Exhibit 4.1


 




 


 





MICROCHIP TECHNOLOGY INCORPORATED


 


as Issuer


 


 


AND


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION


 


as Trustee


 










 


Indenture


 


Dated as of December 7, 2007


 






 


 


2.125% Junior Subordinated Convertible
Debentures due 2037


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  	 

	
   

  	
   

  	 

	
  ARTICLE
  1

  	
   

  	 

	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  	 

	
  Section 1.02.

  	
  Compliance
  Certificates and Opinions

  	
  16

  
	
  Section 1.03.

  	
  Form of
  Documents Delivered to Trustee

  	
  16

  
	
  Section 1.04.

  	
  Acts of Holders; Record Dates; Communication
  Between Holders

  	
  17

  
	
  Section 1.05.

  	
  Notices,
  Etc., to Trustee and Company

  	
  18

  
	
  Section 1.06.

  	
  Notice
  to Holders; Waiver

  	
  18

  
	
  Section 1.07.

  	
  Conflict
  With Trust Indenture Act

  	
  19

  
	
  Section 1.08.

  	
  Rules by
  Trustee, Paying Agent and Registrar

  	
  19

  
	
  Section 1.09.

  	
  Effect
  of Headings and Table of Contents

  	
  19

  
	
  Section 1.10.

  	
  Successors
  and Assigns

  	
  19

  
	
  Section 1.11.

  	
  Severability
  Clause

  	
  19

  
	
  Section 1.12.

  	
  Benefits
  of Indenture

  	
  19

  
	
  Section 1.13.

  	
  Governing
  Law

  	
  19

  
	
  Section 1.14.

  	
  Legal
  Holidays

  	
  20

  
	
  Section 1.15.

  	
  No
  Recourse Against Others

  	
  20

  
	
  Section 1.16.

  	
  Calculations

  	
  20

  
	
  Section 1.17.

  	
  Waiver
  of Jury Trial

  	
  20

  
	
  Section 1.18.

  	
  Force
  Majeure

  	
  20

  
	
   

  	
   

  	 

	
  ARTICLE
  2

  	
   

  
	
  SECURITY
  FORMS

  	
   

  
	
   

  	
   

  
	
  Section 2.01.

  	
  Forms
  Generally

  	
  21

  	 

	
  Section 2.02.

  	
  Form of
  Face of Security

  	
  21

  
	
  Section 2.03.

  	
  Form of
  Reverse of Security

  	
  26

  
	
  Section 2.04.

  	
  Form of
  Trustee’s Certificate of Authentication

  	
  34

  
	
  Section 2.05.

  	
  Legend
  on Restricted Securities

  	
  34

  
	
  Section 2.06.

  	
  Rule
  144(k) Amendment

  	
  35

  
	
   

  	
   

  	 

	
  ARTICLE
  3

  	
   

  
	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Title
  And Terms; Payments

  	
  35

  	 

	
  Section 3.02.

  	
  Denominations

  	
  36

  
	
  Section 3.03.

  	
  Execution,
  Authentication, Delivery and Dating

  	
  36

  
	
  Section 3.04.

  	
  Temporary
  Securities

  	
  37

  
	
  Section 3.05.

  	
  Registration;
  Registration of Transfer and Exchange; Restrictions on Transfer

  	
  37

  
	
  Section 3.06.

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
  39

  



 


i

















 


	
  Section 3.07.

  	
  Persons
  Deemed Owners

  	
  40

  
	
  Section 3.08.

  	
  Book-Entry
  Provisions For Global Securities

  	
  40

  
	
  Section 3.09.

  	
  Cancellation
  and Transfer Provisions

  	
  42

  
	
  Section 3.10.

  	
  CUSIP
  Numbers

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
   

  
	
  INTEREST

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Generally.

  	
  44

  
	
  Section 4.02.

  	
  Contingent
  Interest

  	
  45

  
	
  Section 4.03.

  	
  Trustee’s
  Responsibilities in Respect of Contingent Interest

  	
  47

  
	
  Section 4.04.

  	
  Payment
  of Contingent Interest

  	
  47

  
	
  Section 4.05.

  	
  [RESERVED]

  	
  47

  
	
  Section 4.06.

  	
  Option
  to Extend Interest Payment

  	
  47

  
	
  Section 4.07.

  	
  Actions
  Prohibited During Extension Periods

  	
  48

  
	
  Section 4.08.

  	
  Notification
  of Extension Period

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
   

  
	
  SUBORDINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Agreement
  of Subordination

  	
  49

  
	
  Section 5.02.

  	
  Payments
  to Holders

  	
  49

  
	
  Section 5.03.

  	
  Subrogation
  of Securities

  	
  52

  
	
  Section 5.04.

  	
  Authorization
  to Effect Subordination

  	
  53

  
	
  Section 5.05.

  	
  Notice
  to Trustee

  	
  53

  
	
  Section 5.06.

  	
  Trustee’s
  Relation to Senior Debt

  	
  54

  
	
  Section 5.07.

  	
  No
  Impairment of Subordination

  	
  55

  
	
  Section 5.08.

  	
  Certain
  Conversions Not Deemed Payment

  	
  55

  
	
  Section 5.09.

  	
  Article
  Applicable to Paying Agents

  	
  56

  
	
  Section 5.10.

  	
  Senior
  Debt Entitled to Rely

  	
  56

  
	
  Section 5.11.

  	
  Reinstatement

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Payments

  	
  56

  
	
  Section 6.02.

  	
  Maintenance
  of Office or Agency

  	
  56

  
	
  Section 6.03.

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
  57

  
	
  Section 6.04.

  	
  Money
  for Security Payments to Be Held in Trust

  	
  57

  
	
  Section 6.05.

  	
  Statement
  by Officers as to Default

  	
  58

  
	
  Section 6.06.

  	
  Existence

  	
  58

  
	
  Section 6.07.

  	
  Rule
  144A Information Requirement

  	
  59

  
	
  Section 6.08.

  	
  Resale
  of Certain Securities

  	
  59

  
	
  Section 6.09.

  	
  [RESERVED]

  	
  59

  
	
  Section 6.10

  	
  Additional
  Interest Under the Registration Rights Agreement

  	
  59

  
	
  Section 6.11.

  	
  Stay,
  Extension and Usury Laws

  	
  59

  
	
  Section 6.12.

  	
  Further
  Instruments and Acts

  	
  60

  
				



 


ii

















 


	
  Section 6.13.

  	
  Commission
  Filings and Reports

  	
  60

  
	
  Section 6.14.

  	
  Tax
  Treatment of the Securities

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
   

  
	
  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Right to
  Redeem; Notices to Trustee

  	
  61

  
	
  Section 7.02.

  	
  Selection
  of Securities to Be Redeemed

  	
  62

  
	
  Section 7.03.

  	
  Notice
  of Redemption

  	
  62

  
	
  Section 7.04.

  	
  Effect
  of Notice of Redemption

  	
  63

  
	
  Section 7.05.

  	
  Deposit
  of Redemption Price

  	
  63

  
	
  Section 7.06.

  	
  Securities
  Redeemed in Part

  	
  63

  
	
  Section 7.07.

  	
  No
  Requirement to Register

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
   

  
	
  FUNDAMENTAL
  CHANGES AND REPURCHASES THEREUPON

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Repurchase
  at Option of Holders Upon a Fundamental Change.

  	
  64

  
	
  Section 8.02.

  	
  Effect
  of Fundamental Change Repurchase Notice

  	
  67

  
	
  Section 8.03.

  	
  Withdrawal
  of Fundamental Change Repurchase Notice

  	
  67

  
	
  Section 8.04.

  	
  Deposit
  of Fundamental Change Repurchase Price

  	
  68

  
	
  Section 8.05.

  	
  Securities
  Repurchased in Whole or in Part

  	
  68

  
	
  Section 8.06

  	
  Covenant
  to Comply With Securities Laws Upon Repurchase of Securities

  	
  68

  
	
  Section 8.07.

  	
  Repayment
  to the Company

  	
  69

  
	
  Section 8.08.

  	
  Purchase
  by Third Party

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
   

  
	
  CONVERSION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Right to
  Convert

  	
  69

  
	
  Section 9.02.

  	
  Conversion
  Procedure

  	
  72

  
	
  Section 9.03.

  	
  Payments
  Upon Conversion

  	
  74

  
	
  Section 9.04.

  	
  Adjustment
  of Conversion Rate

  	
  76

  
	
  Section 9.05.

  	
  Adjustments
  of Average Prices

  	
  85

  
	
  Section 9.06.

  	
  Adjustments
  Upon Certain Fundamental Changes

  	
  86

  
	
  Section 9.07.

  	
  Effect
  of Reclassification, Consolidation, Merger or Sale

  	
  87

  
	
  Section 9.08.

  	
  Taxes on
  Shares Issued

  	
  89

  
	
  Section 9.09.

  	
  Reservation
  of Shares; Shares to Be Fully Paid; Compliance with Governmental
  Requirements; Listing of

  	
   

  
	
  Common Stock

  	
  89

  
	
  Section 9.10.

  	
  Responsibility
  of Trustee

  	
  90

  
	
  Section 9.11.

  	
  Notice
  to Holders Prior to Certain Actions

  	
  91

  
	
  Section 9.12.

  	
  Stockholder
  Rights Plans

  	
  92

  
	
  Section 9.13.

  	
  Exchange
  in Lieu of Conversion.

  	
  92

  



 


iii

















 


	
  ARTICLE
  10

  	
   

  
	
  EVENTS
  OF DEFAULT; REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Events
  of Default

  	
  93

  
	
  Section 10.02.

  	
  Acceleration
  of Maturity; Other Remedies; Rescission and Annulment

  	
  95

  
	
  Section 10.03.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee

  	
  96

  
	
  Section 10.04.

  	
  Trustee
  May File Proofs of Claim

  	
  97

  
	
  Section 10.05.

  	
  Application
  of Money Collected

  	
  97

  
	
  Section 10.06.

  	
  Limitation
  on Suits

  	
  97

  
	
  Section 10.07.

  	
  Unconditional
  Right of Holders to Receive Payment

  	
  98

  
	
  Section 10.08.

  	
  Restoration
  of Rights and Remedies

  	
  98

  
	
  Section 10.09.

  	
  Rights
  and Remedies Cumulative

  	
  99

  
	
  Section 10.10.

  	
  Delay or
  Omission Not Waiver

  	
  99

  
	
  Section 10.11.

  	
  Control
  by Holders

  	
  99

  
	
  Section 10.12.

  	
  Waiver
  of Past Defaults

  	
  99

  
	
  Section 10.13.

  	
  Undertaking
  for Costs

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
   

  
	
  CONSOLIDATION,
  MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
  100

  
	
  Section 11.02.

  	
  Successor
  Substituted

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
   

  
	
  THE
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Duties
  and Responsibilities of Trustee

  	
  101

  
	
  Section 12.02.

  	
  Notice
  of Defaults

  	
  103

  
	
  Section 12.03.

  	
  Reliance
  on Documents, Opinions, Etc

  	
  103

  
	
  Section 12.04.

  	
  No
  Responsibility For Recitals, Etc

  	
  104

  
	
  Section 12.05.

  	
  Trustee,
  Paying Agents, Conversion Agents or Registrar May Own Securities

  	
  104

  
	
  Section 12.06.

  	
  Monies
  to Be Held in Trust

  	
  105

  
	
  Section 12.07.

  	
  Compensation
  and Expenses of Trustee

  	
  105

  
	
  Section 12.08.

  	
  Conflicting
  Interests of Trustee

  	
  105

  
	
  Section 12.09.

  	
  Eligibility
  of Trustee

  	
  106

  
	
  Section 12.10.

  	
  Resignation
  or Removal of Trustee

  	
  106

  
	
  Section 12.11.

  	
  Acceptance
  by Successor Trustee

  	
  107

  
	
  Section 12.12.

  	
  Succession
  by Merger, Etc

  	
  108

  
	
  Section 12.13.

  	
  Preferential
  Collection of Claims

  	
  109

  



 


iv

















 


	
  ARTICLE
  13

  	
   

  
	
  HOLDERS’
  LISTS AND REPORTS BY TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Company
  to Furnish Trustee Names and Addresses of Holders

  	
  109

  
	
  Section 13.02.

  	
  Preservation
  of Information; Communications to Holders

  	
  109

  
	
  Section 13.03.

  	
  Reports
  by Trustee

  	
  109

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  	
   

  
	
  SATISFACTION
  AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Satisfaction
  and Discharge of Indenture

  	
  110

  
	
  Section 14.02.

  	
  Application
  of Trust Money

  	
  111

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  15

  	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01.

  	
  Supplemental
  Indentures Without Consent of Holders

  	
  111

  
	
  Section 15.02.

  	
  Supplemental
  Indentures With Consent of Holders

  	
  112

  
	
  Section 15.03.

  	
  Execution
  of Supplemental Indentures

  	
  113

  
	
  Section 15.04.

  	
  Effect
  of Supplemental Indentures

  	
  113

  
	
  Section 15.05.

  	
  Conformity
  With Trust Indenture Act

  	
  113

  
	
  Section 15.06.

  	
  Reference
  in Securities to Supplemental Indentures

  	
  113

  
	
  Section 15.07.

  	
  Notice
  to Holders of Supplemental Indentures

  	
  114

  



 


v

















 


INDENTURE, dated as of December 7, 2007, between
Microchip Technology Incorporated, a corporation duly organized and existing
under the laws of the State of Delaware, as Issuer (the “Company”), having its principal office at
2355 W. Chandler Blvd., Chandler, Arizona 85224 and Wells Fargo Bank, National
Association, as Trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has duly authorized the
creation of an issue of 2.125% Junior Subordinated Convertible Debentures due
2037 (each a “Security” and
collectively, the “Securities”) of
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture; and


 


WHEREAS, all things necessary to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid and legally binding
obligations of the Company, and to make this Indenture a valid and legally
binding agreement of the Company, in accordance with the terms of the
Securities and the Indenture, have been done;


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and
in consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed, for the benefit of the Company and the
equal and proportionate benefit of all Holders of the Securities, as follows:


 


ARTICLE 1


DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION


 


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


 


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


 


(ii)          all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;


 


(iii)       all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and


 


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


 


 

















 


“Act”
when used with respect to any Holder, has the meaning specified in Section
1.04.


 


“Additional
Interest” shall mean Additional Interest as defined in the
Registration Rights Agreement.


 


“Additional Shares”
has the meaning specified in Section 9.06(a).


 


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


 


“Agent Members”
has the meaning specified in Section 3.08.


 


“Bid Solicitation
Agent” means an independent nationally recognized securities dealer
selected by the Company to solicit market bid quotations for the Securities,
which shall in no event be an Affiliate of the Company.


 


“Board of
Directors” means, with respect to any Person, either the board of
directors of such Person or any duly authorized committee of that board.


 


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


 


“Business Day”
means any day other than a Saturday, a Sunday or a day on which the Federal
Reserve Bank of New York is closed.


 


“Capital Stock”
means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock and, with respect to
partnerships, partnership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnership.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


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


 


2

















 


“Common Stock”
means the shares of common stock, par value $0.001 per share, of the Company as
they exist on the date of this Indenture or any other shares of Capital Stock
of the Company into which the Common Stock shall be reclassified or changed or,
in the event of a merger, consolidation or other similar transaction involving
the Company that is otherwise permitted hereunder in which the Company is not
the surviving corporation, the common stock, common equity interests, ordinary
shares or depositary shares or other certificates representing common equity
interests of such surviving corporation or its direct or indirect parent
corporation.


 


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


 


“Company Request”
or “Company Order” means a written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its Vice Chairman of the Board of Directors, its Chief Executive
Officer, its President or any Vice President, its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.


 


“Comparable Yield
Rate” means 9.1% compounded semi-annually.


 


“Compounded
Interest” has the meaning specified in Section 4.06(b).


 


“Contingent Debt
Regulations” has the meaning specified in Section 6.14(a).


 


“Contingent
Interest” has the meaning specified in Section 4.02(a).


 


“Conversion Agent”
means the Trustee or such other office or agency designated by the Company
where Securities may be presented for conversion.


 


“Conversion Date”
has the meaning specified in Section 9.02(b).


 


“Conversion Notice”
has the meaning specified in Section 9.02(b).


 


“Conversion Parity
Value” means, with respect to any Redemption Date, the product of
(i) the Conversion Rate in effect on the Redemption Date and (ii) the average
of the Volume-Weighted Average Prices of the Common Stock for the 25
consecutive Trading Days ending on the Trading Day immediately preceding the
applicable Redemption Date.


 


“Conversion Price”
means as of any date $1,000 divided by the Conversion Rate as of such date.


 


“Conversion Rate”
has the meaning specified in Section 9.01(a).


 


3

















 


“Corporate Trust
Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date of this Indenture, located at Wells
Fargo Bank, National Association, 707 Wilshire Blvd, Los Angeles, CA 90017,
Attention: Maddy Hall, Corporate Trust Dept, and shall mean for purposes of
Section 6.02, Wells Fargo Bank, National Association, 608 2nd Avenue
South, Minneapolis, MN , Attention: Bondholder Communications Dept.


 


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


 


“Custodian”
means Wells Fargo Bank, National Association, as custodian with respect to the
Securities in global form, or any successor entity.


 


“Daily Conversion
Value” means, for each of the 25 consecutive Trading Days during the
Observation Period, one twenty-fifth (1/25) of the product of (i) the
applicable Conversion Rate and (ii) the Daily VWAP of the Common Stock on such
Trading Day.


 


“Daily Measurement
Value” has the meaning specified in Section 9.03(b).


 


“Daily Settlement
Amount” has the meaning specified in Section 9.03(b).


 


“Daily Share
Amount” has the meaning specified in Section
9.03(b).


 


“Daily VWAP”
means, for each of the 25 consecutive Trading Days during the Observation
Period, the per share volume-weighted average price as displayed under the
heading “Bloomberg VWAP” on Bloomberg page “MCHP.UQ <equity> AQR” (or its
equivalent successor if such page is not available) in respect of the period
from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day (or if
such volume-weighted average price is unavailable, the market value of one
share of Common Stock on such Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment banking firm
retained for such purpose by the Company); provided,
that after consummation of a Fundamental Change in which the consideration is
comprised entirely of cash, the Daily VWAP will be deemed to be the cash price
per share received by holders of the Common Stock in such Fundamental Change.


 


“Default”
means any event that is or with the passage of time or the giving of notice or
both would become an Event of Default.


 


“Deferred Interest”
means any Interest that is accrued and unpaid and the payment of which has been
deferred as a result of the Company’s declaration of an Extension Period.


 


4

















 


“Depositary”
means The Depository Trust Company until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean
such successor Depositary.


 


“Derivative
Agreement” means, with respect to any Person, any swap agreement,
cap agreement, floor agreement, collar agreement, hedge agreement, forward
contracts or similar agreements or arrangements, or combination thereof.


 


“Designated Senior
Debt” means, with respect to the Company, obligations under any
Senior Debt in which the instrument creating or evidencing such Senior Debt or
the assumption or guarantee thereof (or related agreements or documents to
which the Company is a party) expressly provides that such Senior Debt shall be
“Designated Senior Debt” for purposes of this Indenture. The instrument,
agreement or other document evidencing any Designated Senior Debt may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt.


 


“Distributed
Property” has the meaning specified in Section 9.04(c).


 


“Downside Trigger”
initially means $400 per $1,000 Principal Amount of Securities with respect to
the semiannual Regular Interest period that begins December 15, 2017. Beginning
on June 15, 2018 and ending on December 15, 2035, the Downside Trigger will
increase in increments of $15 per $1,000 Principal Amount of Securities per
semi-annual period for the payment of Regular Interest on June 15 and December
15 of each year within such period. On and after December 15, 2035, the
downside trigger will be $950 per $1,000 Principal Amount of Securities. As an
example and for the avoidance of doubt, the Downside Trigger will be $610 per
$1,000 Principal Amount of Securities during the period commencing on December
15, 2024 and ending on June 14, 2025 and will be measured against the average
of the Trading Prices of the Securities for the 10 Trading Days immediately
preceding December 15, 2024.


 


“Effective Date”
has the meaning specified in Section 9.06(b).


 


“Event of Default”
has the meaning specified in Section 10.01.


 


“Ex Date”
means, with respect to any dividend, distribution or issuance on the Common
Stock or any other equity security, the first date on which the shares of the
Common Stock or such other equity security trade on the applicable exchange or
in the applicable market, regular way, without the right to receive such
dividend, distribution or issuance.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


“Extension Period”
has the meaning specified in Section 4.06(a).


 


“Extraordinary
Dividend” has the meaning specified in Section 4.02(a).


 


5

















 


“Fundamental
Change” means the occurrence of any of the following events at any
time after the Securities are originally issued:


 


(1)                                  a “person” or “group” within the meaning of
Section 13(d) of the Exchange Act other than the Company, its Subsidiaries or
its or their employee benefit plans, 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 “beneficial owner,” as defined in Rule 13d-3
under the Exchange Act, of the Company’s common equity representing more than 50%
of the total voting power of the Company’s Capital Stock entitled to vote
generally in elections of directors;


 


(2)                                  consummation of any share exchange,
consolidation or merger of the Company pursuant to which the Common Stock will
be converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than one of the Company’s
Subsidiaries; provided, however that a share exchange,
consolidation or merger transaction in which (i) the Common Stock is not
changed or exchanged except to the extent necessary to reflect a change in the
Company’s jurisdiction of incorporation or (ii) the holders of more than 50% of
all classes of the Company’s common equity immediately prior to such
transaction own, directly or indirectly, more than 50% of the aggregate voting
power of all shares of Capital Stock of the continuing or surviving corporation
or transferee or the parent thereof immediately after such event, in either
case, shall not constitute a Fundamental Change;


 


(3)                                  the Company’s stockholders approve any plan
or proposal for the liquidation or dissolution of the Company; or


 


(4)                                  the Common Stock, or other common stock into
which the Securities are then convertible, ceases to be listed for trading on a
U.S. national securities exchange or quoted on an established automated
over-the-counter trading market in the United States.


 


A Fundamental Change as a result of a merger or
consolidation under clause (1) or any event specified under clause (2) above
will not be deemed to have occurred, however, if at least 90% of the
consideration received or to be received by the Company’s common stockholders,
excluding cash payments for fractional shares and cash payments made in respect
of dissenters’ or appraisal rights, in connection with the transaction or
transactions otherwise constituting the Fundamental Change consists of Publicly
Traded Securities and, as a result of such transaction or transactions, the
Securities become convertible into cash and such Publicly Traded Securities as
described in Section 9.07, subject to the provisions set forth under Section
9.03.


 


6

















 


“Fundamental
Change Company Notice” has the meaning specified in Section 8.01(b).


 


“Fundamental
Change Repurchase Date” has the meaning specified in Section
8.01(a).


 


“Fundamental
Change Repurchase Notice” has the meaning specified in Section
8.01(a).


 


“Fundamental
Change Repurchase Price” has the meaning specified in Section
8.01(a).


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, in
each case, as in effect in the United States on the date hereof.


 


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


 


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


 


“Indebtedness”
means, with respect to any Person, without duplication, (i) any indebtedness or
obligation, whether contingent or not, (1) evidenced by a credit or loan
agreement, note, bond, debenture or similar written obligation or instrument
(whether or not the recourse of the lender is to the whole of the assets of
such Person or to only a portion thereof) or (2) for money borrowed, (ii) all
obligations (1) as lessee under leases required to be capitalized on such
Person’s balance sheet under GAAP or (2) as lessee under other leases for
facilities, capital equipment or related assets, whether or not capitalized,
entered into or leased for financing purposes; provided
that the determination of whether a lease was ended into for “financing
purposes” shall be made by the Company in its reasonable discretion, (iii) all
obligations under Derivative Agreements, (iv) all obligations and liabilities
(contingent or otherwise) of such Person with respect to letters of credit,
bankers’ acceptances and similar facilities (including reimbursement
obligations with respect to the foregoing), (v) all obligations and liabilities
(contingent or otherwise) of such Person issued or assumed as the deferred
purchase price of any property or services (but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business),
(vi) obligations of the type described in clauses (i) through (v) above of any
third party and all dividends of any third party the payment of which, in
either case, such Person has assumed or guaranteed, or for which the Person
first referenced above is responsible or liable, directly or indirectly,
jointly or severally, as obligor,


 


7

















 


guarantor or otherwise, or
that are secured by a lien on such Person’s property and (vii) any and all
renewals, extensions, modifications, replacements, restatements and refundings
of, or any indebtedness or obligation issued in exchange for, any indebtedness,
obligation or liability of the kinds described in clauses (i) through (vi). The
amount of any Indebtedness outstanding as of any date shall be the accreted
value thereof, in the case of any Indebtedness issued with original issue
discount. The amount of any Indebtedness outstanding as of any date with
respect to any Derivative Agreement shall be the termination value thereof.
Indebtedness shall not include liabilities for taxes of any kind.


 


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


 


“Initial Conversion Value”
means the product of (i) the initial Conversion Rate, prior to the adjustments
described in Section 9.04 and (i) $29.70, the last reported sale of Common
Stock on December 3, 2007.


 


“Initial
Purchasers” means the several initial purchasers named in Schedule 1
to the Purchase Agreement.


 


“Interest”
means (i) Regular Interest, (ii) Contingent Interest, if any, (iii) Deferred
Interest, if any, (iv) Additional Interest, if any, (v) Reporting Additional
Interest, if any, and (vi) Compounded Interest, if any.


 


“Interest Payment
Date” means (x) with respect to any payment of Interest other than
Interest payable upon designation of an Extraordinary Dividend or a prepayment
of Deferred Interest, each June 15 and December 15 of each year, beginning June
15, 2008, (y) with respect to Interest payable upon designation of an
Extraordinary Dividend, the date specified by the Company’s Board of Directors
for the payment of such Interest in accordance with Section 4.02(a)(ii) and (z)
with respect to a prepayment of Deferred Interest, the date specified for such
prepayment by the Company.


 


“Investment
Company Act” means the Investment Company Act of 1940 and any
statutory successor thereto, in each case as amended from time to time.


 


“Issue Date”
means the date the Securities are originally issued as set forth on the face of
the Security under this Indenture.


 


“Last Reported
Sale Price” means, on any date, the closing sale price per share of
the Common Stock (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 as reported in composite
transactions by the principal U.S. national or regional securities exchange on


 


8

















 


which the Common Stock is
listed for trading. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on such date, the “Last Reported Sale
Price” shall mean the last quoted bid price for the Common Stock in the
over-the-counter market on such date as reported by the National Quotation
Bureau Incorporated or any successor organization thereto. If the Common Stock
is not so quoted, the “Last Reported Sale Price” shall mean the average of the
mid-point of the last bid and ask prices for the Common Stock on such date from
each of at least three nationally recognized independent investment banking
firms selected by the Company for such purpose.


 


“Legal Holiday”
has the meaning specified in Section 1.14.


 


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


 


“Make-Whole
Fundamental Change” mean any event described in clause (1), (2) or
(3) of the definition of “Fundamental Change”, in the case of clause (2) of
such definition, after giving effect to the last paragraph of such definition.


 


“Market Disruption
Event” means, if the Common Stock is listed on a U.S. national or
regional securities exchange, the occurrence or existence during the one-half
hour period ending on the scheduled close of trading on any Trading Day for the
Common Stock of any material suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange
or otherwise) in the Common Stock or in any options, contracts or future
contracts relating to the Common Stock on the principal U.S. national or
regional securities exchange or market in which such options, contracts or
future contracts are traded.


 


“Maturity,”
when used with respect to any Security, means the date on which the principal,
Redemption Price or Fundamental Change Repurchase Price of such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity, on a Redemption Date or Fundamental Change Repurchase Date, by
declaration of acceleration or otherwise.


 


“Measurement
Period” has the meaning specified in Section
9.01(a).


 


“Net Share
Settlement” has the meaning specified in Section 9.03(b).


 


“Non-Payment
Default” has the meaning specified in  Section 5.02(b).


 


“Notice of Default”
has the meaning specified in  Section
10.01(f).


 


9

















 


“Observation
Period” with respect to any Security means the 25 consecutive
Trading Day period beginning on and including the fourth Trading Day after the
related Conversion Date, except that (i) with respect to any Conversion Date
occurring after the date of issuance of a notice of redemption, Observation
Period means the 25 consecutive Trading Days beginning on and including the 27th
scheduled Trading Day prior to the applicable Redemption Date and (ii) with
respect to any Conversion Date occurring during the period beginning on
September 1, 2037, and ending at 5:00 p.m., New York City time, on the
Scheduled Trading Day immediately prior to the Stated Maturity of the
Securities, Observation Period means the first 25 Trading Days beginning on and
including the 27th Scheduled Trading Day prior to the Stated
Maturity of the Securities.


 


“Officers’
Certificate” means a certificate signed by any two of the Chief
Executive Officer, the President, any Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, in each case of
the Company, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 6.05  shall
be the principal executive, financial or accounting officer of the Company.


 


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


 


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


 


(i)                                     Securities theretofore cancelled by the
Trustee or accepted by the Trustee for cancellation;


 


(ii)                                  Securities, or portions thereof, for whose
payment, redemption or repurchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities; provided that if such Securities are to be redeemed or
repurchased prior to the maturity thereof, notice of such redemption or
repurchase shall have been given to the Holders as herein provided, or
provision satisfactory to a Responsible Officer of the Trustee shall have been
made for giving such notice;


 


(iii)                               Securities that have been paid or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture; and


 


10

















 


(iv)                              Securities converted into Common Stock
pursuant to Article 9;


 


provided, however
that, in determining whether the Holders of the requisite Principal Amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
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. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


“Paying Agent”
means any Person (including the Company) authorized by the Company to pay the
Principal Amount of, Interest on, or Redemption Price or Fundamental Change
Repurchase Price of, any Securities on behalf of the Company. The Trustee shall
initially be the Paying Agent.


 


“Payment Blockage
Notice” has the meaning specified in Section
5.02(b).


 


“Payment Default”
has the meaning specified in Section 5.02(a).


 


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


 


“Physical
Securities” means certificated Securities in registered form issued
in denominations of $1,000 Principal Amount and integral multiples thereof.


 


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


 


“Publicly Traded
Securities” means shares of Common Stock that are traded on a
national securities exchange or quoted on an established automated
over-the-counter trading market in the U.S. or with respect to transactions
described in the definition of “Fundamental Change,” which will be so traded or
quoted when issued or exchanged in connection with such event.


 


“Purchase
Agreement” means the Purchase Agreement, dated December 3, 2007,
entered into by the Company and the Initial Purchasers in connection with the
sale of the Securities.


 


11

















 


“Qualified
Institutional Buyer” or “QIB”
shall have the meaning specified in Rule 144A.


 


“Record Date”
means (x) with respect to any payment of Interest, other than Interest payable
upon designation of an Extraordinary Dividend or a prepayment of Deferred
Interest, each June 1 and December 1 (whether or not a Business Day), (y) with
respect to the payment of Interest payable upon designation of an Extraordinary
Dividend, the record date specified by the Company’s Board of Directors for the
payment of such Interest in accordance with Section 4.02(a)(ii) and (z) with
respect to a prepayment of Deferred Interest, the record date specified with
respect to such prepayment by the Company.


 


“Redemption Date”
shall mean the date specified for redemption of the Securities in accordance
with the terms of the Securities and Article 7 hereof.


 


“Redemption Price”
has the meaning specified in Section 7.01(b).


 


“Reference
Property” has the meaning specified in Section 9.07(a).


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as
of December 7, 2007, between the Company and the Initial Purchasers, for the
benefit of themselves and the Holders, as the same may be amended or modified
from time to time in accordance with the terms thereof.


 


“Regular Interest”
has the meaning specified in Section 4.01(a).


 


“Reporting
Additional Interest” has the meaning specified in Section 10.02(c).


 


“Representative”
means the (i) indenture trustee or other trustee, agent or representative for
any Senior Debt or (ii) with respect to any Senior Debt that does not have any
such trustee, agent or other representative, (1) in the case of such Senior
Debt issued pursuant to an agreement providing for voting arrangements as among
the holders or owners of such Senior Debt, any holder or owner of such Senior
Debt acting with the consent of the required Persons necessary to bind such
holders or owners of such Senior Debt and (2) in the case of all other such
Senior Debt, the holder or owner of such Senior Debt.


 


“Required Notice
Date” has the meaning specified in Section 5.05.


 


“Required Payment
Date” has the meaning specified in Section 5.05.


 


“Resale
Registration Statement” means a registration statement under the
Securities Act registering the Securities for resale pursuant to the terms of
the Registration Rights Agreement.


 


“Responsible
Officer” means any officer of the Trustee within the Corporate Trust
Office of the Trustee with direct responsibility for the


 


12

















 


administration of this
Indenture and also, with respect to a particular matter, any other officer of
the Trustee to whom such matter is referred because of such officer’s knowledge
and familiarity with the particular subject.


 


“Restricted Global
Security” means a Global Security representing Restricted
Securities.


 


“Restricted
Security” or “Restricted
Securities” has the meaning specified in Section 2.05.


 


“Rule 144”
means Rule 144 under the Securities Act (including any successor rule thereto),
as the same may be amended from time to time.


 


“Rule 144A”
means Rule 144A under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.


 


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


 


“Rule 144(k) Holding Period”
means that period of time specified under Rule 144(k) of the Securities Act
after which Holders that are not Affiliates of the Company may resell their
restricted securities without compliance with the provisions of paragraphs (c),
(e), (f) and (h) of Rule 144 (or any respective successor provision to such
paragraphs).


 


“Scheduled Trading
Day” means a day that is scheduled to be a Trading Day on the
principal U.S. national or regional securities exchange or market on which the
Common Stock is listed or admitted for trading.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.


 


“Security”
or “Securities” has the meaning
specified in the first paragraph of the Recitals of the Company.


 


“Security Register”
and “Security Registrar” have the
respective meanings specified in Section 3.05.


 


“Senior Debt”
means, with respect to the Company, the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, any Indebtedness of the Company,
whether absolute or contingent, secured or unsecured, due or to become due,
outstanding on the date of this Indenture or thereafter created, incurred,
assumed or guaranteed by the Company. Notwithstanding the foregoing, the term
Senior Debt shall not include (i) the Securities, (ii) any indebtedness,
created, evidenced, assumed or guaranteed by an instrument that expressly
provides that such indebtedness shall not be senior in right of payment to the


 


13

















 


Securities, (iii) any
Indebtedness of the Company to any Subsidiary of the Company or (iv) any
Indebtedness of or amounts owed by the Company for trade payables.


 


“Settlement Amount”
has the meaning specified in Section 9.03(a).


 


“Settlement Method”
means, with respect to a conversion of Securities, the relative proportions of
cash and/or shares of Common Stock with which such conversion is settled under
this Indenture.


 


“Settlement Notice”
has the meaning specified in Section 9.03(a)(i).


 


“Significant
Subsidiary” means a Subsidiary of the Company that would be a
“significant subsidiary” as defined in Article I, Rule 1-02(w) of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.


 


“Share Issuance Cap”
has the meaning specified in Section 9.09(a).


 


“Specified Dollar
Amount” has the meaning specified in Section 9.03(b)(iii)(A).


 


“Spin-Off”
has the meaning specified in Section 9.04(c).


 


“Stated Maturity,”
when used with respect to any Security, means the date specified in such
Security as the fixed date on which an amount equal to the Principal Amount of
such Security together with accrued and unpaid Interest, if any, is due and
payable.


 


“Stock Price”
has the meaning specified in Section 9.06(b).


 


“Stock Transfer
Agent” means Wells Fargo Bank Minnesota, N.A., or such other Person
as may be designated by the Company as the transfer agent for the Common Stock.


 


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


 


“Surviving Entity”
has the meaning specified in Section 11.01(a).


 


“Tax Triggering
Event” means the enactment of U.S. federal legislation, promulgation
of Treasury regulations, issuance of a published ruling, notice, announcement
or equivalent form of guidance by the Treasury or the Internal Revenue Service,
or the issuance of a judicial decision if the Company determines


 


14

















 


in good faith, or receives
an opinion of its outside counsel to the effect that, any such authority will
have the effect of lowering the comparable yield or delaying or otherwise
limiting the current deductibility of interest or original issue discount with
respect to the Securities, provided
that the Company determines in good faith that such reduction, delay, or limit
is material.


 


“Trading Day”
means, except as provided in Section 9.01(b) hereof, a day during which (i)
trading in the Common Stock generally occurs on the principal U.S. national or
regional securities exchange or market on which the Common Stock is listed or
admitted for trading and (ii) there is no Market Disruption Event.


 


“Trading Price”
of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 Principal Amount of Securities obtained
by the Bid Solicitation Agent for $5,000,000 Principal Amount of Securities at
approximately 3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers that are selected by
the Company; provided that if at
least three such bids cannot reasonably be obtained by the Bid Solicitation
Agent, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained, that one bid
shall be used.


 


“Transfer
Restricted Security” means a Security required to bear the
restricted legend set forth in the form of Security in Section
2.02.


 


“Trigger Event”
has the meaning specified in Section 9.04(b).


 


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


 


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


 


“Upside Trigger”
means $1,500 per $1,000 Principal Amount of Securities.


 


“Vice President,”
when used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


“Volume-Weighted
Average Price” means, with respect to the Common Stock on a Trading
Day, the price displayed under the heading “Bloomberg VWAP” on Bloomberg (or
any successor service) page MCHP.UQ <equity>


 


15

















 


AQR (or any successor page)
in respect of the period from 9:30 a.m. to 4:00 p.m. New York City time on that
Trading Day, or, if such price is not available, the volume-weighted average
price per share of the Company’s Common Stock on that Trading Day as determined
by a nationally recognized independent investment banking firm retained for
this purpose by the Company.


 


Section
1.02. Compliance Certificates and Opinions. Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and Opinions of Counsel, if any, as would be required
pursuant to the Trust Indenture Act, if at the time of such application or
request, this Indenture were qualified under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers’ Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture.


 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:


 


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


 


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


 


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


 


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


 


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


 


Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations


 


16

















 


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, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers 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
or opinion or representations with respect to such matters are erroneous.


 


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


 


Section
1.04. Acts of Holders; Record Dates; Communication
Between Holders. (a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 12.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.


 


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


 


(c)                                  The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders.
If not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders


 


17

















 


required to be provided
pursuant to Section 13.01) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.


 


(d)                                 The ownership of Securities shall be proved
by the Security Register.


 


(e)                                  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.


 


Section
1.05. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:


 


(a)                                  the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its applicable Corporate Trust
Office; or


 


(b)                                 the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention:  Chief Financial Officer.


 


Section
1.06. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder’s address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


18
















 


In case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.


 


Whenever under
this Indenture the Trustee is required to provide any notice by mail, in all
cases the Trustee may alternatively provide notice by overnight courier or by
telefacsimile, with confirmation of transmission.


 


Section 1.07. Conflict
With Trust Indenture Act. If any provision of the Indenture limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required hereunder to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.


 


Section 1.08. Rules by
Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by, or for a meeting of, Holders. The Registrar and the
Paying Agent may make reasonable rules for their functions.


 


Section 1.09. Effect of
Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof, and all Article and Section references are
to Articles and Sections, respectively, of this Indenture unless otherwise
expressly stated.


 


Section 1.10. Successors
and Assigns. All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.


 


Section 1.11.
Severability 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 1.12. Benefits
of Indenture. Other than as
provided in the next sentence, nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture. The provisions of Article 5 are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt.


 


Section 1.13. Governing
Law. This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.


 


19

















 


Section 1.14. Legal
Holidays. A “Legal Holiday”
is a day that is not a Business Day. If an Interest Payment Date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no Interest shall accrue for the intervening period. If a Record
Date is a Legal Holiday, the Record Date shall not be affected. In any case
where the Stated Maturity, Redemption Date or the Fundamental Change Repurchase
Date of any Security is a Legal Holiday, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal and
Interest, if any, need not be made on such date, but may be made on the next
succeeding day that is not a Legal Holiday, with the same force and effect as
if made on at the Stated Maturity, Redemption Date or Fundamental Change
Repurchase Date and no Interest shall accrue for the intervening period.


 


Section 1.15. No
Recourse Against Others. None of the Company’s, or of any successor
entity’s, direct or indirect stockholders, employees, officers or directors, as
such, past, present or future, shall have any personal liability in respect of
the obligations of the Company under the Indenture or the Securities solely by
reason of his or its status as such stockholder, employee, officer or director.


 


Section 1.16.
Calculations. Except as otherwise provided herein, the Company or
its agents (other than the Trustee and the Conversion Agent) will be
responsible for making all calculations called for under the Indenture and the
Securities. The Company or its agents (other than the Trustee and the
Conversion Agent) will make all such calculations in good faith and, absent
manifest error, its calculations will be final and binding on Holders. The
Company upon request will provide a schedule of its calculations to each
of the Trustee and the Conversion Agent, and each of the Trustee and Conversion
Agent is entitled to rely conclusively upon the accuracy of the Company’s
calculations without independent verification. The Trustee will deliver a copy
of such schedule to any Holder upon the request of such Holder. For the
avoidance of doubt, the Trustee shall not be obligated to make any calculations
hereunder, obtain or determine the Last Reported Sales Price, obtain, determine
or monitor the Trading Price or determine the Daily VWAP.


 


Section 1.17. Waiver of
Jury Trial. Each of the company and the trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
agreement, the notes or the transaction contemplated thereby.


 


Section 1.18. Force
Majeure. In no event shall the Trustee be responsible or liable for
any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services; it being understood
that the Trustee


 


20

















 


shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


ARTICLE 2

SECURITY FORMS


 


Section 2.01. Forms
Generally. The Securities and the Trustee’s certificates of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor, the Code and regulations
thereunder, or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.


 


The Securities
shall initially be issued in the form of permanent Global Securities in
registered form in substantially the form set forth in this Article. 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, as
custodian for the Depositary, as hereinafter provided.


 


Section 2.02. Form of
Face of Security. [INCLUDE IF
SECURITY IS A RESTRICTED SECURITY — THE SALE OF THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND
ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT
IT WILL NOT WITHIN THE LATER OF (X) TWO YEARS AFTER THE LATEST ISSUE DATE OF
THIS SECURITY (SUBJECT TO REDUCTION AS SET FORTH IN SECTION 2.06 OF THE
INDENTURE) AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER, OFFER, RESELL,
PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE ISSUER; (B) UNDER
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER
ANY


 


21

















 


OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN THE LATER OF (X) TWO YEARS AFTER
THE LATEST ISSUE DATE OF THIS SECURITY (SUBJECT TO REDUCTION AS SET FORTH IN SECTION 2.06
OF THE INDENTURE) AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE
(WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT) OF THE
ISSUER, 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.]


 


[INCLUDE IF SECURITY IS A GLOBAL SECURITY —
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


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


 


[INCLUDE IN ALL SECURITIES — THIS SECURITY
WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. PURSUANT TO SECTION 6.14 OF THE INDENTURE, THE COMPANY AGREES,
AND BY ACCEPTANCE OF A BENEFICIAL OWNERSHIP INTEREST IN THE SECURITIES EACH
BENEFICIAL HOLDER OF A SECURITY AGREES, FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES, (I) TO TREAT THE SECURITIES AS INDEBTEDNESS OF THE COMPANY SUBJECT TO
UNITED STATES


 


22

















 


TREASURY
REGULATIONS SECTION 1.1275-4 (THE “CONTINGENT
DEBT REGULATIONS”) AND, FOR PURPOSES OF THE CONTINGENT DEBT
REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF ANY COMMON STOCK BENEFICIALLY
RECEIVED UPON CONVERSION AS A CONTINGENT PAYMENT, (II) TO BE BOUND BY THE
COMPANY’S DETERMINATION OF THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT
SCHEDULE,” WITHIN THE MEANING OF THE CONTINGENT DEBT REGULATIONS, WITH RESPECT
TO SUCH HOLDER’S SECURITIES AND (III) TO USE SUCH “COMPARABLE YIELD” AND “PROJECTED
PAYMENT SCHEDULE” IN DETERMINING INTEREST ACCRUALS WITH RESPECT TO SUCH HOLDER’S
SECURITIES AND IN DETERMINING ADJUSTMENTS THERETO. A HOLDER OF SECURITIES MAY OBTAIN
THE ISSUE PRICE, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND THE
PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO:  MICROCHIP TECHNOLOGY INCORPORATED,
2355 W. CHANDLER BLVD., CHANDLER, AZ 85224, ATTENTION:  CHIEF FINANCIAL OFFICER.


 


23

















 


2.125% Junior Convertible Subordinated Debentures due 2037


 


	
  No.________

  	
  CUSIP NO.

  	
  U.S. $________

  



 


Microchip
Technology Incorporated, a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the “Company”), which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of 
              
($________) (which amount may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary, in accordance with the rules and procedures of the Depositary)
on December 15, 2037. The Principal Amount of this Security shall be
payable at the Corporate Trust Office and at any other office or agency maintained
for such purpose and at any other office or agency maintained by the Company
for such purpose. Interest on this Security will be payable (i) to Holders
having an aggregate Principal Amount of $5,000,000 or less of Securities, by
check mailed to such Holders and (ii) to Holders having an aggregate
Principal Amount of more than $5,000,000 of Securities, either by check mailed
to such Holders or, upon application by a Holder to the Security Registrar not
later than the relevant Record Date for such Interest payment, by wire transfer
in immediately available funds to such Holder’s account within the United
States.


 


The issue date
of this Security is December 7, 2007.


 


Reference is
made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Company the right to
redeem this Security under certain circumstances and provisions giving the
Holder the right to convert this Security into Common Stock of the Company and
to require the Company to repurchase this Security upon certain events, in each
case, on the terms and subject to the limitations referred to on the reverse
hereof and as more fully specified in the Indenture. Such further provisions
shall for all purposes have the same effect as though fully set forth at this
place. Capitalized terms used but not defined herein shall have such meanings
as are ascribed to such terms in the Indenture.


 


This Security
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by the
laws of said State.


 


This Security
shall not be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been manually signed by the Trustee or a
duly authorized authenticating agent under the Indenture.


 


24

















 


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


 


MICROCHIP
TECHNOLOGY


INCORPORATED


 


	
   

  
	
  By:

  	
   

  
	
  Authorized Signatory

  
	
   

  



 


25

















 


Section 2.03. Form of
Reverse of Security.


 


MICROCHIP TECHNOLOGY INCORPORATED


 


2.125% Junior Subordinated Convertible Debentures due 2037


 


This Security
is one of a duly authorized issue of Securities of the Company, designated as
its 2.125% Junior Convertible Subordinated Debentures due 2037 (the “Securities”), all issued or to be issued
under and pursuant to an Indenture dated as of December 7, 2007 (the “Indenture”), between the Company and Wells
Fargo Bank, National Association (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities.


 


Interest.
The Securities will bear Regular Interest at a rate of 2.125% per year, payable
semi-annually in arrears on June 15 and December 15 of each year
beginning on June 15, 2008. In addition to Regular Interest, the
Securities will also bear Contingent Interest (i) commencing on December 15,
2017, during any semi-annual interest period in which the average trading price
of the Securities for the 10 Trading Day period immediately preceding the first
day of such semi-annual period is greater than or equal to $1,500 per $1,000
Principal Amount of the Securities, at a rate of 0.50% of such trading price
per annum, (ii) commencing on December 15, 2017, during any
semi-annual interest period in which the average trading price of the
Securities for the 10 Trading Day period immediately preceding the first day of
such semi-annual period is less than or equal to a threshold that will
initially be set at $400 per $1,000 Principal Amount of the Securities and that
will increase over time up to a maximum of $950 per $1,000 in accordance with
the Indenture, at a rate of 0.25% of such trading price per annum and (iii) at
any time that Securities are outstanding in the event that the Company pays an
extraordinary cash dividend or distribution to holders of the Common Stock that
the Company’s Board of Directors designates as payable to Holders of the
Securities.


 


So long as the
Company is not in Default in the payment of Interest on the Securities, the
Company may defer the payment of Interest on the Securities (other than
Contingent Interest relating to an Extraordinary Dividend and Additional
Interest) for a period not to exceed 10 consecutive semi-annual interest
payment periods, during which time Compounded Interest will accrue as provided
in the Indenture.


 


Subordination.
The Securities are unsecured junior obligations of the Company subordinated in
right of payment to the Company’s existing and future Senior Debt, and the
Securities are issued subject to such provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on its behalf to take such action as may be necessary or


 


26

















 


appropriate to
effectuate the subordination so provided and (c) appoints the Trustee its
attorney-in-fact for any and all such purposes.


 


Redemption at
the Option of the Company. No sinking fund is provided
for the Securities. The Securities are redeemable as a whole, or from time to
time in part, (i) at any time commencing on December 15, 2017 at the
option of the Company if the Last Reported Sale Price of the Common Stock has
been at least 150% of Conversion Price then in effect for at least 20 Trading
Days during any 30 consecutive Trading Day period prior to the date on which
the Company provides notice of redemption and (ii) on or prior to June 7,
2008, if certain U.S. federal tax legislation, regulations or rules are
enacted or are issued. The redemption price (the “Redemption
Price”) for any such redemption is an amount of cash equal to (a) in
the case of a redemption described in clause (i) above, 100%, expressed as
a percentage of the Principal Amount of Securities to be redeemed, together
with accrued and unpaid Interest to, but excluding, the Redemption Date and (b) in
the case of a redemption described in clause (ii) above, 101.5%, expressed
as a percentage of the Principal Amount of Securities to be redeemed, together
with accrued and unpaid Interest to, but excluding, the Redemption Date and, if
the Conversion Parity Value of the Securities being redeemed exceeds their
Initial Conversion Value, 91% of the amount determined by subtracting the
Initial Conversion Value of the Securities being redeemed from their Conversion
Parity Value.


 


Repurchase by
the Company at the Option of the Holder Upon a Fundamental Change.
Subject to the terms and conditions of the Indenture, the Company shall become
obligated, at the option of the Holder, to repurchase the Securities if a
Fundamental Change occurs at any time prior to the Stated Maturity at 100% of
the Principal Amount plus accrued and unpaid Interest to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental
Change Repurchase Price”), which Fundamental Change Repurchase Price
will be paid in cash. If the Fundamental Change Repurchase Date is between a
regular Record Date and the Interest Payment Date to which it relates, the
Company will pay accrued and unpaid interest to the holder of record on such
regular Record Date.


 


Withdrawal of
Repurchase Notice and Fundamental Change Repurchase Notice.
Holders have the right to withdraw, in whole or in part, any Repurchase Notice
or Fundamental Change Repurchase 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.


 


Payment of
Redemption Price, Repurchase Price and Fundamental Change Repurchase Price.
If cash sufficient to pay the Redemption Price or Fundamental Change Repurchase
Price, as the case may be, of all Securities or portions thereof to be redeemed
or repurchased on a Redemption Date or on a Fundamental Change Repurchase Date,
as the case may be, is deposited with the Paying Agent on the Redemption Date
or the Fundamental Change Repurchase Date, as the case may be, such Securities
will cease to be outstanding and Interest will cease to accrue on such
Securities (or portions thereof) immediately after such Redemption Date or
Fundamental Change Repurchase Date, as the case


 


27

















 


may be, and
the Holder thereof shall have no other rights as such (other than the right to
receive the Redemption Price or Fundamental Change Repurchase Price, as the
case may be, upon surrender of such Security).


 


Conversion.
Subject to and in compliance with the provisions of the Indenture (including
without limitation the conditions of conversion of this Security set forth in Article 9
thereof), the Holder hereof has the right, at its option, to convert the
Principal Amount hereof or any portion of such principal which is $1,000 or an
integral multiple thereof, into, subject to Section 9.01 of the Indenture,
cash and/or shares of Common Stock, at the Conversion Rate. The initial
Conversion Rate is 29.2783 shares of Common Stock per $1,000 Principal Amount
of Securities, subject to adjustment in certain events described in the
Indenture. Upon conversion, the Company will pay cash, shares of Common Stock,
or any combination thereof, equal to the Settlement Amount, as set forth in the
Indenture. No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Securities for conversion. Securities in respect of which a
Holder is exercising its right to require repurchase on a Fundamental Change
Repurchase Date may be converted only if such Holder withdraws its election to
exercise such right in accordance with the terms of the Indenture.


 


Upon
conversion, the Company shall deliver, for each $1,000 principal amount of
Securities being converted, cash, shares of Common Stock or any combination
thereof equal to the Settlement Amount in accordance with the Indenture.


 


In the event
of a deposit or withdrawal of an interest in this Security, including an
exchange, transfer, repurchase or conversion of this Security in part only, the
Trustee, as custodian of the Depositary, shall make an adjustment on its
records to reflect such deposit or withdrawal in accordance with the rules and
procedures of the Depositary.


 


Subject to
certain limitations in the Indenture, at any time prior to the expiration of
the Rule 144(k) Holding Period when the Company is not subject to Section 13
or 15(d) of the United States Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder, to the extent
required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the “Securities
Act”). “Rule 144A Information”
shall be such information as is specified pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto).


 


28

















 


If an Event of
Default shall occur and be continuing, the Principal Amount plus Interest,
through such date on all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.


 


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


 


As provided in
and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of at least 25% in aggregate Principal Amount of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity satisfactory to it, the Trustee shall not have
received from the Holders of a majority in Principal Amount of Outstanding
Securities a direction inconsistent with such request, and the Trustee shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the Principal Amount, Interest, Redemption Price or Fundamental
Change Repurchase Price hereof on or after the respective due dates expressed
herein.


 


No reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the Principal Amount, Redemption Price or Fundamental
Change Repurchase Price of, and Interest on, this Security at the times, place
and rate, and in the coin or currency, herein prescribed but subject, however,
to the terms of subordination set forth in the Indenture.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company, duly endorsed by, or accompanied by a written instrument of
transfer


 


29

















 


in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee or transferees.


 


The Securities
are issuable only in registered form in denominations of $1,000 and any
integral multiple of $1,000 above that amount, as provided in the Indenture and
subject to certain limitations therein set forth. Securities are exchangeable
for a like aggregate Principal Amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service
charge shall be made for any such registration of transfer or exchange, but the
Company and the Security Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.


 


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


 


This
Security shall be governed by and construed in accordance with the laws of the
State of New York.


 


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


 


30

















 


ASSIGNMENT FORM


 


If you want to
assign this Security, fill in the form below and have your signature
guaranteed:


 


I or we assign
and transfer this Security to:


 


	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  



 


(Print or type
name, address and zip code and social security or tax ID number of assignee)


 


	
  and irrevocably appoint

  	
   

  	
  agent to

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

  



 


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  



 


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


 


	
  Signature Guarantee:

  	
   

  



 


Note:
Signatures must be guaranteed by an “eligible guarantor institution” meeting
the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Security Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.


 


31

















 


In connection
with any transfer of this Security occurring prior to the date which is the
earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act, as amended
(the “Securities Act”), covering
resales of this Security (which effectiveness shall not have been suspended or
terminated at the date of the transfer) and (ii) the second anniversary of
the Issue Date set forth on the face of this Security (subject to reduction as
set forth in Section 2.06 of the Indenture), the undersigned confirms that
it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Security is being transferred:


 


[Check One]


 


	
  (1)

  	
   

  	
  o

  	
   

  	
  to the Company or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  o

  	
   

  	
  to a “Qualified Institutional Buyer” pursuant to and in compliance
  with Rule 144A under the Securities Act; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  o

  	
   

  	
  pursuant to the exemption from registration provided by Rule 144
  under the Securities Act.

  



 


Unless one of
the above boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof, provided
that if box (3) is checked, the Company may require (and shall deliver to
the Trustee and the Security Registrar), prior to registering any such transfer
of the Securities, in its sole discretion, such legal opinions, certifications
and other information as the Company may reasonably request 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.


 


If none of the
foregoing boxes is checked, the Trustee or Security Registrar shall not be
obligated to register this Security in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 3.09 of the Indenture shall have been
satisfied.


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
									



 


Note:
Signatures must be guaranteed by an “eligible guarantor institution” meeting
the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Security Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.


 


32

















 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE
IS CHECKED


 


The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A
under the Securities Act and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.


 


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  



 


NOTICE:  To be executed by an executive officer.


 


33

















 


CONVERSION NOTICE


 


If you want to convert this
Security, check the box: 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):


 


	
  $

  	
   

  	
   

  



 


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


 


	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

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

  	
   

  



 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  
									



 


Note:  Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Security Registrar,
which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”)
or such other “signature guarantee program” as may be determined by the
Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.


 


Section 2.04. Form of Trustee’s
Certificate of Authentication. This is one of the Securities
referred to in the within-mentioned Indenture.


 


	
  Dated:
  

  	
   

  	
   

  	
   

  	
  Wells
  Fargo Bank, National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


Section 2.05. Legend on Restricted
Securities. During the period beginning on the Issue Date and ending
on the date two years from such date, any Security, including any Security
issued in exchange therefor or in lieu thereof,


 


34

















 


shall be deemed a “Restricted
Security” and shall be subject to the restrictions on transfer
provided in the legends set forth on the face of the form of Security in Section 2.02;
provided, however, that the term “Restricted Security” shall not include any
Securities as to which restrictions have been terminated in accordance with Section 3.05. All Securities shall bear the applicable
legends set forth on the face of the form of Security in Section 2.02.
Except as provided in Section 3.05  and
Section 3.09, the Trustee shall not issue any
unlegended Security until it has received an Officers’ Certificate from the
Company directing it to do so.


 


Section 2.06. Rule 144(k)
Amendment.


 


(a)                                  If Rule 144(k) is amended to change the
two-year period referred to therein, effective upon delivery of the Officer’s
Certificate and Opinion of Counsel, if any, referred to in Section 2.06(b),
the references in the legends in Section 2.02, Exhibit C and any
Security to “TWO YEARS” shall be deemed for all purposes hereof to be
references to such changed period; provided, that
such changes shall not become effective if they are otherwise prohibited by, or
would otherwise cause a violation of the then applicable federal securities
laws.


 


(b)                                 As soon as practicable after the Company has
knowledge of the effectiveness of any amendment to Rule 144(k) to change
the two-year period referred to therein, the Company shall provide to the
Trustee an Officer’s Certificate and, if requested by the Trustee, an Opinion
of Counsel, informing the Trustee of the effectiveness of such amendment and
the effectiveness of such changes to this Indenture and the Securities.


 


ARTICLE 3

THE SECURITIES


 


Section 3.01. Title And Terms;
Payments. The aggregate Principal Amount of Securities that may be
authenticated and delivered under this Indenture is initially limited to
$1,030,000,000 (or up to $1,150,000,000 to the extent the Initial Purchasers
exercise their overallotment option granted pursuant to the Purchase
Agreement), except for Securities authenticated and delivered upon registration
or transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Sections 3.04, 3.05, 3.06, 7.06, 8.05 or 15.06.


 


The Securities shall be
known and designated as the “2.125% Junior Subordinated Convertible Debentures
due 2037” of the Company. The Principal Amount shall be payable at the Stated
Maturity.


 


The Securities will not have
the benefit of a sinking fund.


 


The Securities will be
subordinated to all Senior Debt of the Company.


 


35

















 


The Principal
Amount of and Interest on Global Securities registered in the name of The
Depository Trust Company or its nominee shall be paid by wire transfer in
immediately available funds to The Depository Trust Company or its nominee, as
applicable.


 


The Principal
Amount of Physical Securities shall be payable at the Corporate Trust Office
and at any other office or agency maintained for such purpose and at any other
office or agency maintained by the Company for such purpose. Interest on
Physical Securities will be payable (i) to Holders having an aggregate
Principal Amount of $5,000,000 or less of Securities, by check mailed to such
Holders at the address set forth in the Security Registrar and (ii) to
Holders having an aggregate Principal Amount of more than $5,000,000 of
Securities, either by check mailed to such Holders or, upon application by a
Holder to the Security Registrar not later than the relevant Record Date for
such Interest payment, by wire transfer in immediately available funds to such
Holder’s account within the United States, which application shall remain in
effect until the Holder notifies the Security Registrar to the contrary in
writing.


 


Section 3.02.
Denominations. The Securities shall be issuable only in registered
form without coupons and in denominations of $1,000 and any integral multiple
of $1,000 above that amount.


 


Section 3.03. Execution,
Authentication, Delivery and Dating. The Securities shall be
executed on behalf of the Company by the Chairman of the Board of Directors,
its President, or one of its Vice Presidents.


 


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


 


At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities. The Company Order shall specify the amount of
Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical Securities. The
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.


 


Each Security
shall be dated the date of its authentication.


 


No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be


 


36

















 


conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder.


 


Section 3.04. Temporary Securities. Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that 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 evidenced by their execution of
such Securities; provided, that
any such temporary Securities shall bear legends on the face of such Securities
as set forth in Section 2.02.


 


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 any office or agency of the Company
designated pursuant to Section 6.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
Physical Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as Physical Securities.


 


Section 3.05. Registration;
Registration of Transfer and Exchange; Restrictions on Transfer. (a) The Company shall cause to
be kept at the applicable Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 6.02 being herein sometimes
collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
transfers of Securities. The Trustee is hereby appointed “Security Registrar”
(the “Security Registrar”) for the
purpose of registering Securities and transfers of Securities as herein
provided.


 


Upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 6.02  for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate
Principal Amount and tenor, each such Security bearing such restrictive legends
as may be required by this Indenture (including Sections 2.02, 2.05 and 3.09).


 


At the option of the Holder
and subject to the other provisions of this Section 3.05 and to Section 3.09,
Securities may be exchanged for other Securities of any authorized
denominations and of a like aggregate Principal


 


37

















 


Amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.


 


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


 


Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing. As a condition to the registration of transfer of any Restricted
Securities, the Company or the Trustee may require evidence satisfactory to
them as to the compliance with the restrictions set forth in the legend on such
securities.


 


Except as provided in the
following sentence and in Section 3.09, all Securities originally issued
hereunder and all Securities issued upon registration of transfer or exchange
or replacement thereof shall be Restricted Securities and shall bear the
legends required by Sections 2.02 and 2.05,
unless the Company shall have delivered to the Trustee (and the Security
Registrar, if other than the Trustee) a Company Order stating that the Security
is not a Restricted Security and may be issued without such legend thereon.
Securities that are issued upon registration of transfer of, or in exchange
for, Securities that are not Restricted Securities shall not be Restricted
Securities and shall not bear such legend.


 


No service charge shall be
made for any registration of transfer or exchange of Securities, but the
Company and the Security Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04 not involving any transfer.


 


Neither the Company nor the
Security Registrar shall be required to exchange or register a transfer of any
Security (i) during the period beginning at the opening of business 15
days before the earliest date on which a notice of redemption is deemed to have
been given to all Holders of Securities to be redeemed and ending at the close
of business on the date on which a notice of redemption is deemed to have been
given to all Holders of Securities to be redeemed, (ii) after any notice
of redemption has been given to Holders, except that where such notice provides
that such Security is to be redeemed only in part, the Company and the Security
Registrar shall be required to exchange or register a transfer of the portion
thereof not to be redeemed, (iii) that has been surrendered for conversion
or (iv) as to which a Fundamental Change Repurchase Notice has


 


38

















 


been delivered and not
withdrawn, except that where such Fundamental Change Repurchase Notice provides
that such Security is to be purchased only in part, the Company and the
Security Registrar shall be required to exchange or register a transfer of the
portion thereof not to be purchased.


 


(b)                                 Beneficial ownership of every Restricted
Security shall be subject to the restrictions on transfer provided in the
legends required to be set forth on the face of each Restricted Security
pursuant to Sections 2.02 and 2.05, unless such restrictions on transfer shall
be terminated in accordance with this Section 3.05(b) or Section 3.09.
The Holder of each Restricted Security, by such Holder’s acceptance thereof,
agrees to be bound by such restrictions on transfer.


 


The restrictions imposed by
this Section 3.05 and by Sections 2.02, 2.05 and 3.09 upon
the transferability of any particular Restricted Security shall cease and
terminate upon such Restricted Security having been sold pursuant to an
effective Resale Registration Statement under the Securities Act or transferred
in compliance with Rule 144 (including Rule 144A) under the
Securities Act (or any successor provision thereto). Any Restricted Security as
to which the restrictions on transfer shall have expired in accordance with
their terms or shall have terminated may, upon surrender of such Restricted
Security for exchange to the Security Registrar in accordance with the
provisions of this Section 3.05, be exchanged for a new Security, of like
tenor and aggregate Principal Amount, which shall not bear the restrictive
legends required by Sections 2.02 and 2.05.
The Company shall inform the Trustee in writing of the effective date of any
Resale Registration Statement registering the Securities under the Securities
Act. The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the aforementioned resale
registration statement.


 


As used in the preceding two
paragraphs of this Section 3.05, the term “transfer” encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.


 


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


 


Section 3.06. Mutilated, Destroyed,
Lost and Stolen Securities. If any mutilated Security is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of like tenor and Principal
Amount and bearing a number not contemporaneously outstanding.


 


If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any


 


39

















 


agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor
and Principal Amount and bearing a number not contemporaneously outstanding.


 


In case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable or has been called for redemption in full, the Company
in its discretion may, instead of issuing a new Security, pay such Security.


 


Upon the
issuance of any new Security under this Section 3.06, the Company may
require payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


Every new
Security issued pursuant to this Section 3.06 in lieu of any 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 the benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.


 


The provisions
of this Section 3.06 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 3.07. Persons
Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee, the Security Registrar and
any agent of the Company, the Trustee or the Security Registrar may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of the principal of such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee, the Security Registrar nor any agent of the
Company, the Trustee or the Security Registrar shall be affected by notice to
the contrary.


 


Section 3.08. Book-Entry
Provisions For Global Securities. (a)  The Global Securities
initially shall (i) be registered in the name of the Depositary or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for the Depositary and (iii) bear legends as set forth on the face of the
form of Security in Section 2.02.


 


Members of, or
participants in, the Depositary (“Agent
Members”) shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary, or the Trustee as
its custodian, or under the Global


 


40

















 


Security, and
the Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the 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 impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of any Holder.


 


(b)                                 Transfers of the Global Securities shall be
limited to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred or exchanged, in whole or in part, for
Physical Securities in accordance with the rules and procedures of the
Depositary and the provisions of Section 3.09. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Securities if (A) such
Depositary has notified the Company that the Depositary (i) is unwilling
or unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act when the
Depositary is required to be so registered to act as such Depositary and, in
either such case, no successor Depositary shall have been appointed within 90
days of such notification, (B) there shall have occurred and be continuing
an Event of Default with respect to such Global Security and the Outstanding
Securities shall have become due and payable pursuant to Section 10.02  and the Trustee requests that Physical Securities
be issued or (C) the Company, at its option, notifies the Trustee that it
elects to cause the issuance of Physical Securities, subject to applicable
procedures of the Depositary; provided
that Holders of Physical Securities offered and sold in reliance on Rule 144A
shall have the right, subject to applicable law, to request that such
Securities be exchanged for interests in the applicable Global Security.


 


(c)                                  In connection with
any transfer or exchange of a portion of the beneficial interest in the Global
Security to beneficial owners pursuant to paragraph (b) above, the
Security Registrar shall (if one or more Physical Securities are to be issued)
reflect on its books and records the date and a decrease in the Principal
Amount of the Global Security in an amount equal to the Principal Amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.


 


(d)                                 In connection with the
transfer of the entire Global Security to beneficial owners pursuant to
paragraph (b) above, the Global Security shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security, an
equal aggregate Principal Amount of Physical Securities of authorized
denominations and the same tenor.


 


41

















 


(e)                                  Any Physical Security constituting a
Restricted Security delivered in exchange for an interest in the Global Security
pursuant to paragraph (c) or (d) above
shall, except as otherwise provided by Section 3.09,
bear the legend regarding transfer restrictions applicable to the Physical
Securities set forth on the face of the form of Security in Section 2.02.


 


(f)                                    The Holder of the Global Securities may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action that a Holder
is entitled to take under this Indenture or the Securities.


 


Section 3.09. Cancellation and
Transfer Provisions. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel
and dispose of all Securities surrendered for registration of transfer,
exchange, payment, purchase, repurchase, redemption, conversion (pursuant to Article 9  hereof) or
cancellation in accordance with its customary practices. If the Company shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.


 


(a)                                  Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB:


 


(i)                                     the Security Registrar shall register the
transfer if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Security Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A;
and


 


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(ii)                                  if
the proposed transferee is an Agent Member, and the Securities to be
transferred consist of Physical Securities which after transfer are to be
evidenced by an interest in the Global Security, upon receipt by the Security
Registrar of instructions given in accordance with the Depositary’s and the
Security Registrar’s procedures, the Security Registrar shall reflect on its
books and records the date and an increase in the Principal Amount of the
Global Security in an amount equal to the Principal Amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.


 


(b)                                 Private Placement Legend. Upon the
registration of transfer, exchange or replacement of Securities not bearing the
legends required by Sections 2.02 and 2.05, the Security Registrar shall
deliver Securities that do not bear such legends. Except in the case of a
registration of transfer, exchange or replacement pursuant to an effective
shelf registration statement as contemplated by the Registration Rights
Agreement or upon expiration of the Rule 144(k) Holding Period, upon the
registration of transfer, exchange or replacement of Securities bearing the
legends required by Sections 2.02 and 2.05, the Security Registrar shall
deliver only Securities that bear such legends unless there is delivered to the
Security Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.


 


(c)                                  General. By its acceptance of any Security
bearing the legends required by Sections 2.02 and 2.05, each Holder of such a
Security acknowledges the restrictions on transfer of such Security set forth
in this Indenture and in such legends and agrees that it will transfer such
Security only as provided in this Indenture.


 


The Security Registrar shall
retain, in accordance with its customary procedures, copies of all letters,
notices and other written communications received pursuant to this Section 3.09. 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 Security Registrar.


 


Section 3.10. CUSIP
Numbers. In issuing the Securities, the Company 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.


 


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ARTICLE 4

INTEREST


 


Section 4.01. Generally.


 


(a)                                 Regular interest (“Regular Interest”) shall accrue on the
Securities from December 7, 2007 at a rate of 2.125% per annum until the
principal thereof is paid or made available for payment. Regular Interest shall
be payable semi-annually in arrears on June 15 and December 15 of
each year, commencing June 15, 2008.


 


(b)                                 Interest on the
Securities shall be computed (i) for any full semi-annual period for which
a particular interest rate (inclusive of any Contingent Interest, Additional
Interest or Compounded Interest payable with respect to the Securities) is
applicable, on the basis of a 360-day year of twelve 30-day months and (ii) for
any period for which a particular interest rate (inclusive of any Contingent
Interest, Additional Interest or Compounded Interest payable with respect to
the Securities) is applicable shorter than a full semi-annual period for which
interest is calculated, on the basis of a 30-day month and, for such periods of
less than a month, the actual number of days elapsed over a 30-day month.


 


(c)                                  Except as otherwise provided in this Section 4.01(c), a Holder of any Securities at the close
of business on a Record Date shall be entitled to receive Interest on such
Securities on the corresponding Interest Payment Date.


 


(i)             A
Holder of any Securities as of a Record Date that are converted after the close
of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall receive Interest on the principal
amount of such Securities, notwithstanding the conversion of such Securities
prior to such Interest Payment Date. However, a Holder that surrenders any
Securities for conversion between the close of business on a Record Date and the
opening of business on the corresponding Interest Payment Date shall be
required to pay the Company an amount equal to the Interest payable by the
Company with respect to such Securities on such Interest Payment Date at the
time such Holder surrenders such Securities for conversion, provided, however,
that this sentence shall not apply to a Holder that converts Securities:


 


(A)       in respect of which the Company has given notice of redemption pursuant
to Section 7.03 on a Redemption Date that is after
the relevant Record Date and on or prior to the relevant Interest Payment Date;


 


(B)       in
respect of which the Company has specified a Fundamental Change Repurchase Date
that is after the relevant


 


44

















 


Record Date and
on or prior to the relevant Interest Payment Date; or


 


(C)       following
the Record Date for the payment of Regular Interest on December 15, 2037.


 


Accordingly, a
Holder that converts Securities under any of the circumstances described in
clauses (A), (B) or (C) above will not be required to pay to the
Company an amount equal to the Interest payable by the Company with respect to
such Securities on the relevant Interest Payment Date.


 


(ii)          Notwithstanding any other provision of this Section 4.01(c),
a Holder of any Security that surrenders Securities for conversion shall not be
required to pay to the Company any Deferred Interest, Compounded Interest or
overdue interest that exists on the Conversion Date for such conversion,
regardless of whether the Conversion Date for such conversion falls between the
close of business on a Record Date and the opening of business on the
corresponding Interest Payment Date.


 


(iii)       Notwithstanding any other provision of this Section 4.01(c),
any Interest payable on a Redemption Date that falls between the close of
business on a Record Date and the opening of business on the corresponding
Interest Payment Date shall be payable to the Holder of the Securities being
redeemed as provided in Section 7.01(b) and
shall not be payable to the Holder on the Record Date immediately preceding
such redemption. The payment of such Interest to the Holder of the Securities
being redeemed as provided in Section 7.01(b) shall
be deemed to satisfy the Company’s obligations in respect of such Interest.


 


Section 4.02. Contingent
Interest. (a) Contingent
interest on the Securities (“Contingent
Interest”) shall accrue and the Company shall pay such Contingent
Interest to the Holders as follows:


 


(i)             beginning
with the six-month interest payment period commencing December 15, 2017:


 


(A)       during
any six-month interest payment period with respect to which the average Trading
Price for the 10 Trading Days immediately preceding the first day of such
six-month interest payment period is greater than or equal to the Upside
Trigger, in which case the Contingent Interest payable on each $1,000 Principal
Amount for such six-month interest payment period shall be equal to 0.50% per
annum of the average Trading Price for the 10 Trading Days immediately
preceding the first day of such six-month interest payment period;


 


(B)       during
any six-month interest payment period with respect to which the average Trading
Price for the 10 Trading


 


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Days
immediately preceding the first day of such six-month interest payment period
is less than or equal to the Downside Trigger that is applicable to such
period, in which case the Contingent Interest payable on each $1,000 Principal
Amount for such six-month interest payment period shall be equal to 0.25% per
annum of the average Trading Price for the 10 Trading Days immediately
preceding the first day of such six-month interest payment period; and


 


(ii)          at
any time Securities are outstanding, upon the declaration by the Company’s
Board of Directors of an extraordinary cash dividend or distribution that in
either case is made to all or substantially all holders of the Common Stock and
that the Company’s Board of Directors designates as payable with respect to the
Securities (an “Extraordinary Dividend”),
in which case (A) Contingent Interest will be payable on the same date as,
and in an amount equal to, the dividend or distribution that a Holder would
have received had such Holder converted its Securities and the Company had
settled such conversion obligation entirely in shares of Common Stock
immediately prior to the record date for the payment of the corresponding
dividend or distribution to holders of the Common Stock (calculated as if such
Securities had been converted entirely into shares of Common Stock) and (B) the
record date for the payment of such Interest shall be the same as the record
date for the payment of the corresponding extraordinary dividend or
distribution to holders of the Common Stock.


 


(b)                                 For purposes of this Article 4,
if the Bid Solicitation Agent cannot reasonably obtain at least one bid for
$5,000,000 Principal Amount of Securities from an independent nationally
recognized securities dealer as required by the definition of “Trading Price”
or, in the reasonable judgment of the Company’s Board of Directors (or a
committee thereof) the bid quotations are not indicative of the secondary
market value of the Securities, then the Trading Price per $1,000 Principal
Amount of Securities will be determined by the Company’s Board of Directors (or
a committee thereof) based on a good faith estimate of the fair value of the
Securities.


 


(c)                                  The Bid Solicitation
Agent shall not determine the Trading Price of the Securities unless requested
by the Company to make such determination. The Company shall have no obligation
to determine the Trading Price of the Securities or to request the Bid
Solicitation Agent to determine the Trading Price of the Securities unless a
Holder of Securities provides the Company with reasonable evidence that the
Trading Price of the Securities is greater than or equal to the Upside Trigger
or is less than or equal to the Downside Trigger, at which time the Company
shall instruct the Bid Solicitation 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 of the Securities is less than the Upside Trigger or is
greater than the Downside Trigger, as applicable.


 


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Section 4.03. Trustee’s
Responsibilities in Respect of Contingent Interest. The Company
shall determine whether Holders are entitled to receive Contingent Interest,
and if so, provide notice to the Trustee and all Holders of record of the
Securities. Simultaneously with providing such notice, the Company shall
publish a notice containing the information included therein once in a
newspaper of general circulation in The City of New York or publish such
information on the Company’s website or through such other public medium as the
Company may use at such time. Notwithstanding any term contained in this
Indenture or any other document to the contrary, the Trustee shall have no
responsibilities, duties or obligations for or with respect to (i) determining
whether the Company must pay Contingent Interest or (ii) determining the
amount of Contingent Interest, if any, payable by the Company.


 


Section 4.04. Payment of Contingent
Interest. Subject to Section 4.02  hereof, Contingent Interest for any six-month
interest payment period shall be paid on the applicable Interest Payment Date
to the Holder in whose name any Security is registered on the Security Register
on the corresponding Record Date. Contingent Interest due under this Article 4
shall be treated for all purposes of this Indenture like any other interest
accruing on the Securities.


 


Section 4.05.
[RESERVED].


 


Section 4.06. Option to
Extend Interest Payment. (a) Subject
to the provisions of this Article 4, the Company may from time to time
extend the time for payments of Interest on the Securities other than
Contingent Interest paid in connection with any Extraordinary Dividend and
Additional Interest (any period during which payments are so extended, an “Extension Period”); provided, however,
that no Extension Period may commence if at such time there exists a Default in
the payment of Interest on the Securities. The Company may specify the length
of any Extension Period so declared, may further extend any Extension Period
prior to the termination of such Extension Period and, subject to the
provisions of this Article 4, may declare successive Extension Periods, provided, however,
that no Extension Period or series of successive Extension Periods (i) may
exceed ten consecutive six-month interest payment periods in duration or (ii) may
extend beyond the Stated Maturity of the Securities. Upon termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new extension period, subject to the above requirements.


 


(b)                                 No Interest (other
than Contingent Interest paid in connection with any Extraordinary Dividend and
Additional Interest) will be due and payable during any Extension Period, but
Deferred Interest will accrue and all such accrued and unpaid Deferred Interest
will itself bear interest at the Comparable Yield Rate, compounded
semi-annually (such interest, “Compounded
Interest”). The Company may prepay Deferred Interest at any time by
designating a Record Date and Interest Payment Date for the payment thereof and
providing not less than 30 nor more than 60 days’ notice of such dates, to the
Trustee and the Holders, together with the amount of Deferred Interest to be
prepaid.


 


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(c)                                  Any Extension Period in effect shall automatically
terminate upon the occurrence of a Default or Event of Default or upon receipt
by the Trustee of notice from the Company delivered pursuant to the terms of Section 1.05 or upon notice by the Company to the Trustee in
accordance with the provisions of this Indenture.


 


(d)                                 On the first Interest
Payment Date occurring on or after the end of each Extension Period, the
Company will pay to the Holders of record on the Record Date for such Interest
Payment Date, regardless of who the Holders of record may have been on other
dates during such Extension Period, all accrued and unpaid Deferred Interest,
including Compounded Interest. Upon termination of any Extension Period and the
payments of all amounts then due, the Company may commence a new Extension Period,
subject to the requirements set forth in this Section 4.06.


 


Section 4.07. Actions
Prohibited During Extension Periods. During any Extension Period
(and, with respect to Section 4.07(c), at any time that there exists any
accrued and unpaid Deferred Interest with respect to any Securities), the
Company shall not:


 


(a)                                 declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of the Company’s Common Stock or
preferred stock, or make any guarantee payments with respect thereto; provided, however
that the foregoing will not apply:


 


(i)             to
repurchases, redemptions or other acquisitions of shares of the Company’s
Capital Stock in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors
or consultants, which contract, plan or arrangement is approved by the Company’s
Board of Directors;


 


(ii)          as
a result of an exchange or conversion of any class or series of the Company’s
Capital Stock for any other class or series of the Company’s Capital Stock;


 


(iii)       to
the purchase of fractional interests in shares of the Company’s Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or a
security being converted or exchanged into such Capital Stock;


 


(iv)      to
stock dividends or other stock distributions (including rights, warrants or
options to purchase Capital Stock) paid by the Company; or


 


(b)                                 make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
of the Company’s debt securities that rank in right of payment pari passu with, or junior to, the
Securities; or


 


48

















 


(c)                                  redeem the Securities
pursuant to Article 7 hereof or give notice of redemption of the
Securities pursuant to Section 7.03 hereof.


 


Section 4.08.
Notification of Extension Period. The Company shall give written
notice to the Trustee of the commencement of an Extension Period (and shall
direct the Trustee to deliver such notice to each Holder of Securities) at
least 16 calendar days prior to the earlier of (i) the next succeeding
Interest Payment Date and (ii) the date on which the Company is required
to give notice to the Nasdaq Global Select Market (if the Securities are then
listed thereon) or other applicable self-regulatory organization or to Holders
of the Securities of the record or payment date of the related interest
payment. Such notice shall specify the commencement and end of such Extension
Period and the Comparable Yield Rate applicable to any Compounded Interest that
may accrue during such Extension Period.


 


ARTICLE 5

SUBORDINATION


 


Section 5.01. Agreement
of Subordination. The Company covenants and agrees, and each Holder
of Securities issued hereunder by its acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this Article 5;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees to be bound by
such provisions.


 


The payment of the principal
of and Interest on all Securities (including, but not limited to, the
Redemption Price and the Fundamental Change Repurchase Price with respect to
the Securities subject to redemption or repurchase in accordance with
Articles 7 and 8, respectively, and the payment of any cash upon
conversion in accordance with Article 9) issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior payment in full in
cash or other payment satisfactory to the holders of Senior Debt of all Senior
Debt, whether outstanding at the date of this Indenture or thereafter incurred.


 


No provision
of this Article 5 shall prevent the occurrence of any Default or Event of
Default hereunder.


 


Section 5.02. Payments to Holders. No
payment shall be made with respect to the principal of or Interest on the
Securities (including, but not limited to, the Redemption Price and the
Fundamental Change Repurchase Price with respect to the Securities subject to
redemption or purchase in accordance with Articles 7 and 8, respectively,
and any payment of cash upon conversion in accordance with Article 9),
except payments and distributions made by the Trustee as permitted by Section 5.05, if:


 


49

















 


(a)                                 a default in the
payment of principal, premium, interest or other amounts due on any Senior
Debt, or in respect of any redemption or repurchase obligation under any Senior
Debt, occurs and is continuing (or, in the case of Senior Debt for which there
is a period of grace, in the event of such a default that continues beyond the
period of grace, if any, specified in the instrument or lease evidencing such
Senior Debt) (a “Payment Default”);
or


 


(b)                                 a default, other than
a Payment Default, on any Designated Senior Debt occurs and is continuing that
then permits holders of such Designated Senior Debt (or any Representative) to
accelerate its maturity (a “Non-Payment
Default”) and a Responsible Officer of the Trustee receives at the
Corporate Trust Office a written notice of the default (a “Payment Blockage Notice”) from the Company
or a Representative of such Designated Senior Debt.


 


Notwithstanding
the foregoing, following the delivery of a Payment Blockage Notice, no new
Payment Blockage Notice may be delivered and no new period of payment blockage
with respect to the Securities may begin until 365 consecutive days have
elapsed since the effectiveness of the first Payment Blockage Notice. No
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice with respect to the Designated Senior Debt whose holders
delivered the Payment Blockage Notice may be made the basis of a subsequent
Payment Blockage Notice by the holders of such Designated Senior Debt, whether
or not within a period of 365 consecutive days.


 


The Company
may and shall resume payments on and distributions in respect of the Securities
upon:


 


(1)                                 in the case of a
Payment Default, the date upon which the default is cured or waived or ceases
to exist, or


 


(2)                                 in the case of a
Non-Payment Default, the earlier of the date on which such default is cured or
waived or ceases to exist, in each case as and to the extent permitted under
the documentation for the Designated Senior Debt, or the 179th day after the
date on which the applicable Payment Blockage Notice is received, in each case,
unless the maturity of the Designated Senior Debt has been accelerated or this Article 5
otherwise prohibits the payment or distribution at the time of such payment or
distribution.


 


Upon any
acceleration of the principal due on the Securities as a result of an Event of
Default or any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Company (whether voluntary or involuntary) or in bankruptcy, insolvency,


 


50

















 


receivership
or similar proceedings, all amounts due or to become due upon all Senior Debt
shall first be paid in full in cash, or other payments satisfactory to the
holders of Senior Debt before any payment of cash, property or securities is
made on account of the principal of or Interest on, or with respect to the
conversion of, the Securities (except, to the extent required by applicable
law, payments made pursuant to Article 14 from monies deposited with the
Trustee pursuant thereto prior to commencement of proceedings for such
dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization of the Company or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provision of this Article 5,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Debt (pro rata to such holders on the basis of the respective amounts of Senior
Debt held by such holders, or as otherwise required by law or a court order) or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any Senior Debt may
have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Debt in full in cash, or other payment satisfactory
to the holders of Senior Debt, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt, before any payment or
distribution is made to the Holders of the Securities or to the Trustee.


 


For purposes
of this Article 5, the words, “cash, property or securities” shall not be
deemed to include shares of Capital Stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article 5 with
respect to the Securities to the payment of all Senior Debt which may at the
time be outstanding; provided
that (i) the Senior Debt is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii) the rights of
the holders of Senior Debt (other than leases which are not assumed by the
Company or the new corporation, as the case may be) are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance, transfer or lease of all or substantially all its property to
another corporation upon the terms and conditions provided for in Article 11
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 5.02 if such other corporation shall, as
a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions stated in Article 11.


 


If payment of
the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt or their


 


51

















 


Representatives
of such acceleration. The Company shall not pay the Securities until ten days
after the holders or Representatives for the holders of Senior Debt receive
notice of the acceleration and after which the Company shall pay the Securities
only if this Article 5 otherwise permits payment at that time.


 


In the event
that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise),
prohibited by the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Senior Debt is paid in full, in cash or other payment
satisfactory to the holders of Senior Debt, or provision is made for such
payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of Senior Debt, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or delivered to the
holders of Senior Debt or their Representative or Representatives, as their
respective interests may appear, as calculated by the Company, for application
to the payment of all Senior Debt remaining unpaid to the extent necessary to
pay all Senior Debt in full, in cash or other payment satisfactory to the
holders of Senior Debt or their Representative, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.


 


Nothing in this Section 5.02
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 12.07. This Section 5.02 shall be subject
to the further provisions of Section 5.05.


 


Section 5.03. Subrogation
of Securities. Subject to the payment in full, in cash or other
payment satisfactory to the holders of Senior Debt, of all Senior Debt, the
rights of the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article 5 (equally and ratably with the holders
of all Indebtedness of the Company which by its express terms is subordinated
to other Indebtedness of the Company to substantially the same extent as the
Securities are subordinated and is entitled to like rights of subrogation) to
the rights of the holders of Senior Debt to receive payments or distributions
of cash, property or securities of the Company applicable to the Senior Debt until
the principal of and Interest on the Securities shall be paid in full in cash
or other payment satisfactory to the Holders of Securities; and, for the
purposes of such subrogation, no payments or distributions to the holders of
the Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this Article 5,
and no payment over pursuant to the provisions of this Article 5, to or
for the benefit of the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt; and no payment or distribution
of cash, property or securities to or for the benefit of the Holders of the
Securities pursuant to the subrogation provisions of this Article 5, which
would otherwise have been paid to the holders of Senior Debt


 


52

















 


shall be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of this Article 5 are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.


 


Nothing
contained in this Article 5 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors other
than the holders of Senior Debt, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of and 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 of the
Securities and creditors of the Company other than the holders of the Senior
Debt.


 


Upon any payment or
distribution of assets of the Company referred to in this Article 5, the
Trustee, subject to the provisions of Section 12.01,
and the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Debt and other Indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article 5.


 


Section 5.04.
Authorization to Effect Subordination. Each Holder of a Security by
the Holder’s acceptance thereof authorizes and directs the Trustee on the
Holder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 5 and appoints
the Trustee to act as the Holder’s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt
in the form required in any proceeding referred to in Section 5.03 hereof
at least 30 days before the expiration of the time to file such claim, the
holders of any Senior Debt or their representatives are hereby authorized to
file an appropriate claim for and on behalf of the Holders of the Securities.


 


Section 5.05. Notice to
Trustee. The Company shall give prompt written notice in the form of
an Officers’ Certificate to a Responsible Officer of the Trustee and to any
Paying Agent of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee or any Paying Agent in respect of
the Securities pursuant to the provisions of this Article 5.
Notwithstanding the provisions of this Article 5 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article 5,


 


53

















 


unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the applicable Corporate Trust Office from
the Company (in the form of an Officers’ Certificate) or a Representative or a
Holder or Holders of Senior Debt or from any trustee thereof; and before the
receipt of any such written notice, the Trustee, subject to the provisions of Section 12.01, shall be entitled in all respects to
assume that no such facts exist; provided
that, if by the Required Notice Date (as defined below) prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of or Interest on
any Security) (the “Required Payment Date”)
the Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 5.05,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to 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 after the Required
Notice Date. Notwithstanding anything in this Article 5 to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Article 14, and any
such payment shall not be subject to the provisions of this Article 5.


 


For the purposes of this Section 5.05,  the “Required Notice Date” shall mean no later
than 12:00 p.m., New York City time, one Business Day prior to
the Required Payment Date, provided
that, if the Trustee does not acknowledge in writing (by facsimile, email
or other electronic communication) receipt of the notice provided for in this Section 5.05,
then the “Required Notice Date” hereunder shall mean
two Business Days prior to the Required Payment Date.  The written notice
contemplated by this Section 5.05 shall (i) specifically reference
this Section 5.05 and (ii) explicitly state the one Business Day
standard set forth herein.


 


The Trustee, subject to the
provisions of Section 12.01, shall be entitled to
rely on the delivery to it of a written notice by a Representative or a person
representing himself to be a holder of Senior Debt (or a trustee on behalf of
such holder) to establish that such notice has been given by a Representative
or a holder of Senior Debt. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article 5, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article 5, and if such evidence is
not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.


 


Section 5.06. Trustee’s
Relation to Senior Debt. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article 5 in respect
of any Senior Debt at any time held by it, to the same extent as any other


 


54

















 


holder of Senior Debt, and nothing in Section 12.12
or elsewhere in this Indenture shall deprive the Trustee of any of its rights
as such holder.


 


With respect to the holders
of Senior Debt, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this Article 5,
and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior Debt and,
subject to the provisions of Section 12.01, the
Trustee shall not be liable to any holder of Senior Debt if it shall pay over
or deliver to Holders of Securities, the Company or any other Person money or
assets to which any holder of Senior Debt shall be entitled by virtue of this Article 5
or otherwise, unless payment of such amounts is prohibited under this Article 5
and the Trustee shall have received the notice provided for in Section 5.05.


 


Section 5.07. No
Impairment of Subordination. No right of any present or future
holder of any Senior Debt to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with. Without in any way limiting
the generality of the foregoing, the holders of Senior Debt may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Debt, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, Senior Debt, or evidencing the same or any agreement under
which Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.


 


Section 5.08. Certain
Conversions Not Deemed Payment. For the purposes of this Article 5
only, the issuance and delivery of Common Stock and the payment of cash in lieu
of fractional shares of such Common Stock upon conversion of a Security in
accordance with Article 9 shall not be deemed to constitute a payment or
distribution on account of the principal of or Interest on such Security.
Except as provided in this sentence, nothing contained in this Article 5
or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders, the right, which is absolute and unconditional, of the Holder
of any Security to convert such Security in accordance with Article 9, provided, however, that the payment by the Company of cash
upon conversion of such


 


55

















 


Security (other than cash in lieu of fractional
shares of such Common Stock) shall be subject to the provisions of this Article 5.


 


Section 5.09. Article Applicable
to Paying Agents. If at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term “Trustee” as used in this
Article 5 shall (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article 5  in addition to or in place of the Trustee; provided, however
that the first paragraph of Section 5.05 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.


 


Section 5.10. Senior Debt
Entitled to Rely. The holders of Senior Debt (including, without
limitation, Designated Senior Debt) shall have the right to rely upon this Article 5,
and notwithstanding anything to the contrary contained herein or in any
Securities, no amendment or modification of the provisions contained herein
shall diminish the rights of such holders unless such holders shall have agreed
in writing thereto.


 


Section 5.11. Reinstatement. The provisions of this Article 5 shall
continue to be effective or shall be reinstated, as the case may be, if, for
any reason, any payment of the Senior Debt by or on behalf of the Company shall
be rescinded or must otherwise be restored by holder of such Senior Debt,
whether as a result of a bankruptcy, insolvency or other voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or similar law or otherwise.


 


ARTICLE 6

COVENANTS


 


Section 6.01. Payments. The
Company shall duly and punctually make all payments in respect of the Securities
in accordance with the terms of the Securities and this Indenture.


 


Any payments
made or due pursuant to this Indenture shall be considered paid on the
applicable date due if by 10:00 a.m., New York City time, on such date the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due. Payment of the principal of and Interest on the
Securities shall be in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.


 


Section 6.02.
Maintenance of Office or Agency. The Company shall maintain an
office or agency in Minneapolis, Minnesota, where Securities may be presented
or surrendered for payment or conversion, where Securities may be surrendered
for registration of transfer or exchange and where notices and


 


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demands to or upon the Company in respect of
the Securities and this Indenture may be served, which shall initially be the
applicable Corporate Trust Office of the Trustee. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency not designated or appointed by the Trustee. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.


 


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 Minneapolis, Minnesota,
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.


 


Section 6.03. Appointments to Fill
Vacancies in Trustee’s Office. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 12.10(a), a Trustee, so that
there shall at all times be a Trustee hereunder.


 


Section 6.04. Money for
Security Payments to Be Held in Trust. If the Company shall at any
time act as its own Paying Agent, it shall, on or before each due date of any
payment in respect of any of the Securities, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to make the
payment so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.


 


Whenever the
Company shall have one or more Paying Agents, it will, prior to each due date
of any payment in respect of any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


 


The Company shall cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 6.04, that such
Paying Agent will (i) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent and (ii) during the continuance of
any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.


 


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


 


Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the making of payments in respect of any Security and remaining
unclaimed for two years after such payment has become due shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
shall be repaid to the Company. In the absence of a written request from the
Company to return funds remaining unclaimed for two years after such payment
has become due to the Company, the Trustee shall from time to time deliver all
unclaimed payments to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with the
customary practices and procedures of the Trustee. Any such unclaimed funds
held by the Trustee pursuant to this Section 6.04 shall be held uninvested
and without any liability for interest.


 


Section 6.05. Statement
by Officers as to Default. The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after
the date hereof, an Officers’ Certificate, stating whether or not to the
knowledge of the signers thereof the Company is in Default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in Default, specifying all such
Defaults and the nature and status thereof of which they may have knowledge.


 


Section 6.06. Existence. Subject
to Article 11, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory); provided,
however, that the Company shall
not be required to preserve any such right if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in


 


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the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders.


 


Section 6.07. Rule 144A
Information Requirement. Prior to the expiration of the Rule 144(k)
Holding Period, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, make available to any Holder or beneficial Securityholder or any
such Common Stock, in each case which continue to be Restricted Securities, in
connection with any sale thereof and any prospective Purchasers of Securities
or such Common Stock from such Holder or beneficial holder, the information
required pursuant to Rule 144A(d)(4) under the Securities Act upon
the request of any Holder or beneficial holder of the Securities or such Common
Stock and it will take such further action as any Holder or beneficial holder
of such Securities or such Common Stock may reasonably request, all to the
extent required from time to time to enable such Holder or beneficial holder to
sell its Securities or Common Stock without registration under the Securities
Act within the limitation of the exemption provided by Rule 144A, as such rule may
be amended from time to time. Upon the request of any Holder or any beneficial
holder of the Securities or such Common Stock, the Company will deliver to such
Holder a written statement as to whether it has complied with such
requirements.


 


Section 6.08. Resale of
Certain Securities. During the Rule 144(k) Holding Period, the
Company shall not, and shall not permit any of its “affiliates” (as defined under Rule 144 under the
Securities Act or any successor provision thereto) to, resell any Securities
which constitute “restricted securities”
under Rule 144 that have been reacquired by any of them. The Trustee shall
have no responsibility in respect of the Company’s performance of its agreement
in the preceding sentence.


 


Section 6.09.
[RESERVED].


 


Section 6.10. Additional
Interest Under the Registration Rights Agreement. If at any time
Additional Interest becomes payable by the Company pursuant to the Registration
Rights Agreement, the Company shall promptly deliver to the Trustee a
certificate executed by an officer of the Company who may execute a Company
Order to that effect and stating (i) the amount of such Additional
Interest that is payable and (ii) the date on which such Additional
Interest is payable pursuant to the terms of the Registration Rights Agreement.
Unless and until a Responsible Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no Additional Interest
is payable. If the Company has paid Additional Interest directly to the Persons
entitled to such Additional Interest, the Company shall deliver to the Trustee
a certificate setting forth the particulars of such payment.


 


Section 6.11. Stay,
Extension and Usury Laws. The Company covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any


 


59

















 


stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of or interest, on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not, by resort to any such law,
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.


 


Section 6.12. 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 6.13. Commission Filings and
Reports. The Company covenants to comply with Section 314(a) of
the Trust Indenture Act as it relates to reports, information and documents
that the Company may be required to file with the Trustee pursuant to such Section 314(a) and
with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act or otherwise by the Exchange Act, the Trust Indenture Act or other rules and
regulations of the Commission and to file such reports, information and documents
with the Trustee within 45 days after the same is required to be filed with the
Commission; provided that in each
case the delivery of materials to the Trustee by electronic means or filing of
documents pursuant to the Commission’s “EDGAR”
system (or any successor electronic filing system) shall be deemed to
constitute “filing” with the Trustee for purposes of this Section 6.13.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


Section 6.14. Tax
Treatment of the Securities. The Company agrees, and by acceptance
of a beneficial ownership interest in the Securities each Holder of Securities
will be deemed to have agreed, for United States federal income tax purposes, (a) to
treat the Securities as indebtedness of the Company subject to United States
Treasury regulations section 1.1275-4 (the “Contingent Debt Regulations”) and, for purposes of the
Contingent Debt Regulations, to treat the fair market value of any Common Stock
beneficially received by a Holder upon any conversion of the Securities as a
contingent payment, (b) to be bound by the Company’s determination of the “comparable
yield” and “projected payment schedule,” within the meaning of the Contingent
Debt Regulations, with respect to the Securities and (c) to use such “comparable
yield” and “projected payment schedule” in determining interest accruals with
respect to such Holder’s Securities and in determining adjustments thereto. A
Holder of Securities may obtain the issue price, issue date, yield to maturity,
comparable yield and the projected


 


60

















 


payment schedule by submitting a written
request for such information to: 
Microchip Technology Incorporated, 2355 W. Chandler Blvd., Chandler, AZ
85224, Attention:  Chief Financial
Officer.


 


ARTICLE 7

REDEMPTION


 


Section 7.01. Right to
Redeem; Notices to Trustee. (a) The
Securities may be redeemed in whole or in part at the option of the Company:


 


(i)             on
or prior to June 7, 2008, if any Tax Triggering Event has occurred; and


 


(ii)          on
or after December 15, 2017, if the Last Reported Sale Price of the Company’s
Common Stock has been greater than or equal to 150% of Conversion Price then in
effect for at least 20 Trading Days during any 30 consecutive Trading Day
period prior to the date on which the Company provides notice of redemption.


 


(b)                                 The redemption price
at which the Securities are redeemable (the “Redemption
Price”) shall be payable in cash and shall be equal to:


 


(i)             in the case of a redemption pursuant to Section 7.01(a)(i), 101.5% of the Principal Amount of
the Securities being redeemed plus (A) accrued and unpaid Interest to, but
excluding, the Redemption Date and (B) if the Conversion Parity Value as
of the Redemption Date of the Securities being redeemed exceeds their Initial
Conversion Value, 91% of the amount determined by subtracting the Initial
Conversion Value of such Securities from their Conversion Parity Value as of
the Redemption Date; or


 


(ii)          in the case of a redemption pursuant to Section 7.01(a)(ii),
100% of the Principal Amount of Securities being redeemed, together with
accrued and unpaid Interest to, but excluding, the Redemption Date;


 


provided, however, that if Securities are redeemed
on any Interest Payment Date, the Interest payable in respect of such Interest
Payment Date shall be payable to the Holders of record as of the corresponding
Record Date.


 


(c)                                  The Company may not redeem any Securities
unless all accrued and unpaid Interest thereon has been or is simultaneously
paid for all semi-annual periods or portions thereof terminating prior to the
Redemption Date. In addition, the Company may not redeem any Securities or
deliver to any Holder of Securities a notice of redemption pursuant to Section 7.03 during any Extension Period or at any time
when there exists any accrued and unpaid Deferred Interest.


 


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(d)                                 Notwithstanding any
other provision of this Indenture, the Company will make at least 20 Regular
Interest payments to the Holders (including the Regular Interest payment due on
December 15, 2017) in the full amount required hereunder before any
redemption of the Securities pursuant to Section 7.01(a)(ii).


 


(e)                                  Except as provided in
this Section 7.01, the
Securities shall not be redeemable by the Company.


 


Section 7.02. 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 the Nasdaq Global
Select Market or any stock exchange on which the Securities are then listed, as
applicable). The Trustee shall make the selection within 7 days from its
receipt of the notice from the Company delivered pursuant to Section 7.03
from Outstanding Securities not previously called for redemption.


 


Securities and
portions of them the Trustee selects shall be in Principal Amounts of $1,000 or
integral multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption in whole also apply to Securities called for
redemption in part. 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 7.03. Notice of
Redemption. Not less than 40 days but not more than 75 days before a
Redemption Date, the Company shall, or shall cause the Trustee to, mail a
notice of redemption by first-class mail, postage prepaid, to the Trustee, the
Paying Agent and each Holder of Securities to be redeemed; provided, however
that the Company may not deliver any such notice to any Holder of Securities
during any Extension Period or at any time when there exists any accrued and
unpaid Deferred Interest.


 


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


 


(i)             the
Redemption Date;


 


(ii)          the
Redemption Price;


 


(iii)       the
Conversion Price;


 


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


 


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(v)                                 that
Securities called for redemption may be converted at any time before the close
of business on the Business Day immediately preceding the Redemption Date;


 


(vi)                              that
Holders who want to convert Securities must satisfy the requirements set forth
therein and in this Indenture;


 


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


 


(viii)                        if fewer
than all the outstanding Securities are to be redeemed, the certificate numbers
(if such Securities are held other than in global form) and Principal Amounts
of the particular Securities to be redeemed;


 


(ix)                                that,
unless the Company defaults in making payment of such Redemption Price,
Interest will cease to accrue on and after the Redemption Date; and


 


(x)                                   the
CUSIP number of the Securities.


 


At the Company’s
written request delivered at least 15 days prior to the date such notice is to
be given (unless a shorter time period shall be acceptable to the Trustee), the
Trustee shall give the notice of redemption to each Holder of Securities to be
redeemed in the Company’s name and at the Company’s expense.


 


Section 7.04. 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 stated in the notice except for Securities that are converted
in accordance with the terms of this Indenture. Upon surrender to the Paying
Agent, such Securities shall be paid at the Redemption Price stated in the
notice.


 


Section 7.05. Deposit of
Redemption Price. Prior to 10:00 a.m., New York City time, on a
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption Price
of all Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which on or prior thereto have been delivered
by the Company to the Trustee for cancellation or have been converted.
The Paying Agent shall as promptly as practicable return to the Company any
money not required for that purpose because of conversion of Securities
pursuant to Article 9. If such money is then held
by the Company in trust and is not required for such purpose it shall be
discharged from such trust.


 


Section 7.06. 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


 


63

















 


denomination
equal in principal amount to the unredeemed portion of the Security
surrendered.


 


Section 7.07. No Requirement to
Register. The Company shall not be required to (i) issue,
register the transfer of, or exchange any Securities during a period of 15 days
prior to the date on which a notice of redemption is deemed to have been given
or (ii) register the transfer of, or exchange any, Securities so selected
for redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part.


 


ARTICLE 8

FUNDAMENTAL CHANGES AND REPURCHASES THEREUPON


 


Section 8.01. Repurchase at Option of
Holders Upon a Fundamental Change.


 


(a)                    Generally. If a Fundamental Change occurs at any time,
then each Holder shall have the right, at such Holder’s option, to require the
Company to repurchase for cash all of such Holder’s Securities or any portion
thereof that is a multiple of $1,000 Principal Amount, on a Business Day (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 nor more than 35 calendar
days after the date of the Fundamental Change Company Notice (as defined below)
at a repurchase price equal to 100% of the Principal Amount thereof, together
with accrued and unpaid Interest thereon to, but excluding, the Fundamental
Change Repurchase Date (the “Fundamental
Change Repurchase Price”); provided,
however that if Securities are
repurchased pursuant to this Section 8.01 on any date between a Record
Date and the Interest Payment Date to which such Record Date relates, the
Interest payable in respect of such Interest Payment Date shall be payable to
the Holders of record as of such Record Date.


 


Repurchases of Securities
under this Section 8.01, at the option of the Holder thereof, shall be
made upon:


 


(i)                                     delivery to the Trustee (or other Paying
Agent appointed by the Company) by a Holder, prior to the close of business on
the Business Day immediately preceding the Fundamental Change Repurchase Date,
of a duly completed notice (the “Fundamental
Change Repurchase Notice”) in the form set forth on the reverse of
the Securities prior to the close of business on the Fundamental Change
Repurchase Date; and


 


(ii)                                  delivery or book-entry transfer of the
Securities to the Trustee (or other Paying Agent appointed by the Company) on
or before the Business Day immediately preceding the Fundamental Change
Repurchase Date (together with all necessary endorsements) at the applicable
Corporate Trust Office of the Trustee (or other Paying Agent


 


64

















 


appointed by the Company), such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant to this Section 8.01
only if the Securities so delivered to the Trustee (or other Paying Agent
appointed by the Company) shall conform in all respects to the description
thereof in the related Fundamental Change Repurchase Notice.


 


The Fundamental Change
Repurchase Notice shall state:


 


(A)                              if certificated, the certificate numbers of
Securities to be delivered for repurchase;


 


(B)                                the portion of the Principal Amount of
Securities to be repurchased, which must be $1,000 or an integral multiple
thereof; and


 


(C)                                that the Securities are to be repurchased by
the Company pursuant to the applicable provisions of the Securities and the
Indenture.


 


Any purchase by the Company
contemplated pursuant to the provisions of this Section 8.01 shall be
consummated by the delivery of the consideration to be received by the Holder
promptly following the later of the Fundamental Change Repurchase Date and the
time of the book-entry transfer or delivery of the Securities.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Trustee (or other Paying
Agent appointed by the Company) the Fundamental Change Repurchase Notice
contemplated by this Section 8.01 shall have the right to withdraw such
Fundamental Change Repurchase Notice at any time prior to the close of business
on the Business Day prior to the Fundamental Change Repurchase Date by delivery
of a written notice of withdrawal to the Trustee (or other Paying Agent
appointed by the Company) in accordance with Section 8.03 below.


 


The Trustee (or other Paying
Agent appointed by the Company) shall promptly notify the Company of the
receipt by it of any Fundamental Change Repurchase Notice or written notice of
withdrawal thereof.


 


(b)                   Fundamental Change Company
Notice. On or before the
20th Business Day after the occurrence of a Fundamental Change, the Company
shall provide to all Holders of record of the Securities and the Trustee and
Paying Agent a notice (the “Fundamental
Change Company Notice”) of the occurrence of such Fundamental Change
and of the repurchase right at the option of the Holders arising as a result
thereof. Such mailing shall be by first class mail. Simultaneously with providing
such Fundamental Change Company Notice, the Company shall publish a notice
containing the information included therein once


 


65

















 


in a newspaper of general circulation in The City of New York or
publish such information on the Company’s website or through such other public
medium as the Company may use at such time.


 


Each
Fundamental Change Company Notice shall specify:


 


(i)                                     the
events causing the Fundamental Change;


 


(ii)                                  the
date of the Fundamental Change;


 


(iii)                               the
last date on which a Holder may exercise the repurchase right;


 


(iv)                              the
Fundamental Change Repurchase Price;


 


(v)                                 the
Fundamental Change Repurchase Date;


 


(vi)                              the
name and address of the Paying Agent and the Conversion Agent, if applicable;


 


(vii)                           if
applicable, the applicable Conversion Rate and any adjustments to the
applicable Conversion Rate;


 


(viii)                        if
applicable, that the Securities with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted only if the
Holder withdraws the Fundamental Change Repurchase Notice in accordance with Section 8.03;
and


 


(ix)                                the
procedures that Holders must follow to require the Company to repurchase their
Securities.


 


No failure of
the Company to give the foregoing notices and no defect therein shall limit the
Securityholders’ repurchase rights or affect the validity of the proceedings
for the repurchase of the Securities pursuant to this Section 8.01.


 


(c)                                  No Payment During Events of Default or Payment
Blockage. There shall be no repurchase of any Securities pursuant to
this Section 8.01 if there has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of such Securities, of the required
Fundamental Change Repurchase Notice) and is continuing an Event of Default
(other than a default that is cured by the payment of the Fundamental Change
Repurchase Price with respect to such Securities) or if the repurchase of
Securities is subject to blockage due to the provisions of Article 5
hereof. The Paying Agent will promptly return to the respective Holders thereof
any Securities (i) with respect to which a Fundamental Change Repurchase
Notice has been withdrawn in compliance with this Indenture, (ii) held by
it during the continuance of an Event of Default (other than a default that is
cured by the payment of the Fundamental Change Repurchase Price with respect to
such Securities) or (iii) during such payment blockage period, in which
case, upon such


 


66

















 


return, the Fundamental Change Repurchase Notice with respect thereto
shall be deemed to have been withdrawn. Notwithstanding the foregoing, within
thirty days after the Event of Default is cured or waived and,  there is no payment blockage pursuant to Article 5,
the Company shall provide to all Holders, the Trustee and Paying Agent a new Fundamental Change Company Notice, indicating
that such Event of Default has been cured or waived, and/or such payment
blockage period expired, as applicable, and establishing a new Fundamental
Change Repurchase Date, in which event Holders shall be entitled to deliver (or
re-deliver) a Fundamental Change Repurchase Notice with respect thereto.


 


(d)                                 Payment of Fundamental
Change Repurchase Price. The
Securities to be repurchased pursuant to this Section 8.01 shall be paid
for in cash.


 


Section 8.02. Effect of Fundamental
Change Repurchase Notice. Upon receipt by the Paying Agent of the
Fundamental Change Repurchase Notice specified in Section 8.01(a) the
Holder of the Security in respect of which such Fundamental Change Repurchase
Notice was given shall (unless such Fundamental Change Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Fundamental Change Repurchase Price with respect to such
Security. Such Fundamental Change Repurchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, promptly following the
later of (x) the Fundamental Change Repurchase Date with respect to such
Security (provided the conditions
in Section 8.01(a) have been satisfied) and
(y) the time of delivery of such Security to the Paying Agent by the Holder
thereof in the manner required by Section 8.01(a).


 


Section 8.03. Withdrawal
of Fundamental Change Repurchase Notice. A Fundamental Change
Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the Paying Agent in accordance with the Fundamental Change Company
Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date, specifying:


 


(i)                                     the
Principal Amount of the Securities with respect to which such notice of
withdrawal is being submitted;


 


(ii)                                  if
Physical Securities have been issued, the certificate numbers of the withdrawn
Securities; and


 


(iii)                               the
Principal Amount, if any, of such Securities that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000;


 


provided, however,
that if the Securities are not Physical Securities, the notice must comply with
appropriate procedures of the Depositary.


 


67

















 


Section 8.04. Deposit of
Fundamental Change Repurchase Price. Prior to 10:00 a.m. (local
time in The City of New York) on the Fundamental Change Repurchase Date, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided herein) an amount
of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the Fundamental Change Repurchase Price, of all the
Securities or portions thereof that are to be repurchased as of the Fundamental
Change Repurchase Date. The Company shall promptly notify the Trustee in
writing of the amount of any deposits of cash made pursuant to this Section 8.04. If the Paying Agent holds cash sufficient
to pay the Fundamental Change Repurchase Price of any Security for which a
Fundamental Change Repurchase Notice has been tendered and not withdrawn in
accordance with this Indenture as of the close of business on the Business Day
prior to the Fundamental Change Repurchase Date, then immediately following the
Fundamental Change Repurchase Date, (a) such Security will cease to be
outstanding and Interest will cease to accrue thereon (whether or not
book-entry transfer of the Security is made or whether or not the Security is
delivered to the Paying Agent) and (b) all other rights of the Holder in
respect thereof will terminate (other than the right to receive the Fundamental
Change Repurchase Price and previously accrued and unpaid Interest upon delivery
or transfer of such Security).


 


Section 8.05. Securities
Repurchased in Whole or in Part. Any Security that is to be
repurchased, whether in whole or in part, shall be surrendered at the office of
the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so
surrendered which is not repurchased.


 


Section 8.06. Covenant
to Comply With Securities Laws Upon Repurchase of Securities. In
connection with any offer to repurchase Securities under Section 8.01 (provided that such offer or repurchase
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 repurchase), the Company shall (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 Section 8.01
to be exercised in the time and in the manner specified in  Section 8.01.


 


68

















 


Section 8.07. Repayment to the
Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed, together with interest or dividends,
if any, thereon, held by them for the payment of the Fundamental Change
Repurchase Price; provided that
to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 8.04 exceeds the aggregate
Fundamental Change Repurchase Price of the Securities or portions thereof which
the Company is obligated to repurchase as of the Fundamental Change
Repurchase Date, then as soon as practicable following the Fundamental Change
Repurchase Date, the Trustee or the Paying Agent, as the case may be, shall
return any such excess to the Company.


 


Section 8.08. Purchase
by Third Party. Notwithstanding the foregoing provisions of this Article 8,
the Company shall not be required to issue a Fundamental Change Company Notice
upon a Fundamental Change (i) if a third party issues a Fundamental Change
Company Notice in the manner, at the times and otherwise in compliance with the
requirements set forth in Section 8.01(b) applicable to a Fundamental
Change Company Notice made by the Company and otherwise complies with the
provisions of this Article 8 as if it were the Company, and (ii) purchases
and pays for all Securities validly tendered and not withdrawn pursuant to such
Fundamental Change Company Notice.


 


ARTICLE 9

CONVERSION


 


Section 9.01. Right to
Convert. (a) Subject
to and upon compliance with the provisions of this Indenture, each Holder shall
have the right, at such Holder’s option, at any time following the Issue Date
of the Securities hereunder through the close of business on the Business Day
immediately prior to the Stated Maturity to convert the Principal Amount of any
such Securities, or any portion of such Principal Amount which is $1,000 or an
integral multiple thereof at a rate (“Conversion
Rate”) then in effect, (x) on or after September 1, 2037,
without regard to the conditions described in clauses (i) through (v) below
and (y) prior to September 1, 2037, only upon the satisfaction of any of
the following conditions:


 


(i)                                     A
Holder may surrender all or a portion of its Securities for conversion during
any fiscal quarter (and only during such fiscal quarter) commencing after March 31,
2008 if the Last Reported Sale Price for the Common Stock for at least 20
Trading Days during the period of 30 consecutive Trading Days ending on the
last Trading Day of the preceding fiscal quarter is greater than or equal to
130% of the Conversion Price in effect on such last Trading Day.


 


(ii)                                  A
Holder may surrender its Securities for conversion during the five Business Day
period after any 10 consecutive Trading Day period (the “Measurement Period”) in which the Trading
Price per $1,000 principal amount of Securities, as determined following a
request


 


69

















 


by a Holder in accordance with the procedures
set forth in this  Section 9.01(a)(ii),
for each day of such period was less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion
Rate (“Trading Price Condition”).
For purposes of this Section 9.01(a)(ii), if the Bid Solicitation Agent
cannot reasonably obtain at least one bid for $5,000,000 Principal Amount of
Securities from an independent nationally recognized securities dealer as
required by the definition of Trading Price, then the Trading Price per $1,000
Principal Amount of Securities will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate. If the Company does not instruct the Bid Solicitation Agent to
obtain bids when required, the trading price per $1,000 principal amount of the
debentures will be deemed to be less than 98% of the product of the Last
Reported Sale Price on each day that the Company fails to do so. In connection
with any conversion in accordance with
this Section 9.01(a)(ii), the Bid Solicitation
Agent shall have no obligation to determine the Trading Price of the Securities
unless requested by the Company; and the Company shall have no obligation to
make such request to the Bid Solicitation Agent unless a Holder provides the
Company with reasonable evidence that the Trading Price per $1,000 principal
amount of Securities would be less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the applicable Conversion Rate and such
Holder requests that the Company require the Bid Solicitation Agent to
determine the Trading Price. Promptly after receiving such evidence, the
Company shall instruct the Bid Solicitation 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 or equal to 98% of the product of the Last Reported
Sale Price of the Common Stock and the applicable Conversion Rate. If and when
the Trading Price per $1,000 principal amount of Securities, for each day of
the Measurement Period is less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the applicable Conversion Rate, the Company
will notify the Holders. If at anytime thereafter, the Trading Price per $1,000
Principal Amount of Securities is greater than or equal to 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate for
such date, the Company will also notify the Holders.


 


(iii)                               A
Holder may surrender its Securities for conversion if the Company calls such
Securities for redemption as provided in Article 7, at any time prior to
the close of business on the Trading Day immediately preceding the Redemption
Date, even if the Securities are not otherwise convertible at such time, after
which time the Holder’s right to convert its Securities pursuant to this Section 9.01(a)(iii) will
expire unless the Company defaults in the payment of the Redemption Price.


 


70

















 


(iv)                              In the event that the Company elects to:


 


(A)                              distribute to all or substantially all
holders of Common Stock rights or warrants or securities convertible into or
exchangeable or exercisable for Common Stock, for a period expiring within 60
days after the date of the distribution, at a price less than the average of
the Last Reported Sale Prices of a share of Common Stock for the 10 consecutive
Trading Day period ending on the Trading Day preceding the announcement of such
issuance; or


 


(B)                                distribute
to all or substantially all holders of Common Stock Shares of Capital Stock of
the Company, evidences or indebtedness or other assets or property, which
distribution has a per share value, as determined by the Company’s Board of
Directors in good faith, exceeding 10% of the Last Reported Sale Price of the
Common Stock on the Trading Day immediately preceding the declaration date for
such distribution,


 


then, in each
case, the Company shall notify the Holders, in the manner provided in Section 1.06,
at least 25 Scheduled Trading Days prior to the Ex Date for such distribution.
Once the Company has given such notice, Holders may surrender Securities for conversion
at any time until the earlier of 5:00 p.m., New York City time, on the
Business Day immediately prior to such Ex Date or the Company’s announcement
that such distribution will not take place, even if the Securities are not
otherwise convertible at such time. Notwithstanding the foregoing, no Holder
may convert its Securities pursuant to this Section 9.01(iv) if, as a
result of holding the Securities, such Holder will participate in such
distribution without conversion as if such Holder held a number of shares of
Common Stock equal to the Conversion Rate multiplied by the aggregate Principal
Amount (expressed in thousands) of the Securities to be converted by such
Holder, and otherwise on the same basis as holders of the Common Stock.


 


(v)                                 (A) If
the Company is party to a transaction described in clause (2) of the
definition of Fundamental Change (without giving effect to the proviso set
forth in the definition thereof relating to Publicly Traded Securities), the
Company shall notify Holders, in the manner provided in Section 1.06, by
the later of (1) at least 30 Scheduled Trading Days prior to the
anticipated effective date for such transaction and (2) the first Trading
Day after the date on which the Company obtains actual knowledge of the
anticipated effective date for such transaction. Once the Company has given
such notice, Holders may surrender Securities for conversion at any time until
35 calendar days after the actual effective date of such transaction (or, if
such transaction also constitutes a Fundamental Change, the related Fundamental
Change Repurchase Date); and


 


71

















 


(B)                                If
a Fundamental Change of the type described in clause (1), (3) or (4) of
the definition thereof occurs, Holders may surrender Securities for conversion
at any time beginning on the actual effective date of such Fundamental Change
until and including the date that is 35 calendar days after the actual
effective date of such transaction or, if earlier, until the related Fundamental
Change Repurchase Date.


 


The initial
Conversion Rate is set forth on the Form of Reverse of Security in Section 2.03
of this Indenture.


 


(b)                                 For purposes of this Section 9.01,
and notwithstanding the definition
contained in Section 1.01, the term “Trading Day” shall mean a day during which (A) trading
in the Common Stock generally occurs on the principal U.S. national or
regional securities exchange or market on which the Common Stock is listed or
admitted for trading, (B) there is no Market Disruption Event and (C) a
Last Reported Sale Price is available on the principal U.S. national or
regional securities exchange or market on which the Common Stock is listed or
admitted for trading. If the Common Stock (or other security for which a Last
Reported Sale Price must be determined for purposes of this Section 9.01)
is not listed or admitted for trading on a U.S. national or regional securities
exchange or market, then, for purposes of this Section 9.01, “Trading Day” shall mean a Business Day.


 


(c)                                  Notwithstanding the
foregoing, a Security in respect of which a Holder has delivered a Fundamental
Change Repurchase Notice exercising such Holder’s option to require the Company
to repurchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with Article 8 hereof prior to the close of business on
the Business Day immediately preceding the Fundamental Change Repurchase
Date.


 


Section 9.02. Conversion
Procedure. (a) Each
Security shall be convertible at the office of the Conversion Agent.


 


(b)                                 In order to exercise
the conversion right with respect to any interest in Global Securities, the
Holder must complete the appropriate instruction form for conversion pursuant
to the Depositary’s book-entry conversion program, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee
or Conversion Agent, and pay the funds, if any, required by this Section 9.02
and any transfer taxes if required pursuant to Section 9.08. In order to
exercise the conversion right with respect to any Securities in certificated
form, the Holder of any Physical Securities, the Holder of any such Securities
to be converted, in whole or in part, shall:


 


(i)                                     complete,
manually sign the conversion notice provided on the back of the Security (the “Conversion Notice”) or a facsimile of the
conversion notice and deliver such notice to the Conversion Agent;


 


72

















 


(ii)                                  surrender
the Security to the Conversion Agent;


 


(iii)                               if
required, furnish appropriate endorsements and transfer documents,


 


(iv)                              make
any payment required under Section 9.03(d) and


 


(v)                                 if
required, pay any transfer or similar tax that may be applicable to such
conversion.


 


The date on
which the Holder satisfies all of the applicable requirements set forth above
is the “Conversion Date.”


 


(c)                                  Each Conversion
Notice shall be irrevocable once delivered to the Conversion Agent and shall
state the name or names (with address or addresses) in which any certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued. All such Securities surrendered for conversion
shall, unless the shares issuable on conversion are to be issued in the same
name as the registration of such Securities, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or his duly authorized attorney.


 


(d)                                 Subject to compliance
with any restrictions on transfer if shares issuable on conversion are to be
issued in a name other than that of the Holder (as if such transfer were a
transfer of the Securities (or portion thereof) so converted), the Company
shall issue and shall deliver to such Holder at the office of the Conversion
Agent, a check or cash and/or a certificate or certificates for the number of
full shares of Common Stock issuable in accordance with the provisions of this Article 9,
(1) on the third Business Day immediately following the relevant
Conversion Date, if the Company elects to satisfy its conversion obligation
solely in shares of Common Stock; provided, that
in the event it is necessary to delay the issuance and delivery of Common Stock
to take account of any conversion rate adjustment pursuant to Section 9.04(c) or
9.04(e) where conversion has occurred within the 10 Trading Days
following, and including, the effective date of the event giving rise to such
conversion rate adjustment, the issuance of delivery of Common Stock shall be
so delayed or (2) on the third Business Day immediately following the last
day of the Observation Period, if the Company elects another Settlement Method
(as defined below). In case any Securities of a denomination greater than
$1,000 shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of the Securities
so surrendered, without charge to him, new Securities in authorized
denominations in an aggregate Principal Amount equal to the unconverted portion
of the surrendered Securities.


 


Each
conversion shall be deemed to have been effected as to any such Securities (or
portion thereof) on the date on which the requirements set forth above in this Section 9.02
have been satisfied as to such Securities (or portion


 


73

















 


thereof), and the Person in whose name any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the Holder of record of the shares
represented thereby; provided, however, that in case of any such
surrender on any date when the stock transfer books of the Company shall be
closed, the Person or Persons in whose name the certificate or certificates for
such shares are to be issued shall be deemed to have become the record Holder
thereof for all purposes on the next day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in effect on the
date upon which such Securities shall be surrendered.


 


(e)                                  Upon the conversion of an interest in Global
Securities, the Trustee shall make a notation on such Global Securities as to
the reduction in the Principal Amount represented thereby. The Company shall
notify the Trustee in writing of any conversions of Securities effected through
any Conversion Agent other than the Trustee.


 


(f)                                    Each stock
certificate representing Common Stock issued upon conversion of the Securities
that are Restricted Securities shall bear the legend in substantially the form
of Exhibit C hereto.


 


Section 9.03. Payments
Upon Conversion. (a) Upon
any conversion of any Security, the Company shall deliver to converting
Holders, in respect of each $1,000 Principal Amount of Securities being
converted, either solely cash, solely shares of Common Stock or a combination
of cash and Common Stock (the “Settlement
Amount”).


 


(i)                                     All
conversions after September 1, 2037 will be settled using the same
Settlement Method. If the Company has not delivered a notice of its election of
a Settlement Method (the “Settlement Notice”)
prior to September 1, 2037, the Settlement Method for conversions after September 1,
2037 shall be Net Share Settlement.


 


(ii)                                  Prior
to September 1, 2037, the Company will use the same Settlement Method for
all conversions occurring on any given Trading Day. Except for any conversions
that occur either (1) during the period between a notice of redemption and
the related Redemption Date, or (2) on or after September 1, 2037,
the Company need not use the same Settlement Method with respect to conversions
that occur on different Trading Days.


 


(iii)                               If
the Company elects to deliver a Settlement Notice, the Company, through the
Trustee, shall deliver to the Settlement Notice to Holders that are converting
no later than the second Trading Day immediately following the related
Conversion Date. If the Company does not deliver a Settlement Notice, the
Settlement Method shall be Net Share Settlement.


 


74

















 


(b)                                 The Settlement Amount
shall be computed as follows:


 


(i)                                     If
the Company elects to satisfy its conversion obligation solely in Common Stock,
the Company will deliver a number of shares of Common Stock equal to (1) the
aggregate Principal Amount of Securities to be converted divided by $1,000, multiplied
by (2) the applicable Conversion Rate;


 


(ii)                                  If
the Company elects to satisfy its conversion obligation solely in cash, the
Company shall deliver cash in an amount equal to the sum of the Daily
Conversion Values for each of the 25 consecutive Trading Days during the
related Observation Period; and


 


(iii)                               If
the Company elects to satisfy its conversion obligation through delivery of a
combination of cash and shares of Common Stock, the Company shall deliver in
respect of each $1,000 Principal Amount of Securities being converted, a
Settlement Amount equal to the sum of the Daily Settlement Amounts for each of
the 25 consecutive Trading Days during the Observation Period for such
Security. The “Daily Settlement Amount”
for each of the 25 consecutive Trading Days during the Observation Period shall
consist of:


 


(A)                              cash
equal to the lesser of (x) the dollar amount per $1,000 Principal Amount of
Security to be received upon conversion as specified in the Settlement Notice,
if any (the “Specified Dollar Amount”),
divided by 25 (such quotient being referred to as the “Daily Measurement Value”) and (y) the Daily
Conversion Value, and


 


(B)                                to
the extent the Daily Conversion Value exceeds the Daily Measurement Value, a
number of shares of Common Stock (“Daily
Share Amount”) equal to (x) the difference between the Daily
Conversion Value and the Daily Measurement Value, divided by (y) the Daily
VWAP;


 


“Net Share Settlement” means the Settlement
Method in which the Specified Dollar Amount is $1,000.


 


(c)                                  Upon conversion,
Holders shall not receive any separate cash payment for accrued and unpaid
Interest, unless such conversion occurs between a Record Date and the Interest
Payment Date to which it relates.


 


(d)                                 If Securities are
converted after 5:00 p.m., New York City time, on a Record Date for the
payment of interest, Holders of such Securities at 5:00 p.m., New York
City time, on such Record Date will receive the Interest payable on such
Securities on the corresponding Interest Payment Date notwithstanding the conversion.
Securities surrendered for conversion during the period from 5:00 p.m.,
New York City time, on any Record Date to 9:00 a.m., New York City time,


 


75

















 


on the immediately following Interest Payment Date, must be accompanied
by funds equal to the amount of Interest payable on the Securities so
converted; provided that no such
payment need be made (i) if the Company has specified a Redemption Date in
respect of the Securities that is after a Record Date and on or prior to the
corresponding Interest Payment Date; (ii) if the Company has specified a
Fundamental Change Repurchase Date in respect of the Securities that is after a
Record Date and on or prior to the corresponding Interest Payment Date; (iii) in
respect of any conversion which occurs after the Record Date for the interest
payment due on December 15, 2037 or (iv) to the extent of any
Deferred Interest, Compounded Interest or overdue Interest, if any such amounts
exist at the time of conversion with respect to such Security.


 


(e)                                  The Company shall not
issue fractional shares of Common Stock upon conversion of Securities. If
multiple Securities shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate Principal Amount of the Securities
(or specified portions thereof to the extent permitted hereby) so surrendered.
If any fractional share of stock would be issuable upon the conversion of any
Securities, the Company shall make payment therefor in cash equal to the
fraction of a share of Common Stock otherwise issuable multiplied by the Daily
VWAP for the final Trading Day of the applicable Observation Period.


 


Section 9.04. Adjustment
of Conversion Rate. The Conversion Rate shall be adjusted from time
to time by the Company if any of the following events occur, except that the
Company will not make any adjustment if Holders of Securities may participate,
as a result of holding the Securities, in the transactions described without
having to convert their Securities:


 


(a)                                  If the Company, at
any time or from time to time while any of the Securities are outstanding,
issues shares of its Common Stock as a dividend or distribution on shares of
Common Stock and such dividend or distribution consists exclusively of shares
of Common Stock, or if the Company effects a share split or share combination
in respect of the Common Stock, then the Conversion Rate shall be adjusted
based on the following formula:


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the Ex Date of
  such dividend or distribution, or effective date of such share split or share
  combination, as applicable;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the Ex Date or
  effective date;

  



 


76

















 


	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding immediately prior
  the Ex Date or effective date; and

  
	
   

  	
   

  	
   

  
	
  OS’

  	
  =

  	
  the number of shares of Common Stock that would be outstanding
  immediately after the Ex Date or effective date after giving effect to such
  dividend, distribution, share split or share combination.

  



 


Such
adjustment shall become effective immediately after the opening of business on
the Business Day following the record date for such dividend or distribution,
or the date fixed for determination for such share split or share combination.
The Company will not pay any dividend or make any distribution on shares of
Common Stock held in treasury by the Company. If any dividend or distribution
of the type described in this Section 9.04(a) is
declared but not so paid or made, or the outstanding shares of Common Stock are
not subdivided or combined, as the case may be, the Conversion Rate shall again
be adjusted to the Conversion Rate which would then be in effect if such
dividend, distribution, subdivision or combination had not been declared.


 


(b)                   If the Company, at any time or from
time to time while any of the Securities are outstanding, distributes to all or
substantially all holders of its outstanding shares of Common Stock any rights
or warrants or securities convertible into or exchangeable or exercisable for
Common Stock entitling them for a period of not more than 60 calendar days to
subscribe for, purchase or convert into shares of Common Stock at a price per
share or having a conversion, exchange or exercise price per share, in each
case, less than the average of the Last Reported Sale Prices of Common Stock
for the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall
be adjusted based on the following formula:


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the Ex Date for
  such issuance;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the Ex Date for such
  issuance;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding immediately after
  the Ex Date for such issuance;

  



 


77

















 


	
  X

  	
  =

  	
  the total number of shares of Common Stock issuable pursuant to such
  rights, warrants or convertible securities; and

  
	
   

  	
   

  	
   

  
	
  Y

  	
  =

  	
  the number of shares of Common Stock equal to the aggregate price
  payable to exercise such rights or warrants or to convert such convertible
  securities divided by the average of the Last Reported Sale Prices of Common
  Stock for the 10 consecutive Trading Day period ending on the Trading Day
  immediately preceding the date of announcement of the issuance of such
  rights, warrants or convertible securities.

  



 


Such
adjustment shall be successively made whenever any such rights, warrants or
convertible securities are issued and shall become effective immediately after
9:00 a.m., New York City time, on the Business Day immediately preceding the
date of announcement of such issuance. To the extent that shares of Common
Stock are not delivered pursuant to such rights, warrants or convertible
securities upon the expiration or termination of such rights, warrants or
convertible securities, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjustments made upon the
issuance of such rights, warrants or convertible securities been made on the
basis of the delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights, warrants or convertible securities
are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if the announcement with respect
to such rights, warrants or convertible securities had not been made. In
determining whether any rights, warrants or convertible securities entitle the
holders to subscribe for, purchase or convert into shares of Common Stock at
less than the average of the Last Reported Sale Prices of Common Stock for the
10 consecutive Trading Day period ending on the Business Day immediately
preceding the date of announcement of such issuance, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Company for such rights,
warrants or convertible securities and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors of the Company.


 


Rights,
warrants or convertible securities distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for, purchase or
convert into shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights, warrants or convertible securities, until
the occurrence of a specified event or events (“Trigger Event”):  (x)
are deemed to be transferred with such shares of Common Stock; (y) are not
exercisable; and (z) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section 9.04(b) (and
no adjustment to the Conversion Rate under this Section 9.04(b) will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights, warrants


 


78

















 


and convertible securities shall be deemed to have been distributed and
an appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 9.04(b). If any such right, warrant or convertible
security, including any such existing rights, warrants or convertible
securities distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights, warrants or convertible
securities become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights, warrants or convertible securities with such rights (and
a termination or expiration of the existing rights or warrants without exercise
by any of the holders thereof). In addition, in the event of any distribution
(or deemed distribution) of rights, warrants or convertible securities, or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 9.04(b) was
made, (1) in the case of any such rights, warrants or convertible
securities that shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Rate shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights, warrants or convertible securities (assuming
such holder had retained such rights, warrants or convertible securities), made
to all holders of Common Stock as of the date of such redemption or repurchase,
and (2) in the case of such rights, warrants or convertible securities
that shall have expired or been terminated without exercise by any holders
thereof, the Conversion Rate shall be readjusted as if such rights, warrants
and convertible securities had not been issued.


 


(c)                    In case the Company shall, by
dividend or otherwise, distribute to all or substantially all holders of its
Common Stock shares of any class of Capital Stock of the Company, evidences of
its indebtedness or other assets or property of the Company (including
securities, but excluding dividends and
distributions and rights, warrants or convertible securities covered by Section 9.04(a), Section 9.04(b), Section 9.04(e) (for
which an adjustment is made to the Conversion Rate), Section 9.04(d) or
distributions in a Spin-Off described below in this Section 9.04(c) (any
of such shares of Capital Stock, indebtedness, or other asset or property
hereinafter in this Section 9.04(c) called the “Distributed Property”), then, in each such
case the Conversion Rate shall be adjusted based on the following formula:


 





 


79

















 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the Ex Date for
  such distribution;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the Ex Date for such
  distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the Common Stock over
  the 10 consecutive Trading Day period ending on the Trading Day immediately
  preceding the Ex Date for such distribution; and

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the fair market value (as determined by the Company’s Board of
  Directors) of the shares of Capital Stock of the Company, evidences of
  indebtedness, assets or property distributed with respect to each outstanding
  share of Common Stock on the Ex Date for such distribution.

  



 


Such
adjustment shall become effective immediately prior to 9:00 a.m., New York
City time, on the Business Day following the date fixed for the determination
of stockholders entitled to receive such distribution. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such record
date had not been fixed. If the Board of Directors of the Company determines
the fair market value of any distribution for purposes of this Section 9.04(c) by
reference to the actual or when issued trading market for any securities, it
shall in doing so consider the prices in such market over the same period used
in computing the average of the Last Reported Sale Prices of the Common Stock.


 


With respect
to an adjustment pursuant to this Section 9.04(c) where there has
been a payment of a dividend or other distribution on the Common Stock or
shares of Capital Stock of the Company of any class or series, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect
immediately before 5:00 p.m., New York City time, on the effective date of
the Spin-Off shall be increased based on the following formula:


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the effective date
  of the adjustment;

  



 


80

















 


	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the effective date of
  the adjustment;

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported Sale Prices of the Capital Stock of
  the Company or similar equity interest distributed to holders of Common Stock
  applicable to one share of Common Stock over the first 10 consecutive Trading
  Day period after the effective date of the Spin-Off; and

  
	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
  the average of the Last Reported Sale Prices of Common Stock over the
  first 10 consecutive Trading Day period the effective date of the Spin-Off.

  



 


Such
adjustment shall occur on the tenth Trading Day from the effective date of the
Spin-Off; provided that in respect of any conversion within 10 Trading Days
immediately following the effective date of any Spin-Off, references made to 10
Trading Days shall be deemed replaced with such lesser number of Trading Days
as have elapsed between the effective date of such Spin-Off and the Conversion
Date in determining the applicable Conversion Rate.


 


For purposes
of this Section 9.04(c), Section 9.04(a) and Section 9.04(b),
any dividend or distribution to which this Section 9.04(c) is
applicable that also includes shares of Common Stock, or rights, warrants or
convertible securities to subscribe for, purchase or convert into shares of
Common Stock to which Section 9.04(a) and/or 9.04(b) applies,
shall be deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets or shares of Capital Stock other than such
shares of Common Stock or rights, warrants or convertible securities to which Section 9.04(a) or
9.04(b) applies (and any Conversion Rate adjustment required by this Section 9.04(c) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock
or such rights, warrants or convertible securities to which Section 9.04(a) or
9.04(b) applies (and any further Conversion Rate adjustment required by Section 9.04(a) and
9.04(b) with respect to such dividend or distribution shall then be made),
except (A) the Ex Date of such dividend or distribution shall be
substituted for “the Ex Date,” “the Ex Date or effective date,” “the day
following the record date for such dividend or distribution, or the date fixed
for determination for such share split or share combination,” “the Ex Date for
such issuance” and “the date fixed for the determination of stockholders
entitled to receive such rights and warrants” within the meaning of Section 9.04(a) and
Section 9.04(b) and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed “outstanding immediately
prior to the Ex Date or effective date” within the meaning of Section 9.04(a).


 


(d)                   If a cash dividend or distribution is made to all or substantially all
holders of Common Stock (other than (i) distributions described in Section


 


81

















 


9.04(e) or (ii) an
Extraordinary Dividend), the Conversion Rate shall be increased based on the
following formula:


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in effect immediately prior to the Ex Date for
  such dividend or distribution;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the Conversion Rate in effect immediately after the Ex Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the Last Reported Sale Prices of the Common Stock on the Trading Day
  immediately preceding the Ex Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
  the amount in cash per share the Company distributes to holders of
  Common Stock.

  



 


Such adjustment shall become
effective immediately after 5:00 p.m., New York City time, on the record
date for such dividend or distribution. If such dividend or distribution is not
so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.


 


For the avoidance of doubt,
for purposes of this Section 9.04(d), in the event
of any reclassification of the Common Stock, as a result of which the
Securities become convertible into more than one class of Common Stock, if an
adjustment to the Conversion Rate is required pursuant to this Section 9.04(d), references in this Section to one
share of Common Stock or Last Reported Sale Price of one share of Common
Stock shall be deemed to refer to a unit or to the price of a unit consisting
of the number of shares of each class of Common Stock into which the Securities
are then convertible equal to the numbers of shares of such class issued in
respect of one share of Common Stock in such reclassification. The above
provisions of this paragraph shall similarly apply to successive
reclassifications.


 


(e)                                  If the Company or any
of its Subsidiaries makes a payment in respect of a tender offer or exchange
offer for all or any portion of the Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of
Common Stock exceeds the Last Reported Sale Price of the Common Stock on the
Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended), the
Conversion Rate shall be increased based on the following formula:


 


82
















 





 


where


 


	
  CR0

  	
  =

  	
  the
  Conversion Rate in effect immediately prior to the effective date of the
  adjustment;

  
	
   

  	
   

  	
   

  
	
  CR’

  	
  =

  	
  the
  Conversion Rate in effect immediately after the effective date of the
  adjustment;

  
	
   

  	
   

  	
   

  
	
  AC

  	
  =

  	
  the
  aggregate value of all cash and any other consideration (as determined by the
  Company’s Board of Directors) paid or payable for shares purchased in such
  tender or exchange offer;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the
  number of shares of Common Stock outstanding immediately prior to the date
  such tender or exchange offer expires (including any shares purchased
  pursuant to the tender or exchange offer);

  
	
   

  	
   

  	
   

  
	
  OS’

  	
  =

  	
  the
  number of shares of Common Stock outstanding immediately after the date such
  tender or exchange offer expires (not including any shares purchased pursuant
  to the tender or exchange offer); and

  
	
   

  	
   

  	
   

  
	
  SP’

  	
  =

  	
  the
  average of the Last Reported Sale Prices of Common Stock over the 10
  consecutive Trading Day period commencing on the Trading Day next succeeding
  the date such tender or exchange offer expires,

  



 


The adjustment to the Conversion Rate under this Section 9.04(e) shall occur on the tenth Trading
Day from, and including, the Trading Day next succeeding the date such tender
or exchange offer expires; provided that
in respect of any conversion within 10 Trading Days immediately following, and
including, the expiration date of any such tender or exchange offer, references
made to 10 Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the expiration date of such tender or
exchange offer and the Conversion Date in determining the applicable Conversion
Rate.


 


If the Company is obligated
to repurchase 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.


 


83

















 


(f)                                    For purposes of this Section 9.04 the
term “record date” shall mean,
with respect to any dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors or by statute, contract or otherwise).


 


(g)                                 If application of the formulas provided in Section 9.04(a),
9.04(b), 9.04(c), 9.04(d) or 9.04(e) would result in a decrease in
the Conversion Rate, no adjustment to the Conversion Rate shall be made except
in the case of a share split or share combination.


 


(h)                                 To the extent permitted by applicable law and
subject to the applicable rules of the Nasdaq Global Select Market (if the
Common Stock is then listed on the Nasdaq Global Select Market), the Company
from time to time may increase the Conversion Rate by any amount for any period
of time if the period is at least 20 days if the Company’s Board of Directors
determines that such increase would be in the Company’s best interest, which
determination shall be conclusive. In addition, the Company may also (but is
not required to) increase the Conversion Rate to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock in connection
with any dividend or distribution of shares (or rights to acquire shares) or
similar event. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Holders of record of the
Securities a notice of the increase at least fifteen days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.


 


(i)                                     All calculations and other determinations
under this Article 9 shall be made by the Company or its agents and shall
be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of
a share, as the case may be. No adjustment shall be made for the Company’s
issuance of Common Stock or convertible or exchangeable securities or rights to
purchase Common Stock or convertible or exchangeable securities, other than as
provided in this Section 9.04.


 


(j)                                     Whenever the Conversion Rate is adjusted as
herein provided, the Company shall promptly file with the Trustee and any
Conversion Agent an Officers’ Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Responsible Officer of the Trustee
shall have received such Officers’ Certificate, the Trustee shall not be deemed
to have knowledge of any adjustment of the Conversion Rate and may assume
without inquiry that the last Conversion Rate of which a Responsible Officer of
the Trustee has actual knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted 


 


84

















 


Conversion
Rate and the date on which each adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Rate to each Holder at such
Holder’s last address appearing on the Security Register provided for in Section 3.05
of this Indenture, within 20 days of the effective date of such adjustment or,
in the case of interests held in the form of a Global Security, by delivery of
such notice to the Depository. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.


 


(k)                                  In any case in which this Section 9.04
provides that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event (i) issuing
to the Holder of any Securities converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu
of any fraction pursuant to Section 9.03.


 


(l)                                     For purposes of this Section 9.04, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.


 


(m)                               Notwithstanding the foregoing, the Conversion
Rate will not be adjusted:  (i) upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on the
securities of the Company and the investment of additional optional amounts in
shares of Common Stock under any plan; (ii) upon the issuance of any
shares of Common Stock or options or rights to purchase those shares pursuant
to any present or future employee, director or consultant benefit plan or
program of or assumed by the Company or any Subsidiary; (iii) upon the
issuance of any shares of Common Stock pursuant to any option, warrant, right
or exercisable, exchangeable or convertible security not described in clause (iii) and
outstanding as of the date the Securities were first issued; (iv) for any
dividend or distribution in connection with a merger, sale or conveyance
effected solely for the purpose of changing the Company’s jurisdiction of
incorporation as permitted by the terms of the Indenture; (v) for a change
in the par value of the Common Stock; or (vi) for accrued and unpaid
Interest.


 


Section 9.05. Adjustments of Average
Prices. Whenever a provision of the Indenture requires the calculation
of an average of Last Reported Sale Prices or Daily VWAP over a span of
multiple days, the Company will make appropriate adjustments to account for any
adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate that becomes effective, or any
event requiring an adjustment to the Conversion Rate 


 


85

















 


where the Ex Date of the event occurs, at any time during the period
from which the average is to be calculated, including upon the occurrence of
multiple events that each result in an adjustment to the Conversion Rate in
such period.


 


Section 9.06. Adjustments Upon Certain
Fundamental Changes. (a) If
a Holder elects to convert Securities at any time from, and including, the
effective date of a Make-Whole Fundamental Change to, and including the related
Fundamental Change Repurchase Date, the Conversion Rate for such Securities
shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below. The
Company will notify Holders of the anticipated effective date of any Make-Whole
Fundamental Change and issue a press release as soon as practicable after the
Company first determines the anticipated effective date of such Make-Whole
Fundamental Change.


 


(b)                                 The number of Additional Shares will be
determined by reference to the table attached as Exhibit B hereto,
based on the date on which the Make-Whole Fundamental Change occurs or becomes
effective (the “Effective Date”)
and the price (the “Stock Price”)
paid per share of Common Stock in the Fundamental Change. If the Make-Whole
Fundamental Change is a transaction described in clause (2) of the
definition of Fundamental Change, and holders of Common Stock receive only cash
in such Make-Whole Fundamental Change, the Stock Price shall be the cash amount
paid per share. Otherwise, the Stock Price shall be the average of the Last
Reported Sale Prices of Common Stock over the five Trading Day period ending on
the Trading Day preceding the Effective Date of the Make-Whole Fundamental
Change.


 


(c)                                  The Stock Prices set forth in the column
headings of the table in Exhibit B hereto shall be adjusted as of
any date on which the Conversion Rate of the Securities is adjusted. The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior
to such adjustment, multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to such adjustment and the denominator of
which is the Conversion Rate as so adjusted. The number of Additional Shares
set forth in such table will be adjusted in the same manner as the Conversion
Rate as set forth in Section 9.04.


 


(d)                                 The table in Exhibit B hereto
sets forth the hypothetical stock price and the number of additional shares to
be received per $1,000 Principal Amount of Securities.


 


The exact Stock Prices and
Effective Dates relating to a Make-Whole Fundamental Change may not be set
forth in the table in Exhibit B, in which case:


 


(i)                                     If the Stock Price is between two Stock Price
amounts in the table or the Effective Date is between two Effective Dates in
the table, the number of Additional Shares will be determined by a
straight-line interpolation between the number of Additional Shares set forth for
the 


 


86

















 


higher and lower Stock Price amounts and the two dates, as applicable,
based on a 365-day year.


 


(ii)                                  If the Stock Price is greater than $100 per
share (subject to adjustment in the same manner as the Conversion Rate as set
forth in Section 9.04), no Additional Shares will be added to the
Conversion Rate upon conversion.


 


(iii)                               If the Stock Price is less than $29.70 per
share (subject to adjustment in the same manner as the Conversion Rate as set
forth in Section 9.04), no Additional Shares will be added to the
Conversion Rate upon conversion.


 


Notwithstanding the
foregoing, in no event will the total number of shares of Common Stock issuable
upon conversion exceed 33.6700 shares of Common Stock per $1,000 Principal
Amount of Securities, subject to adjustments in the same manner as the
Conversion Rate as set forth in Section 9.04.


 


(e)                                  At the Company’s option, in lieu of
increasing the Conversion Rate as described in this Section 9.06 in the
event of a Make-Whole Fundamental Change, the Company may elect to make a cash
payment in respect of the Additional Shares. Such cash payment to any Holder
electing to convert its Securities would be equal to the number of Additional
Shares issuable upon conversion determined by reference to the table in Exhibit B
multiplied by the effective share price of the transaction which constitutes a
Make-Whole Fundamental Change. Any such election by the Company will be
disclosed in the Fundamental Change Company Notice. Once this notice has been
provided, the Company may not modify or withdraw its election.


 


(f)                                    Additional Shares or cash or Reference
Property in respect of Additional Shares will be delivered to Holders who elect
to convert Securities in connection with a Make-Whole Fundamental Change on the
later of (i) five days after the effectiveness of such Make-Whole
Fundamental Change and (ii) the settlement date for the Securities set
forth in Section 9.02(d).


 


Section 9.07. Effect of
Reclassification, Consolidation, Merger or Sale. (a) If any of the following
events occur:


 


(i)                                     any reclassification or change of shares of
Common Stock issuable upon conversion of the Securities (other than a change in
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination, or any other change for
which an adjustment is provided in Section 9.04);


 


(ii)                                  any consolidation, merger or combination of
the Company with another Person as a result of which holders of Common Stock
shall be entitled to receive cash, securities or other property or assets
(including 


 


87

















 


cash or any combination of the foregoing) with respect to or in
exchange for such Common Stock; or


 


(iii)                               any sale, lease or other transfer of all or
substantially all of the properties and assets of the Company and its
Subsidiaries to any other Person as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property or assets
(including cash or any combination of the foregoing) with respect to or in
exchange for such Common Stock,


 


then the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that the Securities shall be convertible into the kind and amount of
shares of stock, securities or other property or assets (including cash or any
combination of the foregoing) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance (the “Reference Property”) by a holder of a
number of shares of Common Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of authorized shares of
Common Stock available to convert all such Securities) immediately prior to
such reclassification, change, consolidation, merger, combination, sale or
conveyance; provided that the increase to the
Conversion Rate in connection with Section 9.06 shall no longer be in
effect after the related Fundamental Change Repurchase Date. However, at and
after the effective time of such transaction, any amount otherwise payable in
cash upon conversion of the Securities pursuant to Section 9.03 will
continue to be payable in cash and the Daily Conversion Value will be
calculated based on the value of the Reference Property, and the provisions of Section 9.03
shall continue to apply following such transaction as nearly equivalent as
practicable to how such provisions applied prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance. If the
transaction causes Common Stock to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form of
stockholder election), the Reference Property into which the Securities will be
convertible shall be deemed to be the weighted average of the types and amounts
of consideration received by the holders of Common Stock that affirmatively
make such election. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 9. If, in the case of any such
reclassification, change, consolidation, merger, combination, sale or
conveyance, the Reference Property receivable thereupon by a holder of Common
Stock includes shares of stock, securities or other property or assets (including
cash or any combination of the foregoing) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary by reason of the foregoing.


 


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The Company shall cause
notice of the execution of such supplemental indenture to be mailed to each
Holder, at the address of such Holder as it appears on the register of the
Securities maintained by the Security Registrar, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture. The above provisions of this Section shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances.


 


(b)                                 If a Holder elects to convert Securities in
connection with a Make-Whole Fundamental Change pursuant to Section 9.06
that results in delivery of Reference Property to the Holders, any increase in
the Conversion Rate by Additional Shares as set forth in Section 9.06
shall not be payable in shares of Common Stock, but shall represent a right to
receive the aggregate amount of Reference Property into which the Additional
Shares would convert in the transaction from the surviving entity (or an
indirect or direct parent thereof).


 


Section 9.08. Taxes on Shares Issued. Any
issue of stock certificates on conversions of Securities shall be made without
charge to the converting Holder for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof, and the Company shall pay any and
all documentary, stamp or similar issue or transfer taxes that may be payable
in respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of Common Stock in any name other than that of the Holder,
and any tax imposed by any taxing authority outside of the United States as a
result of any action by the Holder, and the Company shall not be required to
issue or deliver any such stock certificate unless and until the Person or
Persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.


 


Section 9.09. Reservation of Shares;
Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of
Common Stock. (a) The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would
be held by a single Holder). Notwithstanding any other provision of this Article 9,
in no event will the Common Stock issuable upon conversion of the Securities
exceed 19.99% of the Common Stock outstanding immediately before the issuance
of the Securities (which is equivalent to issuing upon conversion approximately
36.9885 shares of Common Stock per $1,000 Principal Amount (the “Share Issuance Cap”)), and if an event occurs that would
otherwise result in an increase in a Conversion Rate that would result in
issuance of a number of shares of Common Stock equal to or in excess the Share
Issuance Cap, the Company shall, at its option, either (1) obtain the
approval of its stockholders regarding the issuance of such Common 


 


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Stock or (2) deliver cash in lieu of any shares of Common Stock
other deliverable in excess of the number permitted to be delivered under such rules or
listing standards, based on the Last Reported Sale Price of the Common Stock on
the Trading Day immediately prior to the date when such Common Stock would
otherwise be required to be distributed.


 


(b)                                 Before taking any action which would cause an
adjustment reducing the Conversion Rate below the then par value, if any, of
the shares of Common Stock issuable upon conversion of the Securities, the
Company will take all corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
shares of such Common Stock at such adjusted Conversion Rate.


 


The Company covenants that
all shares of Common Stock issued upon conversion of Securities will be fully
paid and non-assessable by the Company and free from all taxes, liens and
changes with respect to the issue thereof.


 


(c)                                  The Company covenants that, if any shares of
Common Stock to be provided for the purpose of conversion of Securities
hereunder require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued upon
conversion, the Company shall use its reasonable efforts, to the extent then
permitted by the rules and interpretations of the Commission (or any
successor thereto), to endeavor to secure such registration or approval, as the
case may be.


 


(d)                                 If at any time the Common Stock shall be
listed on any other national securities exchange or automated quotation system
the Company shall use its reasonable efforts, if permitted and required by the rules of
such exchange or automated quotation system, to list and keep listed, so long
as the Common Stock shall be so listed on such exchange or automated quotation
system, all Common Stock issuable upon conversion of the Securities.


 


Section 9.10. Responsibility of
Trustee. The Trustee and any other Conversion Agent shall not at any
time be under any duty or responsibility to any Holder to determine the
Conversion Rate or whether any facts exist which may require any adjustment of
the Conversion Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Securities; and the Trustee and any
other Conversion Agent make no representations with respect thereto. Neither
the Trustee nor any Conversion Agent shall be responsible for any failure of
the Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Securities for the purpose of conversion or to comply with any of 


 


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the duties, responsibilities or covenants of the Company contained in
this Article 9. Without limiting the generality of the foregoing, neither
the Trustee nor any Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 9.07 relating either to the
kind or amount of shares of stock or securities or property (including cash)
receivable by Securityholders upon the conversion of their Securities after any
event referred to in such Section 9.07 or to any adjustment to be made
with respect thereto, but, subject to the provisions of Section 12.01, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.


 


Section 9.11. Notice to Holders Prior
to Certain Actions. In case:


 


(a)                                  the Company shall declare a dividend (or any
other distribution) on its Common Stock that would require an adjustment in the
Conversion Rate pursuant to Section 9.04 other than a regularly scheduled
quarterly cash dividend; or


 


(b)                                 the Company shall authorize the granting to
the holders of all or substantially all of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class or any other
rights or warrants; or


 


(c)                                  of any reclassification or reorganization of
the Common Stock of the Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to
which the Company is a party and for which approval of any stockholders of the
Company is required, or of the sale, lease or transfer of all or substantially
all of the assets of the Company and its Subsidiaries; or


 


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


 


then, in each case, the
Company shall cause to be filed with the Trustee and the Conversion Agent and
to be mailed to each Securityholder at such Holder’s address appearing on the
Security Register, provided for in Section 3.05 of this Indenture, as
promptly as possible but in any event at least 20 days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution or
rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, lease, transfer, dissolution, liquidation or
winding-up is expected to become effective or occur, and the date as of which
it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for 


 


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securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.


 


Section 9.12. Stockholder Rights
Plans. Each share of Common Stock issued upon conversion of
Securities pursuant to this Article 9 shall be entitled to receive the
appropriate number of rights, if any, and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any stockholder rights plan
adopted by the Company, as the same may be amended from time to time. If at the
time of conversion, however, the rights have separated from the shares of
Common Stock in accordance with the provisions of the applicable stockholder
rights agreement so that the Holders of the Securities would not be entitled to
receive any rights in respect of Common Stock issuable upon conversion of the
Securities, the Conversion Rate will be adjusted at the time of separation as
if the Company has distributed to all holders of Common Stock, shares of
Capital Stock of the Company, evidence of indebtedness or assets as provided in
Section 9.04(c), subject to readjustment in the event of the expiration,
termination or redemption of such rights.


 


Section 9.13. Exchange in Lieu of
Conversion.


 


(a)                                  If at any time when a Holder surrenders
Securities for conversion prior to the Stated Maturity of the Securities the
Company:


 


(i)                                     has designated a financial institution (a “Designated Institution”) to accept such
Securities in exchange for cash and/or shares of Common Stock, equal to the
consideration due upon conversion as provided in Section 9.03;
and


 


(ii)                                  notifies the Holder surrendering such
Securities for conversion by the second Trading Day after the Conversion Date,
that it has directed the Designated Institution to make an exchange in lieu of
conversion,


 


then, notwithstanding
anything in this Indenture to the contrary, the Company may direct the
Conversion Agent to surrender such Securities, on or prior to the commencement
of the applicable Observation Period to the Designated Institution for exchange
in lieu of conversion.


 


(b)                                 If the Designated Institution accepts
Securities surrendered for exchange, it shall notify the Conversion Agent
whether it shall deliver, upon exchange, all cash, all shares of Common Stock
or a combination of cash and shares of Common Stock and shall deliver such cash
and/or shares of Common Stock, as specified in Section 9.03 to the
Conversion Agent and the Conversion 


 


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Agent
shall deliver such cash and/or shares of Common Stock to the Holder, within the
time period specified in Section 9.02(d), which
delivery shall be deemed to satisfy the Company’s conversion obligations under
this Article 9 with respect to such Holder. Any Securities so exchanged by
such Designated Institution shall remain Outstanding for all purposes under
this Indenture.


 


(c)                                  If the Designated Institution agrees to
accept any Securities for exchange but does not timely deliver the related
consideration to the Conversion Agent, or if the Designated Institution does
not accept such Securities for exchange, the Company shall, within the time
period specified in Section 9.02(d), convert such Securities into cash
and/or shares of Common Stock, in accordance with the provisions of Section 9.02
and Section 9.03.


 


(d)                                 For the avoidance of doubt, in no event will
the Company’s designation of a financial institution pursuant to this Section 9.13
require such financial institution to accept any Securities for exchange.


 


ARTICLE 10

EVENTS OF DEFAULT; REMEDIES


 


Section 10.01. Events of
Default. “Event of Default,”
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(a)                                  default in any payment of Interest on any
Securities when due and payable and such default continues for a period of 30
days; provided, that a valid
extension of the payment period for Interest in accordance with Article 4
shall not constitute an Event of Default under this Section 10.01(a),
whether or not prohibited by Section 5 of this Indenture;


 


(b)                                 default in the payment of the Principal
Amount, when due and payable at its Stated Maturity, upon optional redemption
pursuant to Article 7, upon required repurchase pursuant to Article 8,
upon declaration or otherwise;


 


(c)                                  default in the Company’s obligation to
deliver the cash and/or Common Stock, payable upon exercise of a Holder’s
conversion right in accordance with Article 9 hereof and such failure
continues for two Business Days;


 


(d)                                 failure by the Company to issue a Fundamental
Change Company Notice or the notice required by Section 9.01(a)(iv) when
due;


 


(e)                                  failure by the Company to comply with its
obligations under Article 11 hereof;


 


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(f)                                    default in the performance of any covenant,
agreement or condition of the Company in this Indenture or the Securities
(other than a default specified in paragraph (a) or (b) above), and
such default continues for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate Principal Amount of
the Outstanding Securities a written notice specifying such default and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;


 


(g)                                 failure to pay when due (whether at stated
maturity or otherwise and including any applicable grace period relating to
such Indebtedness) by the Company or any of its Subsidiaries of principal or
interest on Indebtedness where the amount of such unpaid principal and/or
interest is in an aggregate amount in excess of $50 million or more (or a
foreign currency equivalent), or a default that results in the acceleration of
maturity of any Indebtedness of the Company or any of its Subsidiaries in an
aggregate amount in excess of $50 million (or its foreign currency equivalent);


 


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


 


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


 


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admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any of its Significant
Subsidiaries in furtherance of any such action.


 


Section 10.02.
Acceleration of Maturity; Other Remedies; Rescission and Annulment. Subject to Article 5 hereof,  (a) If
an Event of Default (other than those specified in Section 10.01(h) and
Section 10.01(i) with respect to the Company) occurs and is
continuing, then and in every such case the Trustee or the Holders of at least
25% in aggregate Principal Amount of the Outstanding Securities may declare the
Principal Amount plus accrued and unpaid Interest on all the Outstanding Securities
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration such
Principal Amount plus accrued and unpaid Interest shall become immediately due
and payable.


 


Notwithstanding the
foregoing, in the case of an Event of Default specified in Section 10.01(h) or Section 10.01(i) with respect to
the Company, the Principal Amount plus accrued and unpaid Interest on
all Outstanding Securities will ipso facto
become due and payable without any declaration or other act on the part of the
Trustee or any Holder.


 


(b)                                 At any time after such a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article 10
provided, the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:


 


(i)                                     such rescission and annulment will not
conflict with any judgment or decree of a court of competent jurisdiction; and


 


(ii)                                  all Events of Default, other than the
non-payment of the Principal Amount plus accrued and unpaid Interest on
Securities that have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 10.12 and payments owed
to the Trustee under Section 12.07 have been made.


 


No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


(c)                                  Notwithstanding the foregoing, if so elected
by the Company, the sole remedy for an Event of Default relating to the failure
to comply with Section 6.13 hereof, will for the first 365 days after the
occurrence of such an Event of Default consist exclusively of the right to
receive additional interest (the “Reporting Additional
Interest”) on the Securities at an annual rate equal to 0.25% of the
Principal Amount of Outstanding Securities during the first 180 days after the
occurrence of such an Event of Default and 0.50% of the Principal 


 


95

















 


Amount
of Outstanding Securities from the 181st day until the 365th
day following the occurrence of such an Event of Default. The Reporting
Additional Interest will be in addition to any Additional Interest that may
accrue under the Registration Rights Agreement. If the Company so elects, the
Reporting Additional Interest will be payable on all Outstanding Securities
from and including the date on which such event of default first occurs to, but
not including, the 365th day thereafter, or such earlier date on
which such Event of Default has been cured or waived. On the 365th
day after such Event of Default (or earlier, if the Event of Default is cured
or waived prior to 365th day), Reporting Additional Interest will
cease to accrue and the Securities will be subject to acceleration as provided
in this Section 10.02. In the event the Company does not elect to pay the
Reporting Additional Interest upon an Event of Default in accordance with this
paragraph, the Securities will be subject to acceleration as provided in this
Section.


 


In order to elect to pay the
Reporting Additional Interest as the sole remedy during the first 365 days
after the occurrence of an Event of Default relating to the failure to comply
with Section 6.13 in accordance with the immediately preceding paragraph,
the Company must (i) notify all Holders, the Trustee and Paying Agent of
such election prior to the date that is 60 days after the Notice of Default is
delivered to the Company. Upon the failure to timely give all Holders, the
Trustee and Paying Agent such notice, the Securities will be subject to
acceleration as provided in this Section 10.02.


 


Section 10.03. Collection
of Indebtedness and Suits for Enforcement by Trustee. Subject to Article 5
hereof, the Company covenants that if a Default is made in the payment of the
Principal Amount plus accrued and unpaid Interest at the Maturity thereof or in
the payment of the Redemption Price or the Fundamental Change Repurchase Price
in respect of any Security, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.


 


Subject to Article 5
hereof, if an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy to collect the payment
of the Principal Amount plus accrued but unpaid Interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture. The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of, or acquiescence in, the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative.


 


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Section 10.04. Trustee May File
Proofs of Claim. In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized 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 other 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 to 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 12.07.


 


No provision of this
Indenture 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 10.05.
Application of Money Collected. Subject to Article 5
hereof, any money collected by the Trustee pursuant to this Article 10
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money to Holders, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all
amounts due the Trustee under Section 12.07;


 


SECOND:  To the payment of the
amounts then due and unpaid on the Securities for the Principal Amount,
Redemption Price, Fundamental Change Repurchase Price or Interest, as the case
may be, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities; and


 


THIRD:  To the payment of the
remainder, if any, to the Company;


 


Section 10.06. Limitation
on Suits. No Holder of any Security shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder (other than in the case of an Event of Default specified in Section 10.01(a) or
Section 10.01(b)), unless permitted under Article 5 hereof, and:


 


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(i)                                     such Holder has previously given written
notice to the Trustee of a continuing Event of Default;


 


(ii)                                  the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;


 


(iii)                               such Holder or Holders have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;


 


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


 


(v)                                 no direction, in the opinion of the Trustee,
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in aggregate Principal Amount
of the Outstanding Securities;


 


it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders, or
to obtain or to seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.


 


Section 10.07. Unconditional
Right of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, other than Article 5 hereof, the right of any
Holder to receive payment of the Principal Amount, Redemption Price,
Fundamental Change Repurchase 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 or Fundamental Change Repurchase Date, as
applicable, and to convert the Securities in accordance with Article 9,
or to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.


 


Section 10.08.
Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the 


 


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Trustee and the Holders shall continue as though no such proceeding had
been instituted.


 


Section 10.09. Rights and
Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.06, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section 10.10. Delay or
Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Subject to Article 5
hereof, every right and remedy given by this Article 10 or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.


 


Section 10.11. Control by
Holders. Subject to Article 5 hereof, the Holders of a majority in
Principal Amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided that:


 


(i)                                     such direction shall not be in conflict with
any rule of law or with this Indenture;


 


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


 


(iii)                               the Trustee has not determined that such
action would either subject it to liability or be unduly prejudicial to the
rights of the other Holders.


 


Section 10.12. Waiver of
Past Defaults. The Holders of a majority in Principal Amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past Default hereunder and its consequences, except a Default:


 


(i)                                     Described in Section 10.01(a) or
(b); or


 


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(ii)                                  in respect of a covenant or provision hereof
which under Article 15 cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.


 


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


 


Section 10.13.
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, in either case in respect of the
Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney’s 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; but the provisions of this Section 10.13
shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in Principal Amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the Principal Amount on any Security on or after Maturity of such
Security, the Redemption Price or the Fundamental Change Repurchase Price.


 


ARTICLE 11

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 11.01. Company May Consolidate,
Etc., Only on Certain Terms. The Company shall not consolidate with
or merge into another Person or convey, transfer or lease all or substantially
all of its properties and assets to another Person (other than a wholly-owned
subsidiary of the Company existing under the laws of the United States, any
state thereof or the District of Columbia), and the Company shall not permit
another Person to consolidate with or merge into the Company or convey,
transfer or lease all or substantially all of its properties and assets to the
Company, unless:


 


(a)                                  either (i) the Company is the resulting,
surviving or transferee Person or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety (the “Surviving Entity”), (1) is organized
and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia, (2) the Surviving Entity expressly
assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee, all of the obligations of the Company under the Securities, this
Indenture and, to the 


 


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extent
that the Company has ongoing obligations pursuant to the Registration Rights
Agreement, the Registration Rights Agreement;


 


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


 


(c)                                  the Company or the Surviving Entity has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article 11 and Article 15,
respectively.


 


Section 11.02. Successor
Substituted. Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer or lease of
all or substantially all of the properties and assets of the Company in
accordance with Section 11.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease of all or substantially all of
the Company’s properties and assets, the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Securities.


 


ARTICLE 12

THE TRUSTEE


 


Section 12.01. Duties and
Responsibilities of Trustee. The Trustee, prior to the occurrence of
an Event of Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs.


 


(a)                                  Prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred:


 


(i)                                the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture and no implied covenants or obligations shall be read into this
Indenture and the Trust Indenture Act against the Trustee; and


 


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


 


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


 


(i)                       this paragraph does not limit the effect of
paragraph (a) of this Section;


 


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


 


(iii)                 the Trustee shall not be liable to the
Holders with respect to any action taken or omitted to be taken by it in good
faith in accordance with the written direction of the Holders of a majority in
principal amount of the Securities at the time outstanding determined as
provided in Section 1.04 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;


 


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


 


(d)                                 The Trustee shall not be liable in respect of
any payment (as to the correctness of amount, entitlement to receive or any
other matters relating to payment) or notice effected by the Company or any
Paying Agent or any records maintained by any co-registrar with respect to the
Securities; and


 


(e)                                  If any party fails to deliver a notice
relating to an event the fact of which, pursuant to this Indenture, requires
notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred.


 


None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its


 


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rights or powers, if there
is reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


Section 12.02. Notice of
Defaults. The Trustee shall give the Holders and any Representative
of Senior Debt that has so requested in writing notice of any Default hereunder
within 60 days after the occurrence thereof; provided,
that (except in the case of any Default in the payment of Principal Amount or
Interest on any of the Securities or Fundamental Change Repurchase Price), the
Trustee shall be protected in withholding such notice to the Holders (but not
the Representative of the Senior Debt) if and so long as a committee of
officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.


 


Section 12.03. Reliance
on Documents, Opinions, Etc. Except as otherwise provided in Section 12.01:


 


(a)                                  the Trustee may rely and shall be protected
in acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon or other
paper or document (whether in its original or facsimile form) believed by it in
good faith to be genuine and to have been signed or presented by the proper
party or parties;


 


(b)                                 any request, direction, order or demand of
the Company mentioned herein shall be sufficiently evidenced by an Officers’
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;


 


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


 


(d)                                 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 Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have offered to
the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby;


 


(e)                                  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 or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to 


 


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examine
the books, records and premises of the Company, personally or by agent or
attorney (at the reasonable expense of the Company and shall incur no liability
of any kind by reason of such inquiry or investigation);


 


(f)                                    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 by it
with due care hereunder;


 


(g)                                 the Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;


 


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


 


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


 


(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 each agent, custodian and
other Person employed to act hereunder.


 


(k)                                  The Trustee agrees to accept and act upon
facsimile transmission of written instructions or directions pursuant to this
Indenture, it being understood that originals of such shall be provided to the
Trustee in a timely manner.


 


Section 12.04. No
Responsibility For Recitals, Etc. The recitals contained herein and
in the Securities (except in the Trustee’s certificate of authentication) shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee in conformity with the provisions of this
Indenture.


 


Section 12.05. Trustee,
Paying Agents, Conversion Agents or Registrar May Own Securities. The
Trustee, any Paying Agent, any Conversion Agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Paying Agent,
Conversion Agent or Security Registrar.


 


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Section 12.06. Monies to
Be Held in Trust. Subject to the provisions of Section 14.02,
all monies and properties received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.


 


Section 12.07.
Compensation and Expenses of Trustee. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) as mutually agreed to
from time to time in writing between the Company and the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct or
bad faith. The Company also covenants to indemnify the Trustee (or any officer,
director or employee of the Trustee), in any capacity under this Indenture and
its agents and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, claim or expense incurred without negligence,
willful misconduct or bad faith on the part of the Trustee or such officers,
directors, employees and agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this
trust or in any other capacity hereunder, including the costs and expenses of
defending themselves against any claim of liability in the premises. The
obligations of the Company under this Section 12.07
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a lien prior to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of
particular Securities. The obligation of the Company under this Section 12.07
shall survive the satisfaction and discharge of this Indenture.


 


When the
Trustee and its agents and any authenticating agent incur expenses or render
services after an Event of Default specified in Section 10.01(h) or Section 10.01(i) with
respect to the Company occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.


 


Section 12.08.
Conflicting Interests of Trustee. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and
in the


 


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manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.


 


Section 12.09.
Eligibility of Trustee. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system,
its bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section 12.09 the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 12.09, it shall resign promptly in the manner
and with the effect hereinafter specified in this Article 12.


 


Section 12.10.
Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and to the Holders. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and have accepted appointment 60 days after the mailing
of such notice of resignation to the Securityholders, the resigning Trustee
may, upon 10 Business Days’ notice to the Company and the Securityholders,
appoint a successor identified in such notice or may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee, or, if any Securityholder who has been a bona fide Holder
for at least six (6) months may, subject to the provisions of Section 10.13, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.


 


(b)                                 In case at any time
any of the following shall occur:


 


(i)                                     the
Trustee shall fail to comply with Section 12.08 after written request
therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six (6) months; or


 


(ii)                                  the
Trustee shall cease to be eligible in accordance with the provisions of Section 12.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


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(iii)                               the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation; then, in any such case, the Company may remove the Trustee and
appoint a successor Trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 10.13, any Securityholder who has
been a bona fide Holder for at least six (6) months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee; provided, however, that if no successor Trustee
shall have been appointed and have accepted appointment 60 days after either
the Company or the Securityholders has removed the Trustee, the Trustee so
removed may petition any court of competent jurisdiction for an appointment of
a successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
Trustee.


 


(c)                                  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may at any time remove the Trustee and nominate a successor Trustee
which shall be deemed appointed as successor Trustee unless, within 10 days
after notice to the Company of such nomination, the Company objects thereto, in
which case the Trustee so removed or any Securityholder, or if such Trustee so
removed or any Securityholder fails to act, the Company, upon the terms and
conditions and otherwise as in Section 12.10(a) provided, may
petition any court of competent jurisdiction for an appointment of a successor
Trustee.


 


(d)                                 Any resignation or
removal of the Trustee and appointment of a successor Trustee pursuant to any
of the provisions of this Section 12.10 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 12.11.


 


Section 12.11. Acceptance
by Successor Trustee. Any successor Trustee appointed as provided in
Section 12.10 shall execute, acknowledge and deliver to the Company and to
its predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor Trustee, the trustee ceasing to act shall, upon
payment of any amount then due it pursuant to the provisions of Section 12.07,
execute and deliver an instrument transferring to such successor Trustee all
the


 


107

















 


rights and powers of the trustee so ceasing
to act. Upon request of any such successor Trustee, the Company shall execute
any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such trustee as such, except for funds held in trust for
the benefit of holders of particular Securities, to secure any amounts then due
it pursuant to the provisions of Section 12.07.


 


No successor Trustee shall
accept appointment as provided in this Section 12.11
unless, at the time of such acceptance, such successor Trustee shall be
qualified under the provisions of Section 12.08 and be eligible under the
provisions of Section 12.09.


 


Upon
acceptance of appointment by a successor Trustee as provided in this Section 12.11,
the Company (or the former trustee, at the written direction of the Company)
shall mail or cause to be mailed notice of the succession of such trustee
hereunder to the Holders at their addresses as they shall appear on the
Security Register. If the Company fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Company.


 


Section 12.12. Succession
by Merger, Etc.. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee (including any trust created by
this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in
the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, such corporation shall be qualified
under the provisions of Section 12.08 and eligible under the provisions of
Section 12.09.


 


In case at the
time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee or authenticating agent appointed by
such predecessor Trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such
successor Trustee may authenticate such Securities in the name of the successor
Trustee; and in all such cases such certificates shall have the full force that
is provided in the Securities or in this Indenture; provided, however
that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.


 


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Section 12.13.
Preferential Collection of Claims. If and when the Trustee shall be
or become a creditor of the Company (or any other obligor upon the Securities),
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of the claims against the Company (or any such other
obligor).


 


ARTICLE 13

HOLDERS’ LISTS AND REPORTS BY TRUSTEE


 


Section 13.01. Company to
Furnish Trustee Names and Addresses of Holders. The Company will
furnish or cause to be furnished to the Trustee:


 


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


 


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


 


excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar; provided, however,
that no such list need be furnished so long as the Trustee is acting as
Security Registrar.


 


Section 13.02. Preservation
of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 13.01 and
the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 13.01 upon receipt of a new list so furnished.


 


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


 


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


 


Section 13.03. Reports by
Trustee. (a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture


 


109

















 


as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. Reports
so required to be transmitted at stated intervals of not more than 12 months
shall be transmitted no later than July 15 of each calendar year,
commencing on July 15, 2008. Each such report shall be dated as of a date
not more than 60 days prior to the date of transmission.


 


(b)                                 A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Company. The Company will notify the Trustee
when the Securities are listed on any stock exchange or of any delisting
thereof.


 


ARTICLE 14

SATISFACTION AND DISCHARGE


 


Section 14.01. Satisfaction
and Discharge of Indenture. This Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when


 


(a)                                 either


 


(i)                                     all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (B) Securities for whose payment
money has theretofore been deposited with the Trustee in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust as provided in Section 6.04) have been
delivered to the Trustee for cancellation; or


 


(ii)                                  all
such Securities not theretofore delivered to the Trustee for cancellation have
become due and payable and the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount sufficient
to pay and discharge the entire Indebtedness evidenced by such Securities not
theretofore delivered to the Trustee for cancellation;


 


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


 


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


 


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Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 12.07 and, if money shall have been deposited
with the Trustee pursuant to Section 14.01(a)(ii), the obligations of the
Trustee under Section 14.02 and the last paragraph of Section 6.04 shall survive.


 


Section 14.02.
Application of Trust Money. Subject to the provisions of the last
paragraph of Section 6.04, all money deposited with the Trustee pursuant
to Section 14.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) to the Persons entitled thereto, of the principal and
Interest for whose payment such money has been deposited with the Trustee.


 


ARTICLE 15

SUPPLEMENTAL INDENTURES


 


Section 15.01.
Supplemental Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


(i)                                     to
cure any ambiguity or correct any omission , defect or inconsistency contained
herein, so long as such action does not materially adversely affect the
interest of the Holders; provided
that any such action made solely to conform the provisions of this Indenture to
the description thereof contained in the final offering memorandum dated December 3,
2007, shall be deemed not to adversely affect the interests of the Holders;


 


(ii)                                  to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the
Securities;


 


(iii)                               to
provide for uncertificated Securities in addition to or in place of
certificated Securities; provided
that the Company receives an opinion of nationally recognized tax counsel that
such uncertificated Securities are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that the uncertificated Securities are described
in Section 163(f)(2)(B) of the Code;


 


(iv)                              to
add guarantees with respect to the Securities;


 


(v)                                 to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities any property or assets;


 


111

















 


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


 


(vii)                           to
fix a Specified Dollar Amount that will apply to all future conversions of the
Securities and to provide that the Company will be required to satisfy its
settlement obligations on conversion of the Securities pursuant to Section 9.03(b)(iii) by
paying cash with respect to such Specified Dollar Amount;


 


(viii)                        to
add or modify any other provision herein with respect to matters or questions
arising hereunder which the Company may deem necessary or desirable and which
does not materially adversely affect the rights of any Holder; or


 


(ix)                              to
modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualifications of this Indenture under the
Trust Indenture Act, or under any similar federal statute hereafter enacted.


 


Section 15.02.
Supplemental Indentures With Consent of Holders. With the consent of
the Holders of a majority in Principal Amount of the Outstanding Securities, by
Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,


 


(i)                                     reduce
the rate or extend the time of payment of any Interest on any Security;


 


(ii)                                  reduce
the Principal Amount of, or extend the Stated Maturity of, any Security;


 


(iii)                               make
any change that impairs or adversely affects the right of a Holder to convert
any Securities or the Conversion Rate (other than in accordance with the
provisions of Article 9) of any Securities;


 


(iv)                              reduce
the Redemption Price or Fundamental Change Repurchase Price of any Security or
amend or modify in any manner adverse to the Holders of Securities the Company’s
obligation to make such payments, whether through an amendment or waiver of
provisions in this Indenture (including the definitions contained herein) or
otherwise;


 


112

















 


(v)                                 make
any Security payable in money other than that stated in the Security or other
than in accordance with the provisions of this Indenture;


 


(vi)                              modify
the provisions of Article 5 relating to the subordination of the
Securities in a manner adverse to the Holders of Securities;


 


(vii)                           impair
the right of any Holder to receive payment of principal and interest on such
Holder’s Securities or to institute suit for the enforcement of any payment on
or with respect to such Holder’s Securities;


 


(viii)                        modify any of the provisions of this Section 15.02,
Section 15.03 or Section 10.12,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby.


 


It shall not
be necessary for any Act of Holders under this Section 15.02 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.


 


Section 15.03. Execution
of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article 15
or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 12.01) shall
be fully protected in relying upon, in addition to the documents required by Section 1.02,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. Subject to the preceding
sentence, the Trustee shall sign such supplemental indenture if the same does not
adversely affect the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


Section 15.04. Effect of
Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article 15, 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.


 


Section 15.05. Conformity
With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article 15 shall conform to the requirements of the Trust
Indenture Act.


 


Section 15.06. Reference
in Securities to Supplemental Indentures. Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article 15 shall 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


 


113

















 


opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.


 


Section 15.07. Notice to
Holders of Supplemental Indentures. The Company shall cause notice
of the execution of any supplemental indenture to be mailed to each
Securityholder, at his address appearing on the Security Register provided for
in this Indenture, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.


 


[Remainder of the page intentionally
left blank]


 


114

















 


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


 


	
   

  	
   

  	
  MICROCHIP TECHNOLOGY

  INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steve Sanghi

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Steve Sanghi

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President and Chief Executive

  Officer

  
						



 


 


[Trustee Signature Follows]


 


115

















 


	
   

  	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Maddy Hall

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Maddy Hall

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
						



 


116

















 


EXHIBIT A


 


Form of Fundamental Change Repurchase
Notice


 


Wells Fargo Bank, National Association


707 Wilshire Blvd, Los Angeles, CA 90017, 

Attention: Maddy Hall


 


Re:                             Microchip
Technology Incorporated (the “Company”) 

2.125% Junior Subordinated Convertible Debentures due 2037


 


This is a Fundamental Change Repurchase Notice as defined in Section 8.01(a) of
the Indenture dated as of December 7, 2007 (the “Indenture”) between the
Company and Wells Fargo Bank, National Association, as Trustee. Terms used but not
defined herein shall have the meanings ascribed to them in the Indenture.


	
  Certificate No(s). of Securities:

  	
   

  



 


 


I intend to
deliver the following aggregate Principal Amount of Securities for purchase by
the Company pursuant to Section 8.01 of the Indenture (in multiples of
$1,000):


 


	
  $

  	
   

  



 


 


I hereby agree
that the Securities will be purchased as of the Fundamental Change Repurchase
Date pursuant to the terms and conditions thereof and of the Indenture.


 


 


	
   

  	
  Signed:

  	
   

  



 


A-1

















 


EXHIBIT B


 


Additional Shares to Be Delivered in
Connection with Conversion Upon a Make-Whole Fundamental Change


 


	
  Stock Price

  	
   

  	
  $

  	
  29.70

  	
   

  	
  $

  	
  35.00

  	
   

  	
  $

  	
  40.00

  	
   

  	
  $

  	
  45.00

  	
   

  	
  $

  	
  50.00

  	
   

  	
  $

  	
  51.23

  	
   

  	
  $

  	
  55.00

  	
   

  	
  $

  	
  60.00

  	
   

  	
  $

  	
  65.00

  	
   

  	
  $

  	
  70.00

  	
   

  	
  $

  	
  75.00

  	
   

  	
  $

  	
  80.00

  	
   

  	
  $

  	
  85.00

  	
   

  	
  $

  	
  90.00

  	
   

  	
  $

  	
  95.00

  	
   

  	
  $

  	
  100.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Effective Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 7, 2007

  	
   

  	
  4.3917

  	
   

  	
  3.6907

  	
   

  	
  3.0242

  	
   

  	
  2.5287

  	
   

  	
  2.1388

  	
   

  	
  2.0631

  	
   

  	
  1.8317

  	
   

  	
  1.5753

  	
   

  	
  1.3669

  	
   

  	
  1.1964

  	
   

  	
  1.0458

  	
   

  	
  0.9202

  	
   

  	
  0.8147

  	
   

  	
  0.7201

  	
   

  	
  0.6389

  	
   

  	
  0.5666

  	
   

  
	
  December 15, 2008

  	
   

  	
  4.3917

  	
   

  	
  3.6116

  	
   

  	
  2.9545

  	
   

  	
  2.4679

  	
   

  	
  2.0816

  	
   

  	
  2.0070

  	
   

  	
  1.7788

  	
   

  	
  1.5230

  	
   

  	
  1.3260

  	
   

  	
  1.1500

  	
   

  	
  1.0077

  	
   

  	
  0.8872

  	
   

  	
  0.7846

  	
   

  	
  0.6914

  	
   

  	
  0.6167

  	
   

  	
  0.5435

  	
   

  
	
  December 15, 2009

  	
   

  	
  4.3917

  	
   

  	
  3.5258

  	
   

  	
  2.8739

  	
   

  	
  2.3757

  	
   

  	
  2.0085

  	
   

  	
  1.9325

  	
   

  	
  1.7003

  	
   

  	
  1.4679

  	
   

  	
  1.2680

  	
   

  	
  1.1016

  	
   

  	
  0.9661

  	
   

  	
  0.8491

  	
   

  	
  0.7483

  	
   

  	
  0.6612

  	
   

  	
  0.5854

  	
   

  	
  0.5217

  	
   

  
	
  December 15, 2010

  	
   

  	
  4.3917

  	
   

  	
  3.4294

  	
   

  	
  2.7664

  	
   

  	
  2.2824

  	
   

  	
  1.9114

  	
   

  	
  1.8409

  	
   

  	
  1.6253

  	
   

  	
  1.3960

  	
   

  	
  1.1959

  	
   

  	
  1.0473

  	
   

  	
  0.9141

  	
   

  	
  0.8014

  	
   

  	
  0.7044

  	
   

  	
  0.6215

  	
   

  	
  0.5474

  	
   

  	
  0.4848

  	
   

  
	
  December 15, 2011

  	
   

  	
  4.3917

  	
   

  	
  3.2985

  	
   

  	
  2.6500

  	
   

  	
  2.1706

  	
   

  	
  1.8244

  	
   

  	
  1.7535

  	
   

  	
  1.5366

  	
   

  	
  1.3079

  	
   

  	
  1.1229

  	
   

  	
  0.9633

  	
   

  	
  0.8368

  	
   

  	
  0.7390

  	
   

  	
  0.6488

  	
   

  	
  0.5681

  	
   

  	
  0.5048

  	
   

  	
  0.4467

  	
   

  
	
  December 15, 2012

  	
   

  	
  4.3917

  	
   

  	
  3.1748

  	
   

  	
  2.5545

  	
   

  	
  2.0406

  	
   

  	
  1.7007

  	
   

  	
  1.6267

  	
   

  	
  1.4007

  	
   

  	
  1.1823

  	
   

  	
  1.0078

  	
   

  	
  0.8753

  	
   

  	
  0.7501

  	
   

  	
  0.6590

  	
   

  	
  0.5717

  	
   

  	
  0.5060

  	
   

  	
  0.4427

  	
   

  	
  0.3911

  	
   

  
	
  December 15, 2013

  	
   

  	
  4.3917

  	
   

  	
  3.0378

  	
   

  	
  2.3870

  	
   

  	
  1.8842

  	
   

  	
  1.5372

  	
   

  	
  1.4665

  	
   

  	
  1.2506

  	
   

  	
  1.0387

  	
   

  	
  0.8744

  	
   

  	
  0.7437

  	
   

  	
  0.6439

  	
   

  	
  0.5522

  	
   

  	
  0.4838

  	
   

  	
  0.4202

  	
   

  	
  0.3712

  	
   

  	
  0.3269

  	
   

  
	
  December 15, 2014

  	
   

  	
  4.3917

  	
   

  	
  2.8872

  	
   

  	
  2.2148

  	
   

  	
  1.7148

  	
   

  	
  1.3319

  	
   

  	
  1.2691

  	
   

  	
  1.0772

  	
   

  	
  0.8733

  	
   

  	
  0.7182

  	
   

  	
  0.5986

  	
   

  	
  0.4995

  	
   

  	
  0.4308

  	
   

  	
  0.3677

  	
   

  	
  0.3219

  	
   

  	
  0.2792

  	
   

  	
  0.2453

  	
   

  
	
  December 15, 2015

  	
   

  	
  4.3917

  	
   

  	
  2.7533

  	
   

  	
  2.0170

  	
   

  	
  1.4884

  	
   

  	
  1.1093

  	
   

  	
  1.0424

  	
   

  	
  0.8379

  	
   

  	
  0.6439

  	
   

  	
  0.5047

  	
   

  	
  0.4040

  	
   

  	
  0.3303

  	
   

  	
  0.2754

  	
   

  	
  0.2336

  	
   

  	
  0.2010

  	
   

  	
  0.1750

  	
   

  	
  0.1537

  	
   

  
	
  December 15, 2016

  	
   

  	
  4.3917

  	
   

  	
  2.6234

  	
   

  	
  1.8079

  	
   

  	
  1.2108

  	
   

  	
  0.7903

  	
   

  	
  0.7208

  	
   

  	
  0.5083

  	
   

  	
  0.3284

  	
   

  	
  0.2181

  	
   

  	
  0.1525

  	
   

  	
  0.1137

  	
   

  	
  0.0903

  	
   

  	
  0.0755

  	
   

  	
  0.0653

  	
   

  	
  0.0577

  	
   

  	
  0.0515

  	
   

  
	
  December 15, 2017

  	
   

  	
  4.3917

  	
   

  	
  2.5916

  	
   

  	
  1.7086

  	
   

  	
  0.9893

  	
   

  	
  0.4068

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  December 15, 2022

  	
   

  	
  4.3917

  	
   

  	
  2.6925

  	
   

  	
  1.8016

  	
   

  	
  1.0873

  	
   

  	
  0.5117

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  December 15, 2027

  	
   

  	
  4.3917

  	
   

  	
  2.8022

  	
   

  	
  1.8329

  	
   

  	
  1.0812

  	
   

  	
  0.4868

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  December 15, 2032

  	
   

  	
  4.3917

  	
   

  	
  2.9653

  	
   

  	
  1.8226

  	
   

  	
  1.0108

  	
   

  	
  0.4069

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  December 15, 2037

  	
   

  	
  4.3917

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maximum Add’l Shs Issuable

  	
   

  	
  4.3917

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B-1

















 


EXHIBIT C


 


THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) TWO YEARS AFTER
THE LATEST ISSUE DATE OF THE SECURITIES UPON THE CONVERSION OF WHICH THIS
SECURITY WAS ISSUED (SUBJECT TO REDUCTION AS SET FORTH IN SECTION 2.06 OF
THE INDENTURE) AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN
THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER, OFFER, RESELL,
PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO
THE ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) AGREES THAT IT
WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY WITHIN THE LATER OF (X) TWO YEARS
AFTER THE LATEST ISSUE DATE OF THE SECURITIES UPON THE CONVERSION OF WHICH THIS
SECURITY WAS ISSUED (SUBJECT TO REDUCTION AS SET FORTH IN SECTION 2.06 OF
THE INDENTURE) AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN
THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT) OF THE ISSUER,
FURNISH TO THE TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED 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.


 


C-1