  1.05(a)

  
	
  “Agent
  Members”

  	
   

  	
  2.12(f)

  
	
  “Additional
  Ordinary Shares”

  	
   

  	
  10.23

  
	
  “Bankruptcy
  Law”

  	
   

  	
  6.01

  
	
  “Calculation
  Agent”

  	
   

  	
  2.03

  
	
  “Cash
  Take-Over Transaction”

  	
   

  	
  10.23

  
	
  “Companies
  Law”

  	
   

  	
  6.01

  
	
  “Company
  Repurchase Notice”

  	
   

  	
  3.09(d)

  
	
  “Company
  Repurchase Notice Date”

  	
   

  	
  3.09(b)

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  
	
  “Conversion Date”

  	
   

  	
  10.02

  
	
  “Conversion
  Rate”

  	
   

  	
  10.01

  
	
  “Custodian”

  	
   

  	
  6.01

  
	
  “Defaulted
  Interest”

  	
   

  	
  11.02

  
	
  “Depositary”

  	
   

  	
  2.01(a)

  
	
  “DTC”

  	
   

  	
  2.01(a)

  
	
  “Effective
  Date”

  	
   

  	
  10.23

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  
	
  “Ex-Dividend Date”

  	
   

  	
  10.08(b)

  
	
  “Ex-Dividend
  Time”

  	
   

  	
  1.01

  
	
  “Expiration
  Time”

  	
   

  	
  10.09

  
	
  “Fundamental
  Change”

  	
   

  	
  3.14(a)

  
	
  “Fundamental
  Change Expiration Time”

  	
   

  	
  3.14(b)

  
	
  “Fundamental
  Change Notice”

  	
   

  	
  3.14(b)

  
	
  “Fundamental
  Change Redemption Date”

  	
   

  	
  3.14(a)

  
	
  “Fundamental
  Change Redemption Price”

  	
   

  	
  3.14(a)

  
	
  “Legal
  Holiday”

  	
   

  	
  13.09

  
	
  “Notice
  of Default”

  	
   

  	
  6.01

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  12.01(d)

  
	
  “Publicly
  Traded Securities”

  	
   

  	
  3.14(a)

  
	
  “Purchased
  Shares”

  	
   

  	
  10.09

  
	
  “Protected
  Purchaser”

  	
   

  	
  2.07

  
	
  “QIBs”

  	
   

  	
  2.01(a)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Repurchase
  Date”

  	
   

  	
  3.08(a)

  
	
  “Repurchase
  Notice”

  	
   

  	
  3.08(a)

  
	
  “Repurchase
  Price”

  	
   

  	
  3.08(a)

  
	
  “Restrictive
  Legend”

  	
   

  	
  2.01(e)

  
	
  “Rights”

  	
   

  	
  10.20

  
	
  “Rights
  Agreement”

  	
   

  	
  10.20

  
	
  “Rule 144A
  Information”

  	
   

  	
  4.06

  
	
  “Stock
  Price”

  	
   

  	
  10.23

  



 


9





















 


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
Securityholder.


 


“indenture to be qualified” means this
Indenture.


 


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


 


“obligor” on the indenture securities means
the Company.


 


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


 


SECTION 1.04   Rules
of Construction.


Unless the context otherwise
requires:


 


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


 


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


 


(3)           “or”
is not exclusive;


 


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


 


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


 


SECTION 1.05   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 (which may take the form of an electronic writing or messaging or
otherwise be in accordance with customary procedures of the Depositary or the
Trustee) of substantially similar tenor signed by such Holders in person or by
their agent duly appointed in writing (which may be in electronic form); and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, when it is
hereby expressly required, to the Company. 
Such


 


10





















 


instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act”
of Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent (either of which may be in electronic
form) shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


(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 electronic delivery) or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing or delivering such instrument or
writing acknowledged to such officer the execution (or electronic delivery)
thereof.  When 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 (electronic or otherwise), 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 maintained by 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 the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture within six months after
the record date.


 


11





















 


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-1, A-2, and A-3 which are a part of this Indenture.  The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company).  The Company shall
provide any such notations, legends or endorsements to the Trustee in
writing.  Each Security shall be dated
the date of its authentication.


 


(a)           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 or in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a Global Security, which
shall be deposited with the Trustee at its Corporate Trust Office, as custodian
for the Depositary and registered in the name of The Depository Trust Company (“DTC”)
or the nominee thereof (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 Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.


 


(b)           Global Securities in General.  Except as provided in this Section 2.01, 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, redemptions 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 as custodian for the Global Securities 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 Securities 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:


 


12





















 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.


 


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


 


(d)   Certificated Securities.  Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit A-2 attached hereto.


 


(e)   Restrictive Legend.  Except as otherwise provided herein, each
Global Security and Certificated Security shall bear legends (the “Restrictive
Legend”) substantially to the following effect:


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A ADOPTED UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S ADOPTED UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE ORDINARY SHARES
ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER OR A
SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS OTHER
THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE
EXEMPTION


 


13





















 


UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT
IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT
TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. 
IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE
IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT AS PERMITTED BY THE
SECURITIES ACT.


 


SECTION 2.02   Execution
and Authentication.


The Notes shall be executed
on behalf of the Company by any Officer. 
The signature of the Officer of the Company on the Notes may be manual
or facsimile.


 


Securities
bearing the manual or facsimile signatures of an individual who was at the time
of the execution of the Securities the proper Officer of the Company, shall
bind the Company , notwithstanding that such individual has ceased to hold such
office prior to the authentication and delivery of such Securities or did not
hold such office 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 $100,000,000 (up to $150,000,000 if the Initial
Purchasers’ option set forth in the Purchase Agreement is exercised in full)
upon one or more Company Orders 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 Sections 2.07 and 2.14.


 


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


 


14





















 


Securities may be presented for purchase or payment
(“Paying Agent”), an office or agency where all calculations in respect
of the Securities shall be made (“Calculation Agent”), and an office or
agency where Securities may be presented for conversion (“Conversion Agent”).  The Registrar shall keep a register of the
Securities and of their transfer and exchange. 
The Company may have one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents.  The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.05.  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 or
co-registrar, Paying Agent or Conversion Agent (other than the Trustee).  The agreement shall implement the provisions
of this Indenture that relate to such agent. 
The Company shall notify the Trustee of the name and address of any such
agent.  If the Company fails to maintain
a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07.  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 Calculation Agent, 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, not later than
11:00 a.m., New York City time, on 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) or, if applicable,
Ordinary Shares or a combination of cash and Ordinary Shares sufficient to make
such payments when so becoming due.  The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and Ordinary Shares held by the Paying
Agent for the making of payments in respect of the Securities and shall notify
the Trustee of any default by the Company in making any such payment.  At any time during the continuance of any
such default, the Paying Agent shall, upon the written request of the Trustee,
forthwith pay to the Trustee all money and Ordinary Shares 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 and Ordinary Shares 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 and Ordinary Shares held by it to the Trustee
and to account for any funds and Ordinary Shares disbursed by it.  Upon doing so, the Paying Agent shall have no
further liability for the money or Ordinary Shares.


 


SECTION 2.05   Securityholder
Lists.


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


 


15





















 


SECTION 2.06   Transfer
and Exchange.


(a)           Subject to Section 2.12 hereof, upon
surrender for registration of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.03, the Company shall execute, and the Trustee upon
receipt of a Company Order 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 registration of transfer or
exchange of the Securities from the Securityholder requesting such registration
of transfer or exchange.


 


Subject
to Section 2.12 hereof, at the option of the Holder, Securities may be
exchanged for other Securities of any authorized denomination or denominations,
of a like aggregate Principal Amount, upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at such office or agency.  Whenever any Securities are so surrendered
for exchange, the Company shall execute and the Trustee upon receipt of a
Company Order shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.


 


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 Participants or beneficial
owners of interest 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
Registrar shall retain, in such form as it deems reasonable, copies of all
letters, notices and other written communications received pursuant to Section
2.12 or this Section 2.06.  The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.


 


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


 


16





















 


(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 registration of 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)            Prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) if Securities are issued upon the
registration of transfer, exchange or replacement of Securities subject to
restrictions on transfer and bearing the Restrictive Legend, or if a request is
made to remove the Restrictive Legend on a Security, the Securities so issued
shall bear the Restrictive Legend, or the Restrictive Legend shall not be
removed, as the case may be, unless there is delivered to the Company and the
Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar, that
neither the Restrictive 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 or that such Securities are not “restricted”
within the meaning of Rule 144. 
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, upon receipt of a Company Order, shall authenticate and deliver a
Security that does not bear the Restrictive Legend.  If the Restrictive Legend is removed from the
face of a Security and the Security is subsequently held by an Affiliate of the
Company, the Company shall use its commercially reasonable efforts to reinstate
the Restrictive Legend.  Any Ordinary
Shares issued upon conversion of the Securities that bear the Restrictive
Legend shall bear a restricted legend substantially identical to the
Restrictive Legend (except that such Restrictive Legend shall not refer to any
Ordinary Shares issuable upon conversion of the Securities).


 


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 as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a
protected purchaser within the meaning of Article 8 of the Uniform Commercial
Code (a “Protected Purchaser”), the Company shall


 


17























 


















execute and upon receipt of a Company Order,
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, 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) in connection therewith.


 


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


 


The provisions
of this Section 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,
those paid or purchased and delivered to it for cancellation pursuant to
Section 2.10 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 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 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, the replaced Security ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
each of them that the replaced Security is held by a Protected Purchaser
unaware that such Security has been replaced, in which case the replacement
Security shall be deemed not to be outstanding.


 


18





















 


If the Paying
Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day following the Repurchase Date or a Fundamental Change Redemption
Date, or on Stated Maturity, money or securities, if permitted hereunder,
sufficient to pay Securities payable on that date, then immediately after such
Redemption Date, Repurchase Date, Fundamental Change Redemption 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; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture.


 


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 one or
more temporary Securities the Company shall execute and, upon Company Order,
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 or
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it.  The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee.  The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 10.  No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee
shall be disposed of by the Trustee.


 


19





















 


SECTION 2.11   Persons Deemed Owners.


Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of the Security or the payment of any Redemption Price, Make Whole Payment,
Repurchase Price or Fundamental Change Redemption Price in respect thereof or
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.  Any consent,
waiver or actions of a Holder shall be binding upon any subsequent Holders of
such Security or a Security received upon transfer.  Any Holder of a beneficial interest in a
Global Security shall, by acceptance of such beneficial interest in a Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depositary
(or its agent), and that ownership of a beneficial interest in a Global
Security shall be required to be reflected in a book entry.


 


SECTION 2.12   Global Securities.


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


 


(a)           Transfer of Global Security.


 


(i)            Restrictions on
Transfer of a 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 Section
2.12(a) 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 any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions of this Section
2.12(a).


 


(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 request for
transfer of a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form satisfactory to
the Trustee, together with:


 


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


 


20





















 


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


 


(C)           if the Company or
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 Restrictive 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 authenticate and deliver 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 registration of transfer or
exchange:


 


(A)          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


 


(B)           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, if being transferred pursuant to clause (1), (2) or (3) below, are
accompanied by the additional information and documents specified in each
clause, as applicable:


 


(1)           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


 


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


 


21





















 


(3)           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 B, 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 Restrictive 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 satisfactory to the Trustee, together with:


 


(A)          so long as the
Securities are Restricted Securities, certification, in the form set forth in
Exhibit B, that such Certificated Security is being transferred to a QIB in
accordance with Rule 144A or to a non-U.S. person in accordance with
Regulation S; and


 


(B)           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, upon receipt of a Company Order, shall
authenticate 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
Restrictive Legend including the requirement of the delivery of an Opinion of
Counsel, 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 B, 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.


 


(c)           The restrictions imposed by the
Restrictive 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


 


22





















 


compliance with Rule 144 or, if earlier,
upon the expiration of the holding period applicable to sales thereof under
paragraph (k) of Rule 144.  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, the Trustee and the Registrar and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144), 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 and the Registrar shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration
statement.


 


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


 


(e)           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(b)(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) the Company elects to discontinue use of the
system of book-entry transfer through DTC (or any successor depositary).  Any Global Security exchanged pursuant to
clause (i) of this sub-section shall be so exchanged in whole and not in part,
and any Global Security exchanged pursuant to clause (ii) of this sub-section
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


 


23





















 


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.


 


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


 


24





















 


SECTION 2.14   Additional Securities.


The Company may, from time to time,
subject to compliance with any other applicable provisions of this Indenture,
without the consent of the Holders, create and issue pursuant to this Indenture
additional securities (“Additional Securities”) having terms and
conditions set forth in Exhibit A identical to those of the other
outstanding Securities, except that Additional Securities:


 


(i)            may
have a different issue date from other outstanding Securities, except for
purposes of Article 10;


 


(ii)           may
have a different amount of interest payable on the first Interest Payment Date
after issuance than is payable on other outstanding Securities;


 


(iii)          may
have terms specified in the Additional Securities Board Resolution or
Additional Securities Supplemental Indenture for such Additional Securities
making appropriate adjustments to this Article II and Exhibit A
(and related definitions) applicable to such Additional Securities in order to
conform to and ensure compliance with the Securities Act (or other applicable
securities laws) and any registration rights or similar agreement applicable to
such Additional Securities, which are not adverse in any material respect to
the Holder of any outstanding Securities (other than such Additional
Securities); and


 


(iv)          may
be entitled to additional interest as provided in Section 2.15 not
applicable to other outstanding Securities and may not be entitled to such additional
interest applicable to other outstanding Securities;


 


provided, that no
adjustment pursuant to this Section 2.14 shall cause such Additional Securities
to constitute, as determined pursuant to an Opinion of Counsel, a different
class of securities than the Securities issued on the Issue Date for U.S.
federal income tax purposes except for Additional Securities that have a
separate CUSIP number from other outstanding Securities pending performance by
the Company of its obligations under a Registration Rights Agreement applicable
thereto.


 


SECTION 2.15   Additional Interest Under the Registration
Rights Agreement.


Under certain
circumstances, the Company may
be obligated to pay additional interest to Holders, all as and to the extent
set forth in the Registration Rights Agreement. 
The terms thereof are hereby incorporated herein by reference and such
additional interest is deemed to be interest for purposes of this Indenture.


 


25





















 


ARTICLE 3


 


REDEMPTION AND PURCHASES


 


SECTION 3.01   Right to Redeem; Provisional Redemption;
Optional Redemption; Notices to Trustee. 
The Company, at its option, may redeem the Securities in accordance with
the provisions of paragraphs 5, 6 and 8 of the Securities.


(a)           Provisional Redemption.  The Company may redeem for cash the
Securities, in whole or in part, at any time prior to September 15, 2014 at the
Redemption Price plus the Make-Whole Payment, if (i) the Closing Sale Price of
the Ordinary Shares shall have exceeded 140% of the then applicable Conversion
Price for at least 20 trading days in any consecutive 30 trading day period
ending on the trading day prior to the date of mailing of the notice of
redemption pursuant to Section 3.03 of the Indenture (the “Notice Date”) and
(ii) a shelf registration statement covering resales of the Notes and the
Ordinary Shares is effective and available for use and is expected to remain
effective and available for use for the 30 days following the Redemption Date,
unless registration is no longer required. 
Any such redemption is a “Provisional Redemption.”


 


Upon any such
Provisional Redemption, the Company shall pay to the Holder tendering
Securities called for redemption, an additional payment (the “Make Whole
Payment”) with respect to such redeemed Securities in an amount equal to
$396.67 per $1,000 Principal Amount of Securities, minus the amount of any
interest actually paid or accrued and unpaid on the Security prior to the
Redemption Date.  The Make Whole Payment
will be made on all Securities called for Provisional Redemption, including any
Securities that are converted pursuant to Article 10 after the date the Notice
of Redemption is mailed.


 


Pursuant to
Section 3.9 hereof, the Make Whole Payment may be made, in whole or in part, at
the election of the Company, in cash or Ordinary Shares or any combination of
cash and Ordinary Shares.


 


(b)           Optional Redemption.  Beginning on September 15, 2014, the Company
may redeem the Securities for cash in whole at any time, or in part from time
to time at the Redemption Date.  Any such
redemption is an “Optional Redemption.”


 


(c)           If the Company elects to redeem
Securities pursuant to paragraphs 5 or 6 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, whether the redemption is a
Provisional Redemption or an Optional Redemption, the Principal Amount of
Securities to be redeemed, the Redemption Price, including the amount of
accrued and unpaid interest, if any, payable on the Redemption Date, and the
Make Whole Payment, if applicable.  The
Company shall give the notice to the Trustee provided for in this Section 3.01
by a Company Order, at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee).  If fewer than all the Securities are to be
redeemed, the record date relating to such redemption shall be selected by the
Company and given to the Trustee, which record date shall not be less than 10
days after the date of notice to the Trustee.


 


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SECTION 3.02   Selection of Securities to Be Redeemed.


If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by any other method the Trustee considers
fair and appropriate (so long as such method is not prohibited by the rules of
any stock exchange on which the Securities are then listed).  The Trustee shall make the selection at least
30 days but not more than 60 days before the Redemption Date from outstanding
Securities not previously called for redemption.


 


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


 


If any
Security selected for partial redemption is converted in part before termination
of the conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as may
be) to be the portion selected for redemption. 
Securities which have been converted during a selection of Securities to
be redeemed may be treated by the Trustee as outstanding for the purpose of
such selection.


 


SECTION 3.03   Notice of Redemption.


At least 30
days but not more than 60 days before a Redemption Date, the Company shall mail
a notice of redemption by first-class mail, postage prepaid, to each Holder of
Securities to be redeemed.


 


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


 


(1)   the Redemption Date;


 


(2)   whether the redemption is a
Provisional Redemption or an Optional Redemption;


 


(3)   the Redemption Price payable
on the Redemption Date;


 


(4)   if the redemption is a
Provisional Redemption, the amount of the Make Whole Payment;


 


(5)   whether the Make Whole
Payment will be paid in cash, Ordinary Shares or a combination thereof,
specifying the percentage of each;


 


(6)   if Ordinary Shares will be
used to pay all or part of the Make Whole Payment, state:


 


(a) the method for
valuing the Ordinary Shares to be delivered in connection with the payment; and


 


27





















 


(b) that Holders
of the Securities will bear the market risk with respect to the value of the
Ordinary Shares to be delivered from the date the number of shares is
determined;


 


(7)   the current Conversion Rate;


 


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


 


(9)   that Securities called for
redemption may be converted at any time before the close of business on the
second Business Day immediately preceding the Redemption Date, even if not
otherwise convertible at such time;


 


(10)        that Holders who want
to convert Securities must satisfy the requirements set forth in paragraph 9 of
the Securities;


 


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


 


(12)        if fewer than all the
outstanding Securities are to be redeemed, the certificate number and Principal
Amounts of the particular Securities to be redeemed;


 


(13)        that, unless the
Company defaults in making payment of such Redemption Price and any interest
which is due and payable, interest will cease to accrue on and after the
Redemption Date;


 


(14)        the CUSIP number of
the Securities; and


 


(15)        any other information
the Company wants to present.


 


At the Company’s
request, the Trustee shall give the notice of redemption to Holders in the
Company’s name and at the Company’s expense, provided that the Company makes
such request at least five Business Days (unless a shorter period shall be
satisfactory to the Trustee) prior to the date such notice of redemption must
be mailed.


 


SECTION 3.04   Effect of Notice of Redemption.


Once notice of redemption is given, Securities called
for redemption become due and payable on the Redemption Date and at the
Redemption Price in the case of an Optional Redemption and the Redemption Price
and the Make Whole Payment in the case of a Provisional Redemption stated in
the notice except for Securities which are converted in accordance with the
terms of this Indenture.  Upon surrender to
the Paying Agent, such Securities shall be paid at the Redemption Price in the
case of an Optional Redemption and the Redemption Price and the Make Whole
Payment, in the case of a Provisional Redemption stated in the notice.


 


SECTION 3.05   Deposit of Redemption Price.


Prior to 11:00 a.m. (New York City time), on any
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money or Ordinary Shares, if permitted hereunder,
sufficient to pay the Redemption Price in the case of an Optional


 


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Redemption
and the Redemption Price and the Make Whole Payment in the case of a
Provisional Redemption of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted.  The Paying Agent
shall as promptly as practicable return to the Company any money or Ordinary
Shares, if permitted hereunder, not required for that purpose because of
conversion of Securities pursuant to Article 11.  If such money or Ordinary Shares, if permitted
hereunder, is then held by the Company in trust and is not required for such
purpose, it shall be discharged from such trust.


 


SECTION 3.06   Securities Redeemed in Part.


Upon surrender of a Security that is redeemed in part,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Security in an authorized denomination equal in Principal Amount
to the unredeemed portion of the Security surrendered.


 


SECTION 3.07   Conversion Arrangement on Call for
Redemption.


In connection with any redemption of Securities, the
Company may arrange for the purchase and conversion of any Securities called
for redemption by an agreement with one or more investment banks or other
purchasers to purchase such Securities by paying to the Trustee in trust for
the Securityholders, on or prior to 11:00 a.m. New York City time on the
Redemption Date, an amount that, together with any amounts deposited with the
Trustee by the Company for the redemption of such Securities, is not less than
the Redemption Price in the case of an Optional Redemption and the Redemption
Price and the Make Whole Payment in the case of a Provisional Redemption of
such Securities.  Notwithstanding
anything to the contrary contained in this Article 3, the obligation of the Company
to pay the Redemption Price in the case of an Optional Redemption and the
Redemption Price and the Make Whole Payment in the case of a Provisional
Redemption of such Securities shall be deemed to be satisfied and discharged to
the extent such amount is so paid by such purchasers.  If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 10) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the second
Business Day prior to the Redemption Date, subject to payment of the above
amount as aforesaid.  The Trustee shall
hold and pay to the Holders whose Securities are selected for redemption any
such amount paid to it for purchase and conversion in the same manner as it
would moneys deposited with it by the Company for the redemption of Securities.  Without the Trustee’s prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee from, and hold
it harmless against, any and all loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.


 


29





















 


SECTION 3.08   Repurchase of Securities at Option of the
Holder.


(a)           Securities
shall be purchased by the Company pursuant to the terms of the Securities at the
option of the Holder on September 15, 2014 and September 15, 2019 (each, a “Repurchase
Date”), at a purchase price of 100% of the Principal Amount plus any
accrued and unpaid interest (the “Repurchase Price”), in each case, to,
but excluding, such Repurchase Date, subject to the provisions of Section
3.09.  Repurchases of Securities under
this Section 3.08 shall be made, at the option of the Holder thereof, upon:


 


(1)   delivery to the Paying Agent
by a Holder of a written notice (a “Repurchase
Notice”) during the period beginning at any time from the opening of
business on the date that is 25 Business Days prior to the applicable relevant
Repurchase Date until the close of business on the third Business Day prior to
such Repurchase Date stating:


 


(A)          the
certificate numbers of the Securities which the Holder will deliver to be
purchased, if applicable,


 


(B)           the
portion of the Principal Amount of the Securities which the Holder will deliver
to be purchased, which portion must be a Principal Amount of $1,000 or an
integral multiple thereof,


 


(C)           that
such Security shall be purchased as of the Repurchase Date pursuant to the
terms and conditions specified in paragraph 7 of the Securities and in this
Indenture, and


 


(D)          in
the event the Company elects, pursuant to Section 3.09, to pay the Repurchase
Price to be paid as of such Repurchase Date, in whole or in part, in Ordinary
Shares but such portion of the Repurchase Price shall ultimately be payable to
such Holder entirely in cash because any of the conditions to payment of the
Repurchase Price in Ordinary Shares is not satisfied prior to the close of
business on such Repurchase Date, as set forth in Section 3.09(c), whether such
Holder elects (i) to withdraw such Repurchase Notice as to some or all of the
Securities to which such Repurchase Notice relates (stating the Principal
Amount and certificate numbers of the Securities as to which such withdrawal
shall relate), or (ii) to receive cash in respect of the entire Repurchase
Price for all Securities (or portions thereof) to which such Repurchase Notice
relates; and


 


(2)           delivery or book-entry transfer of
the Securities to the Paying Agent at any time after delivery of the applicable
Repurchase Notice (together with all necessary endorsements) at the office of
the Paying Agent, such delivery being a condition to receipt by the Holder of
the Repurchase Price therefor; provided
that such Repurchase Price shall be so paid pursuant to this Section 3.08 only
if the Security so delivered to Paying Agent shall conform in all respects to
the description thereof in the related Repurchase Notice.


 


If the Company has
elected to pay the Repurchase Price in whole or in part in Ordinary Shares, but
is unable to deliver the Ordinary Shares, a Holder, in such Holder’s Repurchase
Notice and in any written notice of withdrawal delivered by such Holder
pursuant to


 


30





















 


the terms of Section 3.10, may elect to withdraw the Repurchase Notice
or to receive cash.  If a Holder fails to
indicate in its Repurchase Notice its election to receive cash or Ordinary
Shares, the Holder shall be deemed to have elected to receive cash in respect
of the entire Repurchase Price for all Securities subject to such Repurchase
Notice.


 


The Company shall
purchase from the Holder thereof, pursuant to this Section 3.08, a portion of a
Security, if the Principal Amount of such portion is $1,000 or an integral
multiple of $1,000.  Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.


 


Any purchase by
the Company contemplated pursuant to the provisions of this Section 3.08 shall
be consummated by the delivery of the consideration to be received by the
Holder promptly following the later of the Repurchase Date and the time of the
book-entry transfer or delivery of the Security.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.08 shall have the right to
withdraw such Repurchase Notice at any time prior to the close of business on
the Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 3.10.


 


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


 


SECTION 3.09   Company’s Right to Elect Manner of Payment
of Make Whole Payment and Repurchase Price.


(a)           The Make Whole
Payment and the Repurchase Price may be paid for, in whole or in part, at the
election of the Company, in cash or Ordinary Shares or any combination of cash
and Ordinary Shares, subject to the conditions set forth in Sections 3.09(c)
and (d).  The Company shall designate, in
the Notice of Redemption delivered pursuant to Section 3.03 and the Company
Repurchase Notice delivered pursuant to Section 3.09(d), as the case may be,
whether the Company will make the Make Whole Payment in, or repurchase the
Securities for, cash or Ordinary Shares, or, if a combination thereof, the
percentages of the Make Whole Payment or Repurchase Price of Securities, as the
case may be, in respect of which it will pay in cash or Ordinary Shares; provided that the Company will pay
cash for fractional interests in Ordinary Shares.  For purposes of determining the existence of
potential fractional interests, all Securities subject to redemption or
repurchase, as the case may be, by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented).  Each Holder whose Securities
are redeemed pursuant to Section 3.01(a) or repurchased pursuant to Section
3.08, as the case may be, shall receive the same percentage of cash or Ordinary
Shares in payment of the Make Whole Payment or Repurchase Price, as the case
may be, for such Securities, except with regard to the payment of cash in lieu
of fractional interests in Ordinary Shares. 
The Company may not change its election with respect to the consideration
(or components or percentages of components thereof) to be paid once the
Company has given its Notice of Redemption pursuant to Section 3.03 or its
Company Repurchase Notice to Holders, as the case may be, except pursuant to
Section 3.09(c) in the event of a failure to satisfy, prior to the close of
business on the Business Day immediately


 


31





















 


preceding the Redemption Date or Repurchase Date, as
the case may be, any condition to the payment of the Make Whole Payment or
Repurchase Price, as the case may be, in whole or in part, in Ordinary Shares.


 


At least three
Business Days before each Company Repurchase Notice Date, the Company shall
deliver an Officers’ Certificate to the Trustee specifying:


 


(i)            the
manner of payment selected by the Company,


 


(ii)           the
information required by Section 3.09(d) in the Company Repurchase Notice,


 


(iii)          if
the Company elects to pay the Repurchase Price, or a specified percentage
thereof, in Ordinary Shares, that the conditions to such manner of payment set
forth in Section 3.09(c) have been or will be complied with, and


 


(iv)          whether
the Company desires the Trustee to give the Company Repurchase Notice required
by Section 3.09(d).


 


(b)           At the option of the Company, the
Repurchase Price of Securities in respect of which a Repurchase Notice pursuant
to Section 3.08 has been given, or a specified percentage thereof, may be paid
by the Company with cash.  The Company
Repurchase Notice, as provided in Section 3.09(d), shall be sent to Holders not
less than 25 Business Days prior to such Repurchase Date (the “Company
Repurchase Notice Date”).


 


(c)           At the option of the Company, the
Make Whole Payment in respect of which a Notice of Redemption pursuant to
Section 3.03 has been given or Repurchase Price of Securities in respect of
which a Repurchase Notice pursuant to Section 3.08 has been given, as the case
may be, or a specified percentage thereof, may be paid by the Company by the
issuance of a number of Ordinary Shares equal to the quotient obtained by
dividing (i) the portion of the Make Whole Payment or the Repurchase Price to
be paid, as the case may be, in Ordinary Shares by (ii) 95% of the average of
the Closing Sale Price of the Ordinary Shares for the five-trading day
period immediately preceding but ending on the third Business Day prior to the
applicable Redemption Date or Repurchase Date, as the case may be,
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of the trading days during the five-trading day period
and ending on the Redemption Date or Repurchase Date, as the case may be, of
any event described in Section 10.15, subject to the next succeeding paragraph.


 


The Company will
not issue fractional interests in Ordinary Shares in payment of the Make Whole
Payment or Repurchase Price.  Instead,
the Company will pay cash based on the Closing Sale Price as of the applicable
Redemption Date or Repurchase Date, as the case may be, for all fractional
shares.


 


The Company’s
right to exercise its election to make the Make Whole Payment or purchase
Securities through the issuance of Ordinary Shares shall be conditioned upon:


 


(i)            the
Company’s giving a timely Notice of Redemption or Company Repurchase Notice, as
the case may be, containing an election to pay the Make Whole


 


32





















 


Payment
or purchase all or a specified percentage of the Securities, as the case may
be, with Ordinary Shares as provided herein;


 


(ii)           the
registration of such Ordinary Shares under the Securities Act and the Exchange
Act, if required;


 


(iii)          the
listing of such Ordinary Shares on a United States national securities exchange
or the quotation of such Ordinary Shares in an inter-dealer quotation system of
any registered United States national securities association, in each case, if
the Ordinary Shares are then listed on a national securities exchange or quoted
in an inter-dealer quotation system;


 


(iv)          any
necessary qualification or registration of such Ordinary Shares under
applicable state securities laws or the availability of an exemption from such
qualification and registration; and


 


(v)           the
receipt by the Trustee of an (A) Officers’ Certificate stating that the
terms of the issuance of the Ordinary Shares are in conformity with this Indenture,
(B) an Opinion of Counsel to the effect that the Ordinary Shares to be
issued by the Company in payment of the Make Whole Payment or the Repurchase
Price, as the case may be, in respect of the Securities have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Make Whole Payment or the Repurchase Price, as the
case may be, in respect of the Securities, will be validly issued, fully paid
and non-assessable and, to the best of such counsel’s knowledge, free
from preemptive rights under applicable law or known material contracts and
(c) an Officer’s Certificate, stating that the conditions to the issuance
of the Ordinary Shares have been satisfied.


 


Such Officers’ Certificate shall also set
forth the number of Ordinary Shares to be issued for each $1,000 Principal
Amount of Securities and the Closing Sale Price of an Ordinary Share on each
trading day during the period commencing on the fifth trading day immediately
preceding but ending on the third Business Day prior to the applicable
Redemption Date or Repurchase Date, as the case may be.  If the foregoing conditions are not satisfied
prior to the close of business on the last day prior to the Redemption Date or
Repurchase Date, as the case may be, and the Company has elected to make the
Make Whole Payment or repurchase the Securities, as the case may be, through
the issuance of Ordinary Shares, the Company shall pay the entire Make Whole
Payment or Repurchase Price in cash.


 


Promptly after determination of the actual
number of Ordinary Shares to be issued upon redemption or repurchase of
Securities, the Company shall be required to disseminate a press release
through Dow Jones & Company, Inc. or Bloomberg Business News containing
this information or publish the information on the Company’s website or through
such other public medium as the Company may use at that time.


 


(d)           In
connection with any repurchase of Securities, the Company shall, no less than
25 Business Days prior to each Repurchase Date, give notice to Holders (with a
copy to


 


33





















 


the
Trustee) setting forth information specified in this Section 3.09(d) (the “Company
Repurchase Notice”).


 


Each Company
Repurchase Notice shall:


 


(1)           state the Repurchase
Price and the Repurchase Date to which the Company Repurchase Notice relates;


 


(2)           state whether the
Repurchase Price will be paid in cash, Ordinary Shares or a combination
thereof, specifying the percentage of each;


 


(3)           if Ordinary Shares
will be used to pay all or part of the Repurchase Price, state:


 


(a) the method
for valuing the Ordinary Shares to be delivered in connection with the
repurchase; and


 


(b) that
Holders of the Securities will bear the market risk with respect to the value
of the Ordinary Shares to be delivered from the date the number of shares is
determined;


 


(4)           include a form of
Repurchase Notice;


 


(5)           state the Conversion
Rate;


 


(6)           state the name and
address of the Conversion Agent;


 


(7)           state that
Securities must be surrendered to the Paying Agent to collect the Repurchase
Price;


 


(8)           if the Securities
are then convertible, state that Securities as to which a Repurchase Notice has
been given may be converted only if the Repurchase Notice is withdrawn in
accordance with the terms of this Indenture; and


 


(9)           state the CUSIP
number of the Securities.


 


Company Repurchase Notices may be given by
the Company or, at the Company’s request, the Trustee shall give such Company
Repurchase Notice in the Company’s name and at the Company’s expense.


 


(e)           All
Ordinary Shares delivered upon redemption or repurchase of the Securities, as
the case may be, shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim created by the Company.


 


(f)            If
a Holder is paid the Make Whole Payment or Repurchase Price, as the case may
be, in Ordinary Shares, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on such issue of Ordinary Shares.  However, the Holder shall pay any


 


34





















 


such
tax which is due because the Holder requests the Ordinary Shares to be issued
in a name other than the Holder’s name. 
The Paying Agent may refuse to deliver the certificates representing the
Ordinary Shares being issued in a name other than the Holder’s name until the
Paying Agent receives a sum sufficient to pay any tax which will be due because
the Ordinary Shares are to be issued in a name other than the Holder’s
name.  Nothing herein shall preclude any
income tax withholding required by law or regulations.


 


(g)           The
Company will comply with the provisions of Rule 13e-4 and any other tender
offer rules under the Exchange Act to the extent then applicable in connection
with the repurchase rights of the Holders of Securities.


 


SECTION 3.10   Effect of Repurchase Notice.


Upon receipt by the Paying Agent of the Repurchase
Notice specified in Section 3.08, the Holder of the Security in respect of
which such Repurchase Notice was given shall (unless such Repurchase Notice is
validly withdrawn) thereafter be entitled to receive solely the Repurchase
Price with respect to such Security. 
Such Repurchase Price shall be paid to such Holder, subject to receipt
of funds and/or Securities by the Paying Agent, promptly following the later of
(x) the Repurchase Date with respect to such Note (provided the Holder has
satisfied the conditions in Section 3.08) and (y) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner required
by Section 3.08.  Securities in respect
of which a Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article 10 hereof on or after the date of the delivery of
such Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn.


 


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


 


(1)           the certificate
number, if any, of the Security in respect of which such notice of withdrawal
is being submitted, or the appropriate Depositary information if the Security
in respect of which such notice of withdrawal is being submitted is represented
by a Global Security,


 


(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
Repurchase Notice and which has been or will be delivered for purchase by the
Company.


 


A written notice
of withdrawal of a Repurchase Notice may be in the form set forth in the preceding
paragraph or may be in the form of a conditional withdrawal contained in a
Repurchase Notice pursuant to the terms of Section 3.08(a)(1)(D).


 


SECTION 3.11   Deposit of Repurchase Price.


Prior to 11:00 a.m. (New York City Time) on the
Business Day following the Repurchase Date, the Company shall deposit with the
Paying Agent (or, if the Company or a


 


35





















 


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) or Ordinary
Shares, if permitted hereunder, sufficient to pay the aggregate Repurchase
Price of all the Securities or portions thereof that are to be purchased as of
the Repurchase Date.  If the Paying Agent
holds sufficient funds and or Ordinary Securities sufficient to pay the
aggregate Repurchase Price for all Securities or portions thereof that are to
be repurchased as of the Repurchase Date, such Securities will cease to be
outstanding and interest will cease to accrue thereon whether or not book entry
of the Securities has been made or the Securities have been delivered to the
Paying Agent.


 


As soon as
practicable after the Repurchase Date the Company shall deliver to each Holder
entitled to receive Ordinary Shares through the Paying Agent, a certificate for
the number of full Ordinary Shares issuable in payment of the Repurchase Price
and cash in lieu of any fractional interests. 
The person in whose name the certificate for the Ordinary Shares is
registered shall be treated as a Holder of record of Ordinary Shares on the
Business Day following the Repurchase Date. 
No payment or adjustment will be made for dividends on the Ordinary Shares
the record date for which occurred on or prior to the Repurchase Date.


 


SECTION 3.12   Securities Repurchased in Part.


Upon presentation of any Security repurchased only in
part, the Company shall execute, shall endorse and the Trustee shall authenticate
and make available for delivery to the Holder thereof, at the expense of the
Company, a new Security or Securities, of any authorized denomination, in
aggregate Principal Amount equal to the unrepurchased portion of the Securities
presented.


 


SECTION 3.13   Repayment to the Company.


The Paying Agent shall return to the Company any cash
or Ordinary Shares that remain unclaimed, together with interest or dividends,
if any, thereon, held by them for the payment of the Repurchase Price; provided that to the extent that the
aggregate amount of cash or Ordinary Shares deposited by the Company pursuant
to Section 3.11 exceeds the aggregate Repurchase Price of the Securities or
portions thereof which the Company is obligated to purchase as of the
Repurchase Date then, unless otherwise agreed in writing with the Company,
promptly after the Business Day following the Repurchase Date, the Paying Agent
shall return any such excess to the Company together with interest or
dividends, if any, thereon.


 


SECTION 3.14   Redemption of Securities at Option of the
Holder upon Fundamental Change.


(a)           Subject to Section 10.22, if there
shall occur a Fundamental Change at any time prior to the Stated Maturity of
the Securities, then each Securityholder shall have the right, at such Holder’s
option, to require the Company to redeem all of such Holder’s Securities, or
any portion thereof that is a multiple of $1,000 Principal Amount, on the date
(the “Fundamental Change Redemption Date”) that is 30 days after the
date of the Fundamental Change Notice (as defined in Section 3.14(b)) of such
Fundamental Change (or, if such 30th day is not a Business Day, the next
succeeding Business Day) at a redemption price (the “Fundamental Change
Redemption Price”) equal to the Principal Amount to be repurchased plus
accrued interest to, but excluding, the Fundamental Change Redemption Date;
provided that if such Fundamental Change Redemption Date is an Interest Payment
Date, then the interest payable on such Interest


 


36





















 


Payment Date shall be paid to the Holders of record of the Securities
on the applicable Regular Record Date instead of the Holders surrendering the
Securities for redemption on such date.


 


Upon presentation
of any Security redeemed in part only, the Company shall execute and, upon
Company’s Order, the Trustee shall authenticate and make available for delivery
to the Holder thereof, at the expense of the Company, a new Security or
Securities, of authorized denominations, in aggregate Principal Amount equal to
the unredeemed portion of the Securities presented.


 


A “Fundamental Change” shall be deemed to
have occurred at such time after the original issuance of the Securities as any
of the following occurs:


 


(i)            the
Ordinary Shares or other ordinary shares into which the Securities are
convertible are neither listed for trading on a United States national
securities exchange nor approved for trading on the Nasdaq National Market or
another established automated over the counter trading market in the United
States;


 


(ii)           a “person”
or “group” within the meaning of Section 13(d) of the Exchange Act, other than
the Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any such Subsidiary, files a Schedule TO (or any other schedule,
form or report under the Exchange Act) disclosing that such person or group has
become the direct or indirect ultimate beneficial owner (as defined in Rule
13d-3 of the Exchange Act) of Voting Stock of the Company representing more than
50% of the voting power of the Company’s Voting Stock; or


 


(iii)          consummation
of any share exchange, consolidation or merger of the Company with or into
another person or any merger of another person with or into the Company
pursuant to which the Ordinary Shares will be converted into cash, securities
or other property or any sale, lease or other transfer (in one transaction or a
series of transactions) of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a whole, to any Person (other
than the Company or one or more of the Company’s Subsidiaries); provided,
however, that a transaction where the holders of the Company’s Voting
Stock immediately prior to such transaction own, directly or indirectly, more
than 50% of the aggregate voting power of all classes of Voting Stock of the
continuing or surviving corporation or transferee immediately after such event
shall not be a Fundamental Change;


 


provided, however,
that a Fundamental Change shall not be deemed to have occurred in respect of
any of the foregoing if at least 90% of the consideration (excluding cash
payments for fractional shares) in the transaction or transactions otherwise
constituting the Fundamental Change consists of shares of capital stock traded
on a national securities exchange or reported by the NASDAQ National Market (or
which shall be so traded or reported when issued or exchanged in connection
with such Fundamental Change) (such securities being referred to as “Publicly Traded Securities”) and as a
result of such transaction or transactions the Securities become convertible
into such Publicly Traded Securities (excluding cash payments for fractional
shares), and further provided
that a Fundamental Change shall not be deemed to have occurred in the case of
clause (iii) above if the transaction is effected solely to change the
jurisdiction of


 


37





















 


incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding Ordinary Shares solely
into shares of Voting Stock of the surviving entity.


 


(b)           On
or before the 10th day after the occurrence of a Fundamental Change, the
Company or at its written request (which must be received by the Trustee at
least five Business Days prior to the date the Trustee is requested to give
notice as described below, unless the Trustee shall agree in writing to a
shorter period), the Trustee, in the name of and at the expense of the Company,
shall mail or cause to be mailed to all Holders of record on the date of the
Fundamental Change a notice (the “Fundamental Change Notice”) of the
occurrence of such Fundamental Change and of the redemption right at the option
of the Holders arising as a result thereof. 
Such notice shall be mailed in the manner and with the effect set forth
in Section 3.03 (without regard for the time limits set forth therein).  If the Company shall give such notice, the
Company shall also deliver a copy of the Fundamental Change Notice to the
Trustee at such time as it is mailed to Securityholders.  Concurrently with the mailing of any
Fundamental Change Notice, the Company shall issue a press release announcing
such Fundamental Change referred to in the Fundamental Change Notice, the form
and content of which press release shall be determined by the Company in its
sole discretion.  The failure to issue
any such press release or any defect therein shall not affect the validity of
the Fundamental Change Notice or any proceedings for the redemption of any Note
which any Securityholder may elect to have the Company redeem as provided in
this Section 3.14.


 


Each Fundamental
Change Notice shall specify the circumstances constituting the Fundamental
Change, the redemption right at the option of the Holders arising as a result
of the Fundamental Change, the Fundamental Change Redemption Date, the
Fundamental Change Redemption Price, that the Holder must exercise the
redemption right on or prior to the close of business on the Fundamental Change
Redemption Date (the “Fundamental Change Expiration Time”), that the
Holder shall have the right to withdraw any Securities surrendered prior to the
Fundamental Change Expiration Time, a description of the procedure which a
Securityholder must follow to exercise such redemption right and to withdraw
any surrendered Securities, the place or places where the Holder is to
surrender such Holder’s Securities, the amount of interest accrued on each
Security to (but excluding) the Fundamental Change Redemption Date and the
CUSIP number or numbers of the Securities (if then generally in use).


 


No failure of the
Company to give the foregoing notices and no defect therein shall limit the
Securityholders’ redemption rights or affect the validity of the proceedings
for the redemption of the Securities pursuant to this Section 3.14.


 


(c)           For
a Security, other than a Global Security, to be so redeemed at the option of
the Holder, the Company must receive at the office or agency of the Company
maintained for that purpose or, at the option of such Holder, the Corporate
Trust Office, such Security with a written notice electing repayment upon a
Fundamental Change stating:


 


(1)           the certificate
number of the Security which the Holder will deliver to be purchased;


 


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


 


38





















 


(3)           that such Security
shall be purchased pursuant to the terms and conditions specified in paragraph
7 of the Securities.


 


together with such Securities duly endorsed
for transfer, on or before the Fundamental Change Expiration Time.  All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Security for redemption shall
be determined by the Company, whose determination shall be final and binding
absent manifest error.


 


(d)           Prior
to 11:00 am (New York City Time) on the Business Day following the Fundamental
Change Redemption Date, the Company will deposit with the Paying Agent (or, if
the Company or a Subsidiary or an Affiliate of either of them is acting as
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money sufficient to redeem on the Fundamental Change Redemption Date
all the Securities to be redeemed on such date at the Fundamental Change
Redemption Price; provided that if such payment is made on the Fundamental
Change Redemption Date it must be received by the Paying Agent by 11:00 a.m.
New York City time, on such date. Payment for Securities surrendered for
redemption (and not withdrawn) prior to the Fundamental Change Expiration Time
will be made promptly (but in no event more than five Business Days) following
the Fundamental Change Redemption Date by mailing checks for the amount payable
to the Holders of such Securities entitled thereto as they shall appear in the
Security register.


 


(e)           In
the case of a reclassification, change, consolidation, merger, combination,
sale or conveyance to which Section 10.15 applies, in which the Ordinary Shares
of the Company is changed or exchanged as a result into the right to receive
stock, securities or other property or assets (including cash), which includes
Ordinary Shares of the Company or shares of common stock of another Person that
are, or upon issuance will be, traded on a United States national securities
exchange or approved for trading on an established automated over-the-counter
trading market in the United States and such shares constitute at the time such
change or exchange becomes effective in excess of 50% of the aggregate fair
market value of such stock, securities or other property or assets (including
cash) (as determined by the Company, which determination shall be conclusive
and binding), then the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture (accompanied by an Opinion
of Counsel that such supplemental indenture complies with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
modifying the provisions of this Indenture relating to the right of Holders of
the Securities to cause the Company to repurchase the Securities following a
Fundamental Change, including without limitation the applicable provisions of
this Section 3.14 and the definitions of Ordinary Shares and Fundamental
Change, as appropriate, as determined in good faith by the Company (which
determination shall be conclusive and binding), to make such provisions apply
to such other Person if different from the Company and the common stock issued
by such Person (in lieu of the Company and the Ordinary Shares of the Company).


 


(f)            The
Company will comply with the provisions of Rule 13e-4 and any other tender
offer rules under the Exchange Act to the extent then applicable in connection
with the redemption rights of the Holders of Securities in the event of a
Fundamental Change.  To the extent that
the provisions of any securities laws or regulations conflict with provisions
of this


 


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Indenture,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations described in this Indenture
by virtue of the conflict.


 


ARTICLE 4


 


COVENANTS


 


SECTION 4.01   Payment of Securities.


The Company shall promptly make all payments in
respect of the Securities on the dates and in the manner provided in the
Securities or pursuant to this Indenture. 
Any amounts to be given to the Trustee or Paying Agent shall be
deposited with the Trustee or Paying Agent by 11:00 a.m., New York City time,
by the Company.  Principal Amount,
Redemption Price, Make Whole Payment, Repurchase Price, Fundamental Change
Redemption Price, and interest, if any, shall be considered paid on the
applicable date due if on such date (or, in the case of a Repurchase Price or
Fundamental Change Redemption Price, on the Business Day following the
applicable Repurchase Date or Fundamental Change Redemption Date, as the case
may be) 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.


 


The Company shall,
to the extent permitted by law, pay interest on overdue amounts at the rate per
annum set forth in paragraph 1 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
interest shall be payable on demand.  The
accrual of such interest on overdue amounts shall be in lieu of, and not in
addition to, the continued accrual of interest.


 


SECTION 4.02   SEC and Other Reports.


The Company shall deliver to the Trustee, within 30
days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual and quarterly reports 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.  The Company also shall
comply with the 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 the same shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


SECTION 4.03   Compliance Certificate.


The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company 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


 


40





















 


requirement
of notice provided hereunder) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge.


 


SECTION 4.04   Further Instruments and Acts.


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


 


SECTION 4.05   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, redemption or conversion and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served.  The office of The Bank of New
York, located at 101 Barclay Street, Fl. 8W, New York, New York 10286
(Attention: Corporate Trust Administration), shall initially be such office or
agency for all of the aforesaid purposes. 
The Company shall give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee).  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 13.02.


 


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 Ordinary Shares which are restricted
securities issued upon conversion thereof, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as defined below) to such
Holder or any beneficial holder of Securities or holder of Ordinary Shares
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   Covenant to Comply With Securities Laws Upon
Purchase of Securities.


In connection with any offer to purchase or
purchase of Securities under Section 3.08 or 3.09 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 to the extent


 


41





















 


applicable (i) comply with Rule 13e-4
and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.08 and 3.09 to be exercised in the time
and in the manner specified in Sections 3.08 and 3.09.


 


SECTION 4.08   Limitation on Liens.


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, incur or permit to exist any
Lien (other than existing Liens) securing Specified Indebtedness of any nature
whatsoever on any of its properties or assets, whether owned at the Original
Issue Date or thereafter acquired without effectively providing that the Notes
are secured equally and ratably with (or, if the obligation to be secured by
the Lien is subordinated in right of payment to the Notes, prior to) the
obligations so secured for so long as such obligations are so secured.


 


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ARTICLE 5



CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


SECTION
5.01   Company May Consolidate on Certain
Terms.


Subject to the
provisions of Section 5.02, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Company with or
into any other Person or Persons (whether or not affiliated with the Company ),
or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale,
conveyance or lease (or successive sales, conveyances or leases) of
substantially all of the property of the Company, to any other Person (whether
or not affiliated with the Company), authorized to acquire and operate the same
and that shall be organized under the laws of the United States of America, any
state thereof, the District of Columbia or the Cayman Islands; provided that
upon any such consolidation, merger, sale, conveyance or lease, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged, or by the
Person that shall have acquired or leased such property, and such supplemental
indenture shall provide for the applicable conversion rights set forth in
Article 10; provided further that immediately after giving effect to the
transaction described above, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.  The Company
shall give the conversion notice provided for under Article 10, provided that
the failure to give such notice or any default therein shall not affect the
validity of such transaction.


 


SECTION
5.02   Successor to be Substituted.


In case
of any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of, the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor Person shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the party of this first part. 
Such successor Person thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all of the
Securities, issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor
Person thereafter shall cause to be signed and delivered to the Trustee for
that purpose.  All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.  In the event of
any such consolidation, merger, sale, conveyance or lease, the Person named as
the “Company”, in the first paragraph of this Indenture or any successor that
shall thereafter have become such in the manner prescribed


 


43





















 


 in
this Article 5 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released from its liabilities as obligor and maker of
the Securities and from its obligations under this Indenture.


 


In case of any
such consolidation, merger, sale, conveyance or lease, such changes in
phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.


 


SECTION
5.03   Opinion of Counsel to be Given
Trustee.


The Trustee
shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or lease and any
such assumption comply with the provisions of this Article 5.


 


ARTICLE 6



DEFAULTS AND REMEDIES


 


SECTION
6.01   Events of Default.


An “Event of Default”
occurs if:


 


(1)           the Company defaults
in payment of any interest when due under the Securities and such default
continues for 30 days;


 


(2)           the Company defaults
in the payment of the Principal Amount, Redemption Price, Make Whole Payment,
Repurchase Price or Fundamental Change Redemption Price on any Security when
the same becomes due and payable;


 


(3)           the Company fails to
comply with any of its agreements in the Securities or this Indenture (other
than those referred to in clauses (1) and (2) above) and such failure continues
for 60 days after receipt by the Company of a Notice of Default;


 


(4)           the Company fails to
give notice to Holders of the Holders’ right to require the Company to purchase
a Holder’s Securities upon a Fundamental Change;


 


(5)           the Company or any
of its Subsidiaries fails to pay when due principal, interest or premium
aggregating $25,000,000 or more with respect to any of its indebtedness or the
acceleration of any such indebtedness, which default shall not be cured or
waived, or such acceleration shall not be rescinded or annulled, within 30 days
after notice;


 


(6)           any final judgment
or judgments for the payment of money in excess of $25,000,000 shall be
rendered against the Company or any of its Significant Subsidiaries and shall
not be discharged for any period of 30 consecutive days during which a stay of
enforcement shall not be in effect;


 


(7)           the Company or any
of its Significant Subsidiaries pursuant to or under or within the meaning of
any Bankruptcy Law or the Companies Law:


 


44





















 


(a) commences
a voluntary case, proceeding or voluntary liquidation;


 


(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 or a Custodian is appointed of it or for all
or substantially all 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 petition or the appointment of or taking possession by a
Custodian; or


 


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


 


(a) is for
relief against the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding, or adjudicates the Company or any of its
subsidiaries insolvent or bankrupt;


 


(b) appoints a
Custodian of the Company or any of its Subsidiaries or for all or substantially
all of their respective property; or


 


(c) orders the
winding up or liquidation of the Company or any of its Significant
Subsidiaries;


 


and the order or
decree remains unstayed and in effect for 90 days; or


 


(9)           any Pledge Agreement
shall cease to be in full force and effect or enforceable, other than in
accordance with its terms, or fails to give the Trustee the liens, rights,
powers and privileges purported to be created thereby.


 


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


 


“Companies
Law” means the Companies Law (2003 Revision) of the Cayman Islands, as may
be amended from time to time.


 


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


 


A Default
under clause (3) above is not an Event of Default until the Trustee notifies
the Company, or the Holders of at least 25% in aggregate Principal Amount of
the Securities at the time outstanding notify the Company and the Trustee, of
the Default and the Company does not cure such Default (and such Default is not
waived) within the time specified 


 


45





















 


in clause (3) above after
actual receipt of such notice.  Any such
notice must specify the Default, demand that it be remedied and state that such
notice is a “Notice of Default”.


 


The Company
shall deliver to the Trustee, within 30 days after it becomes aware of the
occurrence thereof, written notice of any event which with the giving of notice
or the lapse of time, or both, would become an Event of Default under clause
(3) or clause (4) above, its status and what action the Company is taking or
proposes to take with respect thereto.


 


SECTION
6.02   Acceleration.


If an Event of
Default (other than an Event of Default specified in Section 6.01(7) or (8) in
respect of the Company) occurs and is continuing, the Trustee by written notice
to the Company, or the Holders of at least 25% in aggregate Principal Amount of
the Securities at the time outstanding by notice to the Company and the
Trustee, may declare the Principal Amount through the date of such declaration,
and any accrued and unpaid interest through the date of declaration on all the
Securities to be immediately due and payable. 
Upon such a declaration, such Principal Amount, and such accrued and
unpaid interest, if any, shall be due and payable immediately.  If an Event of Default specified in Section
6.01(7) or (8) occurs in respect of the Company and is continuing, the
Principal Amount, and any accrued and unpaid 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 Securityholders.  The Holders of a majority in aggregate
Principal Amount of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Securityholder) may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the Principal Amount and any accrued and unpaid
interest that have become due solely as a result of acceleration 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 Amount on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.


 


The Trustee
may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding.  A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. 
Except as set forth in Section 2.07 hereof, no remedy is exclusive of
any other remedy.  All available remedies
are cumulative.


 


SECTION 6.04   Waiver of Past Defaults.


Subject to
Section 6.02, the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding, by notice to the Trustee (and without
notice to any other Securityholder), may waive an existing Default and its
consequences except (1) an Event of Default described in Section 6.01(1) or
(2), (2) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected or (3) a Default
which constitutes a failure to convert any Security in accordance with the
terms of


 


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Article 10.  When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair
any consequent right.  This Section 6.04
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 direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee is offered indemnity satisfactory to it.  This Section 6.05 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.


 


SECTION
6.06   Limitation on Suits.


A
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.07   Rights of Holders to Receive Payment.


Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount, Redemption Price, Make Whole Payment,
Repurchase Price, Fundamental Change Redemption Price or interest in respect of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 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.


 


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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, Redemption Price, Make
Whole Payment, Repurchase Price, Fundamental Change Redemption Price or
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
Trustee shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,


 


(a)           to file and prove a claim for the
whole amount of the Principal Amount, Redemption Price, Make Whole Payment,
Repurchase Price, Fundamental Change Redemption Price or interest in respect of
the Securities as the case may be, 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:


 


FIRST: to the
Trustee for amounts due under Section 7.07;


 


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SECOND: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount, Redemption Price, Make Whole Payment, Repurchase
Price, Fundamental Change Redemption Price or interest as the case may be,
ratably, without preference or priority of any kind, according to such amounts
due and payable on the Securities; and


 


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


 


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


 


SECTION 6.11   Undertaking for
Costs.


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant.  This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 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, Redemption
Price, Make Whole Payment, Repurchase Price, Fundamental Change Redemption
Price or interest 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 


 


49





















 


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.


 


(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)


 


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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 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 


 


51





















 


make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;


 


(i)            the Trustee shall not be deemed to
have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by 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)           the Trustee may request that the
Company deliver an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded.


 


SECTION 7.03   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 or the Securities, it shall not be accountable
for the Company’s use or application of the proceeds from the Securities, and
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
Securityholder notice of the Default within 90 days after such Responsible
Officer obtains knowledge of such Default 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 interests of Securityholders.  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 


 


52





















 


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 April 15 beginning with the
April 15, 2005, the Trustee shall mail to each Securityholder a brief report
dated as of such April 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)(2).


 


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


 


SECTION 7.07   Compensation and
Indemnity.


The Company agrees:


 


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


 


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


 


(c)           to indemnify the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any and all 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
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 that held in trust
to pay the Principal Amount, Redemption Price, Make Whole Payment, Repurchase
Price, Fundamental Change Redemption Price, or interest, if any, as the case
may be, on particular Securities.


 


The Company’s
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


 


53





















 


incurs expenses after the
occurrence of a Default specified in Section 6.01(5) or (6), 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 shall remove the Trustee if:


 


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


 


(2)           the Trustee is
adjudged bankrupt or insolvent;


 


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


 


(4)           the Trustee
otherwise becomes incapable of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of 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 Securityholders.  The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.


 


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 Securityholder 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.


 


54





















 


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 (i) the Company
delivers to the Trustee all outstanding Securities (other than Securities
replaced pursuant to Section 2.07) for cancellation or (ii) all outstanding
Securities have become due and payable and the Company irrevocably deposits
with the Trustee, the Paying Agent (if the Paying Agent is not the Company or
any of its Affiliates) or the Conversion Agent cash or, if expressly permitted
by the terms of the Securities or the Indenture, Ordinary Shares sufficient to
pay all amounts due and owing on all outstanding Securities (other than
Securities replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.07, cease to be of further effect.  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 to the
Company.


The Trustee and the Paying
Agent shall return to the Company upon written request 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 Securityholders with respect to such money or
securities for that period commencing after the return thereof.


 


55





















 


ARTICLE 9



AMENDMENTS


 


SECTION
9.01   Without Consent of Holders.


The Company
and the Trustee may amend or supplement this Indenture or the Securities
without the consent of any Securityholder:


 


(1)           to cure any
ambiguity or inconsistency;


 


(2)           to comply with
Article 5 or Section 10.15;


 


(3)           in exchange for
Securityholders agreeing to waive their right to require the Company to
purchase all or a portion of their Securities on a specified Repurchase Date,
to add additional Repurchase Dates on which Securityholders may require the
Company to purchase all or a portion of their Securities at the applicable
Repurchase Price and, in addition, to pay such Securityholders additional cash
payments in connection therewith;


 


(4)           to secure the
Company’s obligations under the Securities and this Indenture;


 


(5)           to add to the
Company’s covenants for the benefit of the Securityholders or to surrender any
right or power conferred upon the Company (including, without limitation, to
eliminate the Company’s right pursuant to Section 3.09(a) to elect to pay the
Repurchase Price, in whole or in part, in Ordinary Shares);


 


(6)           to make any change
to comply with the TIA, or any amendment thereto, or to comply with any
requirement of the SEC in connection with the qualification of the Indenture
under the TIA, or as necessary in connection with the registration of the
Securities under the Securities Act; or


 


(7)           to make any change
that does not adversely affect the rights of any Holders (it being understood
that any amendment described in clause (1) above made solely to conform this
Indenture to the final offering memorandum provided to investors in connection
with the initial offering of the Securities will be deemed not to adversely
affect the rights or interests of Holders).


 


SECTION
9.02   With Consent of Holders.


With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Securities at the time outstanding, the Company and the Trustee
may amend this Indenture or the Securities. 
However, without the consent of each Securityholder affected, an
amendment, supplement or waiver to this Indenture or the Securities may not:


 


(1)           reduce the
percentage in Principal Amount of Securities whose Holders must consent to an
amendment;


 


56





















 


(2)           reduce the rate of
interest referred to in paragraph 1 of the Securities, or extend the time for
payment of interest on any Security;


 


(3)           reduce the Principal
Amount with respect to any Security, or extend the Stated Maturity of any
Security;


 


(4)           reduce the
Redemption Price, Make Whole Payment, Repurchase Price or Fundamental Change
Redemption Price of any Security;


 


(5)           make any Security
payable in money or securities other than that stated in the Security;


 


(6)           make any change in
Sections 6.02 or 6.04 or this Section 9.02, except to increase any percentage
set forth therein;


 


(7)           make any change that
adversely affects the right to convert any Security;


 


(8)           make any change that
adversely affects the right to require the Company to purchase the Securities
in accordance with the terms thereof and this Indenture, except as otherwise
provided herein; or


 


(9)           impair the right to
institute suit for the enforcement of any payment with respect to, or
conversion of, the Securities.


 


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.  Any failure to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.


 


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, consent, 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 amendment, consent,
waiver or other action is not made on the Security.  However, any such Holder or subsequent Holder
may revoke the consent as to such Holder’s Security or portion of the Security
if the Trustee receives the notice of revocation before the date as of which
the amendment, consent, waiver or action is made effective.  After an amendment, consent, waiver or action
becomes effective, it shall bind every Securityholder.


 


57





















 


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.  Failure to make the
appropriate notation or issue a new Security shall not affect the validity of
such supplemental indenture.


 


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
Privilege.


A Holder of a Security may convert such Security into
Ordinary Shares at any time during the periods and subject to the conditions
stated in paragraph 9 of the Securities, subject to the provisions of this
Article 10.  The number of Ordinary
Shares issuable upon conversion of a Security per $1,000 of Principal Amount
thereof (the “Conversion Rate”) shall be determined in accordance with the
provisions of paragraph 9 of the Securities. 
The initial number of Ordinary Shares issuable upon conversion of a
Security per $1,000 of Principal Amount thereof shall equal 34.9406, subject to
adjustment.


 


A Holder may
convert a portion of the Principal Amount of a Security if the portion is
$1,000 or an integral multiple of $1,000. 
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.


 


The Trustee (or
other Conversion Agent appointed by the Company) shall, on behalf of the
Company, determine on a daily basis whether the Securities shall be convertible
as a result of the occurrence of an event specified above and, if the
Securities shall be convertible, the Trustee (or other conversion agent
appointed by the Company) shall promptly deliver to the


 


58





















 


Company and the Trustee (if the
Trustee is not the conversion agent) written notice thereof.  Whenever the Securities shall become
convertible pursuant to the foregoing condition, the Company or, at the Company’s
request, the Trustee in the name and at the expense of the Company, shall
notify the Holders of the event triggering such convertibility in the manner
provided under the Indenture, and the Company shall also publicly announce such
information and publish it on the Company’s website.  Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.


 


SECTION 10.02   Conversion
Procedure.


To convert a Security, a Holder must satisfy the
requirements in paragraph 9 of the Securities. 
The date on which the Holder satisfies all those requirements is the
conversion date (the “Conversion Date”). 
Following the Conversion Date, the Company shall deliver to the Holder
through the Conversion Agent, in accordance with Section 10.21, a certificate
for the number of Ordinary Shares issuable upon the conversion and cash in lieu
of any fractional share determined pursuant to Section 10.03.  The Company shall determine such full number
of shares and the amounts of the required cash with respect to any fractional
share, and shall set forth such information in an Officers’ Certificate
delivered to the Conversion Agent.  The
Conversion Agent shall have no duties under this paragraph unless and until it
has received such certificate.


 


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


 


Holders may surrender
a Security for conversion by means of book-entry delivery in accordance with
paragraph 9 of the Security and the regulations of the applicable book-entry
facility.


 


No payment or
adjustment will be made for dividends on, or other distributions with respect
to, any Ordinary Shares except as provided in this Article 10.  On conversion of a Security, any accrued and
unpaid interest to the Conversion Date, with respect to the converted Security
shall not be cancelled, extinguished or forfeited, but rather shall be deemed
to be paid in full to the Holder thereof through delivery of the Ordinary
Shares (together with the cash payment, if any, in lieu of fractional shares)
in exchange for the Security being converted pursuant to the provisions hereof;
and the fair market value of such Ordinary Shares (together with any such cash
payment in lieu of fractional shares) shall be treated as issued, to the extent
thereof, first in exchange for accrued and unpaid interest through the
Conversion Date, and the balance, if any, of such fair market value of such
Ordinary Shares (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the Security being converted pursuant to the
provisions hereof.  Notwithstanding the
foregoing, accrued interest will be payable upon


 


59





















 


 conversion of Securities made concurrently
with or after acceleration of Securities following an Event of Default.


 


If the Holder
converts more than one Security at the same time, the number of Ordinary Shares
issuable upon conversion shall be based on the Principal Amount of the
Securities converted.


 


A Security
surrendered for conversion based on (a) the Ordinary Share price may be
surrendered for conversion until the close of business on March 15, 2024
(unless the Securities are not paid at the Stated Maturity, in which case the
Securities will remain convertible until such Securities are paid), (b) the
Security being called for redemption may be surrendered for conversion at any
time prior to the close of business on the second Business Day immediately
preceding the Redemption Date, even if it is not otherwise convertible at such
time, and (c) the occurrence of certain corporate transactions more fully
described in paragraph 9 of the Security may be surrendered for conversion at
any time from and after the date which is 15 days prior to the anticipated
effective date of such transaction until 15 days after the actual date of such
transaction, and if such day is not a Business Day, the next occurring Business
Day following such day.


 


Upon surrender of
a Security that is converted in part, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder, a new Security in an
authorized denomination equal in Principal Amount to the unconverted portion of
the Security surrendered.


 


SECTION 10.03   Fractional
Shares.


The Company will not issue a fractional interest in an Ordinary Share
upon conversion of a Security.  If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered.  Instead, the Company will deliver cash for
the current market value of the fractional share.  The current market value of a fractional
share shall be determined, to the nearest 1/1,000th of a share, by
multiplying the per share Closing Sale Price of the Ordinary Shares, on the
last trading day prior to the Conversion Date, by the fractional amount and
rounding the product to the nearest whole cent.


 


SECTION 10.04   Taxes on
Conversion.


If a Holder converts a Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of Ordinary Shares upon
the conversion.  However, the Holder
shall pay any such tax which is due because the Holder requests the shares to
be issued in a name other than the Holder’s name and any income tax which is
imposed on the Holder as a result of the conversion.  The Conversion Agent may refuse to deliver
the certificates representing the Ordinary Shares being issued in a name other
than the Holder’s name until the Conversion Agent receives a sum sufficient to
pay any tax which will be due because the shares are to be issued in a name
other than the Holder’s name.  Nothing
herein shall preclude the Company from any tax withholding or directing the
withholding of any tax required by law or regulations.


 


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SECTION 10.05   Company to
Provide Ordinary Shares.


The Company shall, prior to issuance of any Securities
under this Article 10, and from time to time as may be necessary, reserve out
of its authorized Ordinary Shares that are not outstanding a sufficient number
of Ordinary Shares to permit the conversion in full of the Securities.


 


All Ordinary
Shares delivered upon conversion of the Securities shall be newly issued shares
or treasury shares, shall be duly and validly issued and fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim created by the Company.


 


The Company will
list or cause to have quoted such Ordinary Shares on each national securities
exchange or in the over-the-counter market or such other market on which the
Ordinary Shares are then listed or quoted.


 


Unless the
Securities being converted have prior to such conversion been transferred
pursuant to an effective Registration Statement or are otherwise not Restricted
Securities, any Ordinary Shares issued on conversion will be restricted and
will bear the Restrictive Legend (except that such Restrictive Legend shall not
refer to any Ordinary Shares issuable upon conversion of the Securities).


 


SECTION 10.06   Adjustment for
Change in Capital Stock.


Except as set forth in Section 10.15, if, after the Issue Date of the
Securities, the Company:


 


(a)           pays a dividend or makes a
distribution on its Ordinary Shares in shares of its Ordinary Shares;


 


(b)           subdivides its outstanding Ordinary
Shares into a greater number of shares;


 


(c)           pays a dividend or makes a
distribution of its Ordinary Shares in shares of its Capital Stock (other than
Ordinary Shares or rights, warrants or options for its Capital Stock);


 


(d)           combines its outstanding Ordinary
Shares into a smaller number of shares; or


 


(e)           issues by reclassification of its
Ordinary Shares any shares of its Capital Stock (other than rights, warrants or
options for its Capital Stock);


 


then
the conversion privilege and the Conversion Rate in effect immediately prior to
such action shall be adjusted so that the Holder of a Security thereafter
converted may receive the number of shares or other units of Capital Stock of
the Company which such Holder would have owned immediately following such
action if such Holder had converted the Security immediately prior to such
action.


 


61





















 


The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.


 


SECTION 10.07   Adjustment for
Rights Issue.


Except as set forth in Sections 10.15 and 10.20, if,
after the Issue Date, the Company distributes any rights, warrants or options
to all holders of its Ordinary Shares entitling them, for a period expiring
within 60 days after the record date for such distribution, to purchase
Ordinary Shares at a price per share less than the Closing Sale Price of the
Ordinary Shares as of the Time of Determination, the Conversion Rate shall be
adjusted in accordance with the formula:


 




	
  R’  =  

  	
   

  	
  R (O + N)

  
	
   

  	
   

  	
   (O + [(N x P)/M)]

  






 


where:


 


R’ = the adjusted Conversion
Rate.


 


R  = the current Conversion Rate.


 


O  =         the
number of Ordinary Shares outstanding on the record date for the distribution
to which this Section 10.07 is being applied.


 


N  = the number of additional Ordinary Shares
offered pursuant to the distribution.


 


P  = the offering price per share of the
additional Ordinary Shares.


 


M  = the Average Sale Price, minus, in the case
of (i) a distribution to which Section 10.06(b) applies or (ii) a distribution
to which Section 10.08 applies, for which, in each case, (x) the record date shall
occur on or before the record date for the distribution to which this Section
10.07 applies and (y) the Ex-Dividend Time shall occur on or after the date of
the Time of Determination for the distribution to which this Section 10.07
applies, the fair market value (on the record date for the distribution to
which this Section 10.07 applies) of:


 


(i)            the
Capital Stock of the Company distributed in respect of each Ordinary Share in
such Section 10.06(b) distribution; and


 


(ii)           the
assets of the Company or debt securities or any rights, warrants or options to
purchase securities of the Company distributed in respect of each share of
Ordinary Share in such Section 10.08 distribution.


 


The Board of
Directors shall determine fair market values for the purposes of this Section
10.07.


 


The adjustment
shall become effective immediately after the record date for the determination
of shareholders entitled to receive the rights, warrants or options to which
this Section 10.07 applies.  If all of
the Ordinary Shares subject to such rights, warrants or options 


 


62





















 


have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of Ordinary Shares issued upon the exercise of
such rights, warrants or options.


 


No adjustment
shall be made under this Section 10.07 if the application of the formula stated
above in this Section 10.07 would result in a value of R’ that is equal to or
less than the value of R.


 


SECTION 10.08   Adjustment for
Other Distributions.


(a)           Subject to Section 10.08(b), if, after the Issue Date of the
Securities, the Company distributes to all holders of its Ordinary Shares any
of its assets (including securities or cash, but excluding distributions of
Capital Stock referred to in Section 10.06 and distributions of Capital Stock
or equity interests referred to in Section 10.08(b)), or evidence of
indebtedness or any rights, warrants or options to purchase securities of the
Company (excluding distributions of rights, warrants or options referred to in
Section 10.07), the Conversion Rate shall be adjusted, subject to the
provisions of Section 10.08(c), in accordance with the formula:


 




	
  R’  =

  	
  R x M

  	
   

  
	
   

  	
  M – F

  	
   

  






 


where:


 


R’ = the adjusted Conversion
Rate.


 


R  = the current Conversion Rate.


 


M  = the Average Sale Price, minus, in the case
of a distribution to which Section 10.06(c) applies, for which (i) the record
date shall occur on or before the record date for the distribution to which
this Section 10.08 applies and (ii) the Ex Dividend Time shall occur on or
after the date of the Time of Determination for the distribution to which this
Section 10.08 applies, the fair market value (on the record date for the
distribution to which this Section 10.08 applies) of any Capital Stock of the
Company distributed in respect of each share of Ordinary Shares in such Section
10.06(c) distribution.


 


F  = the fair market value (on the record date
for the distribution to which this Section 10.08 applies) of the assets,
securities, rights, warrants or options to be distributed in respect of each
Ordinary Share in the distribution to which this Section 10.08 is being applied
(including, in the case of cash dividends or other cash distributions giving
rise to an adjustment, all such cash distributed concurrently).


 


The Board of Directors shall
determine fair market values for the purposes of this Section 10.08.


 


The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 10.08 applies.


 


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(b)           If,
after the Issue Date of the Securities, the Company pays a dividend or makes a
distribution to all holders of its Ordinary Shares consisting of Capital Stock
of any class or series, or similar equity interests, of or relating to a
Subsidiary or other business unit of the Company, the Conversion Rate shall be
adjusted in accordance with the formula:


 


R’
=  R x 
(1 + F/M)


 


where:


 


R’ = the adjusted Conversion
Rate.


 


R = the current Conversion
Rate.


 


M = the average of the
Closing Sale Prices of the Ordinary Shares 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 American Stock
Exchange or such other national or regional exchange or market which such
securities are then listed or quoted (the “Ex-Dividend Date”).


 


F = the fair market value of
the securities distributed in respect of each share of Ordinary Shares for
which this Section 10.08(b) applies shall mean the number of securities
distributed in respect of each Ordinary Share multiplied by the average of the
Closing Sale Prices of those securities distributed for the 10 trading days
commencing on and including the fifth trading day after the Ex-Dividend Date.


 


(c)           In the event that, with respect to
any distribution to which Section 10.08(a) would otherwise apply, the
difference between “M-F” as defined in the formula set forth in
Section 10.08(a) is less than $1.00 or “F” is equal to or greater than “M”,
then the adjustment provided by Section 10.08(a) shall not be made and in lieu
thereof the provisions of Section 10.15 shall apply to such distribution.


 


SECTION 10.09   Adjustment for
Company Tender Offer.


In case a tender or exchange offer after the Issue
Date of the Securities made by the Company or any Subsidiary for all or any
portion of the Ordinary Shares shall expire and such tender or exchange offer
(as amended upon the expiration thereof) shall require the payment to
stockholders of consideration per Ordinary Share having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) that as of the last
time tenders or exchanges may be made pursuant to such tender or exchange offer
(as it may be amended) (the “Expiration Time”) exceeds the Closing Sale Price
of an Ordinary Share on the trading day next succeeding the Expiration Time,
the Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to
the Expiration Time by a fraction of which (a) the numerator shall be the sum
of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the


 


64





















 


number of Ordinary Shares
outstanding (less any Purchased Shares) at the Expiration Time and the Closing
Sale Price of an Ordinary Share on the trading day next succeeding the
Expiration Time and (b) the denominator shall be the number of Ordinary Shares
outstanding (including any Purchased shares) at the Expiration Time multiplied
by the Closing Sale Price of an Ordinary Share on the trading day next
succeeding the Expiration Time.


 


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


 


SECTION 10.10   When Adjustment
May Be Deferred.


No adjustment in the Conversion Rate need be made
unless the adjustment would require an increase or decrease of at least 1% in
the Conversion Rate.  Any adjustments
that are not made shall be carried forward and taken into account in any
subsequent adjustment, which shall be made, regardless of whether the aggregate
amount of such cumulative adjustments exceeds 1%, within one year of the first
adjustment so carried forward or, if earlier, the date on which such
carried-forward adjustments first equal or exceed 1% of the Conversion Rate in
effect as of the date of the first such adjustment carried forward.


 


All calculations
under this Article 10 shall be made to the nearest cent or to the nearest
1/1,000th of a share, as the case may be.


 


SECTION 10.11   When No
Adjustment Required.


No adjustment need be made for a transaction referred
to in Section 10.06, 10.07, 10.08, 10.09 or 10.15 if Securityholders are to participate
in the transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in light of the basis and notice on which
holders of Ordinary Shares participate in the transaction.  Such participation by Securityholders may
include participation upon conversion provided that an adjustment shall be made
at such time as the Securityholders are no longer entitled to participate.


 


No adjustment need
be made for rights to purchase Ordinary Shares pursuant to a Company plan for
reinvestment of dividends or interest.


 


No adjustment need
be made for a change in the par value or no par value of the Ordinary Shares.


 


To the extent the
Securities become convertible pursuant to this Article 10 into cash, no
adjustment need be made thereafter as to the cash.  Interest will not accrue on the cash.


 


No adjustment will
be made pursuant to this Article 10 that would result, through the application
of two or more provisions hereof, in the duplication of any adjustment.


 


SECTION 10.12   Notice of
Adjustment.


Whenever the Conversion Rate is adjusted, the Company
shall promptly mail to Securityholders a notice of the adjustment.  The Company shall file with the Trustee and
the


 


65





















 


Conversion Agent such notice
and a certificate from the Company’s independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it.  Upon receipt by it of such notice, and at the
written request of the Company, the Conversion Agent will promptly mail such
notice to Securityholders at the Company’s expense.  The certificate shall be conclusive evidence
that the adjustment is correct.  Neither
the Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate except to exhibit the same to any Holder
desiring inspection thereof.


 


SECTION 10.13   Voluntary
Increase.


The Company from time to time may increase the
Conversion Rate by any amount for any period of time.  Whenever the Conversion Rate is increased,
the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice of the increase. 
The Company shall mail the notice at least 15 days before the date the
increased Conversion Rate takes effect. 
The notice shall state the increased Conversion Rate and the period it
will be in effect.


 


A voluntary
increase of the Conversion Rate does not change or adjust the Conversion Rate
otherwise in effect for purposes of Section 10.06, 10.07, 10.08 or 10.15.


 


SECTION 10.14   Notice of Certain
Transactions.


If:


 


(a)           the
Company takes any action that would require an adjustment in the Conversion
Rate pursuant to Section 10.06, 10.07, 10.08 or 10.09 (unless no adjustment is
to occur pursuant to Section 10.11); or


 


(b)           the Company takes any action that
would require a supplemental indenture pursuant to Section 10.15;


 


(c)           there is a liquidation or dissolution
of the Company; or


 


(d)           there is a Public
Acquirer Change of Control


 


then the Company shall mail to Securityholders and file with the
Trustee and the Conversion Agent a notice stating the proposed record date for
a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share exchange,
transfer, liquidation, dissolution or Public Acquirer Change of Control.  The Company shall file and mail the notice at
least 15 days before such date.  In the
case of a Public Acquirer Change of Control, the notice will state whether the
Company will adjust the Conversion Rate pursuant to Section 10.22, or whether,
in lieu thereof, the Company will adjust the Conversion Rate pursuant to
Section 10.23.  Failure to file or mail
the notice or any defect in it shall not affect the validity of the transaction.


 


SECTION 10.15   Reorganization of
Company; Special Distributions.


If the Company
is a party to a transaction subject to Article 5 (other than a sale of all or
substantially all of the assets of the Company in a transaction in which the
holders of Ordinary Shares immediately prior to such transaction do not receive
securities, cash, property or other assets of the Company or any other Person)
or a consolidation, a merger or binding share


 


66





















 


exchange which reclassifies or
changes its outstanding Ordinary Shares, the Person obligated to deliver
securities, cash or other assets upon conversion of the Securities shall enter
into a supplemental indenture.  If the
issuer of securities deliverable upon conversion of the Securities is an
Affiliate of the successor Company, that issuer shall join in the supplemental
indenture.


 


The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent Person or an
Affiliate of a constituent Person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders.  The supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practical to the adjustments provided for in this Article 10.  The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.


 


If any such transaction constitutes a Fundamental Change, the Notes
shall cease to be convertible after the fifteenth day following the transaction
giving rise to such Fundamental Change.


 


If this Section applies, neither Section 10.06 nor 10.07 applies.


 


If the Company makes a distribution to all holders of its Ordinary
Shares of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that would otherwise result in an
adjustment in the Conversion Rate pursuant to the provisions of Section 10.08,
then, from and after the record date for determining the holders of Ordinary
Shares entitled to receive the distribution, a Holder of a Security that
converts such Security in accordance with the provisions of this Indenture
shall upon such conversion be entitled to receive, in addition to the Ordinary
Shares into which the Security is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the Security immediately prior
to the record date for determining the holders of Ordinary Shares entitled to
receive the distribution.


 


In the event of any distribution referred to in Section 10.07 or 10.08,
where, in the case of a distribution described in Section 10.08, the fair
market value of such distribution per Ordinary Share (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) exceeds 15% of the Closing Sale Price of
the Ordinary Shares on the Business Day immediately preceding the declaration
date for such distribution, the Company shall be required to give notice to the
Holders at least 20 days prior to the date of such distribution and, upon the
giving of notice, the Securities may be surrendered for conversion at any time
until the close of business on the Business Day prior to such date of
distribution or until the Company announces that the distribution will not take
place.


 


SECTION 10.16   Company
Determination Final.


 


Any determination that the Company or the Board of Directors must make
pursuant to Section 10.03, 10.06, 10.07, 10.08, 10.09, 10.10, 10.11, 10.15 or
10.18 is conclusive.


 


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SECTION 10.17  
Trustee’s Adjustment Disclaimer.


The Trustee has no duty to
determine when an adjustment under this Article 10 should be made, how it
should be made or what it should be.  The
Trustee has no duty to determine whether a supplemental indenture under Section
10.15 need be entered into or whether any provisions of any supplemental
indenture are correct.  The Trustee shall
not be accountable for and makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities.  The Trustee shall not be responsible for the
Company’s failure to comply with this Article 10.  Each Conversion Agent (other than the Company
or an Affiliate of the Company) shall have the same protection under this
Section 10.17 as the Trustee.


 


SECTION 10.18  
Simultaneous Adjustments.


In the event that this
Article 10 requires adjustments to the Conversion Rate under more than one
of Sections 10.06, 10.07 or 10.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 10.06,
second, the provisions of Section 10.08 and, third, the provisions of Section
10.07.


 


SECTION 10.19  
Successive Adjustments.


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


 


SECTION 10.20  
Rights Issued in Respect of Ordinary Shares Issued Upon Conversion.


Each
share of Ordinary Shares issued upon conversion of Securities pursuant to this
Article 10 shall be entitled to receive the appropriate number of common stock
or preferred stock purchase rights, as the case may be (the “Rights”), if
any, that all Ordinary Shares are entitled to receive in accordance with any
rights agreement that may be in effect at the time of such issuance (a “Rights
Agreement”) and the certificates representing the Ordinary Shares issued
upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any such Rights Agreement.  Provided that such Rights Agreement requires
that each share of Ordinary Shares issued by the Company (including those that
might be issued upon conversion of Securities) at any time prior to the
distribution of separate certificates representing the Rights be entitled to
receive such Rights, then, notwithstanding anything else to the contrary in
this Article 10, there shall not be any adjustment to the conversion privilege
or Conversion Rate or any other term or provision of the Securities as a result
of the issuance of Rights, the distribution of separate certificates
representing the Rights, the exercise or redemption of such Rights in
accordance with any such Rights Agreement, or the termination or invalidation
of such Rights.  Notwithstanding anything
to the contrary herein, nothing in this provision is intended to confer on the
Ordinary Shares issuable upon conversion of Securities any right that is
different than the rights to which all Ordinary Shares of the Company are
entitled to receive.


 


SECTION 10.21  
Withholding Tax Liability on Adjustment of Conversion Rate.


If the
Conversion Rate is adjusted pursuant to Article 10, to the extent such adjustment
results in a constructive distribution to beneficial owners of Securities under
Section 305(c) of the Internal Revenue Code of 1986, as amended, the Company
may, to the extent required by applicable law, satisfy any withholding tax
liability with respect to such constructive distribution out of its own funds
and, except to the extent otherwise reimbursed, recoup or setoff 


 


68





















 


such amount against any amounts
otherwise owed by it to such beneficial owners (including principal and
interest on the Securities or the Outstanding Shares issuable on conversion).


 


SECTION 10.22     Conversion After a Public Acquirer Change
of Control


In the event of a Public Acquirer Change of Control,
the Company may, in lieu of increasing the Conversion Rate by the Additional
Ordinary Shares pursuant to Section 10.23, elect to adjust the Conversion Rate
such that from and after the Effective Date of such Public Acquirer Change of
Control, Holders of the Securities will be entitled to convert their Securities
into a number of shares of Public Acquirer Common Stock by adjusting the
Conversion Rate in effect immediately before the Public Acquirer Change of
Control by multiplying it by a fraction:


 


(1)           the numerator of which will be (i) in
the case of a share exchange, consolidation, merger or binding share exchange,
pursuant to which the Ordinary Shares are converted into cash, securities or
other property, the average value of all cash and any other consideration (as
determined by the Board of Directors) paid or payable per Ordinary Share or
(ii) in the case of any other Public Acquirer Change of Control, the average of
the Closing Sale Price of the Ordinary Shares for the five consecutive trading
days prior to but excluding the Effective Date of such Public Acquirer Change
of Control, and


 


(2)           the denominator of which will be the
average of the Closing Sale Price of the Public Acquirer Common Stock for the
five consecutive Trading Days commencing on the Trading Day next succeeding the
effective date of such Public Acquirer Change of Control.


 


(b)           The
Company will notify Holders of its election by providing notice as set forth in
Section 10.12.


 


SECTION 10.23     Adjustment for Conversion Upon a Cash
Take-Over Transaction


If a Holder elects to convert Securities,
pursuant to the satisfaction of the conditions described under “Conversion Upon
the Occurrence of Certain Corporate Transactions” in the Note and such
conversion is related to a Fundamental Change referred to in clause (iii) of the
definition of Fundamental Change contained in Section 3.14 pursuant to which
10% or more of the consideration for the Ordinary Shares (excluding cash
payments for fractional shares and cash payments made in respect of dissenters’
appraisal rights) in the transaction or transactions otherwise constituting the
Fundamental Change does not consist of shares of Publicly Traded Securities (a “Cash
Take-Over Transaction”), the Company will increase the number of Ordinary
Shares issuable upon conversion of the Securities by a number of additional
Ordinary Shares (the “Additional Ordinary Shares”) as set forth below.  The number of Additional Ordinary Shares
should be determined by reference to the table below, based on the date on
which the Cash Take-Over Transaction becomes effective (the “Effective Date”)
and the price (the “Stock Price”) paid per share for the Ordinary Shares in the
Cash Take-Over Transaction.  If
shareholders of Ordinary Shares receive only cash in the Cash Take-Over
Transaction, the Stock Price shall be the cash amount paid per share.  Otherwise, the Stock Price shall be the
average of the Closing Sale Price of the Ordinary Shares on the five
trading-days prior to but not including the Effective Date of such Cash
Take-Over Transaction.


 


69





















 


The Stock Prices set forth in the table below will be
adjusted as of any date on which the Conversion Rate is adjusted.  On such date, the Stock Prices shall be
adjusted by multiplying:


 


(1)   the Stock Prices applicable immediately prior
to such adjustment, by


 


(2)   a fraction, of which


 


(a)
the numerator shall be the Conversion Rate immediately prior to the adjustment
giving rise to the Stock Price adjustment, and


 


(b)
the denominator of which is the Conversion Rate so adjusted.


 


The following table sets forth the hypothetical Stock
Price and number of shares of Additional Common Stock issuable per $1,000
aggregate principal amount of Securities:


 


	
  Effective Date of 

  Fundamental 

  Change 

  	
   

  	
  Stock
  Price on Date of Fundamental Change

  	
   

  
	
   

  	
  $

  	
  21.05

  	
   

  	
  $

  	
  22.50

  	
   

  	
  $

  	
  25.00

  	
   

  	
  $

  	
  27.50

  	
   

  	
  $

  	
  30.00

  	
   

  	
  $

  	
  35.00

  	
   

  	
  $

  	
  40.00

  	
   

  	
  $

  	
  45.00

  	
   

  	
  $

  	
  50.00

  	
   

  	
  $

  	
  100.00

  	
   

  
	
  October 15, 2004

  	
   

  	
  12.5653

  	
   

  	
  11.5149

  	
   

  	
  10.0152

  	
   

  	
  8.8271

  	
   

  	
  7.8656

  	
   

  	
  6.4106

  	
   

  	
  5.3672

  	
   

  	
  4.5856

  	
   

  	
  3.9801

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2005

  	
   

  	
  12.4783

  	
   

  	
  11.3928

  	
   

  	
  9.8659

  	
   

  	
  8.6628

  	
   

  	
  7.6939

  	
   

  	
  6.2376

  	
   

  	
  5.2016

  	
   

  	
  4.4309

  	
   

  	
  3.8372

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2006

  	
   

  	
  12.3581

  	
   

  	
  11.2397

  	
   

  	
  9.6753

  	
   

  	
  8.4509

  	
   

  	
  7.4715

  	
   

  	
  6.0121

  	
   

  	
  4.9852

  	
   

  	
  4.2285

  	
   

  	
  3.6502

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2007

  	
   

  	
  12.2312

  	
   

  	
  11.0696

  	
   

  	
  9.4550

  	
   

  	
  8.2018

  	
   

  	
  7.2072

  	
   

  	
  5.7416

  	
   

  	
  4.7245

  	
   

  	
  3.9840

  	
   

  	
  3.4242

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2008

  	
   

  	
  12.0835

  	
   

  	
  10.8661

  	
   

  	
  9.1867

  	
   

  	
  7.8959

  	
   

  	
  6.8816

  	
   

  	
  5.4074

  	
   

  	
  4.4027

  	
   

  	
  3.6829

  	
   

  	
  3.1463

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2009

  	
   

  	
  11.9187

  	
   

  	
  10.6274

  	
   

  	
  8.8618

  	
   

  	
  7.5210

  	
   

  	
  6.4802

  	
   

  	
  4.9942

  	
   

  	
  4.0053

  	
   

  	
  3.3121

  	
   

  	
  2.8053

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2010

  	
   

  	
  11.7376

  	
   

  	
  10.3460

  	
   

  	
  8.4630

  	
   

  	
  7.0540

  	
   

  	
  5.9774

  	
   

  	
  4.4761

  	
   

  	
  3.5091

  	
   

  	
  2.8522

  	
   

  	
  2.3852

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2011

  	
   

  	
  11.5498

  	
   

  	
  10.0150

  	
   

  	
  7.9639

  	
   

  	
  6.4576

  	
   

  	
  5.3308

  	
   

  	
  3.8110

  	
   

  	
  2.8786

  	
   

  	
  2.2748

  	
   

  	
  1.8644

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2012

  	
   

  	
  11.3709

  	
   

  	
  9.6167

  	
   

  	
  7.3070

  	
   

  	
  5.6530

  	
   

  	
  4.4536

  	
   

  	
  2.9187

  	
   

  	
  2.0517

  	
   

  	
  1.4721

  	
   

  	
  1.2147

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2013

  	
   

  	
  11.2996

  	
   

  	
  9.1472

  	
   

  	
  6.3581

  	
   

  	
  4.4357

  	
   

  	
  3.1190

  	
   

  	
  1.6103

  	
   

  	
  0.9107

  	
   

  	
  0.5805

  	
   

  	
  0.4176

  	
   

  	
  0.0000

  	
   

  
	
  September 15,
  2014

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
																																



 


(3)   If the Stock Price and Effective Date are not
set forth on the table above and the Stock Price is:


 


(a)
between two Stock Prices on the table or the Effective Date is between two
dates on the table, the number of shares of Additional Common Stock will be
determined by straight-line interpolation between the number of shares of
Additional Common Stock set forth for the higher and lower Stock Price and the
two Effective Dates, as applicable, based on a 365-day year;


 


(b)
in excess of $100.00 per share (subject to adjustment), no shares of Additional
Common Stock will be issued upon conversion; or


 


(c)
less than $21.05 per share (subject to adjustment), no shares of Additional
Common Stock will be issued upon conversion.


 


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ARTICLE 11


 


PAYMENT OF INTEREST


 


SECTION 11.01   Interest Payments.


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


 


SECTION 11.02   Defaulted Interest.


Except as otherwise
specified with respect to the Securities, any interest on any Security that is
payable, but is not punctually paid or duly provided for, within 30 days
following any applicable payment date (herein called “Defaulted Interest”,
which term shall include any accrued and unpaid interest that has accrued on
such defaulted amount in accordance with paragraph 1 of the Securities), shall
forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date or accrual date, as the case may be, by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the persons in
whose names the Securities are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner.  The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security and the date of the proposed payment (which shall not
be less than 20 days after such notice is received by the Trustee), and at the
same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a special record date (the “Special
Record Date”) for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment.  The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of 


 


71





















 


the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities at his address as it appears on the list of
Securityholders maintained pursuant to Section 2.05 not less than 10 days prior
to such Special Record Date.  Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Securities are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).


 


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


 


SECTION 11.03   Interest Rights Preserved.


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


 


ARTICLE 12


 


SUBORDINATION


 


SECTION 12.01   Securities Subordinated to the Project
Indebtedness.


The Company agrees, and each Holder, by such Holder’s
acceptance thereof, likewise agrees, that the indebtedness represented by the
Securities is hereby expressly subordinated and junior, to the extent and in
the manner set forth in this Article 12, in right of payment to the prior
payment in full of the Project Indebtedness. 
Only Project Indebtedness shall rank senior to the Securities in
accordance with the provisions set forth herein.  The Notes shall in all respects rank pari passu with all other existing and
future unsecured and unsubordinated indebtedness of the Company.


 


(a)           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 marshaling of the assets and
liabilities of the Company or otherwise, the holders of all Project
Indebtedness shall be entitled first to receive payment of the full amount due
thereon in respect of all such Project Indebtedness and all other amounts due
or provision shall be made for such amount in cash, or other payments
satisfactory to the holders of Project Indebtedness, before the Holders 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 interest
on the indebtedness evidenced by the Securities.


 


72





















 


(b)           In
the event of any acceleration of maturity of the Securities because of an Event
of Default, unless the full amount due in respect of all Project Indebtedness
is paid in cash or other form of payment satisfactory to the holders of Project
Indebtedness, no payment shall be made by the Company with respect to the
principal of or interest on the Securities or to acquire any of the Securities,
and the Company shall give prompt written notice of such acceleration to such
holders of Project Indebtedness.


 


(c)           In
the event of and during the continuance of any default in payment of the
Project Indebtedness, unless all such payments due in respect of such Project
Indebtedness have been paid in full in cash or other payments satisfactory to
the holders of Project Indebtedness, no payment shall be made by the Company
with respect to the principal of or interest on the Securities or to acquire
any of the Securities.  The Company shall
give prompt written notice to the Trustee of any default under any Project
Indebtedness or under any agreement pursuant to which Project Indebtedness may
have been issued.


 


(d)           During
the continuance of any event of default with respect to any Project
Indebtedness, as such event of default is defined under such Project
Indebtedness or in any agreement pursuant to which any Project Indebtedness has
been issued (other than a default in payment of the principal of or interest on
any Project Indebtedness), permitting the holder or holders of such Project
Indebtedness to accelerate the maturity thereof, no payment shall be made by
the Company, directly or indirectly, with respect to principal of or interest
on the Securities for 179 days following notice in writing (a “Payment
Blockage Notice”) to the Company, from any holder or holders of such
Project Indebtedness or their representative or representatives or the trustee
or trustees under any indenture or under which any instrument evidencing any
such Project Indebtedness may have been issued, that such an event of default
has occurred and is continuing, unless such event of default has been cured or
waived or such Project Indebtedness has been paid in full; provided, however,
if the maturity of such Project Indebtedness is accelerated, no payment may be
made on the Securities until such Project Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of such Project Indebtedness
or such acceleration (or termination, in the case of a lease) has been cured or
waived.


 


For purposes of this Section 12.01(d), such Payment
Blockage Notice shall be deemed to include notice of all other events of
default under such indenture or instrument which are continuing at the time of
the event of default specified in such Payment Blockage Notice.  The provisions of this Section 12.01(d) shall
apply only to one such Payment Blockage Notice given in any period of 365 days
with respect to any issue of Project Indebtedness, and no such continuing event
of default that existed or was continuing on the date of delivery of any
Payment Blockage Notice shall be, or shall be made, the basis for a subsequent
Payment Blockage Notice.


 


(e)           In
the event that, notwithstanding the foregoing provisions of Sections 12.01(a),
12.01(b), 12.01(c) and 12.01(d), any payment on account of principal of or
interest on the Securities shall be made by or on behalf of the Company and
received by the Trustee, by any 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):


 


73





















 


(i)            after
the occurrence of an event specified in Section 12.01(a) or 12.01(b), then,
unless all Project Indebtedness is paid in full in cash, or provision shall be
made therefor,


 


(ii)           after
the happening of an event of default of the type specified in Section 12.01(c)
above, or


 


(iii)          after
the happening of an event of default of the type specified in Section 12.01(d)
above and delivery of a Payment Blockage Notice, then, unless such event of
default shall have been cured or waived or the 179-day period specified in
Section 12.01(d) shall have expired, such payment (subject, in each case, to
the provisions of Section 12.07 hereof) shall be held in trust for the benefit
of, and shall be immediately paid over to, the holders of Project Indebtedness
or their representative or representatives or the trustee or trustees under any
indenture under which any instruments evidencing any of the Project
Indebtedness may have been issued, as their interests may appear.


 


then, unless the amount of such Project 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 12.07 hereof) shall be held in trust for the
benefit of, and shall be immediately paid over to, the holders of Project
Indebtedness or their representative or representatives or the trustee or
trustees under any indenture under which any instruments evidencing any of the
Project Indebtedness may have been issued, as their interests may appear.


 


SECTION 12.02   Subrogation.


Subject to the payment in full of all Project
Indebtedness to which the indebtedness evidenced by the Securities is in the
circumstances subordinated as provided in Section 12.01 hereof, the Holders
shall be subrogated to the rights of the holders of such Project Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to such Project 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 Project Indebtedness, and the Holders, no such
payment or distribution made to the holders of Project Indebtedness by virtue
of this Article 12 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
Project Indebtedness, provided that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Project Indebtedness, on the other hand.


 


SECTION 12.03   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 Project Indebtedness, and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest 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 and creditors of
the Company other than the holders of Project Indebtedness, nor shall anything
contained herein or therein prevent the Trustee or the Holders from exercising
all remedies otherwise permitted by applicable law upon 


 


74





















 


default under this Indenture, subject to the rights,
if any, under this Article 12 of the holders of Project Indebtedness in respect
of cash, property or securities of the Company received upon the exercise of
any such remedy.


 


SECTION 12.04   Maturity of or Default on Project
Indebtedness.


Upon the maturity of any Project 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 matured
Project Indebtedness shall first be paid in full, or such payment shall have
been duly provided for, before any payment on account of principal or interest
is made upon the Securities.


 


SECTION 12.05   Payments on Securities Permitted.


Except as expressly provided in this Article 12,
nothing contained in this Article 12 shall affect the obligation of the Company
to make, or prevent the Company from making, payments of the principal of or
interest 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
interest on the Securities.


 


SECTION 12.06  Effectuation of Subordination by
Trustee.


Each Holder, 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 12 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 12, the Trustee and the Holders 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 proceedings 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, 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 12, 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 12.07   Knowledge of Trustee.


Notwithstanding the provision of this Article 12 or
any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any Project Indebtedness, of any default in payment
of principal of or interest on, rent or other payment obligation in respect of
any Project 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, any Paying Agent of the Company or the holder or representative of any
class of Project 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 


 


75





















 


moneys may become payable for any purpose the Trustee
shall have received the notice provided for in this Section 12.07, 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
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 12.08   Trustee’s Relation to Project Indebtedness.


The Trustee shall be entitled to all the rights set
forth in this Article 12 with respect to any Project Indebtedness at the time
held by it, to the same extent as any other holder of Project Indebtedness and
nothing contained in this Indenture shall deprive the Trustee of any of its
rights as such holder.


 


With respect to the holders of Project 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 Project 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 Project Indebtedness and the Trustee shall not
be liable to any holder of Project Indebtedness if it shall pay over or deliver
to Holders, the Company or any other Person moneys or assets to which any
holder of Project Indebtedness shall be entitled by virtue of this Article or
otherwise.


 


SECTION 12.09   Rights of Holders of Project Indebtedness
Not Impaired.


No right of any present or future holder of any
Project 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 12.10   Modification of Terms of Project
Indebtedness.


Any renewal or extension of the time of payment of any
Project Indebtedness (including renewals or extensions of certain guarantees)
or the exercise by the holders of Project Indebtedness of any of their rights
under any instrument creating or evidencing Project Indebtedness, including
without limitation the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders 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 Project Indebtedness is
outstanding or of such Project 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.


 


76





















 


ARTICLE 13


 


MISCELLANEOUS


 


SECTION 13.01   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.


 


SECTION 13.02   Notices.


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


 


if to the Company:


 


Apex Silver Mines Limited


c/o Apex Silver Mines Corporation


1700 Lincoln Street, Suite 3050


Denver, CO 80203


Attention: Mark Lettes, Chief Financial Officer


Fax: (303) 764-9165


 


with a copy of any notice given pursuant to Article 6 to:


 


Davis Graham & Stubbs LLP


1550 Seventeenth Street, Suite 500


Denver, CO  80202


Attention:  Deborah J. Friedman,
Esq.


Fax: (303) 893-1379


 


if to the Trustee:


 


The Bank of New York


101 Barclay Street, Fl. 8W


New York, New York  10286


Attention:  Corporate Trust
Administration


Fax:  212-815-5704/5707


 


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


 


77





















 


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


 


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


 


SECTION 13.03   Communication by Holders with Other Holders.


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


 


SECTION 13.04   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 (except in the case of the
initial issuance under the Indenture) if reasonably requested:


 


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


 


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


 


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


 


Any certificate or opinion of an Officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate of opinion of, or representation by, counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. 
Any such certificate or Opinion of Counsel may be based, and may state
that it is so based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate of opinion or representations with
respect to such matters are erroneous.


 


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


 


78





















 


SECTION 13.05   Statements Required in Certificate or
Opinion.


Each Officers’
Certificate or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include to the extent required
by the Trustee:


 


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


 


(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 13.06   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 13.07   Rules by Trustee, Paying Agent, Conversion
Agent and Registrar.


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


 


SECTION 13.08   Calculations.


The calculation of
interest, Repurchase Price, Make Whole Payment, Fundamental Change Redemption
Price, Conversion Rate, Market Price, Closing Sale Price of the Ordinary Shares
and each other calculation to be made hereunder shall be the obligation of the
Calculation Agent.  All calculations made
by the Calculation Agent as contemplated pursuant to this Section 13.08 shall
be final and binding on the Company and the Holders absent manifest error.  The Company, Trustee, Paying Agent and Conversion
Agent shall not be obligated to recalculate, recompute or confirm any such
calculations.  However, any calculations
may be recalculated to correct errors at any time.


 


SECTION 13.09   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 shall accrue for the intervening period.


 


SECTION 13.10   GOVERNING LAW.


THE LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES.


 


79





















 


SECTION 13.11   No Recourse Against Others.


A director, officer,
employee, agent, representative, stockholder or equity holder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. 
By accepting a Security, each Securityholder shall waive and release all
such liability.  The waiver and release
shall be part of the consideration for the issue of the Securities.


 


SECTION 13.12   Successors.


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


 


SECTION 13.13   Multiple Originals.


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


 


ARTICLE 14


 


SECURITY


 


SECTION 14.01   Security


On each Issue Date, with respect to any Securities
issued on such date, the Company shall enter into a Pledge Agreement and comply
with the terms and provisions thereof and purchase Pledged Securities to be
pledged to the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders in such amount as will be sufficient upon receipt of
scheduled interest and principal payments of such Pledged Securities to provide
for payment in full of the first six scheduled interest payments due on the
Securities issued on such Issue Date. 
All Pledged Securities and certain cash equivalents in which proceeds of
the Pledged Securities may be invested, shall be held as collateral by the
Collateral Agent, for the benefit of the Trustee and the ratable benefit of the
Holders, in the Collateral Account pending disposition pursuant to a Pledge
Agreement.


 


The Company will not use the proceeds of this offering
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.


 


The Company will not use the proceeds of this offering
for the purpose of buying, carrying or trading in, within the meaning of
Regulation T of the Board of Governors of the Federal Reserve System.


 


The Company will deliver to the Initial Purchasers
Federal Reserve Board Form T-4 upon request of the Initial Purchasers.


 


(a) Each Holder, by its acceptance of a Note, consents
and agrees to the terms of each Pledge Agreement (including, without
limitation, the provisions providing for foreclosure and release of Pledged
Securities) as the same may be in effect or may be amended from time to time in
writing by the parties thereto (provided
that no amendment 


 


80





















 


that
would materially adversely affect the rights of the Holders may be effected
without the consent of each Holder affected thereby), and authorizes and
directs the Trustee and the Collateral Agent to enter into each Pledge
Agreement and to perform their respective obligations and exercise their
respective rights thereunder in accordance therewith.  The Company will do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by
the provisions of each Pledge Agreement, to assure and confirm to the Trustee
and the Collateral Agent the security interest in the Pledged Securities
contemplated hereby, by each Pledge Agreement or any part thereof, as from time
to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purpose herein expressed.  The
Company shall take, or shall cause to be taken, upon request of the Trustee or
the Collateral Agent, any and all actions reasonably required to create and
maintain, as security for the obligations of the Company under this Indenture
and the Notes as provided in each Pledge Agreement, valid and enforceable first
priority liens in and on all Pledged Securities, in favor of the Collateral
Agent for the benefit of the Trustee and the ratable benefit of the Holders,
superior to and prior to the rights of third Persons and subject to no other
Liens.


 


(b)           The
release of any Pledged Securities pursuant to any Pledge Agreement will not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Pledged Securities are released
pursuant to this Indenture and such Pledge Agreement.  To the extent applicable, the Company shall
cause Section 314(d) of the TIA relating to the release of property or
securities from the Lien and security interest of a Pledge Agreement and
relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of a Pledge Agreement to be
complied with.  Any certificate or
opinion required by Section 314(d) of the TIA may be made by an Officer of the
Company, except in cases where Section 314(d) of the TIA requires that such
certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser or other expert selected by the Company.


 


(c)           The
company shall cause Section 314(b) of the TIA, relating to Opinions of Counsel
regarding the Lien under each Pledge Agreement, to be complied with.  The Trustee may, to the extent permitted by
Section 7.02 hereof, accept as conclusive evidence of compliance of the
foregoing provisions the appropriate statements contained in such Opinions of
Counsel.


 


(d)           The
Trustee and the Collateral Agent may, in their sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions they deem
necessary or appropriate in order to (i) enforce any of the terms of each
Pledge Agreement and (ii) collect and receive any and all amounts payable in
respect of the obligations of the Company thereunder.  The Trustee and the Collateral Agent shall
have the authority necessary in order to institute and maintain such suits and
proceedings as the Trustee and the Collateral Agent may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Pledged Securities (including the authority to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or 


 


81





















 


otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders, the
Collateral Agent or the Trustee).


 


(f)            Beyond
the exercise of reasonable care in the custody and preservation of the Pledged
Securities, the Trustee and the Collateral Agent shall have no duty as to any
Pledged Securities in their possession or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining
thereto, and the Trustee and the Collateral Agent shall not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting
or maintaining the perfection of any security interest in the Pledged
Securities.  The Trustee and the Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Securities in its possession if the Pledged
Securities are accorded treatment substantially equal to that which it accords
it own property or property held in similar accounts and shall not be liable or
responsible for any loss or diminution in the value of any of the Pledged
Securities, by reason of the act or omission of the Collateral Agent, any
carrier, forwarding agency or other agent or bailee selected by the Trustee in
good faith.


 


(g)           The
Trustee shall not be responsible for the existence, genuineness or value of any
of the Pledged Securities or for the validity, perfection, priority or
enforceability of the Liens in any of the Pledged Securities, whether impaired
by operation of law or otherwise, for the validity or sufficiency of the
Pledged Securities or any agreement or assignment contained therein, for the
validity of the title of the Company to the Pledged Securities, for insuring the
Pledged Securities or for the payment of taxes, charges, assessments or Liens
upon the Pledged Securities or otherwise as to the maintenance of the Pledged
Securities.  The Trustee shall have no
duty to ascertain or inquire as to the performance or observance of any of the
terms of this Indenture or any Pledge Agreement by the Company or the
Collateral Agent.


 


[Signature Page Follows]


 


82





















 


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.


 


	
   

  	
  APEX SILVER MINES LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Mark A.
  Lettes

  
	
   

  	
   

  	
  Name: Mark A. Lettes

  
	
   

  	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Beata Hryniewicka

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


83





















 


EXHIBIT A-1


 


[FORM OF RULE 144A/REG S GLOBAL SECURITY]


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.


 


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


 


THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. 
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
“QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A ADOPTED UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S ADOPTED UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE ORDINARY SHARES ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT
(A) TO THE ISSUER OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF
AVAILABLE); (C) TO PERSONS OTHER THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES
ACT OR ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND
THE ISSUER SUCH 


 


A-1-1





















 


CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE
INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED
STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.  IN ANY CASE, THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY, EXCEPT AS PERMITTED BY THE SECURITIES ACT.


 


THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.


 


A-1-2





















 


APEX SILVER MINES LIMITED


4.0% Convertible Senior Subordinated Note due
2024


 


 


	
  No. A-

  	
  CUSIP: 03760XAC5

  
	
   

  	
   

  
	
  Issue Date: October 15, 2004

  	
  Principal Amount: 

  	
  $ 

  	
   

  
	
  Issue Price: $1,000.00

  	
   

  
	
  (for each $1,000 Principal Amount)

  	
   

  



 


APEX SILVER MINES LIMITED, a Cayman Islands company, promises to pay to
Cede & Co. or registered assigns, on September 15, 2024, the Principal
Amount of this Security.  This Security
is issued with a Principal Amount of                  ($             
).


 


This Security shall not bear interest except 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.


 


A-1-3





















 


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


 


 


	
  Dated:

  
	
   

  
	
   

  	
  APEX SILVER MINES LIMITED

  
	
   

  
	
   

  
	 
	
   

  	
  By: 

  	
   

  	 

	 
	
   

  	
   

  	
  Name:

  	 

	 
	
   

  	
   

  	
  Title:

  	 

					



 


 


TRUSTEE’S CERTIFICATE OF
   AUTHENTICATION


 


BANK OF NEW YORK,


as Trustee, certifies that this


is one of the Securities referred


to in the within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
  Authorized Officer

  



 


Dated:


 


A-1-4





















 


[FORM OF REVERSE SIDE OF NOTE]


4.0% Convertible Senior Subordinated Note due
2024


 


 


1.               Interest.


 


The Company
promises to pay interest in cash on the Principal Amount of this Security at
the rate of 4.0% per year from the Issue Date, or from the most recent date to
which interest has been paid or provided for, until the Stated Maturity.  During such period, the Company will pay
interest semiannually in arrears on each Interest Payment Date to Holders of
record at the close of business on each Regular Record Date immediately
preceding such Interest Payment Date. 
Each payment of interest on the Securities will include interest accrued
through the day immediately preceding the most recent Interest Payment Date (or
the Repurchase Date, Redemption Date, the Fundamental Change Redemption Date
or, in certain circumstances, the Conversion Date, as the case may be).  Any payment required to be made on any day
that is not a Business Day will be made on the next succeeding Business
Day.  The interest rate will be
calculated using a 360-day year composed of twelve 30-day months.


 


Interest on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose.  Each installment of
interest on any Security shall be paid in same-day funds by transfer to an
account maintained by the payee located inside the United States.


 


2.               Method of Payment.


 


Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Principal Amount, Redemption Prices, Make-Whole
Payments, Repurchase Prices, Fundamental Change Redemption Prices and at Stated
Maturity to Holders who surrender Securities to a Paying Agent to collect such
payments in respect of the Securities. 
In addition, the Company will pay interest from the Issue Date until
Stated Maturity, as more fully described in paragraph 1 hereof.  The Company will pay any cash amounts in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. 
However, the Company may make such cash payments by check payable in
such money.


 


3.               Paying Agent,
Conversion Agent, Registrar and Calculation Agent.


 


Initially, The Bank of New York (the “Trustee”) will act as
Paying Agent, Conversion Agent, Registrar and Calculation Agent.  The Company may appoint and change any Paying
Agent, Conversion Agent, Registrar, co-registrar or Calculation Agent 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, 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,
co-registrar or Calculation Agent.


 


A-1-5





















 


4.               Indenture.


 


The Company issued the Securities pursuant to an Indenture dated as of
October 15, 2004 (the “Indenture”), between the Company and the
Trustee.  The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Securities themselves and the Trust Indenture Act of 1939, as
in effect from time to time (the “TIA”). 
Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture.  The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.


 


The Securities are unsecured obligations of the Company limited to
$100,000,000 aggregate Principal Amount (subject to Sections 2.07 and 2.14 of
the Indenture) and rank (i) subordinate in right of payment to future
unsubordinated indebtedness for the construction and development of the San
Cristobal Project which will be secured by the San Cristobal property and other
project assets or other assets, (ii) subordinate in right of payment to any
guarantee of the indebtedness described in (i) by the Company or its Affiliates
for the period the guarantee is in effect, and (iii) equal in right of payment
to all other existing and future unsecured and unsubordinated indebtedness of
the Company.


 


The Company may, without the consent of the Holders of the Securities,
increase the Principal Amount of the Securities by issuing additional notes in
the future on the same terms and conditions, except for any differences in the
issue price and interest accrued prior to the issue date of the additional
notes, and with the same CUSIP number as the Securities. The Securities and any
additional notes would rank equally and ratably and would be treated as a
single class for all purposes under the Indenture.  No additional notes may be issued if any Event
of Default has occurred with respect to the Securities.  The Indenture does not limit other
indebtedness of the Company, secured or unsecured.


 


5.               Provisional
Redemption.


 


No sinking fund is provided for the Securities.


 


The Company may redeem for cash any portion of the Securities at any
time prior to September 15, 2014 upon at least 30 days and not more than 60
days’ notice by mail to the Holders of the Securities, at a Redemption Price
equal to 100% of the Principal Amount of the Securities to be redeemed plus
accrued and unpaid interest and the Make-Whole Payment, if (1) the Closing Sale
Price of the Ordinary Shares has exceeded 140% of the then applicable
Conversion Price for at least 20 trading days in any consecutive 30-day trading
period ending on the trading day prior to the mailing of the notice of
redemption and (2) the shelf registration statement covering resales of the
Securities and the Ordinary Shares is effective and available for use and is
expected to remain effective and available for use for the 30 days following
the Redemption Date, unless registration is no longer required.  The Make-Whole Payment on the redeemed
Securities will equal $396.67 per $1,000 Principal Amount of Securities, minus
the amount of any interest actually paid or accrued and unpaid on the
Securities prior to the Redemption Date. 
The Company will make Make-Whole Payments on all Securities called for
redemption prior to September 15, 2014, including Securities converted after
the date the Company mailed the notice. 
The Company may make Make-Whole Payments, at its option, 


 


A-1-6





















 


either in cash or in Ordinary Shares or a combination thereof.  The Company will specify the type of
consideration for the Make-Whole Payment in the Redemption Notice
(appropriately adjusted to take into account the occurrence of certain events
that would result in an adjustment of the Conversion Rate with respect to the
Ordinary Shares).  Payments made in
Ordinary Shares will be valued at 95% of the average of the closing sales
prices of Ordinary Shares for the five consecutive trading days ending on the
third trading day prior to the Redemption Date. 
Because the sale price of Ordinary Shares will be determined before the
Redemption Date, if the Company specifies that it will make payment of the
Redemption Price in Ordinary Shares, Holders of Securities bear the market risk
that Ordinary Shares will decline in value between the date the sale price is
calculated and the Redemption Date.


 


6.               Optional
Redemption.


 


Beginning on September 15, 2014, the Company may redeem the Securities
for cash, as a whole or from time to time in part at the option of the Company
at a Redemption Price equal to 100% of the Principal Amount plus accrued and
unpaid interest, if any, to but not including the Repurchase Date.  The Company will give no less than 30 days or
more than 60 days notice of redemption by mail to Holders of Securities.


 


7.               Purchase by the
Company at the Option of the Holder.


 


Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on September 15, 2014 and September 15, 2019 at a Repurchase
Price equal to 100% of the Principal Amount of such Securities on the
applicable Repurchase Date plus accrued and unpaid interest, if any, to but not
including the Repurchase Date, upon delivery of a Repurchase Notice containing
the information set forth in the Indenture, at any time from the opening of
business on the date that is 25 Business Days prior to such Repurchase Date
until the close of business on the third Business Day prior to such Repurchase
Date and upon delivery of the Securities to the Paying Agent by the Holder as
set forth in the Indenture.


 


The Repurchase Price may be paid, at the option of the Company, in cash
or by the issuance and delivery of Ordinary Shares of the Company, or in any
combination thereof in accordance with the Indenture.  If the Company elects to pay the Repurchase Price,
in whole or in part, in Ordinary Shares, the number of shares to be delivered
in exchange for the portion of the Repurchase Price to be paid in Ordinary
Shares will be equal to that portion of the Repurchase Price divided by 95% of
the average closing sale price of Ordinary Shares for the five trading days
ending on the third business day prior to the applicable Repurchase Date
(appropriately adjusted to take into account the occurrence of certain events
that would result in an adjustment of the conversion rate with respect to
Ordinary Shares).  The Company will not,
however, deliver fractional shares in repurchases using Ordinary Shares as
consideration.  Securityholders who would
otherwise be entitled to receive fractional shares will instead receive cash in
an amount equal to the market price of an Ordinary Share multiplied by such
fraction.


 


At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or a portion
of the Securities in integral multiples of $1,000 Principal Amount held by such
Holder no later than 30 days after the 


 


A-1-7





















 


Fundamental Change Notice of the Company for a Fundamental Change
Redemption Price equal to 100% of the Principal Amount of such Securities plus
accrued and unpaid interest, if any, to but not including the Fundamental
Change Redemption Date, which Fundamental Change Redemption Price shall be paid
in cash.


 


A third party may make the offer and purchase of the Securities in lieu
of the Company in accordance with the Indenture.


 


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


 


If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Repurchase Price or Fundamental Change Redemption Price, as the case
may be, of all Securities or portions thereof to be purchased as of the
Repurchase Date or the Fundamental Change Redemption Date, as the case may be,
is deposited with the Paying Agent on the Business Day following the Repurchase
Date or the Fundamental Change Redemption Date, as the case may be, interest,
if any, shall cease to accrue on such Securities (or portions thereof) on such
Repurchase Date or Fundamental Change Redemption Date, as the case may be, and
the Holder thereof shall have no other rights as such (other than the right to
receive the Repurchase Price or Fundamental Change Redemption Price, as the
case may be, if any, upon surrender of such Security).


 


8.               Notice of
Redemption.


 


Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder’s registered address.  If
money and/or Ordinary Shares (if permitted under the Indenture) sufficient to
pay the Redemption Price of, and accrued and unpaid interest, if any, with
respect to, all Securities (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, on such Redemption Date, interest, if any, shall cease to
accrue on such Securities or portions thereof. 
Securities in denominations larger than $1,000 of Principal Amount may
be redeemed in part but only in integral multiples of $1,000 of Principal
Amount.


 


9.               Conversion.


 


Conversion Based on Ordinary Shares Price.  Subject to the provisions of this paragraph 9
and notwithstanding the fact that any other condition to conversion described
below has not been satisfied, Holders may convert the Securities into Ordinary
Shares on a Conversion Date (1) in any fiscal quarter commencing prior to
September 15, 2019 if the Closing Sale Price of the Ordinary Shares for at
least 20 trading days in a period of 30 consecutive trading days ending on the
last trading day of such preceding fiscal quarter is greater than the
conversion trigger price per share and (2) after September 15, 2019 and prior
to Stated Maturity, if the Closing Sale Price of the Ordinary Shares is greater
than or equal to the conversion trigger price per share on any day after
September 15, 2019.  The “conversion
trigger price” for any fiscal quarter shall be 120% of the Conversion Price
per share of Ordinary Shares on the last trading day of such 


 


A-1-8





















 


preceding fiscal quarter.  If
either of the foregoing conditions is satisfied, then the Securities will be
convertible at any time of the option of the Holder, through their maturity.


 


Conversion Based on Trading Price of
Securities. 
Subject to the provisions of this paragraph 9 and notwithstanding the
fact that any other condition to conversion described below has not been
satisfied, Holders may convert the Securities into Ordinary Shares during the
five Business Day period after any five consecutive trading day period in which
the Trading Price per $1,000 Principal Amount of the Securities for each day of
such five day period was less than 98% of the product of the Closing Sale Price
on the applicable date and the number of Ordinary Shares issuable upon
conversion of $1,000 Principal Amount of the Securities.


 


The “Trading
Price” means, on any date, the average of the secondary market bid
quotations for the Securities obtained by the Trustee for $5,000,000 Principal
Amount of Securities at approximately 3:30 p.m., New York City time, on such
date from three independent nationally recognized securities dealers selected
by the Company; provided that if at least three such bids cannot reasonably be
obtained by the Trustee, but two bids are obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by the
Trustee, one bid shall be used; and provided further that if the Trustee cannot
reasonably obtain at least one bid for $5,000,000 Principal Amount of
Securities from a nationally recognized securities dealer, then the Trading
Price per $1,000 Principal Amount of Securities shall be deemed to be less than
98% of the product of (a) the number of Ordinary Shares issuable upon
conversion of $1,000 Principal Amount of Securities and (b) the Closing Sale
Price on such date.


 


The Trustee (or other conversion agent appointed by the Company) shall
have no obligation to determine the Trading Price unless the Company has
requested such a determination; and the Company shall have no obligation to
make such request unless a Holder provides it with reasonable evidence that the
Trading Price per $1,000 Principal Amount of Securities would be less than 98%
of the product of the Closing Sale Price of Ordinary Shares and the number of
Ordinary Shares issuable upon conversion of $1,000 Principal Amount of
Securities.  If such evidence is provided,
the Company shall instruct the Trustee (or other conversion agent) to determine
the Trading Price of the Securities beginning on the next trading day and on
each successive trading day until the Trading Price per $1,000 Principal Amount
of Securities is greater than 98% of the product of the Closing Sale Price and
the number of shares issuable upon conversion of $1,000 Principal Amount of the
Securities.


 


Conversion Upon Redemption.  Subject to the provisions of this paragraph 9
and notwithstanding the fact that any other condition described herein to
conversion has not been satisfied, a Holder may convert into Ordinary Shares a
Security or portion of a Security which has been called for redemption pursuant
to paragraph 6 hereof, provided such Securities are surrendered for conversion
prior to the close of business on the second Business Day immediately preceding
the Redemption Date.


 


Conversion Upon Occurrence of Certain
Corporate Transactions.  Subject to the provisions of this paragraph 9
and notwithstanding the fact that any other condition described herein to
conversion has not been satisfied, in the event the Company is a party to a
consolidation, merger or binding share exchange  pursuant to which the Ordinary Shares would be converted into
cash, securities or other property as set forth in Section 10.15 of the
Indenture,


 


A-1-9





















the
Securities may be surrendered for conversion at any time from and after the
date which is 15 days prior to the date announced by the Company as the
anticipated effective time until 15 days after the actual effective date of
such transaction, and at the effective time of such transaction the right to
convert a Security into Ordinary Shares will be deemed to have changed into a
right to convert it into the kind and amount of cash, securities or other
property which the holder would have received if the holder had converted its
Security into Ordinary Shares immediately prior to the transaction.  If such transaction also constitutes a
Fundamental Change, a Holder will be able to require the Company to redeem all
or a portion of such Holder’s Securities pursuant to Paragraph 7 hereof and
Section 3.14 of the Indenture.  In
addition, if such transaction constitutes a Fundamental Change, the Securities
will cease to be convertible after the 15th day following the actual
effective date of the transaction giving rise to such Fundamental Change.


 


A
Security in respect of which a Holder has delivered a Repurchase Notice or
Fundamental Change Redemption Notice exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.


 


The
initial Conversion Rate is 34.9406 Ordinary Shares per $1,000 Principal Amount
of each Security, subject to adjustment for certain events described in the
Indenture.  The Company will deliver cash
or a check in lieu of any fractional Ordinary Share.  The ability to surrender Securities for
conversion will expire at the close of business on September 15, 2024.


 


To
exercise its conversion right, a Holder must (1) complete and manually sign the
conversion notice (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 and (4) pay any
transfer or similar taxes, if required.


 


A
Holder may convert a portion of a Security if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000.  No payment or adjustment will be made for
dividends on the Ordinary Shares except as provided in the Indenture.


 


The
Conversion Rate will be adjusted for dividends or distributions on Ordinary
Shares payable in Ordinary Shares or other Capital Stock of the Company;
subdivisions, combinations or certain reclassifications of Ordinary Shares;
distributions to all holders of Ordinary Shares of certain rights to purchase
Ordinary Shares for a period expiring within 60 days of the record date for
such distribution at less than the Closing Sale Price of the Ordinary Shares at
the Time of Determination; distributions to such holders of assets (including
cash and Capital Stock of a Subsidiary) or debt or other securities of the
Company or certain rights to purchase securities of the Company; a tender or
exchange offer by the Company or any Subsidiary for the Ordinary Shares to the
extent that the cash and value of any other consideration included in the
payment per share of Ordinary Shares exceeds the current market price per share
of Ordinary Shares on the trading day next succeeding the Expiration Time.  However, no adjustment need be made if
Securityholders may participate in the transaction or in certain other cases.  The Company from time to time may voluntarily
increase the Conversion Rate.


 


A-1-10





















 


Subject
to Sections 10.22 and 10.23 of the Indenture, if the Company is a party to a
consolidation, merger or binding share exchange or a transfer of all or substantially
all of its assets, or upon certain distributions described in the Indenture,
the right to convert a Security into Ordinary Shares may be changed into a
right to convert it into securities, cash or other assets of the Company or
another person.


 


The Conversion Rate will not be adjusted for accrued
and unpaid interest.  Upon conversion, a
holder will not receive any cash payment of interest (unless such conversion
occurs between a regular Record Date and the interest payment date to which it
relates).  Instead, accrued and unpaid
interest will be deemed to be paid in full by the Ordinary Shares received by
the Holder on conversion.


 


Conversion After a Public Acquirer
Change of Control.  In the event of a Public Acquirer Change of
Control, the Company may, in lieu of increasing the Conversion Rate by the
Additional Ordinary Shares pursuant to Section 10.23 of the Indenture, elect to
adjust the Conversion Rate such that from and after the Effective Date of such
Public Acquirer Change of Control, Holders of the Securities will be entitled
to convert their Securities into a number of shares of Public Acquirer Common
Stock by adjusting the Conversion Rate in effect immediately before the Public
Acquirer Change of Control by multiplying it by a fraction: the numerator of
which will be (i) in the case of a share exchange, consolidation, merger or
binding share exchange, pursuant to which the Ordinary Shares are converted
into cash, securities or other property, the average value of all cash and any
other consideration (as determined by the Board of Directors) paid or payable
per Ordinary Share or (ii) in the case of any other Public Acquirer Change of
Control, the average of the Closing Sale Price of the Ordinary Shares for the
five consecutive trading days prior to but excluding the Effective Date of such
Public Acquirer Change of Control, and the denominator of which will be the
average of the Closing Sale Price of the Public Acquirer Common Stock for the
five consecutive Trading Days commencing on the Trading Day next succeeding the
effective date of such Public Acquirer Change of Control.


 


Adjustment for Conversion Upon a Cash Take-Over Transaction.  If a Holder elects to convert Securities in connection with a
Fundamental Change referred to in clause (iii) of Section 3.14 of the Indenture
pursuant to which 10% or more of the consideration for the Ordinary Shares
(excluding cash payments for fractional shares and cash payments made in
respected dissenters’ appraisal rights) in the transaction or transactions otherwise
constituting the Fundamental Change does not consist of shares of Publicly
Traded Securities (a “Cash Take-Over Transaction”), the Company will increase
the number of Ordinary Shares issuable upon conversion of the Securities by a
number of additional Ordinary Shares (the “Additional Ordinary Shares”) as set
forth in Section 10.23(b) of the Indenture. 
The number of Additional Ordinary Shares should be determined by
reference to Section 10.23(b) of the Indenture, based on the date on which the
Cash Take-Over Transaction becomes effective (the “Effective Date”) and the
price (the “Stock Price”) paid per share for the Ordinary Shares in the Cash
Take-Over Transaction.  If shareholders
of Ordinary Shares receive only cash in the Cash Take-Over Transaction, the
Stock Price shall be the cash amount paid per share.  Otherwise, the Stock Price shall be the
average of the Closing Sale Price of the Ordinary Shares on the five
trading-days prior to but not including the Effective Date of such Cash
Take-Over Transaction.


 


A-1-11





















 


10.         Conversion Arrangement on Call for Redemption.


 


Any
Securities called for redemption, unless surrendered for conversion before the
close of business on the Redemption Date, may be deemed to be purchased from
the Holders of such Securities at an amount not less than the Redemption Price
and Make-Whole Payments, if applicable, by one or more investment bankers or
other purchasers who may agree with the Company to purchase such Securities from
the Holders, to convert them into Ordinary Shares of the Company and to make
payment for such Securities to the Trustee in trust for such Holders.


 


11.         Defaulted Interest.


 


Except
as otherwise specified with respect to the Securities, any Defaulted Interest
on any Security shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date or accrual date, as the case may
be, by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company as provided for in Section 11.02 of the Indenture.


 


12.         Denominations; Transfer; Exchange.


 


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


 


13.         Persons Deemed Owners.


 


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


 


14.         Unclaimed Money or Securities.


 


The
Trustee and the Paying Agent shall return to the Company upon written request
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 laws.  After return to
the Company, as the case may be, 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.


 


A-1-12





















 


15.         Amendment; Waiver.


 


Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate Principal Amount of the Securities at the time
outstanding and (ii) certain Defaults may be waived with the written consent of
the Holders of 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
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 10.15 of the Indenture, to secure the Company’s
obligations under this Security or to add to the Company’s covenants for the
benefit of the Securityholders or to surrender any right or power conferred, in
exchange for Holders agreeing to waive their right to require the Company to
purchase all or a portion of their Securities on a specified Repurchase Date,
to add additional Repurchase Dates on which Holders may require the Company to
purchase all or a portion of their Securities at the applicable Repurchase
Price and, in addition, to pay such Holders additional cash payments in
connection therewith, to comply with any requirement of the SEC in connection
with the qualification of the Indenture under the TIA, or as necessary in
connection with the registration of the Securities under the Securities Act or
to make any change that does not adversely affect the rights of any Holders.


 


16.         Defaults and Remedies.


 


Under the Indenture, Events of Default include (i) the Company defaults
in payment of interest when due under the Securities and such default continues
for 30 days; (ii) default in payment of the Principal Amount, Redemption Price,
Make-Whole Payment, Repurchase Price or Fundamental Change Redemption Price, as
the case may be, in respect of the Securities when the same becomes due and
payable; (iii) failure by the Company to comply with other agreements in the
Indenture or the Securities, other than those referred to in clauses (i) and
(ii) above, subject to notice and lapse of time; (iv) certain events of
bankruptcy or insolvency affecting the Company or certain of its subsidiaries;
and (v) the Pledge Agreement shall cease to be in full force and effect or
enforceable, other than in accordance with its terms, or fails to give the
Trustee the liens, rights, powers and privileges purported to be created
thereby.  A Default under clause (iii) above
is not an Event of Default until the Trustee notifies the Company, or the
Holders of at least 25% in aggregate Principal Amount of the Securities at the
time outstanding notify the Company and the Trustee, of the Default and the
Company does not cure such Default (and such Default is not waived) within the
time specified in the Indenture after actual receipt of such notice.


 


Securityholders
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 indemnity or security
reasonably satisfactory to it.  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 Securityholders notice of any continuing Default (except a
Default in payment of amounts specified in clause (i) or (ii) above) if it
determines that withholding notice is in their interests.


 


A-1-13





















 


17.         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 their
Affiliates with the same rights it would have if it were not Trustee.


 


18.         No Recourse Against Others.


 


A
director, officer, employee, agent, representative, stockholder or equity
holder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation.  By accepting a Security, each
Securityholder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Securities.


 


19.         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.


 


20.         Abbreviations.


 


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


 


21.         GOVERNING LAW.


 


THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY.


 


 


A-1-14





















 


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


 


APEX
SILVER MINES LIMITED


c/o
Apex Silver Mines Corporation


1700
Lincoln Street


Suite
3050


Denver, Colorado 80203


 


A-1-15





















 


	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To
  assign this Security, fill in the form below:

  	
   

  	
  To
  convert this Security into Ordinary Shares of the Company, check the box:

  
	
   

  	
   

  	
   

  
	
  I
  or we assign and transfer this Security to

  	
   

  	
  o

  
	
   

  	
   

  	
  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):

  
	
   

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  
	
   

  	
   

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

  
	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  and
  irrevocably appoint

  	
   

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

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


 


Date:
                                 Your Signature:                                                               


                                                                                                                                    


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


 


A-1-16





















 


EXHIBIT A-2


 


[FORM OF CERTIFICATED SECURITY]


 


[INCLUDE IF SECURITY IS A CERTIFICATED SECURITY TO BE
HELD BY AN INSTITUTIONAL ACCREDITED INVESTOR—IN CONNECTION WITH ANY TRANSFER,
THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES
AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOLLOWING RESTRICTIONS.]


 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT; (2) AGREES THAT
IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE ORDINARY
SHARES ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER OR A
SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A ADOPTED UNDER THE SECURITIES ACT (IF AVAILABLE); (C) TO PERSONS OTHER
THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT
IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT
TO THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. 
IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE
IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT AS PERMITTED BY THE
SECURITIES ACT.


 


A-2-1





















 


THE
FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF THE
CONDITIONS SPECIFIED IN THE INDENTURE.


 


A-2-2





















 


APEX SILVER MINES LIMITED


4.0% Convertible Senior Subordinated Note due 2024


 


	
  No.
  [ ]

  	
  CUSIP: 03760X101

  
	
  Issue
  Date: October 15, 2004

  	
  Principal
  Amount:
  $                            

  
	
  Issue
  Price: $1,000.00

  	
   

  
	
  (for
  each $1,000 Principal Amount)

  	
   

  



 


APEX
SILVER MINES LIMITED, a Cayman Islands company, promises to pay to                        
or registered assigns, on September 15, 2024, the Principal Amount of this
Security.  This Security is issued with a
Principal Amount of
                         
DOLLARS ($                 ).


 


This
Security shall not bear interest except 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.


 


A-2-3





















 


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


 


Dated:


 


	
   

  	
  APEX
  SILVER MINES LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S
CERTIFICATE OF


  AUTHENTICATION


 


BANK
OF NEW YORK,


as
Trustee, certifies that this


is
one of the Securities referred


to
in the within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
  Dated:

  



 


A-2-4





















 


[FORM OF REVERSE SIDE OF CERTIFICATED SECURITY IS THE SAME AS THE FORM
OF REVERSE SIDE OF 144A/REG S GLOBAL SECURITY]


 


A-2-5





















 


EXHIBIT A-3


 


[FORM OF UNRESTRICTED GLOBAL SECURITY]


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES
REPRESENTED HEREBY, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.


 


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


 


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APEX SILVER MINES LIMITED


4.0% Convertible Senior Subordinated Note due 2024


 


	
  No.
  [ ]

  	
  CUSIP: 03760XAD3

  
	
  Issue
  Date: October 15, 2004

  	
  Principal
  Amount:
  $                        

  
	
  Issue
  Price: $1,000.00

  	
   

  
	
  (for
  each $1,000 Principal Amount)

  	
   

  



 


APEX
SILVER MINES LIMITED, a Cayman Islands company, promises to pay to Cede &
Co. or registered assigns, on March 15, 2024, the Principal Amount of this
Security.  This Security is issued with a
Principal Amount of
                          
DOLLARS
($                ).


 


This
Security shall not bear interest except 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.


 


A-3-2





















 


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


 


Dated:


 


	
   

  	
  APEX
  SILVER MINES LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


 


TRUSTEE’S
CERTIFICATE OF


  AUTHENTICATION


 


BANK
OF NEW YORK,


as
Trustee, certifies that this


is
one of the Securities referred


to
in the within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


Dated:


 


A-3-3





















 


[FORM OF REVERSE SIDE OF UNRESTRICTED GLOBAL SECURITY IS THE SAME AS
THE FORM OF REVERSE SIDE OF 144A/REG S GLOBAL SECURITY]


 


A-3-4





















 


EXHIBIT B


 


Transfer Certificate


 


In
connection with any transfer 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) (or any successor provision) under the Securities Act of 1933,
as amended (the “Securities Act”),
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 issuable upon such exchange or conversion 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:


 


•                                          The 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 Securities Act; or


 


•                                          The transfer of the Surrendered Securities is
to an institutional accredited investor, as described in Rule 501(a)(1),
(2), (3) or (7) under 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 an offshore transaction in accordance with Rule 904 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.)


 


B-1