**Exhibit 4.2**

** **

**EXECUTION COPY**

 

 

**INDENTURE**

** **

**Between**

** **

**WATSON PHARMACEUTICALS, INC.**

** **

**and**

** **

**WELLS FARGO BANK, NATIONAL ASSOCIATION,as Trustee**

** **

** **

**1.75% CONVERTIBLE CONTINGENT SENIORDEBENTURESDUE MARCH 15, 2023**

** **

** **

**Dated as of March 7, 2003**

 

 

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** **

**CROSS-REFERENCE TABLE***

 
| **Trust Indenture Act Section** |   |   | **Indenture Section** |
|---------------------------------|--------|--------|-----------------------|
|                            |   |   |                  |
| 310(a)(1)                       |   |   | 5.11                  |
| (a)(2)                          |   |   | 5.11                  |
| (a)(3)                          |   |   | n/a                   |
| (a)(4)                          |   |   | n/a                   |
| (a)(5)                          |   |   | 5.11                  |
| (b)                             |   |   | 5.3; 5.11             |
| (c)                             |   |   | n/a                   |
| 311(a)                          |   |   | 5.12                  |
| (b)                             |   |   | 5.12                  |
| (c)                             |   |   | n/a                   |
| 312(a)                          |   |   | 2.9                   |
| (b)                             |   |   | 14.3                  |
| (c)                             |   |   | 14.3                  |
| 313(a)                          |   |   | 5.7                   |
| (b)(1)                          |   |   | n/a                   |
| (b)(2)                          |   |   | 5.7                   |
| (c)                             |   |   | 5.7; 14.2             |
| (d)                             |   |   | 5.7                   |
| 314(a)(1), (2), (3)             |   |   | 9.4; 14.2             |
| (a)(4)                          |   |   | 9.5; 14.6             |
| (b)                             |   |   | n/a                   |
| (c)(1)                          |   |   | 14.5                  |
| (c)(2)                          |   |   | 14.5                  |
| (c)(3)                          |   |   | n/a                   |
| (d)                             |   |   | n/a                   |
| (e)                             |   |   | 14.6                  |
| (f)                             |   |   | n/a                   |
| 315(a)                          |   |   | 5.1(a)                |
| (b)                             |   |   | 5.6; 14.2             |
| (c)                             |   |   | 5.1(b)                |
| (d)                             |   |   | 5.1(c)                |
| (e)                             |   |   | 4.14                  |
| 316(a)(last sentence)           |   |   | 7.2                   |
| (a)(1)(A)                       |   |   | 4.5                   |
| (a)(1)(B)                       |   |   | 4.4                   |
| (a)(2)                          |   |   | n/a                   |
| (b)                             |   |   | 4.7                   |
| (c)                             |   |   | 7.4                   |
| 317(a)(1)                       |   |   | 4.8                   |
| (a)(2)                          |   |   | 4.9                   |
| (b)                             |   |   | 2.6                   |
| 318(a)                          |   |   | 14.1                  |
| (b)                             |   |   | n/a                   |
| (c)                             |   |   | 14.1                  |

 

“n/a” means not applicable.

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

 

i

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**TABLE OF CONTENTS**

 
| **ARTICLE  1   DEFINITIONS AND INCORPORATION BY REFERENCE** |
|-----------------------------------------------------------------------|
|                                                                  |   |
| **Section 1.1.**                                                      | Definitions |
|                                                                  |   |
| **Section 1.2.**                                                      | Incorporation by Reference of Trust  Indenture Act |
|                                                                  |   |
| **Section 1.3.**                                                      | Rules of Construction |
|                                                                  |   |
| **ARTICLE 2    THE  SECURITIES**                            |
|                                                                  |
| **Section 2.1.**                                                      | Title and Terms |
|                                                                  |   |
| **Section 2.2.**                                                      | Form of Securities |
|                                                                  |   |
| **Section 2.3.**                                                      | Legends |
|                                                                  |   |
| **Section 2.4.**                                                      | Execution,  Authentication, Delivery and Dating of the Securities |
|                                                                  |   |
| **Section  2.5.**                                                     | Registrar and Paying Agent |
|                                                                  |   |
| **Section 2.6.**                                                      | Paying  Agent to Hold Assets in Trust |
|                                                                  |   |
| **Section 2.7.**                                                      | General Provisions Relating to  Registration, Transfer and Exchange |
|                                                                  |   |
| **Section 2.8.**                                                      | Book-Entry Provisions for the Global  Securities |
|                                                                  |   |
| **Section 2.9.**                                                      | Holder Lists |
|                                                                  |   |
| **Section 2.10.**                                                     | Persons Deemed Owners |
|                                                                  |   |
| **Section 2.11.**                                                     | Mutilated,  Destroyed, Lost or Stolen Securities |
|                                                                  |   |
| **Section 2.12.**                                                     | Treasury Securities |
|                                                                  |   |
| **Section 2.13.**                                                     | Temporary Securities |
|                                                                  |   |
| **Section 2.14.**                                                     | Cancellation |
|                                                                  |   |
| **Section 2.15.**                                                     | CUSIP Numbers |
|                                                                  |   |
| **Section 2.16.**                                                     | Defaulted Interest |
|                                                                  |   |
| **Section 2.17.**                                                     | Transfer Provisions |
|                                                                  |   |
| **ARTICLE 3    DISCHARGE  OF INDENTURE**                    |
|                                                                  |   |
| **Section 3.1.**                                                      | Discharge  of Liability on Securities |
|                                                                  |   |
| **Section 3.2.**                                                      | Repayment to the Company |
|                                                                  |   |
| **ARTICLE 4    DEFAULTS  AND REMEDIES**                     |
|                                                                  |   |
| **Section 4.1.**                                                      | Events  of Default |
|                                                                  |   |
| **Section 4.2.**                                                      | Acceleration  of Maturity; Rescission and Annulment |
|                                                                  |   |
| **Section 4.3.**                                                      | Other  Remedies |

 

ii

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| **Section 4.4.**                                                                             | Waiver  of Past Defaults                                             |
|----------------------------------------------------------------------------------------------|----------------------------------------------------------------------|
|                                                                                         |                                                                 |
| **Section 4.5.**                                                                             | Control  by Majority                                                 |
|                                                                                         |                                                                 |
| **Section 4.6.**                                                                             | Limitation  on Suit                                                  |
|                                                                                         |                                                                 |
| **Section 4.7.**                                                                             | Unconditional  Rights of Holders to Receive Payment and to Convert   |
|                                                                                         |                                                                 |
| **Section 4.8.**                                                                             | Collection  of Indebtedness and Suits for Enforcement by the Trustee |
|                                                                                         |                                                                 |
| **Section 4.9.**                                                                             | Trustee  May File Proofs of Claim                                    |
|                                                                                         |                                                                 |
| **Section 4.10.**                                                                            | Restoration  of Rights and Remedies                                  |
|                                                                                         |                                                                 |
| **Section 4.11.**                                                                            | Rights  and Remedies Cumulative                                      |
|                                                                                         |                                                                 |
| **Section 4.12.**                                                                            | Delay  or Omission Not Waiver                                        |
|                                                                                         |                                                                 |
| **Section 4.13.**                                                                            | Priorities                                                           |
|                                                                                         |                                                                 |
| **Section 4.14.**                                                                            | Undertaking  for Costs                                               |
|                                                                                         |                                                                 |
| **Section 4.15.**                                                                            | Waiver  of Stay or Extension Laws                                    |
|                                                                                         |                                                                 |
| **ARTICLE 5    THE  TRUSTEE**                                                      |
|                                                                                         |                                                                 |
| **Section 5.1.**                                                                             | Certain  Duties and Responsibilities                                 |
|                                                                                         |                                                                 |
| **Section 5.2.**                                                                             | Certain Rights of Trustee                                            |
|                                                                                         |                                                                 |
| **Section 5.3.**                                                                             | Individual Rights of Trustee                                         |
|                                                                                         |                                                                 |
| **Section 5.4.**                                                                             | Money Held in Trust                                                  |
|                                                                                         |                                                                 |
| **Section 5.5.**                                                                             | Trustee’s Disclaimer                                            |
|                                                                                         |                                                                 |
| **Section 5.6.**                                                                             | Notice of Defaults                                                   |
|                                                                                         |                                                                 |
| **Section 5.7.**                                                                             | Reports by Trustee to Holders                                        |
|                                                                                         |                                                                 |
| **Section 5.8.**                                                                             | Compensation and Indemnification                                     |
|                                                                                         |                                                                 |
| **Section 5.9.**                                                                             | Replacement  of Trustee                                              |
|                                                                                         |                                                                 |
| **Section 5.10.**                                                                            | Successor Trustee by Merger, Etc.                                    |
|                                                                                         |                                                                 |
| **Section 5.11.**                                                                            | Corporate Trustee Required; Eligibility                              |
|                                                                                         |                                                                 |
| **Section 5.12.**                                                                            | Collection of Claims Against the Company                             |
|                                                                                         |                                                                 |
| **ARTICLE 6 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, SALE, LEASE OR OTHER  DISPOSITION** |
|                                                                                         |                                                                 |
|                                                                                         |                                                                 |
| **Section 6.1.**                                                                             | Company  May Consolidate, Etc., Only on Certain Terms                |
|                                                                                         |                                                                 |
| **Section 6.2.**                                                                             | Successor Corporation Substituted                                    |
|                                                                                         |                                                                 |
| **ARTICLE 7   AMENDMENTS, SUPPLEMENTS  AND WAIVERS**                               |
|                                                                                         |                                                                 |
| **Section 7.1.**                                                                             | Without Consent of Holders of Securities                             |
|                                                                                         |                                                                 |
| **Section 7.2.**                                                                             | With Consent of Holders of Securities                                |

 

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| **Section 7.3.**                                                                                       | Compliance with Trust Indenture Act                                                                                                      |
|--------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                   |                                                                                                                                     |
| **Section 7.4.**                                                                                       | Revocation of Consents and Effect of  Consents or Votes                                                                                  |
|                                                                                                   |                                                                                                                                     |
| **Section 7.5.**                                                                                       | Notation on or Exchange of Securities                                                                                                    |
|                                                                                                   |                                                                                                                                     |
| **Section 7.6.**                                                                                       | Trustee  to Sign Amendment, Etc.                                                                                                         |
|                                                                                                   |                                                                                                                                     |
| **Section 7.7.**                                                                                       | Effect of Amendment                                                                                                                      |
|                                                                                                   |                                                                                                                                     |
| **ARTICLE 8    [INTENTIONALLY  OMITTED]**                                                    |
|                                                                                                   |                                                                                                                                     |
| **ARTICLE 9    COVENANTS**                                                                   |
|                                                                                                   |                                                                                                                                     |
| **Section 9.1.**                                                                                       | Payment  of Principal, Redemption Price, Repurchase Price and Interest                                                                   |
|                                                                                                   |                                                                                                                                     |
| **Section 9.2.**                                                                                       | Maintenance of Offices or Agencies                                                                                                       |
|                                                                                                   |                                                                                                                                     |
| **Section 9.3.**                                                                                       | Corporate Existence                                                                                                                      |
|                                                                                                   |                                                                                                                                     |
| **Section 9.4.**                                                                                       | Reports                                                                                                                                  |
|                                                                                                   |                                                                                                                                     |
| **Section 9.5.**                                                                                       | Compliance Certificate                                                                                                                   |
|                                                                                                   |                                                                                                                                     |
| **Section 9.6.**                                                                                       | Resale of Certain Securities                                                                                                             |
|                                                                                                   |                                                                                                                                     |
| **ARTICLE 10   REDEMPTION OF SECURITIES**                                                    |
|                                                                                                   |                                                                                                                                     |
| **Section 10.1.**                                                                                      | Optional Redemption                                                                                                                      |
|                                                                                                   |                                                                                                                                     |
| **Section 10.2.**                                                                                      | Notice to Trustee                                                                                                                        |
|                                                                                                   |                                                                                                                                     |
| **Section 10.3.**                                                                                      | Selection of Securities to Be Redeemed                                                                                                   |
|                                                                                                   |                                                                                                                                     |
| **Section 10.4.**                                                                                      | Notice of Redemption                                                                                                                     |
|                                                                                                   |                                                                                                                                     |
| **Section 10.5.**                                                                                      | Effect of Notice of Redemption                                                                                                           |
|                                                                                                   |                                                                                                                                     |
| **Section 10.6.**                                                                                      | Deposit and Payment of Redemption Price                                                                                                  |
|                                                                                                   |                                                                                                                                     |
| **Section 10.7.**                                                                                      | Securities Redeemed in Part                                                                                                              |
|                                                                                                   |                                                                                                                                     |
| **ARTICLE 11 PURCHASE AT THE OPTION OF A HOLDER UPON SPECIFIC  REPURCHASE DATES OR CHANGE OF CONTROL** |
|                                                                                                   |
| **Section 11.1.**                                                                                      | Purchase Right                                                                                                                           |
|                                                                                                   |                                                                                                                                     |
| **Section 11.2.**                                                                                      | Repurchase Event Notice                                                                                                                  |
|                                                                                                   |                                                                                                                                     |
| **Section 11.3.**                                                                                      | Delivery of Repurchase Event Purchase  Notice; Form of Repurchase Event Purchase Notice; Withdrawal of Repurchase  Event Purchase Notice |
|                                                                                                   |                                                                                                                                     |
| **Section 11.4.**                                                                                      | Exercise of Purchase Rights                                                                                                              |
|                                                                                                   |                                                                                                                                     |
| **Section 11.5.**                                                                                      | Deposit and Payment of the Purchase Price                                                                                                |
|                                                                                                   |                                                                                                                                     |
| **Section 11.6.**                                                                                      | Effect of Delivery of Repurchase Event  Purchase Notice and Purchase                                                                     |
|                                                                                                   |                                                                                                                                     |
| **Section 11.7.**                                                                                      | Physical Securities Purchased in Part                                                                                                    |

 

iv

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| **Section 11.8.**                                                  | Covenant to Comply With Securities Laws  Upon Purchase of Securities |
|--------------------------------------------------------------------|----------------------------------------------------------------------|
|                                                               |                                                                 |
| **Section 11.9.**                                                  | Repayment to the Company                                             |
|                                                               |                                                                 |
| **ARTICLE 12   CONVERSION OF SECURITIES**                |
|                                                               |                                                                 |
| **Section 12.1.**                                                  | Conversion Right; Expiration of Conversion  Right; Conversion Price  |
|                                                               |                                                                 |
| **Section 12.2.**                                                  | Exercise of Conversion Right                                         |
|                                                               |                                                                 |
| **Section 12.3.**                                                  | Fractions of Shares                                                  |
|                                                               |                                                                 |
| **Section 12.4.**                                                  | Adjustment of Conversion Price                                       |
|                                                               |                                                                 |
| **Section 12.5.**                                                  | Consolidation  or Merger of the Company                              |
|                                                               |                                                                 |
| **Section 12.6.**                                                  | Notice  of Adjustments of Conversion Price                           |
|                                                               |                                                                 |
| **Section 12.7.**                                                  | Notice  Prior to Certain Actions                                     |
|                                                               |                                                                 |
| **Section 12.8.**                                                  | Company to Reserve Common Stock                                      |
|                                                               |                                                                 |
| **Section 12.9.**                                                  | Common Stock to be Fully Paid and  Nonassessable                     |
|                                                               |                                                                 |
| **Section 12.10.**                                                 | Taxes on Conversions                                                 |
|                                                               |                                                                 |
| **Section 12.11.**                                                 | Cancellation of Converted Securities                                 |
|                                                               |                                                                 |
| **Section 12.12.**                                                 | Responsibility of Trustee for Conversion  Provisions                 |
|                                                               |                                                                 |
| **ARTICLE 13   [INTENTIONALLY OMITTED]**                 |
|                                                               |                                                                 |
| **ARTICLE 14   OTHER PROVISIONS OF GENERAL APPLICATION** |
|                                                               |                                                                 |
| **Section 14.1.**                                                  | Trust Indenture Act Controls                                         |
|                                                               |                                                                 |
| **Section 14.2.**                                                  | Notices                                                              |
|                                                               |                                                                 |
| **Section 14.3.**                                                  | Communication  by Holders with Other Holders                         |
|                                                               |                                                                 |
| **Section 14.4.**                                                  | Acts of Holders of Securities                                        |
|                                                               |                                                                 |
| **Section 14.5.**                                                  | Certificate  and Opinion as to Conditions Precedent                  |
|                                                               |                                                                 |
| **Section 14.6.**                                                  | Statements  Required in Certificate or Opinion                       |
|                                                               |                                                                 |
| **Section 14.7.**                                                  | Effect  of Headings and Table of Contents                            |
|                                                               |                                                                 |
| **Section 14.8.**                                                  | Successors  and Assigns                                              |
|                                                               |                                                                 |
| **Section 14.9.**                                                  | Separability  Clause                                                 |
|                                                               |                                                                 |
| **Section 14.10.**                                                 | Benefits  of Indenture                                               |
|                                                               |                                                                 |
| **Section 14.11.**                                                 | Governing  Law                                                       |
|                                                               |                                                                 |
| **Section 14.12.**                                                 | Counterparts                                                         |
|                                                               |                                                                 |
| **Section 14.13.**                                                 | Legal  Holidays                                                      |
|                                                               |                                                                 |
| **Section 14.14.**                                                 | Recourse  Against Others                                             |

 

v

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| EXHIBITS   |                                      |
|------------|-------------------------------------------|
|       |                                      |
| EXHIBIT  A | Form  of Security                         |
| EXHIBIT  B | Form  of Repurchase Event Purchase Notice |
| EXHIBIT  C | Form  of Conversion Notice                |

 

vi

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INDENTURE, dated as of March 7, 2003 (this “**Indenture**”), between Watson Pharmaceuticals, Inc., acorporation duly organized and existing under the laws of the State of Nevada,having its principal office at 311 Bonnie Circle, Corona, California 92880 (the“**Company**”) and Wells Fargo Bank,National Association, a federally chartered banking organization, as Trustee(the “**Trustee**”), having itsprincipal corporate trust office at 707 Wilshire Boulevard, 17thFloor, Los Angeles, California 90017.

 

**RECITALS OF THE COMPANY**

 

WHEREAS, the Company has duly authorized the creation of an issue ofits 1.75% Convertible Contingent Senior Debentures due March 15, 2023 (the “**Securities**”) of substantially the terms,tenor, amount and other provisions hereinafter set forth, and, to providetherefor, the Company has duly authorized the execution and delivery of thisIndenture; and

 

WHEREAS, all things necessary to make the Securities, when the Securitiesare duly executed by the Company and authenticated and delivered hereunder andduly issued by the Company, the valid obligations of the Company, and to makethis Indenture a valid and binding agreement of the Company, in accordance withtheir and its terms, have been done.

 

NOW, THEREFORE, for and in consideration of the premises and thepurchase of the Securities by the Holders (as defined below) thereof, it ismutually covenanted and agreed, for the equal and proportionate benefit of allHolders, as follows:

#  

# **ARTICLE 1****       **DEFINITIONS AND INCORPORATION BY REFERENCE

##  

## **Section 1.1.**           Definitions.

 

For all purposes of thisIndenture and the Securities, the following terms are defined as follows:

 

“**Act**”, when used withrespect to any Holder, has the meaning specified in Section 14.4(a).

 

“**Additional Amounts**” meansall amounts, if any, payable pursuant to Section 3 of the Registration RightsAgreement.

 

“**Adjusted Interest****Rate**” means, with respect to any ResetTransaction, the rate per annum that is the arithmetic average of the ratesquoted by two Reference Dealers selected by the Company or its successor as therate at which interest on the Securities should accrue so that the Fair MarketValue, expressed in dollars, of a Security immediately after the later of:

 

(i)            thepublic announcement of such Reset Transaction; or

 

(ii)           thepublic announcement of a change in dividend policy in connection with suchReset Transaction,

 

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will equal most closely the average Trading Price of a Security for the20 Trading Days preceding the date of such public announcement; *provided* that the Adjusted Interest Rateshall not be less than 1.75% per annum.

 

“**Affiliate**” of anyspecified Person means any other Person directly or indirectly controlling orcontrolled by or under direct or indirect common control with such specifiedPerson.  For the purposes of thisdefinition, “**control**”, when usedwith respect to any specified Person, means the power to direct the managementand policies of such Person, directly or indirectly, whether through theownership of voting securities, by contract or otherwise; and the terms “**controlling**” and “**controlled**” have meanings correlative tothe foregoing.

 

“**Agent Member**” has themeaning specified in Section 2.8.

 

“**Bankruptcy Law**” meansTitle 11 of the U.S. Code or any similar federal or state law for the relief ofdebtors.

 

“**Board of Directors**” meanseither the board of directors of the Company or any committee of that boardempowered to act for it with respect to this Indenture.

 

“**Board Resolution**” means aresolution duly adopted by the Board of Directors, a copy of which, certifiedby the Secretary or an Assistant Secretary of the Company to be in full forceand effect on the date of such certification, shall have been delivered to theTrustee.

 

“**Business Day**” means, withrespect to any Security, a day that in the City of New York is not a day onwhich banking institutions are authorized by law or regulation to close.

 

“**Calculation Agent**” meansany Person authorized by the Company to obtain market bid quotations on theSecurities for purposes of calculating the Trading Price of theSecurities.  Initially, the CalculationAgent shall be Wells Fargo Bank, National Association.

** **

**“Capital Stock”**means,with respect to any Person, any and all shares, interests, rights to purchase,warrants, options, participations or other equivalents of or interests (howeverdesignated) in equity of such Person, whether now outstanding or issued afterthe date of this Indenture, including, without limitation, all common stock andpreferred stock.

 

“**Change ofControl**” means the occurrence of any of the following after theoriginal issuance of the Securities when any of the following has occurred:

 

(i)            theacquisition by any “person” or “group” (within the meaning of Sections 13(d)(3)and 14(d)(2), respectively, of the Exchange Act) deemed to be a “beneficialowner” (as defined in Rule 13d-3 and Rule 13d-5 of the Exchange Act), directlyor indirectly, through a purchase, merger or other acquisition transaction orseries of purchases, mergers or other acquisition transactions of shares of theCompany’s Capital Stock entitling such person to exercise 50% or more of thetotal voting power of all shares of the Company’s Capital Stock entitled tovote generally in elections of directors, other than any acquisition by theCompany, any of its Subsidiaries or any of its employee benefit plans (exceptthat such person shall be deemed to have beneficial ownership of all securities

 

1

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that such person has the right to acquire, whether such right iscurrently exercisable or is exercisable only upon the occurrence of asubsequent condition);

 

(ii)           thefirst day on which a majority of members of the Board of Directors are notContinuing Directors;

 

(iii)          anyconsolidation or merger of the Company with or into any other person (which forpurposes of this definition has the meaning set forth in Section 13(d)(3) ofthe Exchange Act), or any merger of another person into the Company, or anyconveyance, transfer, sale, lease or other disposition of all or substantiallyall of the properties and assets of the Company to another person,  other than (a) any transaction (i) that doesnot result in any reclassification, conversion, exchange or cancellation ofoutstanding shares of Capital Stock of the Company and (ii) pursuant to whichholders of Capital Stock of the Company immediately prior to such transactionhave the right to exercise, directly or indirectly, 50% or more of the totalvoting power of all shares of Capital Stock of the Company entitled to votegenerally in the election of directors of the continuing or surviving personimmediately after such transaction or (b) any such merger solely for thepurpose of changing the jurisdiction of incorporation of the Company andresulting in a reclassification, conversion or exchange of outstanding sharesof Common Stock solely into shares of the common stock of the surviving entity;

* *

*provided, however*, that a Change of Control shall not bedeemed to have occurred if (A) the Market Price per share of Common Stock forany five Trading Days within the period of 10 consecutive Trading Days endingimmediately after the later of the Change of Control or the public announcementof the Change of Control, in the case of a Change of Control under clause (i)above, or the period of 10 consecutive Trading Days ending immediately beforethe Change of Control, in the case of a Change of Control under clause (ii) or(iii) above, equals or exceeds 110% of the Conversion Price of the Securitiesin effect on each such Trading Day or (B) at least 90% of theconsideration in the transaction or transactions constituting a Change ofControl consists of shares of Common Stock traded or to be traded immediatelyfollowing such Change of Control on a national securities exchange or theNasdaq National Market and, as a result of the transaction or transactions, theSecurities become convertible solely into such Common Stock (and any rightsattached thereto).

 

“**Change of Control Purchase Date**”has the meaning specified in Section 11.1 hereof.

 

“**Closing Date**” means March7, 2003 or such later date on which the Securities may be delivered pursuant tothe Purchase Agreement.

 

“**Commission**” means theSecurities and Exchange Commission or any successor agency.

** **

**“Common Stock”**meansany stock of any class of the Company which has no preference in respect ofdividends or of amounts payable in the event of any voluntary or

 

2

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involuntary liquidation, dissolution or winding up of the Company andwhich is not subject to redemption by the Company.  However, subject to the provisions of Section 12.10 hereof,shares issuable on conversion of the Securities shall include only shares ofthe class designated as Common Stock, par value $.0033 per share, of theCompany at the date of execution of this Indenture or shares of any class orclasses resulting from any reclassification or reclassifications thereof andwhich have no preference in respect of dividends or of amounts payable in theevent of any voluntary or involuntary liquidation, dissolution or winding up ofthe Company and which are not subject to redemption by the Company, *provided* that if at any time there shallbe more than one such resulting class, the shares of each such class then soissuable shall be substantially in the proportion which the total number ofshares of such class resulting from all such reclassifications bears to thetotal number of shares of all such classes resulting from all such reclassifications.

 

“**Company**” means thecorporation named as the “Company” in the first paragraph of this instrumentuntil a successor Person shall have become such pursuant to the applicableprovisions of this Indenture, and thereafter “Company” shall mean suchsuccessor Person.

 

“**Company Order**” means awritten order signed in the name of the Company by any Officer.

 

“**Contingent Interest**” hasthe meaning specified in Section 2.1(d).

 

“**Continuing Director**”means, as of any date of determination, any member of the Board of Directorswho (i) was a member of the Board of Directors on the date hereof, (ii) wasnominated for election or elected to the Board of Directors with the approvalof a majority of the Continuing Directors who were members of the Board of Directorsat the time of such new director’s nomination or election.

 

“**Conversion Agent**” meansany Person authorized by the Company to convert Securities in accordance withArticle 12.  Initially, the ConversionAgent shall be Wells Fargo Bank, National Association.

 

“**Conversion Date**” means,with respect to any Holder, the date on which such Holder has satisfied all therequirements to convert its Securities pursuant to Section 12.2.

 

“**Conversion Price**” has themeaning specified in Section 12.1(c).

 

“**Conversion Rate**” has themeaning specified in Section 12.1(b).

 

“**Conversion Record Date**”has the meaning specified in Section 12.4(g).

 

“**Corporate Trust Office**”means for purposes of presentation or surrender of Securities for payment,registration, transfer, exchange or conversion or for service of notices ordemands upon the Company or for any other purpose of this Indenture, the officeof the Trustee located in the Borough of Manhattan, The City of New York, atwhich at any particular time its corporate trust business shall beadministered, which at the date of this Indenture is located at 45 Broadway, 12thFloor, New York, New York 10006.

 

3

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“**corporation**” means anycorporation, association, limited liability company, company and businesstrust.

 

“**Current Market Price**” hasthe meaning specified in Section 12.4(g).

 

“**Custodian**” means anyreceiver, trustee, assignee, liquidator, sequestrator or similar official underany Bankruptcy Law.

 

“**Default**” means an eventwhich is, or after notice or lapse of time or both would constitute, an Eventof Default.

 

“**Defaulted Payment**” hasthe meaning specified in Section 4.1(b).

 

“**Defaulted Interest**” hasthe meaning specified in Section 2.16

 

“**Depositary**” means TheDepository Trust Company, its nominees and their respective successors.

 

“**Dividend Yield**” on anysecurity for any period means the dividends paid or proposed to be paidpursuant to an announced dividend policy on such security for such perioddivided by, if with respect to dividends paid on such security, the averageMarket Price of such security during such period and, if with respect todividends proposed to be paid on such security, the Market Price of suchsecurity on the effective date of the related Reset Transaction.

 

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

 

“**Event of Default**” has themeaning specified in Section 4.1.

 

“**Exchange Act**” means theSecurities Exchange Act of 1934, as amended, and the rules and regulations ofthe Commission thereunder.

 

“**Expiration Time**” has themeaning specified in Section 12.4(f).

 

“**Fair Market Value**” hasthe meaning set forth in Section 12.4(g).

 

“**GAAP**” has the meaningspecified in Section 1.3.

 

“**Global Security**” has themeaning specified in Section 2.2(b)

 

“**guarantee**” means anyobligation, contingent or otherwise, of any Person directly or indirectlyguaranteeing any Indebtedness or other obligation of any other Person and,without limiting the generality of the foregoing, any obligation, direct orindirect, contingent or otherwise, of such Person (i) to purchase or pay (oradvance or supply funds for the purchase or payment of) such Indebtedness orother obligation of such other Person (whether arising by virtue of partnershiparrangements, or by agreements to keep-well, to purchase assets, goods,securities or services, to take-or-pay, or to maintain financial statementconditions or otherwise) 

 

4

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or (ii) entered into for purposes of assuring in any other manner theobligee of such Indebtedness or other obligation of the payment thereof or toprotect such obligee against loss in respect thereof (in whole or in part); *provided* that the term “guarantee” shallnot include endorsements for collection or deposit in the ordinary course ofbusiness.  The term “guarantee” used asa verb has a corresponding meaning.

 

“**Holder**”, when used withrespect to any Security, including any Global Security, means the Person inwhose name the Security is registered in the Register.

 

“**Indebtedness**”****means, with respect to any Person, at anydate of determination (without duplication):

 

(1)                                  all indebtedness,obligations and other liabilities (contingent or otherwise) of that Person forborrowed money (including obligations in respect of overdrafts, foreignexchange contracts, currency exchange agreements, interest rate protectionagreements, and any loans or advances from banks, whether or not evidenced bynotes or similar instruments) or evidenced by bonds, notes or other instrumentsfor the payment of money, or incurred in connection with the acquisition of anyproperty, services or assets (whether or not the recourse of the lender is tothe whole of the assets of such Person or to only a portion thereof), otherthan any account payable or other accrued current liability or obligation totrade creditors incurred in the ordinary course of business in connection withthe obtaining of materials or services;

 

(2)                                  all reimbursementobligations and other liabilities (contingent or otherwise) of that Person withrespect to letters of credit, bank guarantees, bankers’ acceptances, suretybonds, performance bonds or other guaranty of contractual performance;

 

(3)                                  all obligations andliabilities (contingent or otherwise) in respect of (A) all obligations aslessee which are capitalized in accordance with GAAP, and (B) any lease orrelated documents (including a purchase agreement) in connection with the leaseof real property or improvements thereon which provides that such Person iscontractually obligated to purchase or cause a third party to purchase theleased property or pay an agreed residual value of the leased property to thelessor and the obligations of such Person under such lease or related documentto purchase or to cause a third party to purchase the leased property whetheror not such lease is characterized as an operating lease or a capital lease inaccordance with GAAP, including, without limitation, synthetic leaseobligations;

 

(4)                                  all obligations ofsuch Person (contingent or otherwise) with respect to an interest rate or otherswap, cap or collar agreement or other similar instrument or agreement orforeign currency hedge, exchange, purchase or similar instrument or agreement;

 

(5)                                  all direct orindirect guarantees or similar agreements by that Person in respect of, andobligations or liabilities (contingent or otherwise) of that Person to purchase

 

5

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or otherwise acquire or otherwise assure a creditor against loss inrespect of, indebtedness, obligations or liabilities of another Person of thekind described in clauses (1) through (4) of this definition;

 

(6)                                  any indebtedness orother obligations described in clauses (1) through (4) of this definitionsecured by any mortgage, pledge, lien or other encumbrance existing on propertywhich is owned or held by such Person, regardless of whether the Indebtedness orother obligation secured thereby shall have been assumed by such Person; and

 

(7)                                  any and alldeferrals, renewals, extensions and refundings of, or amendments, modificationsor supplements to, any indebtedness, obligation or liability of the kinddescribed in clauses (1) through (6) of this definition.

 

The amount of Indebtedness of any Person at any date shall be theoutstanding balance at such date of all unconditional obligations as describedabove and, with respect to contingent obligations, the maximum liability uponthe occurrence of the contingency giving rise to the obligation, *provided* that (i) the amount outstandingat any time of any Indebtedness issued with original issue discount is the faceamount of such Indebtedness less the remaining unamortized portion of theoriginal issue discount of such Indebtedness at such time as determined inconformity with GAAP and (ii) Indebtedness shall not include any liability forfederal, state, local or other taxes.

 

“**Indenture**” means thisinstrument as originally executed or as it may from time to time besupplemented or amended by one or more indentures supplemental hereto enteredinto pursuant to the applicable provisions hereof.

 

“**Initial Purchasers**” meanLehman Brothers Inc., Morgan Stanley & Co. Incorporated, CIBC World MarketsCorp., Wachovia Securities, Inc., Banc of America Securities LLC, ComericaSecurities, Inc. and Wells Fargo Securities, LLC, as initial purchasers underthe Purchase Agreement.

 

“**Interest**” means, withrespect to any Security, the interest payable on such Security based upon theapplicable Interest Rate and, if applicable, any Defaulted Interest.

 

“**Interest Payment Date**”means each of March 15 and September 15, *provided, however*, that, if any such dateis not a Business Day, the Interest Payment Date shall be the next succeedingBusiness Day.

 

“**Interest Rate**” has themeaning specified in Section 2.1(c).

 

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

 

“**Market Price**” of asecurity on any date of determination means:

 

6

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###### (1)                                  theclosing sale price (or, if no closing sale price is reported, the last reportedsale price) of such security (regular way) on the New York Stock Exchange onsuch date;

######  

###### (2)                                  ifsuch security is not listed for trading on the New York Stock Exchange on anysuch date, the closing sale price as reported in the composite transactions forthe principal U.S. securities exchange on which such security is listed;

######  

###### (3)                                  ifsuch security is not so listed on a U.S. national or regional securitiesexchange, the closing sales price as reported by the Nasdaq National Market;

######  

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

######  

###### (5)                                  ifsuch security is not so quoted, the average of the mid-point of the last bidand ask prices for such security on such date from at least two dealersrecognized as market-makers for such security selected by the Company for thispurpose; or

######  

###### (6)                                  ifsuch security is not so quoted, the average of the last bid and ask prices forsuch security on such date from a dealer engaged in the trading of convertiblesecurities selected by the Company for this purpose.

 

 “**Maturity**” means the date on which the Principal with respectto any Outstanding Security becomes due and payable as therein or hereinprovided, whether at the Stated Maturity or by acceleration, conversion, callfor redemption, exercise of a purchase right or otherwise.

** **

**“Moody’s”** meansMoody’s Investors Service, Inc. or any successor Person to such entity.

 

“**Nasdaq National Market**”means the National Association of Securities Dealers Automated QuotationNational Market or any successor national securities exchange or automatedover-the-counter trading market in the United States.

 

“**Non-Electing Share**” hasthe meaning specified in Section 12.5.

 

“**Officer**” of the Companymeans the Chairman of the Board, the Chief Executive Officer, the President,the Chief Operating Officer, the Chief Financial Officer, the Treasurer, anyAssistant Treasurer, any Vice President, the Secretary or any AssistantSecretary of the Company.

 

“**Officers’ Certificate**”means, with respect to the Company, a certificate signed by both (1) theChairman of the Board, the Chief Executive Officer, the President or a VicePresident and (2) so long as not the same as the officer signing pursuant toclause (1), the Chief Operating Officer, the Chief Financial Officer, theTreasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary ofthe Company and delivered to the Trustee.

 

7

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“**Opinion of Counsel**” meansa written opinion of counsel, who may be counsel to the Company (and mayinclude directors or employees of the Company) and in form and substanceacceptable to the Trustee, which acceptance shall not be unreasonably withheld.

 

“**Outstanding**”, when usedwith respect to Securities, means, as of the date of determination, allSecurities theretofore authenticated and delivered under this Indenture, exceptSecurities:

 

(i)            previouslycanceled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)           forthe payment or redemption of which money in the necessary amount has beenpreviously deposited with the Trustee or any Paying Agent (other than theCompany) in trust or set aside and segregated in trust by the Company (if theCompany shall act as its own Paying Agent) for the Holders of such Securities; *provided, however*, that if such Securitiesare to be redeemed, notice of such redemption has been duly given pursuant tothis Indenture; and

 

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

* *

*provided, however*,that in determining whether the Holders of the requisite principal amount ofOutstanding Securities have consented to or voted in favor of any request,demand, authorization, direction, notice, consent, waiver, amendment ormodification hereunder, Securities held for the account of the Company or ofany of its Affiliates shall be disregarded and deemed not to be Outstanding,except that in determining whether the Trustee shall be protected in makingsuch a determination or relying upon any such consent or vote, only Securitieswhich a Responsible Officer of the Trustee actually knows to be so owned shallbe so disregarded.

 

“**Paying Agent**” has themeaning specified in Section 2.5.

 

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

 

“**Physical Securities**”means Securities issued in definitive, fully registered form without interestcoupons, substantially in the form of Exhibit A hereto, with theapplicable legends as provided in Section 2.3.

 

“**Place of Conversion**”means any city in which any Conversion Agent is located.

 

“**Place of Payment**” meansany city in which any Paying Agent is located.

 

“**Predecessor Security**” ofany particular Security, means every previous Security evidencing all or aportion of the same debt as that evidenced by such particular

 

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Security; and, for the purposes of this definition, any Securityauthenticated and delivered under Section 2.11 in exchange for or in lieu of amutilated, destroyed, lost or stolen Security shall be deemed to evidence thesame debt as the mutilated, destroyed, lost or stolen Security.

 

“**Principal**” means, withrespect to any Outstanding Security, the principal amount of that Security,including the Redemption Price, if applicable, and the Repurchase Price, ifapplicable, payable with respect to that Security.

 

“**Purchase Agreement**” meansthe Purchase Agreement, dated March 4, 2003, among the Company and the InitialPurchasers relating to the offering and sale of the Securities.

 

“**Purchase Right**” has themeaning specified in Section 11.1.

 

“**Purchased Shares**” has themeaning specified in Section 12.4(f).

 

“**QIB**” means a “qualifiedinstitutional buyer” as defined under Rule 144A.

 

“**Redemption Date**”, whenused with respect to any Security to be redeemed, means the date fixed for suchredemption by or pursuant to this Indenture.

 

“**Redemption Price**”, whenused with respect to any Security to be redeemed, means the price per Securityat which such Security may be redeemed pursuant to Section 10.1.

 

“**Reference Dealer**” means adealer engaged in the trading of convertible securities selected by the Companyor its successor for the purpose for which such dealers are quoted or otherwiseto which they are referred herein.

 

“**Reference Period**” has themeaning specified in Section 12.4(d).

 

“**Register**” has the meaningspecified in Section 2.5.

 

“**Registrar**” has themeaning specified in Section 2.5.

 

“**Registration Rights Agreement**”means the Resale Registration Rights Agreement, dated as of the date hereof,among the Company and the Initial Purchasers.

 

“**Regular Record Date**” forthe Interest payable on the Securities means the March 1 and the September 1(whether or not a Business Day), as applicable, next preceding thecorresponding Interest Payment Date.

** **

**“Repurchase Date**”has the meaning specified in Section 11.1 hereof.

** **

**“Repurchase Event Notice**”has the meaning specified in Section 11.2.

** **

**“Repurchase Event Purchase Notice**”has the meaning specified in Section 11.2 hereof.

** **

**“Repurchase Events**”has the meaning specified in Section 11.1.

 

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** **

**“Repurchase Price**”has the meaning specified in Section 11.1 hereof.

 

“**Reset Transaction**” meansany of (1) a merger, consolidation or statutory share exchange to which theentity that is the issuer of the shares of the common stock into which theSecurities are then convertible is a party, (2) a sale of all or substantiallyall the assets of that entity, (3) a recapitalization of those shares of commonstock or (4) a distribution contemplated by Section 12.4(d), in any case, afterthe effective date of which transaction or distribution the Securities would beconvertible into either:

 

(a)           sharesof an entity, the common stock of which had a Dividend Yield for the fourfiscal quarters of such entity immediately preceding the public announcement ofsuch transaction or distribution that was more than 2.5% higher than theDividend Yield on the Common Stock (or other common stock then issuable upon aconversion of the Securities) for the four fiscal quarters preceding the publicannouncement of such transaction or distribution; or

 

(b)           sharesof an entity that announces a dividend policy prior to the effective date ofsuch transaction or distribution which policy, if implemented, would result ina Dividend Yield on such entity’s common stock for the next four fiscalquarters that would result in such a 2.5% increase.

 

“**Responsible Officer**”, whenused with respect to the Trustee, means any officer of the Trustee, includingany vice president, assistant vice president, any treasurer, any assistanttreasurer, any trust officer, or any other officer of the Trustee customarilyperforming functions similar to those performed by any of the above designatedofficers and also means, with respect to a particular corporate trust matter,any other officer to whom such matter is referred because of such officer’sknowledge of and familiarity with the particular subject.

 

“**Restricted Securities**”means the Securities defined as such in Section 2.3.

 

“**Restricted Securities Legend**”has the meaning specified in Section 2.3(a).

 

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

 

“**Rule 144A**” means Rule144A as promulgated under the Securities Act (including any successor rulethereof), as the same may be amended from time to time.

 

“**Securities**” has themeaning ascribed to it in the first paragraph under the caption “Recitals ofthe Company”.

 

“**Securities Act**” means theSecurities Act of 1933, as amended and the rules and regulations of theCommission thereunder.

 

“**Significant Subsidiary**”has the meaning assigned to it under Rule 405 of the Securities Act.

** **

**“Specific Repurchase Date**”has the meaning specified in Section 11.1.

 

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** **

**“Standard & Poor’s”**means Standard & Poor’s Rating Services or any successor Person to such entity.

 

“**Stated Maturity**” has themeaning assigned to it in Section 2.1.

 

“**Subsidiary**” means aPerson, 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 orby the Company and one or more other Subsidiaries.

 

“**TIA**” means the TrustIndenture Act of 1939, as amended (15 U.S. Code Section 77aaa-77bbbb), as ineffect on the date of this Indenture; *provided, however*, that in the event theTIA is amended after such date, “TIA” means, to the extent required by suchamendment, the Trust Indenture Act of 1939, as so amended, or any successorstatute.

 

“**Trading Day**” means:

######  

###### (1)                                  ifthe applicable security is listed or admitted for trading on the New York StockExchange, a day on which the New York Stock Exchange is open for business;

######  

###### (2)                                  ifthat security is not listed on the New York Stock Exchange, a day on whichtrades may be made on the Nasdaq National Market;

######  

###### (3)                                  ifthat security is not so listed on the New York Stock Exchange and not quoted onthe Nasdaq National Market, a day on which the principal U.S. securitiesexchange on which the securities are listed is open for business; or

######  

###### (4)                                  ifthe applicable security is not so listed, admitted for trading or quoted, anyday other than a Saturday or a Sunday or a day on which banking institutions inthe State of New York are authorized or obligated by law or executive order toclose.

** **

**“Trading Price”** ofthe Securities on any date of determination means the average of the secondarymarket bid quotations per Security obtained by the Company or the CalculationAgent for $10,000,000 principal amount of the Securities at approximately 4:00p.m., New York City time, on such determination date from three independentnationally recognized securities dealers selected by the Company, *provided* that, if at least three such bidscannot reasonably be obtained by the Company or the Calculation Agent, but twosuch bids are obtained, then the average of the two bids shall be used, and ifonly one such bid can reasonably be obtained by the Company or the CalculationAgent, the one bid shall be used.  Ifeither the Company or the Calculation Agent cannot reasonably obtain at leastone bid for $10,000,000 principal amount of the Securities from a nationallyrecognized securities dealer or, in the reasonable judgment of the Company, thebid quotations are not indicative of the secondary market value of theSecurities, then the Trading Price of the Securities will equal (a) thethen-applicable Conversion Rate of the Securities multiplied by (b) the MarketPrice of the Common Stock on such determination date.

 

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“**Trigger Event**” has themeaning specified in Section 12.4(d).

 

“**Trustee**” means the Personnamed as the “Trustee” in the first paragraph of this instrument until asuccessor Trustee shall have become such pursuant to the applicable provisionsof this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

 

 “**Vice President**”, when used with respect to the Company, meansany vice president, whether or not designated by a number or a word or wordsadded before or after the title “vice president”.

 

“**Voting Stock**” means withrespect to any Person, Capital Stock of any class or kind ordinarily having thepower to vote for the election of directors, managers or other voting membersof the governing body of such Person.

##  

## **Section 1.2.**           Incorporation by Reference of TrustIndenture Act.

 

Whenever this Indenture refers to a provision of the TIA, the provisionis incorporated by reference in and made a part of this Indenture.

 

The following TIA terms used in this Indenture have the followingmeanings:

 

“**indenture securities**”means the Securities;

 

“**indenture security holder**”means a Holder;

 

“**indenture to be qualified**”means this Indenture;

 

“**indenture trustee**” or “**institutional trustee**” means the Trustee;and

 

“**obligor**” on theSecurities means the Company and any other obligor on the indenture securities.

 

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

##  

## **Section 1.3.**           Rules of Construction.

 

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

###  

### (a)           the terms defined inthis Article have the meanings assigned to them in this Article and include theplural as well as the singular;

###  

### (b)           all accounting termsnot otherwise defined herein have the meanings assigned to them in accordancewith generally accepted accounting principles in the United States prevailingat the time of any relevant computation hereunder (“**GAAP**”);

 

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### (c)           the words “herein”,“hereof” and “hereunder” and other words of similar import refer to thisIndenture as a whole and not to any particular Article, Section or othersubdivision;

###  

### (d)           all references tosection and article numbers in this Indenture shall refer to sections andarticles hereof, unless otherwise specified.

#  

# **ARTICLE 2**                        THE SECURITIES

##  

## **Section2.1**.           Titleand Terms.

###  

### (a)           The Securities shall be designated asthe “1.75% Convertible Contingent Senior Debentures due March 15, 2023” of theCompany.  The aggregate principal amountof Securities which may be authenticated and delivered under this Indenture islimited to $500.0 million (or $575.0 million if the Initial Purchasers’ optionto purchase additional Securities as set forth in Section 2 of the PurchaseAgreement is exercised in full), except for Securities authenticated anddelivered upon registration of, transfer of, or in exchange for, or in lieu ofother Securities pursuant to Sections 2.7, 2.8, 2.12, 7.5, 10.7, 11.1 or 12.2hereof.  The Securities shall be issuablein denominations of $1,000 or integral multiples thereof.

###  

### (b)           The Securities shall mature on March15, 2023 (the “**Stated Maturity**”).

###  

### (c)           The Securities shall bear Interestfrom the date of their original issuance until the principal amount thereof ispaid or made available for payment, or until such date on which the Securitiesare converted, redeemed or purchased as provided herein, (i) prior to theoccurrence of a Reset Transaction, at a rate of 1.75% per annum, and (ii)following the occurrence of a Reset Transaction, at the Adjusted Interest Raterelated to such Reset Transaction to, but not including, the effective date ofany succeeding Reset Transaction (as adjusted, if at all, the “**Interest Rate**”). Interest shall be payable semi-annually in arrears on each InterestPayment Date.

###  

### (d)           In addition, interest (the “**Contingent Interest**”) will accrue on each Security duringany six-month period from March 15 to September 14 and from September 15 toMarch 14, as appropriate, commencing with the six-month period beginningSeptember 15, 2003, if the average Trading Price of a Security for the fiveTrading Days ending on the second Trading Day immediately preceding thebeginning of the relevant six-month period equals 120% or more of the Principalof such Security.  The rate ofContingent Interest payable in respect of any six-month period will equal thegreater of (i) a per annum rate equal to 5.00% of the Company’s then-currentestimated per annum borrowing rate for senior non-convertible fixed-rate Indebtednesswith a Maturity and other terms comparable to the Securities and (ii) 0.33% perannum, in each case based on the Outstanding principal amount of theSecurities.  Contingent Interest will becomputed on the basis of a 360-day year comprised of twelve 30-day months.  Upon determination that Holders will beentitled to receive Contingent Interest during any relevant six-month period,on or prior to the start of the relevant six-month period, the Company shall issuea press release and publish information with respect to any Contingent Intereston its web site.  The Company shall payContingent Interest, if any, in the same manner as it shall pay Interestpursuant to Section 2.1(c) hereof and the obligations of Holders in respect ofthe

 

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### payment of Contingent Interest in connectionwith the conversion of any Securities will also be the same as described inSection 2.1(f) hereof.

###  

### (e)           Interest on the Securities shall becomputed (i) for any full semi-annual period for which a particular InterestRate is applicable, on the basis of a 360-day year comprised of twelve 30-daymonths and (ii) for any period for which a particular Interest Rate isapplicable for less than a full semi-annual period for which interest iscalculated, on the basis of a 30-day month and, for such periods of less than amonth, the actual number of days elapsed over a 30-day month.  For purposes of determining the InterestRate, the Trustee may assume that a Reset Transaction has not occurred unlessthe Trustee has received an Officers’ Certificate stating that a ResetTransaction has occurred and specifying the Adjusted Interest Rate then ineffect.

###  

### (f)            Interest (including ContingentInterest) shall be due and payable on a Security as follows:

####  

#### (i)            A registered Holderas of the close of business on a Regular Record Date shall be entitled toreceive and shall receive (except as otherwise indicated in this Section2.1(f)), accrued and unpaid Interest (including Contingent Interest) on suchSecurity from the preceding Interest Payment Date (or such earlier date onwhich Interest was last paid) to the Interest Payment Date next succeeding suchRegular Record Date, other than any Security whose Stated Maturity is prior tosuch Interest Payment Date.

####  

#### (ii)           In the event that aSecurity becomes subject to redemption pursuant to Article 10 and theRedemption Date occurs after a Regular Record Date but on or prior to the nextsucceeding Interest Payment Date, the Person whose Security becomes subject toredemption (and only such Person rather than the Holder as of such RegularRecord Date) shall be entitled to receive and shall receive accrued and unpaidInterest (including Contingent Interest) from the preceding Interest PaymentDate (or such earlier date on which Interest was last paid) to, but excluding,the Redemption Date of such Security, even if such Person is not the Holder ofsuch Security.

####  

#### (iii)          In the event that aSecurity becomes subject to purchase pursuant to Article 11, a Holder whoexercises a Purchase Right with respect to such Security shall be entitled toreceive and shall receive accrued and unpaid Interest (including ContingentInterest) on such Security from the preceding Interest Payment Date (or suchearlier date on which Interest was last paid) to, but excluding the applicableRepurchase Date for such Security, which amount shall be included in theapplicable Repurchase Price thereof pursuant to Article 11.

####  

#### (iv)          In the event that aSecurity is converted pursuant to Article 12, the Holder who converts suchSecurity on any date other than an Interest Payment Date shall not be entitledto receive unpaid Interest (including Contingent Interest) on such Securityfrom the preceding Interest Payment Date until the Conversion Date, suchamounts being deemed to have been paid by receipt of shares of Common Stock infull rather than canceled, extinguished or forfeited.  As a result, a Holder which converts a Security after a RegularRecord Date but prior to the next succeeding Interest Payment Date will receiveaccrued and unpaid Interest (including Contingent Interest) on such Securityfor 

####  

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#### such period onsuch Interest Payment Date but will be required to remit to the Company an amountequal to that Interest (including Contingent Interest) at the time such Holdersurrenders the Security for conversion, pursuant to Article 12; *provided*, *however*,that such Holder will not be required to remit such Interest (includingContingent Interest) if, prior to conversion or the delivery of a notice ofconversion pursuant to Article 12, the Company has either delivered anotice of redemption as contemplated by Article 10 on or prior to thethird Business Day after such Interest Payment Date or redeemed such Securitypursuant to Article 10 and the Holder converts such Security after a RegularRecord Date but prior to the next succeeding Interest Payment Date pursuant toArticle 12.

###  

### (g)           In addition to the amounts set forthin Section 2.1(d) and (f), Holders shall be entitled to receive AdditionalAmounts, if any, on such Security pursuant and subject to the RegistrationRights Agreement, but in no event shall a Holder be required to repay anyamounts of Additional Amounts such Holder receives following the remittance ofInterest as specified in Section 2.1(f)(iv). Any amounts related to Additional Amounts shall be received or paid ondates corresponding to the payment date of Interest on such Security pursuantto the Registration Rights Agreement.

###  

### (h)           Payment of any Principal or Interest(to the extent paid in cash), Contingent Interest or Additional Amounts, ifany, on Global Securities shall be payable by the Company to the Depositary inimmediately available funds.

###  

### (i)            Payment of any Principal on PhysicalSecurities shall be made at the office or agency of the Company maintained forsuch purpose, initially the Corporate Trust Office of the Trustee.  Interest, Contingent Interest and AdditionalAmounts, if any, on Physical Securities will be payable by (i) a U.S. Dollarcheck drawn on a bank in The City of New York mailed to the address of thePerson entitled thereto as such address shall appear in the Register, or (ii)upon application to the Registrar not later than the relevant Regular Record Dateby a Holder of an aggregate Principal amount of Securities in excess of$5,000,000, wire transfer in immediately available funds, which applicationshall remain in effect until the Holder notifies, in writing, the Registrar tothe contrary.

###  

### (j)            The Securities may be redeemable atthe option of the Company as provided in and subject to Article 10.

###  

### (k)           The Securities shall be purchased bythe Company at the option of Holders as provided in and subject to Article 11.

###  

### (l)            The Securities shall be convertibleat the option of the Holders as provided in and subject to Article 12.

##  

## **Section 2.2.**          Form of Securities.

###  

### (a)           Except as otherwise provided pursuantto this Section 2.2, the Securities are issuable in fully registered, withoutcoupons, in denominations of $1,000 and integral multiples of $1,000 above thatamount with applicable legends as are provided for in Section 2.3 and inthe form of one or more permanent global securities, except as provided herein(each a 

###  

16

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### “**GlobalSecurity**” and, collectively, the “**GlobalSecurities**”), the form of which is contained in Exhibit Ahereto.  The Securities shall not beissuable in bearer form.  The terms andprovisions contained in the form of Security shall constitute, and are herebyexpressly made, a part of this Indenture and to the extent applicable, theCompany, and the Trustee, by their execution and delivery of this Indenture,expressly agree to such terms and provisions and to be bound thereby.

###  

### (b)           The Securities are being offered andsold by the Company pursuant to the Purchase Agreement.  Securities offered and sold to QIBs inaccordance with Rule 144A, as provided in the Purchase Agreement, shall beissued initially in the form of one or more permanent global Securities infully registered form without interest coupons, substantially in the form of ExhibitA hereto, with the applicable legends as provided in Section 2.3 (each a “**Global Security**” and collectively the “**GlobalSecurities**”).  Each GlobalSecurity shall be duly executed by the Company and authenticated and deliveredby the Trustee, and shall be registered in the name of the Depositary or itsnominee and retained by the Trustee, as Custodian, at its Corporate TrustOffice.  The aggregate Principal Amountat Maturity of the Global Securities may from time to time be increased ordecreased by adjustments made on the records of the Trustee, as Custodian, andof the Depositary or its nominee, as hereinafter provided.

###  

### (c)           Physical Securities acquired by QIBsin accordance with Rule 144A may be exchanged for interests in GlobalSecurities pursuant to Sections 2.8(e) and 2.17(a) only.  Physical Securities shall be duly executedby the Company and authenticated and delivered by the Trustee.

##  

## **Section2.3.**           Legends.

###  

### (a)           RestrictedSecurities Legends.

 

Each Security issued hereunder shall, upon issuance, bear the legendset forth in Section 2.3(a)(i), and each share of Common Stock issued uponconversion of any Security issued hereunder, shall, upon issuance, bear thelegend set forth in Section 2.3(a)(ii) (each such legend, a “**Restricted Securities Legend**”), and suchlegend shall not be removed except as provided in Section 2.3(a)(iii).  Each Security that bears or is required tobear the Restricted Securities Legend set forth in Section 2.3(a)(i) (togetherwith each share of Common Stock issued upon conversion of such Security thatbears or is required to bear the Restricted Securities Legend set forth inSection 2.3(a)(ii), collectively, the “**RestrictedSecurities**”) shall be subject to the restrictions on transfer setforth in this Section 2.3(a) (including the Restricted Securities Legend setforth below), and the Holder of each such Restricted Security, by such Holder’sacceptance thereof, shall be deemed to have agreed to be bound by the  restrictions on transfer set forth herein.

 

As used in Section 2.3(a), the term “transfer” encompasses any sale,pledge, transfer or other disposition whatsoever of any Restricted Security.

####  

#### (i)            RestrictedSecurities Legend for Securities.

 

Except as provided in Section 2.3(a)(iii), until two years after theoriginal issuance date of any Security, any certificate evidencing suchSecurity (and all Securities issued in exchange therefor or substitutionthereof, other than share of Common Stock, if any, issued

 

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upon conversion thereof which shall bear the legend set forth inSection 2.3(a)(ii), if applicable) shall bear a Restricted Securities Legend insubstantially the following form:

 

THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTEREDUNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANYSTATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT AS SET FORTH IN THEFOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:

 

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

 

(2) REPRESENTS THAT IT IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNTOF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS IN ACCORDANCE WITH RULE 144A.

 

(3) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINALISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCEDHEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A)TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONALBUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TOTHE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT(IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEENDECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVEAT THE TIME OF SUCH TRANSFER; AND

 

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

 

IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHINTWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFERPURSUANT TO CLAUSE 3(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SETFORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMITTHIS CERTIFICATE TO THE TRUSTEE

 

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(OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER ISPURSUANT TO CLAUSE 3(B) OR 3(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCHCERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THETRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADEPURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVEDUPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TOCLAUSE 3(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OFTHE SECURITY EVIDENCED HEREBY.

####  

#### (ii)           RestrictedSecurities Legend for Common Stock Issued Upon Conversion of the Securities.

 

Until two years after the original issuance date of any Security, anystock certificate representing Common Stock issued upon conversion of such Securityshall bear a Restricted Securities Legend in substantially the following form:

 

THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THESECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATESECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THEFOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF TWOYEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICHTHE COMMON STOCK EVIDENCED HEREBY WAS ISSUED:

 

(1) IT WILL NOT OFFER, SELL, ASSIGN, TRANSFER, PLEDGE, ENCUMBER OROTHERWISE DISPOSE OF THE SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARYTHEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144AUNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATIONPROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANTTO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THESECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCHTRANSFER;

 

(2) PRIOR TO ANY SUCH TRANSFER OTHER THAN A TRANSFER PURSUANT TO CLAUSE1(D) ABOVE, IT WILL FURNISH TO

 

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SUCH TRANSFER AGENT, (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE)SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRANSFER AGENTOR THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEINGMADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND

 

(3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCEDHEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE) ANOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

 

THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THECOMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(D) ABOVE OR THE EXPIRATIONOF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OFWHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED. AS USED HEREIN, THE TERMS“UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATIONS UNDER THE SECURITIES ACT.

####  

#### (iii)          Removal of theRestricted Securities Legends.

 

Each Security or share of Common Stock issued upon conversion of anySecurity (other than shares of Common Stock issued upon conversion of aSecurity that previously were sold pursuant to a registration statement thathas been declared effective under the Securities Act and which continues to beeffective at the time of such sale) shall bear the applicable RestrictedSecurities Legend set forth in Section 2.3(a)(i) or 2.3(a)(ii), as applicable,until the earlier of:

#####  

##### (A)                              thedate which is two years after the original issuance date of such Security; and

#####  

##### (B)                                thedate such Security has, or such shares of Common Stock have been sold pursuantto a registration statement that has been declared effective under theSecurities Act (and which continues to be effective at the time of such sale).

 

The Holder must give notice thereof to the Trustee, as applicable.

 

In the event Rule 144(k) as promulgated under the Securities Act isamended to shorten the two-year period under Rule 144(k), then, the referencesin the restrictive legends set forth above to “TWO YEARS”, and in thecorresponding transfer restrictions described above, the Securities and theshares of Common Stock will be deemed to refer to such shorter period, from andafter receipt by the Trustee of an Officers’ Certificate and an Opinion ofCounsel to

 

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that effect.  As soon asreasonably practicable after the Company knows of the effectiveness of any suchamendment to shorten the two-year period under Rule 144(k), unless such changeswould otherwise be prohibited by, or would cause a violation of, the federalsecurities laws applicable at the time, the Company will provide to the Trusteean Officers’ Certificate and an Opinion of Counsel as to the effectiveness ofsuch amendment and the effectiveness of such change to the restrictive legendsand transfer restrictions.

 

Notwithstanding the foregoing, the Restricted Securities Legend may beremoved if there is delivered to the Company such satisfactory evidence, whichmay include an opinion of independent counsel, as may be reasonably required bythe Company that neither such legend nor the restrictions on transfer set forththerein are required to ensure that transfers of such Securities or CommonStock will not violate the registration requirements of the SecuritiesAct.  Upon provision of suchsatisfactory evidence, the Trustee, at the written direction of the Company,shall authenticate and deliver in exchange for such Securities another Securityor Securities having an equal aggregate Principal Amount at Maturity, IssuePrice and Stated Maturity that does not bear such legend.  If the Restricted Securities Legend has beenremoved from a Securities as provided above, no other Security issued inexchange for all or any part of such Security shall bear such legend, unlessthe Company has reasonable cause to believe that such other Security is a“restricted security” within the meaning of Rule 144 and instructs the Trusteein writing to cause a Restricted Securities Legend to appear thereon.

 

Any Security (or security issued in exchange or substitution thereof)as to which such restrictions on transfer shall have expired in accordance withtheir terms or as to which the conditions for removal of the RestrictedSecurities Legend set forth in Section 2.3(a)(i) as set forth therein have beensatisfied may, upon surrender of such Security for exchange to the Registrar inaccordance with the provisions of Section 2.7 hereof, be exchanged for a newSecurity or Securities, of like tenor and aggregate Principal Amount atMaturity, Issue Price and Stated Maturity which shall not bear the RestrictedSecurities Legend required by Section 2.3(a)(i).

 

Any such Common Stock as to which such restrictions on transfer shallhave expired in accordance with their terms or as to which the conditions forremoval of the Restricted Securities Legend set forth in Section 2.3(a)(ii) asset forth therein have been satisfied may, upon surrender of the certificatesrepresenting such shares of Common Stock for exchange in accordance with theprocedures of the Transfer Agent, be exchanged for a new certificate orcertificates for a like aggregate number of shares of Common Stock, which shallnot bear the Restricted Securities Legend required by Section 2.3(a)(ii).

###  

### (b)           Global SecurityLegend.

 

Each Global Security shall also bear the following legend on the facethereof:

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OFTHE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OFTRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THENAME OF

 

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CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADETO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHERUSE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THEREGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OFTHIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THEDEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEEAND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERSMADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THEINDENTURE REFERRED TO ON THE REVERSE HEREOF.

###  

### (c)           Legend for PhysicalSecurities.

 

Physical Securities, in addition to the legend set forth in Section2.3(a)(i), will also bear a legend substantially in the following form:

 

THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS SUBJECT TOTHE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER TREASURYREGULATION § 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNTOF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY, THE COMPARABLEYIELD AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU SHOULD SUBMITA WRITTEN REQUEST FOR IT TO THE COMPANY AT THE COMPANY’S ADDRESS SPECIFIED INSECTION 14 OF THE INDENTURE.

##  

## **Section2.4**.           Execution,Authentication, Delivery and Dating of the Securities.

###  

### (a)           Two Officers shall execute theSecurities on behalf of the Company by manual or facsimile signature.  Securities bearing the manual or facsimilesignatures of individuals who were at the time of the execution of theSecurities the proper Officers of the Company shall bind the Company,notwithstanding that such individuals or any of them have ceased to hold suchoffices prior to the authentication and delivery of such Securities or did nothold such offices at the date of authentication of such Securities.

###  

### (b)           At any time and from time to timeafter the execution and delivery of this Indenture, the Company may deliverSecurities executed by the Company to the Trustee for authentication, togetherwith a Company Order for the authentication and delivery of such Securities,and the Trustee in accordance with such Company Order shall authenticate anddeliver such Securities as in this Indenture provided and not otherwise.  No Security shall be

 

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### entitled to any benefit under this Indenture,or be valid or obligatory for any purpose, unless there appears on such Securitya certificate of authentication substantially in the form provided for hereinexecuted by or on behalf of the Trustee by manual signature, and suchcertificate upon any Security shall be conclusive evidence, and the onlyevidence, that such Security has been duly authenticated and deliveredhereunder.  The Trustee may appoint anauthenticating agent or agents reasonably acceptable to the Company withrespect to the Securities.  Unlesslimited by the terms of such appointment, an authenticating agent may authenticateSecurities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trusteeincludes authentication by such agent.

###  

### (c)           Each Security shall be dated the dateof its authentication.  The Trusteeshall authenticate and deliver Securities for original issue in an aggregateprincipal amount of up to $500.0 million (or $575.0 million if the InitialPurchases’ option to purchase additional Securities as forth in Section 2 ofthe Purchase Agreement is exercised in full) upon one or more Company Orderswithout any further action by the Company. The aggregate principal amount of Securities Outstanding at any time maynot exceed the amount set forth in the foregoing sentence.

##  

## **Section 2.5.**           Registrarand Paying Agent.

 

The Company shall maintain an office or agency where Securities may bepresented for registration of transfer or for exchange (the “**Registrar**”) and an office or agency whereSecurities may be presented for payment (the “**PayingAgent**”).  The Registrar shallkeep a register of the Securities (the “**Register**”)and of their transfer and exchange.  TheCompany may appoint one or more co-Registrars and one or more additional PayingAgents for the Securities.  The term“Paying Agent” includes any additional paying agent and the term “Registrar”includes any additional registrar.  TheCompany may change any Paying Agent or Registrar without prior notice to anyHolder.

 

The Company will cause each Paying Agent (other than Wells Fargo Bank,National Association) to execute and deliver to the Trustee an instrument inwhich such Paying Agent shall agree with the Trustee, subject to the provisionsof this Section, that such Paying Agent will:

###  

### (a)           hold all sums ofmoney or Common Stock held by it for the payment of any amounts due and payablein respect of the Securities in trust for the benefit of the Persons entitledthereto until such sums shall be paid to such Persons or otherwise disposed ofas provided in this Indenture;

###  

### (b)           give the Trusteenotice of any Default by the Company in the making of any such payment; and

###  

### (c)           at any time duringthe continuance of any such Default, upon the written request of the Trustee,forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Company shall give prompt written notice to the Trustee of the nameand address of any Paying Agent who is not a party to this Indenture.  If the Company fails to appoint

 

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or maintain another entity as Registrar or Paying Agent, the Trusteeshall act as such.  The Company or anyAffiliate of the Company may act as Paying Agent or Registrar; *provided,however*, that none of the Company, its Subsidiaries or theAffiliates of the foregoing shall act:

####  

#### (i)            as Paying Agent inconnection with redemptions, offers to purchase and discharges, except asotherwise specified in this Indenture, and

####  

#### (ii)           as Paying Agent orRegistrar if a Default or Event of Default has occurred and is continuing.

 

The Company hereby initially appoints Wells Fargo Bank, NationalAssociation, as Registrar and Paying Agent for the Securities.

##  

## **Section2.6.**           PayingAgent to Hold Assets in Trust.

 

Not later than 11:00 a.m. (New York City time) on or prior to each duedate of payments in respect of any Security, the Company shall deposit with oneor more Paying Agents a sum of money in immediately available funds or CommonStock sufficient to make such payments when so becoming due.  The Company at any time may require a PayingAgent to pay all money or Common Stock held by it to the Trustee.  Upon payment over to the Trustee, the PayingAgent (if other than the Company) shall have no further liability for the moneyor Common Stock so paid over to the Trustee.

 

The Company shall require each Paying Agent (other than the Trustee) toagree in writing that the Paying Agent shall hold in trust for the benefit ofHolders or the Trustee all money and Common Stock held by the Paying Agent forthe making of payments in respect of the Securities and shall notify theTrustee of any Default by the Company in making any such payment.  At any time during the continuance of anysuch Default, the Paying Agent shall, upon the written request of the Trustee,forthwith pay to the Trustee all money and Common Stock so held in trust.

 

If the Company shall act as a Paying Agent, it shall, prior to or oneach such due date, segregate and hold in trust for the benefit of the Holdersa sum sufficient with monies held by all other Paying Agents, to pay suchamounts so becoming due until such sums shall be paid to such Persons orotherwise disposed of as provided in this Indenture, and shall promptly notifythe Trustee of its action or failure to act.

##  

## **Section 2.7.**           GeneralProvisions Relating to Registration, Transfer and Exchange.

 

The Securities are issuable only in registered form.  A Holder may transfer a Security only bywritten application to the Registrar stating the name of the proposedtransferee and otherwise complying with the terms of this Indenture.  No such transfer shall be effected until,and such transferee shall succeed to the rights of a Holder only upon, finalacceptance and registration of the transfer by the Registrar in theRegister.  Furthermore, any Holder of aGlobal Security shall, by acceptance of such Global Security, agree thattransfers of beneficial interests in such Global Security may be effected onlythrough a book-entry system maintained by the Holder of such Global Security(or its agent) and that ownership of a beneficial interest in the GlobalSecurity shall be required to be reflected in a book-entry.   Notwithstanding the

 

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foregoing, in the case of a Restricted Security, a beneficial interestin a Global Security that is transferred in reliance on an exemption from theregistration requirements of the Securities Act other than in accordance withRule 144 or Rule 144A may only be transferred for a Physical Security.

 

When Securities are presented to the Registrar with a request toregister the transfer or to exchange them for an equal principal amount ofSecurities of other authorized denominations, the Registrar shall register thetransfer or make the exchange as requested if the requirements hereunder forsuch transactions are met (including that such Securities are duly endorsed oraccompanied by a written instrument of transfer duly executed by the Holderthereof or by an attorney who is authorized in writing to act on behalf of theHolder).  Subject to Section 2.4, to permitregistrations of transfers and exchanges, the Company shall execute and theTrustee shall authenticate Securities at the Registrar’s request.  No service charge shall be made for anyregistration of transfer or exchange or redemption of the Securities, but theCompany may require payment of a sum sufficient to cover any transfer tax orsimilar governmental charge payable in connection therewith (other than anysuch transfer taxes or other similar governmental charge payable upon exchangespursuant to Sections 2.14, 7.5 or 10.7).

 

Neither the Company nor the Registrar shall be required to exchange orregister a transfer of any Securities:

###  

### (a)           for a period of 15days prior to the day of any selection of Securities for redemption underArticle 10 hereof;

###  

### (b)           so selected forredemption or, if a portion of any Security is selected for redemption, suchportion thereof selected for redemption; or

###  

### (c)           surrendered forconversion or, if a portion of any Security is surrendered for conversion, suchportion thereof surrendered for conversion.

 

The Trustee shall have no obligation or duty to monitor, determine orinquire as to compliance with any restrictions on transfer imposed under thisIndenture or under applicable law with respect to any transfer of any interestin any Security (including any transfers between or among Agent Members orbeneficial owners of interests in any Global Security) other than to requiredelivery of such certificates and other documentation or evidence as areexpressly required by, and to do so if and when expressly required by the termsof, this Indenture, and to examine the same to determine substantial complianceas to form with the express requirements hereof.

##  

## **Section 2.8.**           Book-EntryProvisions for the Global Securities.

###  

### (a)           The GlobalSecurities initially shall:

####  

#### (i)            be registered inthe name of the Depositary;

####  

#### (ii)           be delivered to theTrustee as custodian for such Depositary, for credit to the accounts of themembers of, participants in, the Depositary (the “**Agent Members**”) holding the Securities evidenced thereby;and

 

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#### (iii)          bear the RestrictedSecurities Legend set forth in Section 2.3(a)(i) until such time as suchRestricted Securities Legend may be removed in accordance withSection 2.3.

###  

### (b)           Agent Members shallhave no rights under this Indenture with respect to any Global Security held ontheir behalf by the Depositary, or the Trustee as its custodian, or under suchGlobal Security, and the Depositary may be treated by the Company, the Trusteeand any agent of the Company or the Trustee as the absolute owner of suchGlobal Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall preventthe Company, the Trustee or any agent of the Company or Trustee from givingeffect to any written certification, proxy or other authorization furnished bythe Depositary or impair, as between the Depositary and the Agent Members, theoperation of customary practices governing the exercise of the rights of aHolder of any Security.

###  

### (c)           The registeredHolder of a Global Security may grant proxies and otherwise authorize anyPerson, including Agent Members and Persons that may hold interests throughAgent Members, to take any action which a Holder is entitled to take under thisIndenture or the Securities.

###  

### (d)           A Global Securitymay not be transferred, in whole or in part, to any Person other than theDepositary, and no such transfer to any such other Person may beregistered.  Beneficial interests in aGlobal Security may be transferred in accordance with the rules and proceduresof the Depositary and the provisions of Section 2.17 hereof.

###  

### (e)           If at any time:

####  

#### (i)            the Depositarynotifies the Company in writing that it is no longer willing or able tocontinue to act as Depositary for the Global Securities, or the Depositaryceases to be a “clearing agency” registered under the Exchange Act and asuccessor depositary for the Global Securities is not appointed by the Companywithin 90 days of such notice or cessation;

####  

#### (ii)           the Company, at itsoption, notifies the Trustee in writing that it elects to cause the issuance ofthe Physical Securities under this Indenture in exchange for all or any part ofthe Securities represented by a Global Security or Global Securities; or

####  

#### (iii)          an Event of Defaulthas occurred and is continuing and the Registrar has received a request fromthe Depositary for the issuance of Physical Securities in exchange for suchGlobal Security or Global Securities,

 

then the Depositary shall surrender such Global Security or GlobalSecurities to the Trustee for cancellation and the Company shall execute, andthe Trustee, upon receipt of an Officers’ Certificate and Company Order for theauthentication and delivery of Securities, shall authenticate and deliver inexchange for such Global Security or Global Securities, Physical Securities inan aggregate principal amount equal to the aggregate principal amount of suchGlobal Security or Global Securities. Such Physical Securities shall be registered in such names

 

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as the Depositary shall identify in writing as the beneficial owners ofthe Securities represented by such Global Security or Global Securities (or anynominee thereof).

###  

### (f)             Notwithstandingthe foregoing, in connection with any transfer of beneficial interests in aGlobal Security to the beneficial owners thereof pursuant to Section 2.8(d)hereof, the Registrar shall reflect on its books and records the date and adecrease in the aggregate principal amount of such Global Security in an amountequal to the aggregate principal amount of the beneficial interest in suchGlobal Security to be transferred.

##  

## **Section2.9.**           HolderLists.

 

The Trustee shall preserve in as current a form as is reasonablypracticable the most recent list available to it of the names and addresses ofHolders and shall otherwise comply with Section 312(a) of the TIA.  If the Trustee is not the Registrar, theCompany shall furnish to the Trustee prior to or on each Interest Payment Dateand at such other times as the Trustee may request in writing a list in suchform and as of such date as the Trustee may reasonably require of the names andaddresses of Holders relating to such Interest Payment Date or request, asapplicable.

##  

## **Section 2.10.**        PersonsDeemed Owners**.**

 

Prior to due presentment of a Security forregistration of transfer, the Company, the Trustee and any agent of the Companyor the Trustee may treat the Person in whose name such Security is registeredas the owner of such Security for the purpose of receiving payment of principalof the Security or the payment of any Redemption Price or Repurchase Price inrespect thereof and Interest (including Contingent Interest) thereon, if any,or Additional Amounts, if any for any purpose under this Indenture, whether ornot such Security be overdue, and neither the Company, the Trustee nor anyagent of the Company or the Trustee shall be affected by notice to thecontrary.

##  

## **Section2.11.**        Mutilated,Destroyed, Lost or Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Companyshall execute and the Trustee shall authenticate and deliver in exchangetherefor a new Security of like tenor and aggregate principal amount andbearing a number not contemporaneously outstanding.

 

If there is delivered to the Company and the Trustee

###  

### (a)           evidence to theirsatisfaction of the destruction, loss or theft of any Security, and

###  

### (b)           such security orindemnity as may be required by them to save each of them and any agent ofeither of them harmless, then, in the absence of actual notice to the Companyor the Trustee that such Security has been acquired by a *bona fide* purchaser, theCompany shall execute and, upon request, the Trustee shall authenticate anddeliver, in lieu of any such destroyed, lost or stolen Security, a new Securityof like tenor and principal amount, and bearing a number not contemporaneouslyoutstanding.

 

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In case any such mutilated, destroyed, lost or stolen Security has becomeor is about to become due and payable, the Company in its discretion, butsubject to any conversion rights, may, instead of issuing a new Security, paysuch Security, upon satisfaction of the condition set forth in the precedingparagraph.

 

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

 

Every new Security issued pursuant to this Section 2.11 in lieu of anydestroyed, lost or stolen Security shall constitute an original contractualobligation of the Company, whether or not the destroyed, lost or stolenSecurity shall be at any time enforceable by anyone, and such new Securityshall be entitled to all the benefits of this Indenture equally andproportionately with any and all other Securities duly issued hereunder.

 

The provisions of this Section 2.11 are exclusive and shall preclude(to the extent lawful) all other rights and remedies with respect to thereplacement or payment of mutilated, destroyed, lost or stolen Securities.

##  

## **Section 2.12.**        TreasurySecurities.

 

In determining whether the Holders of the requisite principal amount ofOutstanding Securities have given any request, demand, authorization,direction, notice, consent or waiver hereunder, Securities owned by the Companyor any Affiliate of the Company shall be disregarded and deemed not to beOutstanding, except that, in determining whether the Trustee shall be protectedin relying upon any such request, demand, authorization, direction, notice,consent or waiver, only such Securities of which the Trustee has receivedwritten notice and are so owned shall be so disregarded.

##  

## **Section 2.13.**        TemporarySecurities.

 

Pending the preparation of Securities in definitive form, the Companymay execute and the Trustee shall, upon written request of the Company,authenticate and deliver temporary Securities (printed or lithographed).  Temporary Securities shall be issuable inany authorized denomination, and substantially in the form of the Securities indefinitive form but with such omissions, insertions and variations as may beappropriate for temporary Securities, all as may be determined by theCompany.  Every such temporary Securityshall be executed by the Company and authenticated by the Trustee upon the sameconditions and in substantially the same manner, and with the same effect, asthe Securities in definitive form. Without unreasonable delay, the Company willexecute and deliver to the Trustee Securities in definitive form (other than inthe case of Securities in global form) and thereupon any or all temporarySecurities (other than any such Securities in global form) may be surrenderedin exchange therefor, at each office or agency maintained by the Companypursuant to Section 9.2 and the Trustee shall authenticate and deliver inexchange for such temporary Securities an equal principal amount of Securitiesin definitive form.  Such exchange shallbe made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary

 

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Securities shall in all respects be entitled to the same benefits andsubject to the same limitations under this Indenture as Securities indefinitive form authenticated and delivered hereunder.

##  

## **Section2.14.**        Cancellation.

 

All Securities surrendered for payment, redemption, purchase,conversion, registration of transfer or exchange shall, if surrendered to anyPerson other than the Trustee, be delivered to the Trustee.  All Securities so delivered shall becanceled promptly by the Trustee, and no Securities shall be issued in lieuthereof except as expressly permitted by any of the provisions of thisIndenture.  Upon written instructions ofthe Company, the Trustee shall dispose of canceled Securities in accordancewith its procedures for the disposition of cancelled securities in effect as ofthe date of such disposition.  If theCompany shall acquire any of the Securities, such acquisition shall not operateas a redemption or satisfaction of the Indebtedness represented by suchSecurities unless the same are delivered to the Trustee for cancellation.

##  

## **Section 2.15.**                        CUSIPNumbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if thengenerally in use), and the Trustee shall use CUSIP numbers in notices ofredemption or exchange as a convenience to Holders; *provided* that any such notice shall state that norepresentation is made as to the correctness of such numbers either as printedon the Securities or as contained in any such notice and that reliance may beplaced only on the other identification numbers printed on the Securities, andany such redemption shall not be affected by any defect in or omission of suchnumbers.  The Company shall promptlynotify the Trustee of any change in the CUSIP numbers.

##  

## **Section 2.16.**        DefaultedInterest.

 

If the Company fails to make a payment of Principal of or Interest,Contingent Interest and Additional Amounts, if any, on any Security when dueand payable, it shall pay such Interest on such amounts (to the extent lawful),which shall be calculated using the applicable Interest Rate (such amounts, the“**Defaulted Interest**”).  It may elect to pay such Defaulted Interest,plus any other Interest (including Contingent Interest) payable on it, to thePersons who are Holders on which the Interest (including Contingent Interest)is due on a subsequent special record date. The Company shall notify the Trustee in writing of the amount ofDefaulted Interest the Company proposes to pay on each such Security. TheCompany shall fix any such special record date and payment date for suchpayment.  At least 15 days before anysuch special record date, the Company shall mail to Holders affected thereby anotice that states the special record date, the Interest Payment Date andamount to be paid.

##  

## **Section 2.17.**        TransferProvisions.

 

Unless a Security is (i) transferred after the time period referred toin Rule 144(k) under the Securities Act or (ii) sold pursuant to a registrationstatement that has been declared effective under the Securities Act (and whichcontinues to be effective at the time of such sale), the following provisionsshall apply to any sale, pledge or other transfer of Securities:

###  

### (a)           Transfer of Securities.

 

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The following provisions shall apply with respect to the registrationof any proposed transfer of Securities to a QIB:

####  

#### (i)            If the Securitiesto be transferred consist of a beneficial interest in the Global Securities,the transfer of such interest may be effected only through the book-entrysystems maintained by the Depositary.

####  

#### (ii)           If the Securitiesto be transferred consist of Physical Securities, the Registrar shall registerthe transfer if such transfer is being made by a proposed transferor who haschecked the box provided for on the form of Security stating (or has otherwiseadvised the Company and the Registrar in writing) that the sale has been madein compliance with the provisions of Rule 144A to a transferee who has signedthe certification provided for on the form of Security stating or has otherwiseadvised the Company and the Registrar in writing that:

#####  

##### (A)                              itis purchasing the Securities for its own account or an account with respect towhich it exercises sole investment discretion, in each case for investment andnot with a view to distribution;

#####  

##### (B)                                itand any such account is a QIB within the meaning of Rule 144A;

#####  

##### (C)                                itis aware that the sale to it is being made in reliance on Rule 144A;

#####  

##### (D)                               itacknowledges that it has received such information regarding the Company as ithas requested pursuant to Rule 144A or has determined not to request suchinformation; and

#####  

##### (E)                                 itis aware that the transferor is relying upon its foregoing representations inorder to claim the exemption from registration provided by Rule 144A.

 

In addition, the Registrar shall reflect on its books and records the dateand an increase in the Principal Amount at Maturity of the Global Securities inan amount equal to the aggregate Principal Amount at Maturity of the PhysicalSecurities to be transferred, and the Trustee shall cancel the PhysicalSecurities so transferred.

###  

### (b)           Other Exchanges.

 

In the event that Global Securities are exchanged for Securities indefinitive registered form pursuant to Section 2.7 prior to the effectivenessof a Shelf Registration Statement with respect to such Securities, suchSecurities may be exchanged only in accordance with the provisions of clauses(a) and (b) above (including the certification requirements intended to ensurethat such transfers comply with Rule 144A) and such other procedures as mayfrom time to time be adopted by the Company.

###  

### (c)           General.

 

By its acceptance of any Security or shares of Common Stock issuableupon conversion of the Securities bearing the Restricted Securities Legend,each Holder of such

 

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Security or shares of Common Stock acknowledges the restrictions ontransfer of such Security or shares of Common Stock set forth in this Indentureand agrees that it will transfer such Security and such Common Stock only asprovided in this Indenture.  The Registrarshall not register a transfer of any Security unless such transfer complieswith the restrictions on transfer of such Security set forth in thisIndenture.  The Registrar shall beentitled to receive and conclusively rely on written instructions from theCompany verifying that such transfer complies with such restrictions ontransfer.  In connection with anytransfer of Securities, each Holder agrees by its acceptance of the Securitiesto furnish the Registrar or the Company such certifications, legal opinions orother information as either of them may reasonably require to confirm that suchtransfer is being made pursuant to an exemption from, or a transaction notsubject to, the registration requirements of the Securities Act; provided thatthe Registrar shall not be required to determine (but may conclusively rely ona determination made by the Company with respect to) the sufficiency of anysuch certifications, legal opinions or other information.

 

The Registrar shall retain copies of all certifications, letters,notices and other written communications received pursuant to Section 2.8hereof or this Section 2.17 in accordance with its customary procedures for theretention of records relating to the transfer of securities.  The Company shall have the right to inspectand make copies of all such letters, notices or other written communications atany reasonable time upon the giving of reasonable written notice to theRegistrar.

#  

# **ARTICLE 3**                             DISCHARGE OF INDENTURE

 

**Section3.1****.          **Discharge of Liability onSecurities.  When (a) the Company delivers to the Trustee all Outstanding Securities(other than Securities replaced pursuant to Section 2.11) for cancellation, (b)all Outstanding Securities have become due and payable at their scheduledmaturity within one year or all Outstanding Securities are scheduled forredemption within one year and the Company deposits with the Trustee cash or,in the event of a conversion pursuant to Article 12, Common Stock, sufficientto pay all amounts due and owing on all Outstanding Securities on the date oftheir scheduled maturity or the scheduled date of redemption (other thanSecurities replaced pursuant to Section 2.11) or (c) when no Securities areOutstanding, and if in any such case the Company pays all other sums payablehereunder by the Company, then this Indenture shall, subject to Section 5.8,cease to be of further effect.  TheTrustee shall join in the execution of a document prepared by the Companyacknowledging satisfaction and discharge of this Indenture on demand of theCompany accompanied by an Officers’ Certificate and Opinion of Counsel and atthe cost and expense of the Company.

** **

**Section 3.2****.          **Repayment to theCompany.  The Trustee and thePaying Agent shall return to the Company upon written request any money orsecurities held by them for the payment of any amount with respect to theSecurities that remains unclaimed for two years, subject to applicableunclaimed property law.  After return tothe Company, Holders entitled to the money or securities must look to theCompany for payment as general creditors unless an applicable abandonedproperty law designates another Person and the Trustee and the Paying Agentshall have no further liability to the Holders with respect to such money orsecurities for that period commencing after the return thereof.

 

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# **ARTICLE 4**                             DEFAULTS AND REMEDIES

 

**Section4.1.**           Eventsof Default.  An “**Event of Default**”, wherever used herein,means any one of the following events (whatever the reason for such Event ofDefault and whether it shall be voluntary or involuntary or be effected byoperation of law or pursuant to any judgment, decree or order of any court orany order, rule or regulation of any administrative or governmental body):

###  

### (a)           the Company fails to convertSecurities into shares of its Common Stock in accordance with the provisions ofArticle 12;

###  

### (b)           the Company defaults in the paymentof the Principal amount (a “**DefaultedPayment**”) on any Outstanding Security when the same becomes due andpayable at its Stated Maturity, upon redemption, upon exercise of a PurchaseRight, upon declaration when due for purchase by the Company or otherwise;

###  

### (c)           the Company defaults in the paymentof Interest (including Contingent Interest) and Additional Amounts, if any, onany Security when it becomes due and payable and such default continues for aperiod of 30 days;

###  

### (d)            the Company fails to perform orobserve any other term, covenant or agreement contained in the Securities orthis Indenture and the default continues for a period of 60 days after writtennotice of such failure, requiring the Company to remedy the same, shall havebeen given to the Company by the Trustee or to the Company and the Trustee bythe Holders of at least 25% in aggregate principal amount of the OutstandingSecurities;

###  

### (e)            the Company defaults under anyIndebtedness for money borrowed by the Company or any of its Subsidiaries thatis a Significant Subsidiary or any group of two or more Subsidiaries that,taken as a whole, would constitute a Significant Subsidiary, the aggregateoutstanding principal amount of which is in an amount in excess of $25****million, for a period of 30 days after written notice tothe Company by the Trustee or to the Company and the Trustee by Holders of atleast 25% in aggregate principal amount of the Outstanding Securities, whichdefault (i) is caused by the Company’s or any such Significant Subsidiary’sfailure to pay when due principal or premium of or interest on suchIndebtedness by the end of the applicable grace period, if any, unless suchIndebtedness is discharged or (ii) results in the acceleration of suchIndebtedness because of a default with respect to such Indebtedness withoutsuch Indebtedness having been discharged or such non-payment or accelerationhaving been cured, waived, rescinded or annulled;

###  

### (f)            the entry by a court havingjurisdiction in the premises of (i) a decree or order for relief in respect ofthe Company or any of its Subsidiaries that is a Significant Subsidiary or anygroup of two or more Subsidiaries that, taken as a whole, would constitute aSignificant Subsidiary, in an involuntary case or proceeding under anyapplicable U.S. federal or state bankruptcy, insolvency, reorganization orother similar law or (ii) a decree or order adjudging the Company or any of itsSubsidiaries that is a Significant Subsidiary or any group of two or moreSubsidiaries that, taken as a whole, would constitute a Significant Subsidiary,a bankrupt or insolvent, or approving as properly filed a petition seekingreorganization,

###  

32

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### arrangement, adjustment or composition of orin respect of the Company or any of its Subsidiaries that is a SignificantSubsidiary or any group of two or more Subsidiaries that, taken as a whole,would constitute a Significant Subsidiary, under any applicable U.S. federal orstate law, or appointing a custodian, receiver, liquidator, assignee, trustee,sequestrator or other similar official of the Company or of any substantialpart of its property, or ordering the winding up or liquidation of its affairs;or

###  

### (g)           the commencement by the Company orany of its Subsidiaries that is a Significant Subsidiary or any group of two ormore Subsidiaries that, taken as a whole, would constitute a SignificantSubsidiary, of a voluntary case or proceeding under any applicable U.S. federalor state bankruptcy, insolvency, reorganization or other similar law, or theconsent by the Company or any of its Subsidiaries that is a SignificantSubsidiary or any group of two or more Subsidiaries that, taken as a whole,would constitute a Significant Subsidiary, to the entry of a decree or orderfor relief in respect of the Company or any of its Subsidiaries that is aSignificant Subsidiary or any group of two or more Subsidiaries that, taken asa whole, would constitute a Significant Subsidiary, in an involuntary case orproceeding under any applicable U.S. federal or state bankruptcy, insolvency,reorganization or other similar law or to the commencement of any bankruptcy orinsolvency case or proceeding against the Company, or the filing by the Companyor any of its Subsidiaries that is a Significant Subsidiary or any group of twoor more Subsidiaries that, taken as a whole, would constitute a SignificantSubsidiary, of a petition or answer or consent seeking reorganization or reliefunder any applicable U.S. federal or state law in the context of a bankruptcy,insolvency or reorganization proceeding, or the consent by the Company to thefiling of such petition or to the appointment of or the taking possession by acustodian, receiver, liquidator, assignee, trustee, sequestrator or othersimilar official of the Company or of any substantial part of its property, orthe making by the Company or any of its Subsidiaries that is a SignificantSubsidiary or any group of two or more Subsidiaries that, taken as a whole,would constitute a Significant Subsidiary, of an assignment for the benefit ofcreditors, or the admission by the Company or any of its Subsidiaries that is aSignificant Subsidiary or any group of two or more Subsidiaries that, taken asa whole, would constitute a Significant Subsidiary, in writing of its inabilityto pay its debts generally as they become due, or the taking of corporateaction by the Company or any of its Subsidiaries that is a SignificantSubsidiary or any group of two or more Subsidiaries that, taken as a whole,would constitute a Significant Subsidiary, expressly in furtherance of any suchaction.

 

A Default under clause (d) or (e) above is not an Event of Defaultuntil the Trustee notifies the Company, or the Holders of at least 25% of theprincipal amount of the Securities at the time Outstanding notify the Companyand the Trustee, of the Default and the Company does not cure such Default (andsuch Default is not waived) within the time specified in clause (d) or (e)above after actual receipt of such notice. Any such notice must specify theDefault, demand that it be remedied and state that such notice is a “Notice ofDefault”.

 

The Trustee shall, within 90 days of the occurrence of a Default, giveto the Holders notice of all uncured Defaults known to it and written notice ofany event which with the giving of notice or the lapse of time, or both, wouldbecome an Event of Default, its status and what action the Company is taking orproposes to take with respect thereto; *provided,however*, the Trustee shall be protected in withholding such noticeif it, in good faith, determines that the withholding of such notice is in thebest interest of such Holders, except in the case of a Default

 

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in the payment of the Principal of or Interest (including ContingentInterest) on any of the Securities when due or in the payment of any redemptionor Purchase Right.

##  

## **Section4.2.**           Accelerationof Maturity; Rescission and Annulment.

 

If an Event of Default with respect to Outstanding Securities (otherthan an Event of Default specified in Section 4.1(f) or 4.1(g) hereof) occursand is continuing, the Trustee or the Holders of at least 25% in principalamount of the Outstanding Securities, by written notice to the Company, maydeclare due and payable 100% of the principal amount of all OutstandingSecurities, plus any accrued and unpaid Interest (including ContingentInterest) or Additional Amounts, if any, to the date of payment.  Upon a declaration of acceleration, suchPrincipal amount and accrued and unpaid Interest (including ContingentInterest) or Additional Amounts, if any, to the date of payment shall beimmediately due and payable.

 

If an Event of Default specified in Section 4.1(f) and 4.1(g) occurs,the Principal and accrued and unpaid Interest (including Contingent Interest)or Additional Amounts, if any, on the Outstanding Securities shall become andbe immediately due and payable, without any declaration or other act on thepart of the Trustee or any Holder.

 

The Holders of not less than a majority of the principal amount of theOutstanding Securities, may, through notice to the Trustee on behalf of theHolders of all of the Securities, rescind and annul an acceleration and itsconsequences (including waiver of any defaults) if:

###  

### (a)           all existing Eventsof Default, other than the nonpayment of a Defaulted Payment on the Securitieswhich have become due solely because of the acceleration, have been remedied,cured or waived, and

###  

### (b)           the rescission wouldnot conflict with any judgment or decree of a court of competent jurisdiction;

* *

*provided, however*,that in the event such declaration of acceleration has been made based on theexistence of an Event of Default under Section 4.1(d) and the default withrespect to Indebtedness for money borrowed which gave rise to such Event ofDefault has been remedied, cured or waived, then, without any further action bythe Holders, such declaration of acceleration shall be rescinded automaticallyand the consequences of such declaration shall be annulled.  No such rescission or annulment shall affectany subsequent Default or impair any right consequent thereon.

##  

## **Section4.3****.**           Other Remedies.

 

If an Event of Default with respect to Outstanding Securities occursand is continuing, the Trustee may pursue any available remedy by proceeding atlaw or in equity to collect the Defaulted Payment or Interest (includingContingent Interest) due and payable on the Securities or to enforce theperformance of any provision of the Securities.

 

The Trustee may maintain a proceeding in which it may prosecute andenforce all rights of action and claims under this Indenture or the Securities,even if it does not possess any of the Securities or does not produce any ofthem in the proceeding.

 

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## **Section4.4****.**           Waiver of Past Defaults.

 

The Holders, through the written consent of not less than a majority ofthe principal amount of the Outstanding Securities, may, on behalf of theHolders of all of the Securities, waive an existing Default or Event ofDefault, except a Default or Event of Default:

###  

### (a)           set forth inSections 4.1(b) and (c), *provided, however*,that subject to Section 4.7, the Holders of a majority of the principal amountof the Outstanding Securities may rescind an acceleration and its consequences,including any related payment default that resulted from such acceleration); or

###  

### (b)           in respect of acovenant or provision hereof which, under Section 7.2 hereof, cannot bemodified or amended without the consent of the Holders of each OutstandingSecurity affected.

 

Upon any such waiver, such Default shall cease to exist, and any Eventof Default arising therefrom shall be deemed to have been cured, for everypurpose of this Indenture; *provided, however*, that no such waivershall extend to any subsequent or other Default or impair any right consequent thereon.

##  

## **Section4.5****.**           Control by Majority.

 

The Holders of a majority of the principal amount of the OutstandingSecurities shall have the right to direct the time, method and place ofconducting any proceeding for any remedy available to the Trustee or exercisingany trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:

###  

### (a)           conflicts with anylaw or with this Indenture;

###  

### (b)           the Trusteedetermines may be unduly prejudicial to the rights of the Holders not joiningtherein; or

###  

### (c)            may expose theTrustee to personal liability.

 

The Trustee may take any other action deemed proper by the Trusteewhich is not inconsistent with such direction.

##  

## **Section4.6****.**           Limitation on Suit.

 

No Holder shall have any right to pursue any remedy with respect tothis Indenture or the Securities (including, instituting any proceeding,judicial or otherwise, with respect to this Indenture or for the appointment ofa receiver or trustee) unless:

###  

### (a)           such Holder haspreviously given written notice to the Trustee of an Event of Default that iscontinuing;

###  

### (b)           the Holders of atleast 25% of the principal amount of the Outstanding Securities shall have madewritten request to the Trustee to pursue the remedy;

 

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### (c)            such Holder orHolders have offered to the Trustee indemnity satisfactory to it against anycosts, expenses and liabilities incurred in complying with such request;

###  

### (d)            the Trustee hasfailed to comply with the request for 60 days after its receipt of such notice,request and offer of indemnity; and

###  

### (e)           during such 60-dayperiod, no direction inconsistent with such written request has been given tothe Trustee by the Holders of a majority of the principal amount of the OutstandingSecurities;

* *

*provided, however*,that no one or more of such Holders may use this Indenture to prejudice therights of another Holder or to obtain preference or priority over anotherHolder.

## ** **

## **Section4.7.**           UnconditionalRights of Holders to Receive Payment and to Convert.

 

Notwithstanding any other provision in this Indenture, the Holder ofany Security shall have the right, which is absolute and unconditional, toreceive payment of the Principal on and Interest (including ContingentInterest) and Additional Amounts, if any, in respect of the Securities held bysuch Holder, on or after the respective due dates, to convert the Securities inaccordance with Article 12 or to bring suit for the enforcement of any suchpayment on or after such respective dates or the right to convert, and suchrights shall not be impaired or affected adversely without the consent of suchHolder.

##  

## **Section4.8**.           Collectionof Indebtedness and Suits for Enforcement by the Trustee.

 

The Company covenants that if:

###  

### (a)           a Default or Eventof Default is made in the payment of Interest (including Contingent Interest)and Additional Amounts, if any, on any Security when such Interest (includingContingent Interest) and Additional Amounts, if any, becomes due and payableand such Default or Event of Default continues for a period of 30 days; or

###  

### (b)           a Default or Eventof Default is made in the payment of the Principal on any Security when the same becomes due and payable atits Stated Maturity, upon redemption, upon declaration when due for purchase bythe Company or otherwise,

 

then the Company will, upon demand of the Trustee, pay to it, for thebenefit of the Holders of such Securities, the entire Principal then due andpayable (as expressed therein or as a result of any acceleration effectedpursuant to Section 4.2 hereof) on such Securities for any such amounts and, tothe extent legally enforceable, Interest (including Contingent Interest) orAdditional Amounts, if any, on such Securities, and, in addition thereto, suchfurther amount as shall be sufficient to cover the costs and expenses ofcollection, including the reasonable compensation, expenses, disbursements andadvances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand,the Trustee, in its own name and as trustee of an express trust, may institutea judicial proceeding for the collection of the sums so due and unpaid, mayprosecute such proceeding to judgment or final decree and may enforce the sameagainst the Company and collect the monies adjudged or

 

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decreed to be payable in the manner provided by law out of the propertyof the Company, wherever situated.

 

If an Event of Default occurs and is continuing, the Trustee may in itsdiscretion proceed to protect and enforce its rights and the rights of theHolders by such appropriate judicial proceedings as the Trustee shall deem mosteffectual to protect and enforce any such rights, whether for the specificenforcement of any covenant or agreement in this Indenture or in aid of theexercise of any power granted herein, or to enforce any other proper remedy.

##  

## **Section4.9.**           TrusteeMay File Proofs of Claim.

 

In case of the pendency of any receivership, insolvency, liquidation,bankruptcy, reorganization, arrangement, adjustment, composition or otherjudicial proceeding relative to the Company or the property of the Company orits creditors, the Trustee (irrespective of whether the Principal, Interest(including Contingent Interest) and Additional Amounts, if any, shall then bedue and payable as therein expressed or by declaration or otherwise andirrespective of whether the Trustee shall have made any demand on the Companyfor the payment of any such amount) shall be entitled and empowered, byintervention in such proceeding or otherwise:

###  

### (a)           to file and prove aclaim for the whole amount of the Principal or Interest (including ContingentInterest)****and AdditionalAmounts, if any, owing and unpaid in respect of the Securities and to file suchother papers or documents as may be necessary or advisable in order to have theclaims of the Trustee (including any claim for the reasonable compensation,expenses, disbursements and advances of the Trustee, its agents and counsel) andof the Holders allowed in such judicial proceeding and

###  

### (b)           to collect andreceive any monies, Common Stock or other property payable or deliverable onany such claim and to distribute the same,

 

and any custodian, receiver, assignee, trustee, liquidator,sequestrator or other similar official in any such judicial proceedings ishereby authorized by each Holder to make such payments to the Trustee and, inthe event that the Trustee shall consent to the making of such paymentsdirectly to the Holders, to pay to the Trustee any amount due to it for thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel and any other amounts due the Trustee under Section 5.8.

 

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

##  

## **Section4.10.**        Restorationof Rights and Remedies.

 

If the Trustee or any Holder has instituted any proceeding to enforceany right or remedy under this Indenture and such proceeding has been discontinuedor abandoned for any reason, or has been determined adversely to the Trustee orto such Holder, then and in every such case, subject to any determination insuch proceeding, the Company, the Trustee and the Holders shall be restoredseverally and respectively to their former positions hereunder and thereafterall

 

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rights and remedies of the Trustee and the Holders shall continue asthough no such proceeding had been instituted.

##  

## **Section4.11****.**        Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or paymentof mutilated, destroyed, lost or stolen Securities in the last paragraph ofSection 2.11, no right or remedy conferred in this Indenture upon or reservedto the Trustee or to the Holders is intended to be exclusive of any other rightor remedy, and every right and remedy shall, to the extent permitted by law, becumulative and in addition to every other right and remedy given hereunder orhereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, orotherwise, shall not prevent the concurrent assertion or employment of anyother appropriate right or remedy.

##  

## **Section4.12****.**        Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder to exercise anyright or remedy accruing upon any Event of Default shall impair any such rightor remedy or constitute a waiver of any such Event of Default or anyacquiescence therein.  Every right andremedy given by this Article or by law to the Trustee or to the Holders may beexercised from time to time, and as often as may be deemed expedient, by theTrustee or by the Holders, as applicable.

##  

## **Section4.13****.**        Priorities.

 

Any money collected by the Trustee pursuant to this Article shall beapplied in the following order, at the date or dates fixed by the Trustee:

 

FIRST: to the payment of all amounts due to the Trustee under Section5.8;

 

SECOND: to Holders for amounts due and unpaidon the Securities for the Principal or Interest (including Contingent Interest)or Additional Amounts, if any, as applicable, ratably, without preference orpriority of any kind, according to such amounts due and payable on theSecurities; and

 

THIRD: any remaining amounts shall be repaid to the Company.

 

The Trustee may fix a special record date and payment date for anypayment to Holders pursuant to this Section 4.13.  At least 15 days before such special record date, the Trusteeshall mail to each Holder and the Company a notice that states the specialrecord date, the payment date and the amount to be paid.

##  

## **Section4.14.**        Undertakingfor Costs.

 

All parties to this Indenture agree, and each Holder of any Security bysuch Holder’s acceptance thereof shall be deemed to have agreed, that any courtmay in its discretion require, in any suit for the enforcement of any right orremedy under this Indenture, or in any suit against the Trustee for any actiontaken, suffered or omitted by it as Trustee, the filing by any party litigantin such suit of an undertaking to pay the costs of such suit, and that suchcourt may

 

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in its discretion assess reasonable costs, including reasonableattorneys’ fees, against any party litigant in such suit, having due regard tothe merits and good faith of the claims or defenses made by such partylitigant;  but the provisions of thisSection shall not apply to any suit instituted by the Trustee, to any suit institutedby any Holder, or group of Holders, holding in the aggregate more than 10% ofthe principal amount of the Outstanding Securities, or to any suit institutedby any Holder for the enforcement of (i) payments pursuant to Section 4.7, (ii)Purchase Rights in accordance with Article 11 or (iii) conversion rights inaccordance with Article 12.  ThisSection 4.14 shall be in lieu of Section 315(e) of the TIA and such Section315(e) is hereby expressly excluded from this Indenture, as permitted by theTIA.

##  

## **Section4.15.**        Waiverof Stay or Extension Laws.

 

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

#  

# **ARTICLE 5**                             THETRUSTEE

##  

## **Section5.1.**           CertainDuties and Responsibilities.

###  

### (a)           Except during the continuance of anEvent of Default,

####  

#### (i)            The Trusteeundertakes to perform such duties and only such duties as are specifically setforth in this Indenture or the TIA, and no implied covenants or obligationsshall be read into this Indenture against the Trustee; and

####  

#### (ii)           In the absence ofbad faith on its part, the Trustee may conclusively rely, as to the truth ofthe statements and the correctness of the opinions expressed therein, uponcertificates or opinions furnished to the Trustee and conforming to therequirements of this Indenture; *provided, however*, that in the case of anysuch certificates or opinions which by any provision hereof are specificallyrequired to be furnished to the Trustee, the Trustee shall examine thecertificates or opinions to determine whether or not, on their face, theyconform to the requirements to this Indenture (but need not investigate orconfirm the accuracy of any facts stated therein).

###  

### (b)           In case an Event of Default actuallyknown to a Responsible Officer of the Trustee has occurred and is continuing,the Trustee shall exercise such of the rights and powers vested in it by thisIndenture, and use the same degree of care and skill in their exercise, as aprudent person would exercise or use under the circumstances in the conduct ofsuch person’s own affairs.

 

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### (c)           No provision of this Indenture shallbe construed to relieve the Trustee from liability for its own negligentaction, its own negligent failure to act, or its own willful misconduct, exceptthat:

####  

#### (i)            This paragraph (c)shall not be construed to limit the effect of paragraph (a) of this Section5.1;

####  

#### (ii)           The Trustee shallnot be liable for any error of judgment made in good faith by a ResponsibleOfficer, unless it shall be proved that the Trustee was negligent inascertaining the pertinent facts; and

####  

#### (iii)          The Trustee shallnot be liable with respect to any action taken or omitted to be taken by it ingood faith in accordance with a direction received by it of the Holders of amajority of the principal amount of the Outstanding Securities relating to thetime, method and place of conducting any proceeding for any remedy available tothe Trustee, or exercising any trust or power conferred upon the Trustee, underthis Indenture.

###  

### (d)           Whether or not herein expressly soprovided, every provision of this Indenture relating to the conduct oraffecting the liability of or affording protection to the Trustee shall besubject to the provisions of this Section 5.1.

###  

### (e)           No provision of this Indenture shallrequire the Trustee to expend or risk its own funds or otherwise incur anyliability in the performance of any of its duties hereunder, or in the exerciseof any of its rights or powers.  TheTrustee may refuse to perform any duty or exercise any right or power unless itreceives indemnity reasonably satisfactory to it against any loss, liability,cost or expense (including, without limitation, reasonable fees and expenses ofcounsel).

###  

### (f)            The Trustee shall not be obligatedto pay interest on any money or other assets received by it unless otherwiseagreed in writing with the Company. Assets held in trust by the Trustee need not be segregated from otherfunds except to the extent required by law.

###  

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

###  

### (h)           The Trustee shall not be deemed tohave notice or actual knowledge of any Event of Default unless a ResponsibleOfficer of the Trustee has actual knowledge thereof or unless written notice ofany event which is in fact a Default is received by the Trustee pursuant toSection 14.2 hereof, and such notice references the Securities and thisIndenture.

 

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### (i)             The rights, privileges,protections, immunities and benefits given to the Trustee hereunder, including,without limitation, its right to be indemnified, are extended to, and shall beenforceable by, the Trustee in each of its capacities hereunder, and eachPaying Agent, authenticating agent, Conversion Agent or Registrar actinghereunder.

###  

### (j)            The Trustee may request that theCompany deliver an Officers’ Certificate setting forth the names of individualsand/or titles of officers authorized at such time to take specified actionspursuant to this Indenture, which Officers’ Certificate may be signed by anyperson authorized to sign an Officers’ Certificate, including any personspecified as so authorized in any such certificate previously delivered and notsuperseded.

##  

## **Section 5.2.**           CertainRights of Trustee.

 

Subject to the provisions of Section 5.1 hereof and subject to Section315(a) through (d) of the TIA:

###  

### (a)           The Trustee may conclusively rely onany document believed by it to be genuine and to have been signed or presentedby the proper person.  The Trustee neednot investigate any fact or matter stated in the document.

###  

### (b)           Before the Trustee acts or refrainsfrom acting, it may require an Officers’ Certificate or an Opinion of Counsel,or both.  The Trustee shall not beliable for any action it takes or omits to take in good faith in reliance onthe Officers’ Certificate or Opinion of Counsel.

###  

### (c)           The Trustee may act through attorneysand agents and shall not be responsible for the misconduct or negligence of anyattorney or agent appointed with due care.

###  

### (d)           The Trustee shall not be liable forany action taken or omitted to be taken by it in good faith which it believedto be authorized or within the discretion or rights or powers conferred upon itby this Indenture, unless the Trustee’s conduct constitutes negligence.

###  

### (e)           The Trustee may consult with counselof its selection and the advice of such counsel as to matters of law or legalinterpretation shall be full and complete authorization and protection inrespect of any action taken, omitted or suffered by it hereunder in good faithand in accordance with the advice or opinion of such counsel.

###  

### (f)            Unless otherwise specificallyprovided in this Indenture, any demand, request, direction or notice from theCompany shall be sufficient if signed by an Officer of the Company.

###  

### (g)           The permissive rights of the Trusteeto do things enumerated in this Indenture shall not be construed as a dutyunless so specified herein.

##  

## **Section 5.3.**           IndividualRights of Trustee.

 

The Trustee in its individual or any other capacity may become theowner or pledgee of Securities and may otherwise deal with the Company or anyAffiliate of the Company with the same rights it would have if it were notTrustee.  However, in the event that theTrustee

 

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acquires any conflicting interest (as such term is defined in Section310(b) of the TIA), it must eliminate such conflict within 90 days, apply tothe Commission for permission to continue as trustee (to the extent permittedunder Section 310(b) of the TIA) or resign. Any agent may do the same with like rights and duties.  The Trustee is also subject to Sections 5.11and 5.12 hereof.

##  

## **Section 5.4.**           MoneyHeld in Trust.

 

Money held by the Trustee in trust hereunder shall not be segregatedfrom other funds except to the extent required by law.  The Trustee shall be under no liability forinterest on any money received by it hereunder except as otherwise expresslyagreed with the Company.

##  

## **Section 5.5.**           Trustee’sDisclaimer.

 

The recitals contained herein and in the Securities (except for thosein the certificate of authentication) shall be taken as the statements of theCompany, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as tothe validity, sufficiency or priority of this Indenture or of theSecurities.  The Trustee shall not beaccountable for the use or application by the Company of Securities or theproceeds thereof.

##  

## **Section 5.6**.           Noticeof Defaults.

 

Within 90 days after the occurrence of any Default or Event of Defaulthereunder of which a Responsible Officer of the Trustee has received writtennotice, the Trustee shall give notice to Holders, unless such Default or Eventof Default shall have been cured or waived; *provided, however*, that, except in thecase of a Default or Event of Default described in Sections 4.1(b) or (c), theTrustee shall be protected in withholding such notice if and so long asResponsible Officers of the Trustee in good faith determine that thewithholding of such notice is in the interest of the Holders.  The second sentence of this Section 5.6shall be in lieu of the proviso to Section 315(b) of the TIA and such provisois hereby expressly excluded from this Indenture, as permitted by the TIA.  The Trustee shall not be deemed to haveknowledge of a Default unless a Responsible Officer of the Trustee has receivedwritten notice of such Default.

##  

## **Section 5.7.**           Reportsby Trustee to Holders.

 

The Trustee shall transmit to Holders such reports concerning theTrustee and its actions under this Indenture as may be required by Section 313of the TIA at the times and in the manner provided by the TIA.

 

A copy of each report at the time of its mailing to Holders shall befiled with the SEC, if required, and each stock exchange, if any, on which theSecurities and the Common Stock are listed. The Company shall promptly notify the Trustee when the Securities or theCommon Stock become listed on any stock exchange.

##  

## **Section 5.8.**           Compensationand Indemnification.

 

The Company covenants and agrees to pay to the Trustee from time totime, and the Trustee shall be entitled to, such compensation as agreed to inwriting by the Trustee and the Company (which shall not be limited by anyprovision of law in regard to the compensation of a

 

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trustee of an express trust) and the Company covenants and agrees topay or reimburse the Trustee upon its request for all reasonable expenses,disbursements and advances incurred or made by or on behalf of it in accordancewith any of the provisions of this Indenture (including the reasonablecompensation and the expenses and disbursements of its counsel and of allagents and other persons not regularly in its employ), except to the extentthat any such expense, disbursement or advance is due to its negligence or badfaith.  When the Trustee incurs expensesor renders services in connection with an Event of Default specified in Section4.1, the expenses (including the reasonable charges and expenses of itscounsel) and the compensation for the services are intended to constituteexpenses of administration under any bankruptcy law.  The Company also covenants to indemnify the Trustee and itsofficers, directors, employees and agents for, and to hold such Personsharmless against, any loss, liability or expense incurred by them, arising outof or in connection with the acceptance or administration of this Indenture orthe trusts hereunder or the performance of their duties hereunder, includingthe costs and expenses of defending themselves against or investigating anyclaim of liability in the premises, except to the extent that any such loss,liability or expense was due to the negligence or willful misconduct of suchPersons.  The obligations of the Companyunder this Section 5.8 to compensate and indemnify the Trustee and itsofficers, directors, employees and agents and to pay or reimburse such Personsfor expenses, disbursements and advances shall constitute additionalIndebtedness hereunder and shall survive the satisfaction and discharge of thisIndenture or the earlier resignation or removal of the Trustee.  Such additional Indebtedness shall be a lienprior to that of the Securities upon all property and funds held or collectedby the Trustee as such, except funds held in trust for the benefit of theHolders of particular Securities, and the Securities are hereby subordinated tosuch senior claim.  “**Trustee**” for purposes of this Section 5.8shall include any predecessor Trustee, in its capacity as Trustee, but thenegligence or willful misconduct of any Trustee shall not affect theindemnification of any other Trustee.

##  

## **Section5.9.**           Replacementof Trustee.

 

A resignation or removal of the Trustee and appointment of a successorTrustee shall become effective only upon the successor Trustee’s acceptance ofappointment as provided in this Section 5.9.

 

The Trustee may resign and be discharged from the trust hereby createdby so notifying the Company in writing. The Holders of at least a majority of the principal amount ofOutstanding Securities may remove the Trustee by so notifying the Trustee andthe Company in writing.  The Companymust remove the Trustee if:

###  

### (a)           the Trustee fails tocomply with Section 5.10 hereof or Section 310 of the TIA;

###  

### (b)           the Trustee becomesincapable of acting;

###  

### (c)            the Trustee isadjudged a bankrupt or an insolvent or an order for relief is entered withrespect to the Trustee under any Bankruptcy Law; or

###  

### (d)            a Custodian orpublic officer takes charge of the Trustee or its property.

 

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If the Trustee resigns or is removed or if a vacancy exists in theoffice of the Trustee for any reason, the Company shall promptly appoint asuccessor Trustee.  The Trustee shall beentitled to payment of its fees and reimbursement of its expenses while actingas Trustee.  Within one year after thesuccessor Trustee takes office, the Holders of at least a majority of theprincipal amount of Outstanding Securities may appoint a successor Trustee toreplace the successor Trustee appointed by the Company.

 

Any Holder may petition any court of competent jurisdiction for theremoval of the Trustee and the appointment of a successor Trustee if theTrustee fails to comply with Section 5.10.

 

If an instrument of acceptance by a successor Trustee shall not havebeen delivered to the Trustee within 30 days after the giving of such notice ofresignation or removal, the resigning or removed Trustee, as applicable, maypetition, at the expense of the Company, any court of competent jurisdiction forthe appointment of a successor Trustee.

 

A successor Trustee shall deliver a written acceptance of itsappointment to the retiring Trustee and to the Company.  Thereupon the resignation or removal of theretiring Trustee shall become effective, and the successor Trustee shall haveall the rights, powers and duties of the Trustee under this Indenture.  The Company shall issue a notice of thesuccessor Trustee’s succession to the Holders. Upon payment of its charges, the retiring Trustee shall promptly transferall property held by it as Trustee to the successor Trustee, subjectnevertheless to its lien, if any, provided for in Section 5.8 hereof.  Notwithstanding replacement of the Trusteepursuant to this Section 5.9 hereof, the Company’s obligations under Section5.8 hereof shall continue for the benefit of the retiring Trustee with respectto expenses, losses and liabilities incurred by it prior to such replacement.

##  

## **Section 5.10.**        SuccessorTrustee by Merger, Etc.

 

Subject to Section 5.11 hereof, if the Trustee consolidates with,merges or converts into, or transfers all or substantially all of its corporatetrust business to, another corporation or national banking association, thesuccessor entity without any further act shall be the successor Trustee as tothe Securities.

##  

## **Section 5.11.**        CorporateTrustee Required; Eligibility.

 

The Trustee shall at all times satisfy the requirements of Section310(a)(1), (2) and (5) of the TIA.  TheTrustee shall at all times have (or, in the case of a corporation included in abank holding company system, the related bank holding company shall at alltimes have), a combined capital and surplus of at least $50 million as setforth in its (or its related bank holding company’s) most recent publishedannual report of condition.  The Trusteeis subject to Section 310(b) of the TIA.

##  

## **Section 5.12.**        Collectionof Claims Against the Company.

 

The Trustee is subject to Section 311(a) of the TIA, excluding anycreditor relationship listed in Section 311(b) of the TIA.  A Trustee who has resigned or been removedshall be subject to Section 311(a) of the TIA to the extent indicated therein.

 

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# **ARTICLE****6**                             CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, SALE,LEASE OR OTHER DISPOSITION

##  

## **Section6.1****.**           Company May Consolidate, Etc., Onlyon Certain Terms.

 

The Company shall not consolidate with or merge into any other Personor convey, transfer, sell, lease or otherwise dispose of all or substantiallyall of its properties and assets to any Person, and the Company shall notpermit any Person to consolidate with or merge into the Company or convey,transfer, sell, lease or otherwise dispose of all or substantially all of itsproperties and assets to the Company, unless:

###  

### (a)           in the event that theCompany shall consolidate with or merge into another Person or convey,transfer, sell, lease or otherwise dispose of all or substantially all of itsproperties or assets to any Person, the Person formed by such consolidation orinto which the Company is merged or the Person which acquires by suchconveyance, transfer, sale, lease or disposition all or substantially all ofthe properties and assets of the Company shall be a Person organized andvalidly existing under the laws of the United States of America, any Statethereof or the District of Columbia;

###  

### (b)           in the event thatthe Company shall consolidate with or merge into another Person or convey,transfer, sell, lease or otherwise dispose of all or substantially all of itsproperties or assets to any Person, and the entity surviving such transactionor transferee entity is not the Company, then such surviving or transfereeentity shall expressly assume, by an indenture supplemental hereto, executedand delivered to the Trustee, in form reasonably satisfactory to the Trustee,the due and punctual payment of all and any amounts when due on all theSecurities and the performance of every covenant of this Indenture, theSecurities and the Registration Rights Agreement (to the extent any obligationsof the Company thereunder remain outstanding) on the part of the Company to beperformed or observed and shall have provided for conversion rights provided inArticle 12;

###  

### (c)            immediately aftergiving 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, shallhave occurred and be continuing; and

###  

### (d)           the Company shallhave delivered to the Trustee an Officers’ Certificate and an Opinion ofCounsel, each stating that such consolidation, merger, conveyance, transfer,sale, lease or disposition and, if a supplemental indenture is required inconnection with such transaction, such supplemental indenture, comply with thisArticle and that all conditions precedent herein provided for relating to suchtransaction have been complied with.

##  

## **Section 6.2.**           SuccessorCorporation Substituted.

 

Upon any consolidation or merger by the Company with or into any otherPerson or any conveyance, transfer, sale, lease or other disposition of all orsubstantially all of the

 

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properties and assets of the Company to any Person, in accordance withSection 6.1 hereof, the successor Person formed by such consolidation or intowhich the Company is merged or to which such conveyance, transfer, sale, leaseor disposition is made shall succeed to, and be substituted for, and mayexercise every right and power of, the Company under this Indenture with thesame effect as if such successor Person had been named as the Companyherein.  In the event of any suchconveyance, transfer, sale or disposition to the Company (which term shall forthis purpose mean the Person named as the “Company” in the first paragraph ofthis Indenture or any successor Person which shall theretofore become such inthe manner described in Section 6.1 hereof), except in the case of a lease toanother Person, the predecessor Person shall be relieved of all obligations andcovenants under this Indenture and the Securities and may be dissolved andliquidated.

#  

# **ARTICLE 7**                             AMENDMENTS, SUPPLEMENTS AND WAIVERS

##  

## **Section 7.1.**           WithoutConsent of Holders of Securities.

 

Without the consent of any Holders, the Company, when authorized by aBoard Resolution, and the Trustee, at any time and from time to time, may amendthis Indenture and the Securities to:

###  

### (a)           add to the covenantsof the Company for the benefit of the Holders;

###  

### (b)           surrender any rightor power herein conferred upon the Company;

###  

### (c)           provide forconversion rights of Holders if any reclassification or change of the Company’sCommon Stock or any consolidation, merger or sale of all or substantially allof the Company’s assets occurs;

###  

### (d)           provide for theassumption of the Company’s obligations to the Holders in the case of a merger,consolidation or conveyance, sale, transfer or lease pursuant to Article 6hereof;

###  

### (e)           reduce theConversion Price; *provided**, however*,that such reduction in the Conversion Price shall not adversely affect theinterest of the Holders (after taking into account tax and other consequencesof such reduction);

###  

### (f)            comply with therequirements of the Commission in order to effect or maintain the qualificationof this Indenture under the TIA;

###  

### (g)           make any changes ormodifications to this Indenture necessary in connection with the registrationof any Securities under the Securities Act as contemplated in the RegistrationRights Agreement; *provided, however*, that such change or modification pursuantto this clause (g) does not, in the good faith opinion of the Board of Directors(as evidenced by a Board Resolution) and the Trustee, adversely affect theinterests of the Holders in any material respect;

###  

### (h)           cure any ambiguityor correct or supplement any provision herein which may be inconsistent withany other provision herein or which is otherwise defective, or

 

46

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### make any otherprovisions with respect to matters or questions arising under this Indenturewhich the Company may deem necessary or desirable and which shall not beinconsistent with the provisions of this Indenture; *provided, however*, that suchaction pursuant to this clause (h) does not, in the good faith opinion of theBoard of Directors (as evidenced by a Board Resolution) and the Trustee,adversely affect the interests of the Holders in any material respect;

###  

### (i)            add guarantees withrespect to the Securities; or

###  

### (j)            add or modify anyother provisions herein with respect to matters or questions arising hereunderwhich the Company and the Trustee may deem necessary or desirable and whichwill not adversely affect the interests of the Holders.

##  

## **Section 7.2.**           WithConsent of Holders of Securities.

 

Except as provided below in this Section 7.2, this Indenture or theSecurities may be amended, modified or supplemented, and noncompliance in anyparticular instance with any provision of this Indenture or the Securities maybe waived, (i) with the written consent of the Holders of at least a majorityof the principal amount of the Outstanding Securities or (ii) by the adoptionof a resolution at a meeting of holders by at least a majority in aggregateprincipal amount of the Securities represented at such meeting.

 

Without the written consent or the affirmative vote of each Holder ofSecurities affected thereby, an amendment or waiver under this Section 7.2 maynot:

###  

### (a)           change the StatedMaturity of the Principal of or the date any installment of Interest,Contingent Interest or Additional Amounts, if any, is due on any Security;

###  

### (b)           reduce the Principalor any premium, Repurchase Price or Redemption Price of or Interest (includingContingent Interest) or Additional Amounts, if any, on any Security;

###  

### (c)            change the currencyof any amount owed or owing under the Security or any Interest (includingContingent Interest) or Additional Amounts thereon from U.S. Dollars;

###  

### (d)            impair the right ofany Holder to institute suit for the enforcement of any payment in or withrespect to any Security;

###  

### (e)           modify theobligation of the Company to maintain an office or agency in The City of NewYork pursuant to Section 9.2;

###  

### (f)            except as otherwisepermitted or contemplated by the Indenture, adversely affect the Purchase Rightof the Holders as provided in Article 11 or the right of the Holders to convertany Security as provided in Article 12;

###  

### (g)           modify theprovisions of Article 10 in a manner adverse to the Holders;

 

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### (h)           modify any of theprovisions of this Section, or reduce the percentage of voting interestsrequired to waive a default, except to provide that certain other provisions ofthis Indenture cannot be modified or waived without the consent of the Holderof each Outstanding Security affected thereby;

###  

### (i)             reduce thepercentage of the principal amount of the Outstanding Securities the consent ofwhose Holders is required for any supplemental indenture or the consent ofwhose Holders is required for any waiver provided for in this Indenture; or

###  

### (j)            alter the manner ofcalculation or rate of accrual of Interest, Contingent Interest or AdditionalAmounts, if any, on any Security or extend the payment of any such amount.

 

It shall not be necessary for any Act of Holders under this Section 7.2to approve the particular form of any proposed supplemental indenture, but itshall be sufficient if such Act shall approve the substance thereof.

 

**Section 7.3**.           Compliance with Trust Indenture Act.

 

Every amendment to this Indenture or the Securities shall be set forthin a supplemental indenture that complies with the TIA as then in effect.

##  

## **Section 7.4**.           Revocationof Consents and Effect of Consents or Votes.

 

Until an amendment, supplement or waiver becomes effective, a writtenconsent to it by a Holder is a continuing consent by the Holder and everysubsequent Holder of a Security or portion of a Security that evidences thesame debt as the consenting Holder’s Security, even if notation of the consentis not made on any Security; *provided, however*, that unless a recorddate shall have been established, any such Holder or subsequent Holder mayrevoke the consent as to its Security or portion of a Security if the Trusteereceives written notice of revocation before the date the amendment, supplementor waiver becomes effective.

 

An amendment, supplement or waiver becomes effective on receipt by theTrustee of written consents from or affirmative votes by, as applicable, theHolders of the requisite percentage of the principal amount of the OutstandingSecurities, and thereafter shall bind every Holder; *provided, however*, if theamendment, supplement or waiver makes a change described in any of the clauses(a) through (j) of Section 7.2, the amendment, supplement or waiver shall bindonly each Holder which has consented to it or voted for it, as applicable, andevery subsequent Holder of a Security or portion of a Security that evidencesthe same Indebtedness as the Security of the consenting or affirmatively votingHolder, as applicable.

##  

## **Section 7.5.**           Notationon or Exchange of Securities.

 

If an amendment, supplement or waiver changes the terms of a Security:

###  

### (a)           the Trustee may require the Holder ofa Security to deliver such Securities to the Trustee, the Trustee may place anappropriate notation on the Security about the changed

###  

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### terms and return it to the Holder and theTrustee may place an appropriate notation on any Security thereafterauthenticated; or

###  

### (b)           if the Company or the Trustee sodetermines, the Company in exchange for the Security shall issue and theTrustee shall authenticate a new Security that reflects the changed terms.

 

Failure to make the appropriate notation or issue a new Security shallnot affect the validity and effect of such amendment, supplement or waiver.

##  

## **Section7.6**.           Trusteeto Sign Amendment, Etc.

 

The Trustee shall sign any amendment authorized pursuant to thisArticle 7 if the Trustee reasonably determines the amendment does not adverselyaffect the rights, duties, liabilities or immunities of the Trustee.  If the Trustee reasonably determines theamendment does adversely affect the rights, duties, liabilities or immunitiesof the Trustee, the Trustee may but need not sign it.  In signing or refusing to sign any amendment hereunder, theTrustee shall be entitled to receive and shall be fully protected in relyingupon an Officers’ Certificate and an Opinion of Counsel as conclusive evidencethat such amendment is authorized or permitted by this Indenture and that allconditions precedent relating thereto have been complied with.

## ** **

## **Section 7.7.**           Effectof Amendment.

 

Upon the execution of any supplemental amendment under this Article,this Indenture shall be modified in accordance therewith, and such amendmentshall form a part of this Indenture for all purposes; and every Holdertheretofore or thereafter authenticated and delivered hereunder shall be boundthereby.

#  

# **ARTICLE 8**                                                                             [INTENTIONALLY OMITTED]

#  

# **ARTICLE 9**                             COVENANTS

##  

## **Section9.1.**           Paymentof Principal, Redemption Price, Repurchase Price and Interest.

 

The Company will duly and punctually pay the Principal of, Interest,Contingent Interest and Additional Amounts, if any, on the Securities when andif at any time any such foregoing amounts are due and payable in accordancewith the terms of the Securities and this Indenture.  The Company will deposit or cause to be deposited with theTrustee as directed by the Trustee, no later than the day of the StatedMaturity of any Security, the date of any installment of Interest, ContingentInterest or Additional Amounts, if any, or any other date such payment is otherwisedue.  If Additional Amounts are payableby the Company pursuant to the Registration Rights Agreement, the Company shalldeliver to the Trustee a certificate to such effect stating (i) the amountof Additional Amounts so payable and (ii) the date on which suchAdditional Amounts are payable.  Unlessand until a Responsible Officer of the Trustee receives such a certificate, theTrustee may assume without inquiry that no Additional Amounts are payable.

##  

 

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##  

## **Section 9.2.**           Maintenance of Offices or Agencies.

 

The Company hereby appoints the Trustee’s Corporate Trust Office as itsoffice in the Borough of Manhattan, The City of New York, where Securities maybe:

###  

### (a)           presented orsurrendered for payment;

###  

### (b)           surrendered forregistration of transfer or exchange;

###  

### (c)           surrendered forconversion;

 

and where notices and demands to or upon the Company in respect of theSecurities and this Indenture may be served.

 

The Company will maintain in The City of New York, an office or agencywhere Securities may be presented or surrendered for payment, where Securitiesmay be surrendered for registration of transfer or exchange, where Securitiesmay be surrendered for conversion and where notices and demands to or upon the Companyin respect of the Securities and this Indenture may be served.  The Company will give prompt written noticeto the Trustee, and notice to the Holders in accordance with Section 14.2hereof, of the appointment or termination of any such agents and of thelocation and any change in the location of any such office or agency.

 

If at any time the Company shall fail to maintain any such requiredoffice or agency in The City of New York, or shall fail to furnish the Trusteewith the address thereof, presentations and surrenders may be made at, andnotices and demands may be served on, the Corporate Trust Office of theTrustee.

##  

## **Section 9.3.**           CorporateExistence.

 

Subject to Article 6 hereof, the Company will do or cause to be doneall things necessary to preserve and keep in full force and effect itscorporate existence, rights (charter and statutory) and franchises of theCompany and each Subsidiary; *provided,however*, that the Company shall not be required to preserve any suchright or franchise if the Board of Directors shall determine in good faith thatthe preservation thereof is no longer desirable in the conduct of the businessof the Company and its Subsidiaries as a whole and that the loss thereof is notdisadvantageous in any material respect to the Holders.

##  

## **Section9.4.**           Reports.

###  

### (a)           The Company, shall deliver to theTrustee within 15 days after it files them with the Commission copies of Forms10-K and 10-Q which the Company is required to file with the Commissionpursuant to Section 13 or 15(d) of the Exchange Act; *provided, however*, theCompany shall not be required to deliver to the Trustee any materials for whichthe Company has sought and received confidential treatment by the SEC.  The Company also shall comply with the otherprovisions of Section 314(a) of the TIA.

###  

### (b)           If at any time the Company is notsubject to Section 13 or 15(d) of the Exchange Act, upon the request of aHolder, the Company, will promptly furnish or cause to be furnished to suchHolder or to a prospective purchaser of such Security designated by such

###  

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### Holder, as applicable, the information, ifany, required to be delivered by it pursuant to Rule 144A(d)(4) under theSecurities Act to permit compliance with Rule 144A in connection with theresale of such Security; *provided, however*, that the Company shallnot be required to furnish such information in connection with any request madeon or after the date which is two years from the later of the date suchsecurity was last acquired from the Company or an “affiliate” (as defined underRule 144 under the Securities Act) of the Company.

##  

## **Section 9.5.**           ComplianceCertificate.

 

The Company shall deliver to the Trustee, within 120 days after the endof each fiscal year of the Company, an Officer’s Certificate signed by twoOfficers of the Company stating that, in the course of the performance by thesigners of their duties as Officers of the Company, they would normally haveknowledge of any failure by the Company to comply with all conditions, orDefault by the Company with respect to any covenants, under this Indenture, andfurther stating whether or not they have knowledge of any such failure orDefault and, if so, specifying each such failure or Default and the naturethereof.  In the event an Officer of theCompany comes to have actual knowledge of a Default, regardless of the date,the Company shall deliver an Officers’ Certificate to the Trustee within fiveBusiness Days of obtaining such actual knowledge specifying such Default andthe nature and status thereof.

 

When any Registration Default (as defined in the Registration RightsAgreement) occurs, the Company shall promptly deliver to the Trustee byregistered or certified mail or by telegram, telex or facsimile transmission anOfficer’s Certificate specifying the nature of such Registration Default. Inaddition, the Company shall deliver to the Trustee on each Interest PaymentDate during the continuance of a Registration Default and on the first InterestPayment Date following the cure of a Registration Default (to the extent thatAdditional Amounts are then due and payable on such Interest Payment Date), anOfficer’s Certificate specifying the amount of Additional Amounts which haveaccrued and which are then owing under the Registration Rights Agreement.

##  

## **Section 9.6.**                   Resale of Certain Securities.

 

During the period of two years after the last date of original issuanceof any Securities, the Company shall not, and shall not register for transferany sales by any of its “affiliates” (as defined under Rule 144 under theSecurities Act) of any Securities, or shares of Common Stock issuable uponconversion of the Securities, which constitute “restricted securities” underRule 144, except pursuant to an effective registration statement under theSecurities Act;*provided*,*however*, that the Company may registerfor transfer sales of Securities, or shares of Common Stock issuable uponconversion of the Securities, which constitute “restricted securities” underRule 144, if the transferee thereof acknowledges that such Securities areTransfer Restricted Securities (as defined in the Registration RightsAgreement).  The Trustee shall have no responsibility or liability inrespect of the Company’s performance of its agreement in the precedingsentence.

 

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# **ARTICLE 10**                      REDEMPTION OF SECURITIES

## ** **

## **Section 10.1**.        OptionalRedemption.

 

At any time on or after March 20, 2008, except for Securities that itis required to purchase pursuant to Section 11.1 or required to convertpursuant to Section 12.1, the Company may, at its option, redeem the Securitiesin whole at any time or in part from time to time, on any date prior to theStated Maturity of such Securities, upon notice as set forth in Section 10.4,at the Redemption Price equal to 100.00% of the principal amount of theSecurities.  In addition, the Companywill pay Interest (including Contingent Interest) on the Securities beingredeemed, including those Securities which are converted into Common Stockafter the date the notice of the redemption is mailed and prior to theRedemption Date.  This Interest willinclude Interest accrued and unpaid to, but excluding, the Redemption Date.  If the Redemption Date is an InterestPayment Date, the Company will pay the Interest to the Holder of record on thecorresponding Regular Record Date, which may or may not be the same Person towhom the Company will pay the Redemption Price.

 

If the Company exercises its option to redeem the Securities pursuantto this Section 10.1, a Holder may nevertheless exercise its right to have itsSecurities purchased pursuant to Section 11.1, if applicable, or to convertsuch Securities pursuant to Article 12 even if such Securities are nototherwise convertible at such time, in each case, until the close of businesson the day that is one Business Day immediately preceding the Redemption Date.

 

The Company shall pay Interest, Contingent Interest or AdditionalAmounts, if any, to the Holder of the Securities called for redemption pursuantto Section 10.1 (including those Securities which are converted into CommonStock after the date the notice of the redemption is mailed and prior to theRedemption Date) accrued but not paid to, but excluding, the Redemption Datepursuant to Section 2.1(f)(ii); *provided,however,* that if the Redemption Date is an Interest Payment Date,the Company shall pay the Interest (including Contingent Interest) to theHolder of the Security at the close of business on such Interest Payment Date.

## ** **

## **Section 10.2.**        Noticeto Trustee.

 

If the Company elects to redeem Securities pursuant to the provisionsof Section 10.1 hereof (such election to be ordered by a Board Resolution), itshall notify the Trustee at least 20 days prior to the intended Redemption Date(unless a shorter notice shall be satisfactory to the Trustee) of (i) suchintended Redemption Date, (ii) the principal amount of Securities to beredeemed and (iii) the CUSIP numbers of the Securities to be redeemed.

##  

## **Section 10.3.**        Selectionof Securities to Be Redeemed.

 

If fewer than all the Securities are to be redeemed, the Trustee shallselect the particular Securities to be redeemed from the Outstanding Securitiesby a method that complies with the requirements of any exchange on which theSecurities are listed, or, if the Securities are not listed on an exchange, ona *prorata* basis or by lot or in accordance with any other method theTrustee considers fair and appropriate. The Trustee may select for redemption portions of the principal amountof Securities that have denominations larger than $1,000.

 

Securities and portions thereof that the Trustee selects shall be inprincipal amounts in integral multiples of $1,000*.*  Provisions of thisIndenture that apply to Securities

 

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called for redemption also apply to portions of Securities called forredemption.  The Trustee shall notifythe Company promptly of the Securities or portions of Securities to beredeemed.

 

The Trustee shall promptly notify the Company and the Registrar inwriting of the Securities selected for redemption and, in the case of anySecurities selected for partial redemption, the principal amount thereof to beredeemed.

 

If any Security selected for partial redemption is converted or electedto be purchased in part before termination of the conversion right or PurchaseRight with respect to the portion of the Security so selected, the converted orpurchased portion of such Security shall be deemed to be the portion selectedfor redemption; *provided, however*, that the Holder of such Security soconverted or purchased and deemed redeemed shall not be entitled to anyadditional interest payment as a result of such deemed redemption than suchHolder would have otherwise been entitled to receive upon conversion orpurchase of such Security subject to Section 2.1(f).  Securities which have been converted or purchased during aselection of Securities to be redeemed may be treated by the Trustee as Outstandingfor the purpose of such selection.

 

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

##  

## **Section 10.4.**        Noticeof Redemption.

 

Notice of redemption shall be given in the manner provided in Section14.2 to the Holders of Securities to be redeemed.  Such notice shall be given no less than 20 and no more than 60days prior to the intended Redemption Date.

 

All notices of redemption shall state:

###  

### (a)           such intendedRedemption Date;

###  

### (b)           the Redemption Priceand Interest, Contingent Interest or Additional Amounts, if any, accrued andunpaid to, but excluding, the Redemption Date, if any;

###  

### (c)           if fewer than allthe Outstanding Securities are to be redeemed, the principal amount ofSecurities to be redeemed and the principal amount of Securities which will beOutstanding after such partial redemption;

###  

### (d)           that on theRedemption Date the Redemption Price and Interest, Contingent Interest orAdditional Amounts, if any, accrued and unpaid to, but excluding, theRedemption Date, if any, will become due and payable upon each such Security tobe redeemed;

###  

### (e)           the ConversionPrice, the date on which the right to convert the principal of the Securitiesto be redeemed will terminate and the places where such Securities may besurrendered for conversion;

###  

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### (f)            the place or placeswhere such Securities are to be surrendered for payment of the Redemption Priceand accrued and unpaid Interest, Contingent Interest or Additional Amounts, ifany; and

###  

### (g)           the CUSIP number ofthe Securities.

 

The notice given shall specify the last date on which exchanges ortransfers of Securities may be made pursuant to Section 2.7, and shall specifythe serial numbers of Securities and the portions thereof called forredemption.

 

Notice of redemption of Securities to be redeemed at the election ofthe Company shall be given by the Company or, at the Company’s written requestdelivered at least 20 days prior to the date of the mailing of such Notice(unless a shorter period shall be acceptable to the Trustee), by the Trustee inthe name of and at the expense of the Company.

##  

## **Section 10.5.**        Effectof Notice of Redemption.

 

Notice of redemption having been given as provided in Section 10.4hereof, the Securities so to be redeemed shall, on the Redemption Date, becomedue and payable at the Redemption Price therein specified and from and aftersuch date (unless the Company shall default in the payment of the RedemptionPrice and accrued and unpaid Interest (including Contingent Interest)) suchSecurities shall cease to bear Interest (including Contingent Interest).  Upon surrender of any such Security forredemption in accordance with such notice, such Security shall be paid by theCompany at the Redemption Price; *provided, however*, the installments ofInterest (including Contingent Interest) on Securities whose Stated Maturity isprior to or on the Redemption Date shall be payable to the Holders of suchSecurities, or one or more Predecessor Securities, registered as such on therelevant Regular Record Date.

 

If any Security called for redemption shall not be so paid uponsurrender thereof for redemption, the principal and premium, if any, shall,until paid, bear Interest (including Contingent Interest) from the RedemptionDate at the Interest Rate.

##  

## **Section 10.6.**        Depositand Payment of Redemption Price.

 

Prior to or on any Redemption Date, the Company shall deposit with theTrustee or with a Paying Agent (or, if the Company or a Subsidiary or anAffiliate of either of them is acting as the Paying Agent, shall segregate andhold in trust as provided in Section 2.6) an amount of money in immediatelyavailable funds sufficient to pay the Redemption Price, and accrued and unpaidInterest, Contingent Interest or Additional Amounts, if any, in respect of allthe Securities to be redeemed on that Redemption Date from the last InterestPayment Date to but not including the Redemption Date, other than anySecurities called for redemption on that date which have been converted priorto the date of such deposit, and accrued and unpaid Interest (includingContingent Interest) on such Securities. The Trustee and Paying Agent shall then cause such funds to be paid tothe Holders of the Securities being redeemed in accordance with this Article.

 

If any Security delivered for redemption shall not be so redeemed bypayment to the Holders thereof on the Redemption Date, the principal amount ofsuch Security shall, until it

 

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is redeemed, bear Interest (including Contingent Interest) on theRedemption Date to but not including the actual date of redemption at theapplicable Interest Rate, and each such Security shall remain convertible intoshares of Common Stock pursuant to Article 12 until such Security shall havebeen so redeemed.

 

If any Security called for redemption is converted, any money depositedwith the Trustee or with a Paying Agent or so segregated and held in trust forthe redemption of such Security shall (subject to any right of the Holder ofsuch Security or any Predecessor Security to receive Interest (includingContingent Interest) as provided in Section 2.1(f)) be paid to the Company uponrequest by the Company or, if then held by the Company, shall be dischargedfrom such trust.

##  

## **Section 10.7.**        SecuritiesRedeemed in Part.

 

Any Security which is to be redeemed only in part shall be surrenderedat an office or agency of the Company designated for that purpose pursuant toSection 9.2 hereof (with, if the Company or the Trustee so requires, dueendorsement by, or a written instrument of transfer in form satisfactory to theCompany and the Trustee duly executed by, the Holder thereof or the Holder’sattorney duly authorized in writing), and the Company shall execute, and theTrustee shall authenticate and deliver to the Holder of such Security withoutservice charge, a new Security or Securities of any authorized denomination asrequested by such Holder in principal amount equal to and in exchange for theunredeemed portion of the Security so surrendered, *provided* that no single Security may be purchased in partunless the portion of the principal amount of such Security to be Outstandingafter such purchase is equal to $1,000 or an integral multiple thereof.

# ** **

# **ARTICLE 11**                      PURCHASE AT THE OPTION OF A HOLDER UPON SPECIFIC REPURCHASE DATES ORCHANGE OF CONTROL

##  

## **Section11.1.**        PurchaseRight.

###  

### (a)           On March 15 of 2010, 2015 and 2018,(each, a “**Specific Repurchase Date**”)each Holder shall have the right (the “**Purchase Right**”),at the Holder’s option, to require the Company to repurchase for cash, and uponthe exercise of such right the Company shall purchase, all of such Holder’sSecurities not theretofore called for redemption, or any portion of theprincipal amount thereof that is equal to $1,000 or an integral multiplethereof (*provided* that no singleSecurity may be purchased in part unless the portion of the principal amount ofsuch Security to be Outstanding after such purchase is equal to $1,000 or anintegral multiple thereof), at a purchase price equal to 100% of the principalamount of the Securities to be purchased (the “**RepurchasePrice**”), plus accrued and unpaid Interest (including ContingentInterest) on those Securities to, but excluding the Specific RepurchaseDate.  Holders may submit theirSecurities for repurchase to the Paying Agent at any time from the opening ofbusiness on the date that is 20 Business Days prior to the applicable SpecificRepurchase Date until the close of business on the Specific Repurchase Date.

 

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### (b)           In the event that a Change of Control(together with the Specific Repurchase Dates, “**Repurchase Events**”) shall occur, each Holder shall have thePurchase Right, at the Holder’s option, but subject to the provisions ofSection 11.2 hereof, to require the Company to purchase for cash, and upon theexercise of such right the Company shall purchase, all of such Holder’sSecurities not theretofore called for redemption, or any portion of theprincipal amount thereof that is equal to $1,000 or an integral multiplethereof as directed by such Holder pursuant to Section 11.3 (*provided* that no single Security may be purchased in part unless theportion of the principal amount of such Security to be Outstanding after suchpurchase is equal to $1,000 or an integral multiple thereof), on the date (the **Change of Control Purchase Date**”; together with the SpecificRepurchase Date, the “**Repurchase Date”**)that is a Business Day no earlier than 20 Business Days and no later than 60days after the date of the Repurchase Event Notice at the Repurchase Price plusaccrued and unpaid Interest (including Contingent Interest) or AdditionalAmounts, if any, to, but excluding, the Change of Control Purchase Date; *provided, however*, that installments ofInterest (including Contingent Interest) on Securities whose Stated Maturity isprior to or on the Change of Control Purchase Date shall be payable to theHolders of such Securities, or one or more Predecessor Securities, registeredas such on the relevant Regular Record Date according to their terms and theprovisions of Section 2.1 hereof.  Ifthe Holders have a Repurchase Right pursuant to this Section 11.2(b), theCompany shall issue a press release through Dow Jones & Company, Inc. orBloomberg Business News containing the relevant information and make suchinformation available on the Company’s web site or through another publicmedium as the Company may use at such time.

##  

## **Section 11.2**.        RepurchaseEvent Notice.

 

No later than 20 Business Days after the occurrence of a RepurchaseEvent, the Company shall mail a written notice of the Repurchase Event (the “**Repurchase Event Notice**”) by first-class mail to the Trustee and to each Holder (and to beneficial owners asrequired by applicable law) pursuant to Section 14.2.  The Repurchase Event Notice shall include a form of notice (the “**Repurchase Event Purchase Notice**”) to becompleted by the Holder and delivered to the Paying Agent pursuant to Section11.3, and shall state the following:

###  

### (a)           that it is aRepurchase Event Notice pursuant to this Section;

###  

### (b)           the events causing aRepurchase Event and the date of such Repurchase Event;

###  

### (c)            the procedures withwhich such Holder must comply to exercise its right to have its Securitiespurchased pursuant to Section 11.1, including the date by which the completedRepurchase Event Purchase Notice pursuant to Section 11.3 and the Securitiesthe Holder elects to have purchased pursuant to Section 11.1 must be deliveredto the Paying Agent in order to have such Securities purchased by the Companypursuant to Section 11.1, the name and address of the Paying Agent and that theSecurities as to which a Repurchase Event Purchase Notice has been given may beconverted, if they are otherwise convertible pursuant to Article 12, only ifthe completed and delivered Repurchase Event Purchase Notice has been withdrawnin accordance with the terms of  theIndenture, the Holder’s conversion rights pursuant to Article 12 and theConversion Rate then in effect and any adjustments thereto;

 

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### (d)            the Repurchase Dateand the Repurchase Price, if applicable;

###  

### (e)           that, unless theCompany defaults in making payment of such Repurchase Price, Interest,Contingent  Interest or AdditionalAmounts, if any, on the Securities surrendered for purchase by the Company willcease to accrue on and after the Repurchase Date, if applicable;

###  

### (f)            the CUSIP number ofthe Securities; and

 

### No failure by the Company to give the foregoing Repurchase Event Noticeshall limit any Holder’s right to exercise its rights pursuant to Section 11.1or affect the validity of the proceedings for the purchase of its Securitieshereunder.

##  

## **Section 11.3.**        Deliveryof Repurchase Event Purchase Notice; Form of Repurchase Event Purchase Notice;Withdrawal of Repurchase Event Purchase Notice.

###  

### (a)           The Company shalldeliver, or cause the Trustee or Paying Agent, to deliver, to all Holders (andbeneficial holders of the Securities) a form of Repurchase Event PurchaseNotice, which with respect to Holders’ Purchase Rights set forth in Section11.1, shall be delivered to such Holders at least 20 Business Days prior to theRepurchase Event Purchase Date and, as set forth in Section 11.2, shall beincluded in the Repurchase Event Notice; *provided*that the delivery of such form of Repurchase Event Purchase Notice to theHolders shall be made in the Company’s name and at the Company’s expense andthe text of such form of Repurchase Event Purchase Notice shall be prepared bythe Company pursuant to clause (b) of this Section.

###  

### (b)           The form ofRepurchase Event Purchase Notice shall provide instructions regardingprocedures with which Holders must comply to exercise their rights pursuant toSection 11.1 and the completion of the Repurchase Event Purchase Noticeand also shall state:

####  

#### (i)            that it is theRepurchase Event Purchase Notice pursuant to Sections 11.2 and 11.3 of theIndenture and must be completed by the Holder and delivered to the Paying Agent(and any beneficial holder of securities), together with the delivery of theHolder’s Securities for which the Holder will exercise its Purchase Rightspursuant to Section 11.1, for such Holder to receive the Repurchase Price;

####  

#### (ii)           the name andaddress of the Paying Agent to, and the date by, which the completed RepurchaseEvent Purchase Notice and Securities must be delivered in order for the Holderto receive the applicable purchase price;

####  

#### (iii)           the portion of theprincipal amount of the Security which the Holder will deliver to be purchased,which portion must be in Principal Amounts at Maturity of $1,000 or an integralmultiple thereof;

####  

#### (iv)           any otherprocedures then applicable that the Holder must follow to exercise rights underArticle 11 and a brief description of those rights;

####  

#### (v)           the Repurchase Dateand the Repurchase Price;

 

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#### (vi)           the procedures withwhich such Holder must comply to exercise its right to have its Securitiespurchased pursuant to Section 11.1, including the date by which the completedRepurchase Event Purchase Notice pursuant to Section 11.3 and the Securitiesthe Holder elects to have purchased pursuant to Section 11.1 must be deliveredto Paying Agent in order to have such Securities purchased by the Companypursuant to Section 11.1, the name and address of the Paying Agent and that theSecurities as to which a Repurchase Event Purchase Notice has been given may beconverted, if they are otherwise convertible pursuant to Article 12, only ifthe completed and delivered Repurchase Event Purchase Notice has been withdrawnin accordance with the terms of the Indenture, the Holder’s conversion rightspursuant to Article 12, the Conversion Rate then in effect and any adjustmentsthereto;

####  

#### (vii)         the Holder’s rightto withdraw a completed and delivered Repurchase Event Purchase Notice, theprocedures for withdrawing a Repurchase Event Purchase Notice, pursuant toclause (c) below and that Securities as to which a completed and deliveredRepurchase Event Purchase Notice may be converted, if they are convertible onlyin accordance with Article 12, if the applicable completed and deliveredRepurchase Event Purchase Notice has been withdrawn;

####  

#### (viii)        that, unless theCompany defaults in making payment on Securities for which a Repurchase EventPurchase Notice has been submitted, Interest, Contingent Interest or AdditionalAmounts, if any, on such Securities will cease to accrue on the RepurchaseEvent Purchase Date; and

####  

#### (ix)            the CUSIP numberof the Securities.

###  

### (c)            Notwithstanding anything herein tothe contrary, any Holder which has delivered a completed Repurchase EventPurchase Notice to the Paying Agent shall have the right to withdraw suchRepurchase Event Purchase Notice by delivery of a written notice of withdrawaldelivered to the office of the Paying Agent in accordance with the RepurchaseEvent Purchase Notice at any time prior to the close of business on theRepurchase Date specifying:

####  

#### (i)            the certificatenumber, if any, of the Security in respect of which such notice of withdrawalis being submitted;

####  

#### (ii)           the principalamount of the Security with respect to which such notice of withdrawal is beingsubmitted; and

####  

#### (iii)           the principalamount, if any, of such Security which remains subject to the originalRepurchase Event Purchase Notice and which has been or will be delivered forpurchase by the Company.

###  

### The Paying Agent shall promptly notify theCompany of the receipt by it of any Repurchase Event Purchase Notice or writtennotice of withdrawal thereof.

 

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## **Section 11.4.**        Exerciseof Purchase Rights.

 

To exercise a Purchase Right pursuant to Section 11.1, a Holder mustdeliver to the Trustee at its offices on or prior to the Repurchase Date thefollowing:

 

### (a)           a completedRepurchase Event Purchase Notice, the form of which is provided in Exhibit Bhereto; and

###  

### (b)           the Securities orcause such Securities to be delivered through the facilities of the Depositary,as applicable, with respect to which the Purchase Right is being exercised,with, if the Company or the Trustee so requires, due endorsement by, or awritten instrument of transfer, in form satisfactory to the Company and theTrustee duly executed by, the Holder thereof or such Holder’s attorney dulyauthorized in writing.

##  

## **Section 11.5.**        Deposit and Payment of the Purchase Price

###  

### (a)           If a Holder has exercised its rightspursuant to Section 11.1 and has satisfied the conditions for the exercise ofsuch rights in accordance with Section 11.4, then the Company shall, prior to10:00 a.m. (New York City time) on the Business Day following the RepurchaseDate, deposit with the Trustee or with the Paying Agent (or, if the Company ora Subsidiary or an Affiliate of either of them is acting as the Paying Agent,shall segregate and hold in trust as provided in Section 2.4) an amount ofmoney in immediately available funds, if deposited on such Business Day,sufficient to pay the aggregate Repurchase Price of all the Securities orportions thereof which are to be purchased on such purchase date.  The Trustee or Paying Agent, as applicable,shall pay the Holder the applicable Repurchase Price multiplied by theprincipal amount of Securities for which such rights were exercised on theChange of Control Purchase Date.

 

### (b)           There shall be no purchase of anySecurities pursuant to Section 11.1 if there has occurred (prior to, on orafter, as applicable, the giving, by the Holders of such Securities, of therequired Repurchase Event Purchase Notice) and is continuing an Event ofDefault (other than a default in the payment of the Repurchase Event Price withrespect to such Securities). The Paying Agent will promptly return to therespective Holders thereof any Securities (i) with respect to which aRepurchase Event Purchase Notice has been withdrawn in compliance with this Indenture,or (ii) held by it during the continuance of an Event of Default (other than adefault in the payment of the Repurchase Price with respect to such Securities)in which case, upon such return, the Repurchase Event Purchase Notice withrespect thereto shall be deemed to have been withdrawn.

###  

### (c)           If any Security delivered forpurchase pursuant to Section 11.1 shall not be so paid on the Repurchase Date,the principal amount of such Security shall, until it is paid, bear Interest(including Contingent Interest) from the purchase date to but not including thedate of actual payment hereunder at the applicable Interest Rate, and each suchSecurity shall remain convertible into shares of Common Stock pursuant toArticle 12 until such Security shall have been paid.

 

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## **Section 11.6.**        Effectof Delivery of Repurchase Event Purchase Notice and Purchase.

 

(a)           Upon receipt by thePaying Agent of a Repurchase Event Purchase Notice, the Holder of the Securityin respect of which such Repurchase Event Purchase Notice was delivered shall(unless such Repurchase Event Purchase Notice is withdrawn pursuant to Section11.3(c)) thereafter be entitled to receive solely the Repurchase Price withrespect to such Security, and, if applicable, any accrued and unpaid Interest(including Contingent Interest) pursuant to Section 2.1(f).  Securities in respect of which a RepurchaseEvent Purchase Notice has been delivered by the Holder thereof may not beconverted pursuant to Article 12 on or after the date of the delivery of suchRepurchase Event Purchase Notice unless such Repurchase Event Purchase Noticewhich has been completed and delivered to the Paying Agent has first beenvalidly withdrawn pursuant to Section 11.3(c).

 

(b)           All Securitiesdelivered for purchase shall be canceled by the Trustee or Paying Agent, asapplicable.

##  

## **Section 11.7.**        PhysicalSecurities Purchased in Part.

 

Any Physical Security which is to be purchased only in part shall besurrendered at the office of the Paying Agent (with, if the Company or theTrustee so requires, due endorsement by, or a written instrument of transfer inform satisfactory to the Company and the Trustee duly executed by, the Holderthereof or such Holder’s attorney duly authorized in writing) and the Companyshall execute and the Trustee shall authenticate and deliver to the Holder ofsuch Security, without service charge, a new Security or Securities, of anyauthorized denomination as requested by such Holder in principal amount equal to,and in exchange for, the portion of the principal amount of the Security sosurrendered which is not purchased.

##  

## **Section 11.8.**        Covenantto Comply With Securities Laws Upon Purchase of Securities.

 

When complying with the provisions of this Article 11 (*provided* that such offer or purchaseconstitutes an “issuer tender offer” for purposes of Rule 13e-4 (whichterm, as used herein, includes any successor provision thereto) under theExchange Act at the time of such offer or purchase), the Company shall (a) complywith Rule 13e- 4, Rule 14e-1 and any other tender offer rules under theExchange Act which may then be applicable, (b) file the related Schedule TO (orany successor schedule, form or report) under the Exchange Act and (c)otherwise comply with all federal and state securities laws so as to permit therights and obligations under this Article 11 to be exercised in the time and inthe manner specified in this Article 11.

 

**Section 11.9****.       **Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cashthat remains unclaimed, together with interest or dividends, if any, thereon(subject to the provisions of Section 5.4), held by them for the payment of theRepurchase Price; *provided*, *however*, that to the extent that the aggregateamount of cash deposited by the Company pursuant to Section 11.5 exceeds theaggregate Repurchase Price of the Securities or portions thereof which theCompany is obligated to purchase on the purchase date then, unless otherwiseagreed in writing with the Company, promptly after the Business Day followingsuch purchase date, the Trustee or Paying Agent, as applicable, shall returnany such excess to the Company together with interest or dividends, if any,thereon, subject to the provisions of Section 5.4.

 

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# **ARTICLE 12**                      CONVERSION OF SECURITIES

##  

## **Section12.1**.        ConversionRight; Expiration of Conversion Right; Conversion Price.

###  

### (a)           Subject to and upon compliance withthe provisions of this Article, at the option of the Holder at any time andfrom time to time, any Security or any portion of the principal amount thereofwhich is an integral multiple of $1,000 may be converted at the principalamount thereof, or of such portion thereof, into duly authorized, fully paidand nonassessable shares of Common Stock, at the Conversion Price, determinedas hereinafter provided, in effect at the time of conversion:

####  

#### (i)            during anyConversion Period, if the Market Price of the Common Stock for at least 20Trading Days in the 30 consecutive Trading Day period ending on the first dayof such Conversion Period was more than 125% of the Conversion Price in effecton such 30th Trading Day (in the event that the Conversion Price on suchthirtieth Trading Day is not the same as the Conversion Price in effect foreach of such thirty Trading Days, the Conversion Agent shall make suchadjustments as it, in its discretion, deems appropriate in determining whetherthe foregoing condition has been met);

####  

#### (ii)           on or before March15, 2018, during the five Business Day period following any 10 consecutiveTrading Day period in which the average Trading Price of the Securities forsuch 10 Trading Day period was less than 105% of the average Conversion Valueof the Securities during the same period;

####  

#### (iii)          at any time priorto the close of business on the day that is one Business Day immediatelypreceding the Redemption Date, if such Security has been called for redemptionpursuant to Article 10 hereof;

####  

#### (iv)          during any period,following the earlier of (a) the date the Securities are rated by both Standard& Poor’s and Moody’s and (b) April 21, 2003, when the long-term creditrating assigned to the Securities  byeither Standard & Poor’s or Moody’s is lower than “BB” or “Ba3”,respectively, or either of these rating agencies does not have a rating thenassigned to the Securities for any reason, including any withdrawal orsuspension of a rating assigned to the Securities; or

####  

#### (v)           as provided inSection 12.1(b).

 

The Conversion Agent shall, on behalf of the Company, determine on adaily basis whether the Securities shall be convertible as a result of theoccurrence of an event specified in clause (i) or clause (ii) above and, if theSecurities shall be so convertible, the Conversion Agent shall promptly deliverto the Company and the Trustee written notice thereof.  Whenever the Securities shall becomeconvertible pursuant to Section 12.1, the Company or, at the Company’srequest, the Trustee in the name and at the expense of the Company, shall notifythe Holders of the event triggering such convertibility in the manner providedin Section 14.2, and the Company shall also publicly announce suchinformation and publish it on the Company’s web site.  Any notice so given shall be conclusively presumed to have beenduly given, whether or not the Holder receives such notice.

 

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### (b)           In addition, in the event that:

####  

#### (i)            (A) the Companydistributes to all holders of shares of Common Stock rights or warrantsentitling them (for a period expiring within 60 days of the record date forsuch distribution) to subscribe for or purchase shares of Common Stock, at a price per share less than the MarketPrice of the Common Stock at the time of the announcement of such distribution,(B) the Company distributes to all holders of shares of Common Stock cash orother assets, debt securities or rights or warrants to purchase the Company’ssecurities, where the Fair Market Value (as determined by the Board of Directors)of such distribution per share of Common Stock exceeds 5% of the Market Priceof a share of Common Stock on the Business Day immediately preceding the dateof declaration of such distribution or (C) a Change of Control occurs but theHolders do not have the right to require the Company to purchase theirSecurities as a result of such Change of Control, because of the provisions setforth in Section 11, then, in each case, the Securities may be surrenderedfor conversion at any time on and after the date that the Company gives noticeto the Holders of such right, which shall be not less than 20 days prior to theEx-Dividend Time for such distribution, in the case of clause (A) or (B), orwithin 20 Business Days after the occurrence of the Change of Control, in thecase of clause (C), until (1) the earlier of the close of business on theBusiness Day immediately preceding the Ex-Dividend Time or the date the Companyannounces that such distribution will not take place, in the case of clause (A)or (B), or (2) the earlier of 20 Business Days after the Company’s delivery ofthe Repurchase Event Notice or the date the Company announces that the Changeof Control will not take place, in the case of clause (C).

####  

#### (ii)           the Companyconsolidates with or merges into another Person, or is a party to a bindingshare exchange pursuant to which the shares of Common Stock would be convertedinto cash, securities or other property as set forth in Section 12.5hereof, then the Securities may be surrendered for conversion at any time fromand after the date which is 15 days prior to the date announced by the Companyas the anticipated effective time of such transaction until 15 days after theactual date of such transaction, *provided,however,* that at the effective time of a transaction described inthe immediately preceding clause, the right to convert a Security into CommonStock will be changed into a right to convert a Security into the kind andamount of cash, securities or other property which a Holder would have receivedif such Holder had converted such Security immediately prior to suchtransaction.

 

“**Conversion Period**” meansthe period from and including the thirtieth Trading Day in a fiscal quarter to,but not including, the thirtieth Trading Day in the immediately followingfiscal quarter.

 

“**Conversion Value**”, on anyday, means the product of the Market Price for the Common Stock multiplied bythe then-current Conversion Rate.

 

“**Ex-Dividend Time**” means,with respect to any issuance or distribution on shares of Common Stock, thefirst date on which the shares of Common Stock trade regular way on theprincipal securities market on which the shares of Common Stock are then tradedwithout the right to receive such issuance or distribution.

 

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The “**Conversion Rate”**, atany time, shall equal (A) $1,000 dividedby the Conversion Priceat such time, rounded to three decimal places (rounded up if the fourth decimalplace thereof is 5 or more and otherwise rounded down).

###  

### (c)           The price at which shares of CommonStock shall be delivered upon conversion (the “**Conversion Price**”) shall be initially equal to approximately$40.05 per share of Common Stock, subject to adjustment, in certain instances,as provided in Section 12.4.

###  

### (d)           No payment or adjustment will be madefor dividends on, or other distributions with respect to, any Common Stockexcept as provided in this Article 12.

###  

### (e)           A Security in respect of which aHolder has delivered a Repurchase Event Purchase Notice exercising the optionof such Holder to require the Company to purchase such Security may beconverted only if such notice of exercise is withdrawn in accordance withSection 11.3(c).

##  

## **Section 12.2.**        Exerciseof Conversion Right

###  

### (a)           To exercise the conversion right withrespect to a Physical Security, a Holder must (1) deliver a completedconversion notice, the form of which is provided in Exhibit C, to theDepositary stating that the Holder elects to convert such Physical Security or,if less than the entire principal amount thereof is to be converted, theportion thereof to be converted, (2) deliver duly signed completed conversionnotice and the Physical Security duly endorsed or assigned to the Company or inblank, at the office of any Conversion Agent, (3) pay all Interest (includingContingent Interest) to which the Holder is not entitled, if any, pursuant toSection 2.1(f) and (4) pay any transfer taxes or other applicable taxes orduties, if required.

###  

### (b)           To convert interests in a GlobalSecurity issued pursuant to Rule 144A, a Holder must deliver to DTC theappropriate instruction form for conversion pursuant to DTC’s conversionprogram.

###  

### (c)           To the extent provided in Section2.1(f), Securities surrendered for conversion during the period from the closeof business on any Regular Record Date to the opening of business on the nextsucceeding Interest Payment Date (except in the case of any Security whoseStated Maturity is prior to such Interest Payment Date) shall be accompanied bypayment by such Holder in immediately available funds to the Company of anamount equal to the Interest (including Contingent Interest) to be received onsuch Interest Payment Date on principal amount of Securities being surrenderedfor conversion.  To the extent providedin Section 2.1, Securities which have been called for redemption by the Companyin a notice of redemption pursuant to Section 10.4, and are converted prior toredemption on a Redemption Date that is on or prior to the third Business Dayafter such Interest Payment Date, shall not require such concurrent payment tothe Company upon surrender for conversion, and, if such Securities areconverted during the time period set forth in the preceding sentence, theHolders of such converted Securities shall be entitled to receive (and retain)any accrued interest on the principal amount of such surrendered Securities, ifany.

###  

### (d)           Securities shall be deemed to havebeen converted immediately prior to the close of business on the day ofsurrender of such Securities for conversion in accordance with

###  

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### the foregoing provisions, and at such timethe rights of the Holders of such Securities as Holders shall cease, and thePerson or Persons entitled to receive the shares of Common Stock issuable uponconversion shall be treated for all purposes as the record holder or holders ofsuch shares of Common Stock at such time.

###  

### (e)           In the case of any Security which isconverted in part only, or a Holder converts less than the principal amount itowns at such time, upon such conversion the Company shall execute and theTrustee shall authenticate and deliver to the Holder thereof, at the expense ofthe Company, a new Security or Securities of authorized denominations inprincipal amount equal to the unconverted portion of the principal amount ofsuch Securities.

###  

### (f)            As promptly as practicable on orafter the Conversion Date, the Company shall cause to be issued and deliveredto such Conversion Agent a certificate or certificates for the number of fullshares of Common Stock issuable upon conversion of such Securities, togetherwith payment in lieu of any fraction of a share as provided in Section 12.3hereof.  The Company hereby initiallyappoints Wells Fargo Bank, National Association as the Conversion Agent.

###  

### (g)           A Security in respect of which aHolder has delivered a Repurchase Event Purchase Notice exercising the optionof such Holder to require the Company to purchase such Security may beconverted only if such notice of exercise is withdrawn in accordance withSection 11.3(c).

###  

### (h)           If shares of Common Stock to beissued upon conversion of a Restricted Security, or Securities to be issuedupon conversion of a Restricted Security in part only, are to be registered ina name other than that of the Holder of such Restricted Security, such Holdermust deliver to the Conversion Agent a certificate in substantially the formset forth in Exhibit C annexed hereto, dated the date of surrender ofsuch Restricted Security and signed by such Holder, as to compliance with therestrictions on transfer applicable to such Restricted Security.  None of the Trustee, any Conversion Agent,Registrar or Transfer Agent shall be required to register in a name other thanthat of the Holder of shares of Common Stock or Securities issued uponconversion of any such Restricted Security not so accompanied by a properlycompleted certificate.

##  

## **Section 12.3.**        Fractionsof Shares.

 

### No fractionalshares of Common Stock shall be issued upon conversion of any Security orSecurities.  If more than one Securityshall be surrendered for conversion at one time by the same Holder, the numberof full shares of Common Stock which shall be issued upon conversion thereofshall be computed on the basis of the principal amount of the Securities (orspecified portions thereof) so surrendered. Instead of any fractional shares of Common Stock which would otherwisebe issued upon conversion of any Security or Securities (or specified portionsthereof), the Company shall pay a cash adjustment in respect of such fraction(calculated to the nearest one-100th of a share) in an amount equal to the samefraction of the Trading Price of the shares of Common Stock as of the TradingDay preceding the Conversion Date.

 

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## **Section 12.4.**        Adjustmentof Conversion Price.

 

The Conversion Price shall be subject to adjustment, calculated in goodfaith by the Company, from time to time as follows:

###  

### (a)           In case the Company shall hereafterpay a dividend or make a distribution to all holders of the outstanding CommonStock in shares of Common Stock, the Conversion Price in effect at the openingof business on the date following the date fixed for the determination ofstockholders entitled to receive such dividend or other distribution shall bereduced by multiplying such Conversion Price by a fraction:

####  

#### (i)            the numerator ofwhich shall be the number of shares of Common Stock outstanding at the close ofbusiness on the Conversion Record Date fixed for such determination; and

####  

#### (ii)           the denominator ofwhich shall be the sum of such number of shares and the total number of sharesconstituting such dividend or other distribution.

 

Such reduction shall become effective immediately after the opening ofbusiness on the day following the Conversion Record Date.  If any dividend or distribution of the typedescribed in this Section 12.4(a) is declared but not so paid or made, theConversion Price shall again be adjusted to the Conversion Price which wouldthen be in effect if such dividend or distribution had not been declared.

###  

### (b)           In case the outstanding shares ofCommon Stock shall be subdivided into a greater number of shares of CommonStock, the Conversion Price in effect at the opening of business on the dayfollowing the day upon which such subdivision becomes effective shall beproportionately reduced, and conversely, in case outstanding shares of CommonStock shall be combined into a smaller number of shares of Common Stock, theConversion Price in effect at the opening of business on the day following theday upon which such combination becomes effective shall be proportionatelyincreased, such reduction or increase, as applicable, to become effectiveimmediately after the opening of business on the day following the day upon whichsuch subdivision or combination becomes effective.

###  

### (c)           In case the Company shall issuerights or warrants (other than any rights or warrants issued pursuant to arights plan (commonly referred to as a “poison pill” plan) referred to inSection 12.4(d)) to all holders of its outstanding shares of Common Stockentitling them to subscribe for or purchase shares of Common Stock (orsecurities convertible into shares of Common Stock) at a price per share (orhaving a conversion price per share) less than the Current Market Price on theConversion Record Date fixed for the determination of stockholders entitled toreceive such rights or warrants, the Conversion Price shall be adjusted so thatthe same shall equal the price determined by multiplying the Conversion Pricein effect at the opening of business on the date after such Conversion RecordDate by a fraction:

####  

#### (i)            the numerator ofwhich shall be the number of shares of Common Stock outstanding at the close ofbusiness on the Conversion Record Date, plus the number of shares which theaggregate offering price of the total number of shares so offered for

####  

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#### subscriptionor purchase (or the aggregate conversion price of the convertible securities sooffered) would purchase at such Current Market Price; and

####  

#### (ii)           the denominator ofwhich shall be the number of shares of Common Stock outstanding on the close ofbusiness on the Conversion Record Date, plus the total number of additionalshares of Common Stock so offered for subscription or purchase (or into whichthe convertible securities so offered are convertible).

 

### Suchadjustment shall become effective immediately after the opening of business onthe day following the Conversion Record Date fixed for determination ofstockholders entitled to receive such rights or warrants.  To the extent that shares of Common Stock(or securities convertible into Common Stock) are not delivered pursuant tosuch rights or warrants, upon the expiration or termination of such rights orwarrants, the Conversion Price shall be readjusted to the Conversion Pricewhich would then be in effect had the adjustments made upon the issuance ofsuch rights or warrants been made on the basis of the delivery of only thenumber of shares of Common Stock (or securities convertible into Common Stock)actually delivered.  In the event thatsuch rights or warrants are not so issued, the Conversion Price shall again beadjusted to be the Conversion Price which would then be in effect if such datefixed for the determination of stockholders entitled to receive such rights orwarrants had not been fixed.  Indetermining whether any rights or warrants entitle the Holders to subscribe foror purchase Common Stock at less than such Current Market Price, and indetermining the aggregate offering price of such shares of Common Stock, thereshall be taken into account any consideration received for such rights orwarrants, the value of such consideration if other than cash, to be determinedby the Board of Directors.

###  

### (d)           In case the Company shall, bydividend or otherwise, distribute to all holders of its Common Stock shares ofany class of Capital Stock of the Company (other than any dividends ordistributions to which Section 12.4(a) applies) or evidences of itsIndebtedness, cash or other assets, including securities, but excluding (1) anyrights or warrants referred to in Section 12.4(c), (2) dividends ordistributions of stock, securities or other property or assets (including cash)in connection with a reclassification, change, merger, consolidation, statutoryshare exchange, combination, sale or conveyance to which Section 12.5 applies,(3) dividends and distributions paid exclusively in cash and (4) distributionsof Common Stock referred to in Section 12.4(a) (such Capital Stock, evidence ofits Indebtedness, cash, other assets or securities being distributedhereinafter in this Section 12.4(d) called the **“distributed assets”**), then, in each such case, subject toclause (ii) of this Section 12.4(d), the Conversion Price shall be reduced sothat the same shall be equal to the price determined by multiplying theConversion Price in effect immediately prior to the close of business on theConversion Record Date with respect to such distribution by a fraction:

####  

#### (i)            the numerator ofwhich shall be the Current Market Price on such date, less the Fair MarketValue (as determined by the Board of Directors, whose determination shall beconclusive and set forth in a Board Resolution) on such date of the portion ofthe distributed assets so distributed applicable to one share of Common Stock(determined on the basis of the number of shares of Common Stock outstanding onthe Conversion Record Date); and

 

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#### (ii)           the denominator ofwhich shall be such Current Market Price on such Conversion Record Date.

 

Such reduction shall becomeeffective immediately prior to the opening of business on the day following theConversion Record Date.  However, in theevent that the then Fair Market Value (as so determined) of the portion of thedistributed assets so distributed applicable to one share of Common Stock isequal to or greater than the Current Market Price on the Conversion RecordDate, in lieu of the foregoing adjustment, adequate provision shall be made sothat each Holder shall have the right to receive upon conversion of a Security(or any portion thereof) the amount of distributed assets such Holder wouldhave received had such Holder converted such Security (or portion thereof)immediately prior to such Conversion Record Date.  In the event that such dividend or distribution is not so paid ormade, the Conversion Price shall again be adjusted to be the Conversion Pricewhich would then be in effect if such dividend or distribution had not beendeclared.

 

If the Boardof Directors determines the Fair Market Value of any distribution for purposesof this Section 12.4(d) by reference to the actual or when issued tradingmarket for any distributed assets comprising all or part of such distribution,it must in doing so consider the prices in such market over the same period(the “**Reference Period**”) used incomputing the Current Market Price to the extent possible, unless the Board ofDirectors in a Board Resolution determines in good faith that determining theFair Market Value during the Reference Period would not be in the best interestof the Holders.

 

Rights orwarrants distributed by the Company to all holders of Common Stock entitlingthe holders thereof to subscribe for or purchase shares of the Company’sCapital Stock (either initially or under certain circumstances), which rightsor warrants, until the occurrence of a specified event or events specified insuch rights or warrants or related instruments or agreements governing the same(a “**Trigger Event**”):

 

(A)          are deemed to be transferred with suchshares of Common Stock;

 

(B)           are not exercisable; and

 

(C)           are also issued in respect of futureissuances of Common Stock;

 

shall be deemed not to havebeen distributed for purposes of this Section 12.4(d) (and no adjustment to theConversion Price under this Section 12.4(d) will be required) until theoccurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon theoccurrence of which such right or warrant shall become exercisable to purchasedifferent distributed assets, evidences of Indebtedness or other assets orentitle the Holder to purchase a different number or amount of the foregoing orto purchase any of the foregoing at a different purchase price, then theoccurrence of each such event shall be deemed to be the date of issuance andthe Conversion Record Date with respect to a new right or warrant (and atermination or expiration of the existing right or warrant without exercise bythe Holder thereof); In addition, in the event of any distribution (or deemeddistribution) of rights or warrants, or any Trigger Event or other event (ofthe type described in the preceding sentence) with respect thereto, thatresulted in an adjustment to the Conversion Price under this Section 12.4(d):

 

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(1)                                  inthe case of any such rights or warrants which shall all have been redeemed orpurchased without exercise by any Holders thereof, the Conversion Price shallbe readjusted upon such final redemption or purchase to give effect to suchdistribution or Trigger Event, as applicable, as though it were a cashdistribution, equal to the per share redemption or purchase price received by aholder of Common Stock with respect to such rights or warrants (assuming suchholder had retained such rights or warrants), made to all holders of CommonStock as of the date of such redemption or purchase; and

 

(2)                                  inthe case of such rights or warrants which shall have expired or been terminatedwithout exercise, the Conversion Price shall be readjusted as if such rightsand warrants had never been issued.

 

For purposesof this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividendor distribution to which this Section 12.4(d) is applicable that also includesshares of Common Stock, a subdivision or combination of Common Stock to whichSection 12.4(b) applies, or rights or warrants to subscribe for or purchaseshares of Common Stock to which Section 12.4(c) applies (or any combinationthereof), shall be deemed instead to be:

 

(1)           a dividend ordistribution of the evidences of Indebtedness, assets, shares of Capital Stock,rights or warrants, other than such shares of Common Stock, such subdivision orcombination or such rights or warrants to which Sections 12.4(a), 12.4(b) and12.4(c) apply, respectively (and any Conversion Price reduction required bythis Section 12.4(d) with respect to such dividend or distribution shall thenbe made), immediately followed by

 

(2)           a dividend ordistribution of such shares of Common Stock, such subdivision or combination orsuch rights or warrants (and any further Conversion Price reduction required bySections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend ordistribution shall then be made), except:

 

(A)                              theConversion Record Date of such dividend or distribution shall be substituted as(x) “the date fixed for the determination of stockholders entitled to receivesuch dividend or other distribution”, “Conversion Record Date fixed for suchdeterminations” and “Conversion Record Date” within the meaning of Section12.4(a), (y) “the day upon which such subdivision becomes effective” and “theday upon which such combination becomes effective” within the meaning ofSection 12.4(b), and (z) as “the date fixed for the determination ofstockholders entitled to receive such rights or warrants”, “the ConversionRecord Date fixed for the determination of the stockholders entitled to receivesuch rights or warrants” and such “Conversion Record Date” within the meaningof Section 12.4(c); and

 

(B)                                anyshares of Common Stock included in such dividend or distribution shall not bedeemed “outstanding at the close of business on the date fixed

 

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for suchdetermination” within the meaning of Section 12.4(a) and any reduction orincrease in the number of shares of Common Stock resulting from suchsubdivision or combination shall be disregarded in connection with such dividendor distribution.

 

In the eventof any distribution referred to in Section 12.4(c) or 12.4(d), where, in thecase of a distribution described in Section 12.4(d), the Fair Market Value ofsuch distribution per share of Common Stock (as determined by the Board ofDirectors) exceeds 5% of the Current Market Price on the Business Dayimmediately preceding the declaration date for such distribution, then, if suchdistribution would also trigger a conversion right under Section 12.1(b) or theSecurities are otherwise convertible pursuant to this Article 12, the Companywill be required to give notice to the Holders at least 20 days prior to theEx-Dividend Time for the distribution and, upon giving of notice, theSecurities may be surrendered for conversion at any time on and after the datethat the Company gives notice to the Holders of such conversion right, untilthe close of business on the Business Day prior to the Ex-Dividend Time oruntil the Company announces that such distribution will not take place.  No adjustment to the Conversion Price or theability of a Holder to convert will be made if the Holder will otherwiseparticipate in such distribution without conversion.

 

(e)           In case the Company shall, bydividend or otherwise, distribute to all holders of its Common Stock cash(excluding any cash that is distributed upon a reclassification, change,merger, consolidation, statutory share exchange, combination, sale orconveyance to which Section 12.5 applies or as part of a distribution referredto in Section 12.4(d)), in an aggregate amount that, combined together with:

 

(i)            the aggregateamount of any other such distributions to all holders of Common Stock madeexclusively in cash within the 12 months preceding the date of payment of suchdistribution and in respect of which no adjustment pursuant to this Section12.4(e) has been made; and

 

(ii)           the aggregate ofany cash plus the Fair Market Value (as determined by the Board of Directors,whose determination shall be conclusive and set forth in a Board Resolution) ofconsideration payable in respect of any tender or exchange offer by the Companyor any of its Subsidiaries for all or any portion of the Common Stock concludedwithin the 12 months preceding the date of such distribution and in respect of whichno adjustment pursuant to Section 12.4(f) has been made;

 

exceeds 5% of the product ofthe Current Market Price on the Conversion Record Date with respect to suchdistribution multiplied by the number of shares of Common Stock outstanding onsuch Conversion Record Date or the date of payment for such distribution, thenand in each such case, immediately after the close of business on such date,the Conversion Price shall be reduced so that the same shall equal the pricedetermined by multiplying the Conversion Price in effect immediately prior tothe close of business on such Conversion Record Date by a fraction:

 

(A)          the numerator ofwhich shall be equal to the Current Market Price on the Conversion Record Dateless an amount equal to the quotient of (x)

 

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the excess ofsuch combined amount over such 5% and (y) the number of shares of Common Stockoutstanding on the Conversion Record Date, and

 

(B)           the denominator ofwhich shall be equal to the Current Market Price on such Conversion RecordDate.

 

However, inthe event that the then Fair Market Value (as so determined) of the portion ofthe securities so distributed applicable to one share of Common Stock is equalto or greater than the Current Market Price on the Conversion Record Date, inlieu of the foregoing adjustment, adequate provision shall be made so that eachHolder shall have the right to receive upon conversion of a Security (or anyportion thereof) the amount of cash such Holder would have received had suchHolder converted such Security (or portion thereof) immediately prior to suchConversion Record Date.  In the eventthat such dividend or distribution is not so paid or made, the Conversion Priceshall again be adjusted to be the Conversion Price which would then be ineffect if such dividend or distribution had not been declared.

 

(f)            In case a tender offer made by theCompany or any of its Subsidiaries for all or any portion of the Common Stockshall expire and such tender offer (as amended upon the expiration thereof)shall require the payment to stockholders (based on the acceptance (up to anymaximum specified in the terms of the tender offer) of Purchased Shares) of anaggregate consideration having a Fair Market Value (as determined by the Boardof Directors, whose determination shall be conclusive and set forth in a BoardResolution) that combined together with:

 

(i)            the aggregate ofthe cash plus the Fair Market Value (as determined by the Board of Directors,whose determination shall be conclusive and set forth in a Board Resolution),as of the expiration of such tender offer, of any other consideration payablein respect of any other tender or exchange offers by the Company or any of itsSubsidiaries for all or any portion of the Common Stock expiring within the 12months preceding the expiration of such tender offer and in respect of which noadjustment pursuant to this Section 12.4(f) has been made; and

 

(ii)           the aggregateamount of any distributions to all holders of the Company’s Common Stock madeexclusively in cash within 12 months preceding the expiration of such tenderoffer and in respect of which no adjustment pursuant to Section 12.4(e) hasbeen made,

 

exceeds 5% of the product ofthe Current Market Price as of the last time (the “**Expiration Time**”) tenders could have been made pursuant tosuch tender offer (as it may be amended) multiplied by the number of shares ofCommon Stock outstanding (including any tendered shares) on the ExpirationTime, then, and in each such case, immediately prior to the opening of businesson the day after the date of the Expiration Time, the Conversion Price shall beadjusted so that the same shall equal the price determined by multiplying theConversion Price in effect immediately prior to close of business on the dateof the Expiration Time by a fraction:

 

(A)          the numerator ofwhich shall be the number of shares of Common Stock outstanding (including anytendered shares) at the Expiration Time

 

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multiplied bythe Current Market Price of the Common Stock on the Trading Day next succeedingthe Expiration Time; and

 

(B)           the denominatorshall be the sum of (x) the Fair Market Value (determined as aforesaid) of theaggregate consideration payable to stockholders based on the acceptance (up toany maximum specified in the terms of the tender offer) of all shares validlytendered and not withdrawn as of the Expiration Time (the shares deemed soaccepted, up to any such maximum, being referred to as the “**Purchased Shares**”) and (y) the product ofthe number of shares of Common Stock outstanding (less any Purchased Shares) onthe Expiration Time and the Current Market Price of the Common Stock on theTrading Day next succeeding the Expiration Time.

 

Such reduction (if any) shallbecome effective immediately prior to the opening of business on the dayfollowing the Expiration Time.  In theevent that the Company is obligated to purchase shares pursuant to any suchtender offer, but the Company is permanently prevented by applicable law fromeffecting any such purchases or all such purchases are rescinded, theConversion Price shall again be adjusted to be the Conversion Price which wouldthen be in effect if such tender offer had not been made.  If the application of this Section 12.4(f)to any tender offer would result in an increase in the Conversion Price, noadjustment shall be made for such tender offer under this Section 12.4(f).

 

(g)           For purposes of this Section 12.4,the following terms shall have the meanings indicated:

 

(i)            “Current**Market Price**” shall mean the average ofthe daily Trading Prices per share of Common Stock (or such other security asspecified herein) for the ten consecutive Trading Days immediately prior to thedate in question; *provided, however*, that if:

 

(A)                              the“ex” date (as hereinafter defined) for any event (other than the issuance ordistribution requiring such computation) that requires an adjustment to theConversion Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f) occursduring such ten consecutive Trading Days, the Trading Price for each TradingDay prior to the “ex” date for such other event shall be adjusted bymultiplying such Trading Price by the same fraction by which the ConversionPrice is so required to be adjusted as a result of such other event;

 

(B)                                the“ex” date for any event (other than the issuance or distribution requiring suchcomputation) that requires an adjustment to the Conversion Price pursuant toSection 12.4(a), (b), (c), (d), (e) or (f) occurs on or after the “ex” date forthe issuance or distribution requiring such computation and prior to the day inquestion, the Trading Price for each Trading Day on and after the “ex” date forsuch other event shall be adjusted by multiplying such Trading Price by thereciprocal of the fraction by which

 

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the ConversionPrice is so required to be adjusted as a result of such other event; and

 

(C)                                the“ex” date for the issuance or distribution requiring such computation is priorto the day in question, after taking into account any adjustment requiredpursuant to clause (i) or (ii) of this proviso, the Trading Price for eachTrading Day on or after such “ex” date shall be adjusted by adding thereto theamount of any cash and the Fair Market Value (as determined by the Board ofDirectors in a manner consistent with any determination of such value forpurposes of Section 12.4(d) or (f), whose determination shall be conclusive andset forth in a Board Resolution) of the evidences of Indebtedness, shares ofCapital Stock or assets being distributed applicable to one share of CommonStock as of the close of business on the day before such “ex” date.

 

For purposesof any computation under Section 12.4(f), the Current Market Price of theCommon Stock on any date shall be deemed to be the average of the daily TradingPrices per share of Common Stock for such day and the next two succeedingTrading Days; *provided, however*,that****if the “ex” date for anyevent (other than the tender offer requiring such computation) that requires anadjustment to the Conversion Price pursuant to Section 12.4(a), (b), (c), (d),(e) or (f) occurs on or after the Expiration Time for the tender or exchangeoffer requiring such computation and prior to the day in question, the TradingPrice for each Trading Day on and after the “ex” date for such other eventshall be adjusted by multiplying such Trading Price by the reciprocal of thefraction by which the Conversion Price is so required to be adjusted as aresult of such other event.  Forpurposes of this paragraph, the term “ex” date, when used:

 

(1)           with respect to anyissuance or distribution, means the first date on which the Common Stock tradesregular way on the relevant exchange or in the relevant market from which theTrading Price was obtained without the right to receive such issuance ordistribution;

 

(2)           with respect to anysubdivision or combination of shares of Common Stock, means the first date onwhich the shares of Common Stock trade regular way on such exchange or in suchmarket after the time at which such subdivision or combination becomeseffective; and

 

(3)           with respect to anytender or exchange offer, means the first date on which the Common Stock tradesregular way on such exchange or in such market after the Expiration Time ofsuch offer.

 

Notwithstandingthe foregoing, whenever successive adjustments to the Conversion Price arecalled for pursuant to this Section 12.4, such adjustments shall be made to theCurrent Market Price as may be necessary or appropriate to effectuate theintent of this Section 12.4 and to avoid unjust or inequitable results asdetermined in good faith by the Board of Directors.

 

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(ii)           “**Fair Market Value**” shall mean, if there isa current market for the asset, debt or transaction in question, the amountthat a willing buyer would pay a willing seller in an arm’s length transactionor, in the absence of a current market for such asset, debt or transaction, theamount determined in good faith by the Board of Directors that represents itsdetermination of the fair market value of the asset.

 

(iii)          “**Conversion Record Date**” shall mean, withrespect to any dividend, distribution or other transaction or event in whichthe holders of Common Stock have the right to receive any cash, securities orother property or in which the Common Stock (or other applicable security) isexchanged for or converted into any combination of cash, securities or otherproperty, the date fixed for determination of stockholders entitled to receivesuch cash, securities or other property (whether such date is fixed by theBoard of Directors or by statute, contract or otherwise).

 

The Companymay make such reductions in the Conversion Price, in addition to those requiredby Sections 12.4(a), (b), (c), (d), (e) or (f), as the Board of Directorsconsiders to be advisable to avoid or diminish any income tax to holders ofCommon Stock or rights to purchase Common Stock resulting from any dividend ordistribution of stock (or rights to acquire stock) or from any even treated assuch for income tax purposes or otherwise.

 

(h)           No adjustment need be made for (i) atransaction referred to in Sections 12.4 or 12.5 if Holders participate in thetransaction without conversion on a basis and with notice that the Board ofDirectors determines to be fair and appropriate in light of the basis andnotice on which holders of shares of Common Stock participate in thetransaction; (ii) the issuance and distribution of rights to purchase shares ofCommon Stock pursuant to (A) a Company plan for reinvestment of dividends orinterest, (B) a change in the par value or no par value of the shares of CommonStock or (C) to the extent the Securities become convertible pursuant to thisArticle 12 in whole or in part into cash, with respect to such cash after suchcash is distributed to the Holders in satisfaction of such conversion right.

 

(i)            To the extent permitted byapplicable law, the Company from time to time may reduce the Conversion Priceby any amount for any period of time if the period is at least 20 days and thereduction is irrevocable during the period and the Board of Directorsdetermines in good faith that such reduction would be in the best interests ofthe Holders, which determination shall be conclusive and set forth in a BoardResolution. Whenever the Conversion Price is reduced pursuant to the precedingsentence, the Company shall mail to the Trustee and the Conversion Agent anotice of the reduction at least 15 days prior to the date the reducedConversion Price takes effect, and such notice shall state the reducedConversion Price and the period during which it will be in effect.

 

(j)            No adjustment in the ConversionPrice shall be required unless such adjustment would require an increase ordecrease of at least 1% in such price; *provided, however*, that any adjustmentswhich by reason of this Section 12.4(j) are not required to be made shall becarried forward and taken into account in any subsequent adjustment.  All calculations under this Article 12 shallbe made by the Company in good faith and shall be made to the nearest cent orto the nearest one hundredth of a share, as applicable.  No adjustment need be made for a change inthe par value or no par value of the Common Stock.

 

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(k)           No adjustment in Conversion Priceshall be required if the Fair Market Value of any assets, debt securities orrights, warrants or options to purchase the securities of the Company,including but not limited to Common Stock, in each case applicable to eachshare of Common Stock are distributed to the Company’s stockholders and suchFair Market Value either equals or exceeds the Current Market Price or suchCurrent Market Price exceeds the such Fair Market Price Value by an amount notexceeding $1.00; *provided*, *however*, that any adjustments which byreason of this Section 12.4(k) are not required to be made shall be distributedupon conversion of any Security in an amount of assets, securities or rights,warrants or options comprising the distribution that a Holder would havereceived if such Holder had converted such Security immediately prior to theConversion Record Date.

 

(l)            In any case in which this Section12.4 provides that an adjustment shall become effective immediately after aConversion Record Date for an event, the Company may defer until the occurrenceof such event (i) issuing to the Holder of any security converted after suchConversion Record Date and before the occurrence of such event the additionalshares of Common Stock issuable upon such conversion by reason of theadjustment required by such event over and above the Common Stock issuable uponsuch conversion before giving effect to such adjustment and (ii) paying to suchHolder any amount in cash in lieu of any fraction pursuant to Section 12.3.

 

(m)          For purposes of this Section 12.4, thenumber of shares of Common Stock at any time outstanding shall not includeshares held in the treasury of the Company but shall include shares issuable inrespect of scrip certificates issued in lieu of fractions of shares of CommonStock.  The Company will not pay anydividend or make any distribution on shares of Common Stock held in thetreasury of the Company.

 

(n)           If the distribution date for therights provided in the Company’s rights agreement, if any, occurs prior to thedate a Security is converted, the Holder of the Security who converts suchSecurity after the distribution date is not entitled to receive the rights thatwould otherwise be attached (but for the date of conversion) to the shares ofCommon Stock received upon such conversion; *provided**, however*,that an adjustment shall be made to the Conversion Price pursuant to clause12.4(b) as if the rights were being distributed to the common stockholders ofthe Company immediately prior to such conversion.  If such an adjustment is made and the rights are later redeemed,invalidated or terminated, then a corresponding reversing adjustment shall bemade to the Conversion Price, on an equitable basis, to take account of suchevent.

 

(o)           In case the Company shall, bydividend or otherwise, distribute to all holders of its Common Stock shares ofany class of Capital Stock of a Subsidiary, then the Conversion Price shall bereduced so that the same shall be equal to the price determined by multiplyingthe Conversion Price in effect immediately prior to the close of business onthe Conversion Record Date with respect to such distribution by a fraction:

 

(i)            the numerator ofwhich shall be the Current Market Price of the shares of Capital Stock of suchSubsidiary (as determined by the Board of Directors, whose determination shallbe conclusive and set forth in a Board Resolution), measured from the date ofsuch distribution; and

 

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(ii)           the denominator ofwhich shall be the Current Market Price of the Company’s common stock, measuredfrom the date of such distribution.

 

(p)           If the Companyadjusts the Conversion Price pursuant to this Section 12.4, the Company shallissue a press release through Dow Jones & Company, Inc. or BloombergBusiness News containing the relevant information and make such informationavailable on the Company’s web site or through another public medium as theCompany may use at such time.

 

**Section12.5.**        Consolidationor Merger of the Company.

 

If any of thefollowing events occurs, namely:

 

(a)           any reclassificationor change of the outstanding Common Stock (other than a change in par value, orfrom par value to no par value, or from no par value to par value, or as aresult of a subdivision or combination) as a result of which holders of CommonStock shall be entitled to receive Capital Stock, securities or other property or assets (including cash)with respect to or in exchange for such Common Stock;

 

(b)           any merger,consolidation, statutory share exchange or combination of the Company withanother Person as a result of which holders of Common Stock shall be entitledto receive stock, securities or other property or assets (including cash or anycombination thereof) with respect to or in exchange for such Common Stock; or

 

(c)            any sale orconveyance of all or substantially all of the properties and assets of theCompany to any other Person as a result of which holders of Common Stock shallbe entitled to receive stock, securities or other property or assets (includingcash or any combination thereof) with respect to or in exchange for such CommonStock;

 

the Company or the successor orpurchasing Person, as the case may be, shall execute with the Trustee asupplemental indenture (which shall comply with the Trust Indenture Act as inforce at the date of execution of such supplemental indenture, if suchsupplemental indenture is then required to so comply) providing that suchSecurities shall be convertible into the kind and amount of shares of stock andother securities or property or assets (including cash) which such Holder wouldhave been entitled to receive upon such reclassification, change, merger, consolidation,statutory share exchange, combination, sale or conveyance had such Securitiesbeen converted into Common Stock immediately prior to such reclassification,change, merger, consolidation, statutory share exchange, combination, sale orconveyance assuming such holder of Common Stock did not exercise its rights ofelection, if any, as to the kind or amount of securities, cash or otherproperty receivable upon such merger, consolidation, statutory share exchange,sale or conveyance (*provided* thatif the kind or amount of securities, cash or other property receivable uponsuch merger, consolidation, statutory share exchange, sale or conveyance is notthe same for each share of Common Stock in respect of which such rights ofelection shall not have been exercised (“**Non-ElectingShare**”), then for the purposes of this Section 12.5, the kindand amount of securities, cash or other property receivable upon such merger,consolidation, statutory share exchange, sale or conveyance for eachNon-Electing Share shall be deemed to be the kind and amount so receivable pershare by a plurality of the Non-Electing Shares).  Such supplemental indenture shall provide for adjustments whichshall be as

 

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nearly equivalent as may bepracticable to the adjustments provided for in this Article 12.  If, in the case of any suchreclassification, change, merger, consolidation, statutory share exchange,combination, sale or conveyance, the stock or other securities and assets receivablethereupon by a holder of Common Stock includes shares of stock or othersecurities and assets of a Person other than the successor or purchasingPerson, as the case may be, in such reclassification, change, merger,consolidation, statutory share exchange, combination, sale or conveyance, thensuch supplemental indenture shall also be executed by such other Person andshall contain such additional provisions to protect the interests of theHolders as the Board of Directors shall reasonably consider necessary by reasonof the foregoing, including to the extent practicable the provisions providingfor the Purchase Rights set forth in Article 11 hereof.

 

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

 

The aboveprovisions of this Section 12.5 shall similarly apply to successivereclassifications, mergers, consolidations, statutory share exchanges,combinations, sales and conveyances.

 

If thisSection 12.5 applies to any event or occurrence, Section 12.4 shallnot apply.

 

**Section12.6.**        Noticeof Adjustments of Conversion Price.

 

Whenever theConversion Price is adjusted as herein provided (other than in the case of anadjustment pursuant to the second paragraph of Section 12.4(i) for which thenotice required by such paragraph has been provided), the Company shallpromptly file with the Trustee and any Conversion Agent other than the Trusteean Officers’ Certificate setting forth the adjusted Conversion Price andshowing in reasonable detail the facts upon which such adjustment isbased.  Promptly after delivery of suchOfficers’ Certificate, the Company shall prepare a notice or press releasestating that the Conversion Price has been adjusted and setting forth theadjusted Conversion Price and the date on which each adjustment becomeseffective, shall issue such notice or press release through Dow Jones &Company Inc. or Bloomberg Business News and shall make the informationavailable on the Company’s website or through another public medium as the Companymay use at such time.  Failure todeliver such notice shall not affect the legality or validity of any suchadjustment.

 

**Section12.7.**        NoticePrior to Certain Actions.

 

In case at anytime after the date hereof:

 

(a)           the Company shallbecome party to a consolidation or merger for which approval of anystockholders of the Company is required, or enters into the sale or conveyanceto another Person or entity or group of Persons or entities acting in concertas a partnership, limited partnership, syndicate or other group (within themeaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) ofall or substantially all of the property and assets of the Company;

 

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(b)           the Company shall declarea dividend (or any other distribution) on its Common Stock payable otherwisethan in cash out of its capital surplus or its consolidated retained earnings;

 

(c)            the Company shallauthorize the granting to the holders of its Common Stock of rights or warrantsto subscribe for or purchase any shares of Capital Stock of any class (or ofsecurities convertible into shares of Capital Stock of any class) or of anyother rights;

 

(d)            there shall occurany reclassification of the Common Stock of the Company (other than asubdivision or combination of its outstanding Common Stock, a change in parvalue, a change from par value to no par value or a change from no par value topar value), or any merger, consolidation, statutory share exchange orcombination to which the Company is a party and for which approval of anystockholders of the Company is required, or the sale, transfer or conveyance ofall or substantially all of the assets of the Company; or

 

(e)           there shall occurthe voluntary or involuntary dissolution, liquidation or winding up of theCompany;

 

the Company shall cause to befiled at each office or agency maintained for the purpose of conversion ofsecurities pursuant to Section 9.2, and shall cause to be provided to theTrustee and all Holders in accordance with Section 14.2, at least 20 days (or10 days in any case specified in clause (a) or (b) above) prior to theapplicable record or effective date hereinafter specified, a notice stating:

 

(i)            the date on which arecord is to be taken for the purpose of such dividend, distribution, rights orwarrants, or, if a record is not to be taken, the date as of which the holdersof shares of Common Stock of record to be entitled to such dividend,distribution, rights or warrants are to be determined; or

 

(ii)           the date on whichsuch reclassification, merger, consolidation, statutory share exchange,combination, sale, transfer, conveyance, dissolution, liquidation or winding upis expected to become effective, and the date as of which it is expected thatholders of shares of Common Stock of record shall be entitled to exchange theirshares of Common Stock for securities, cash or other property deliverable uponsuch reclassification, merger, consolidation, statutory share exchange, sale,transfer, dissolution, liquidation or winding up.

 

Neither thefailure to give such notice nor any defect therein shall affect the legality orvalidity of the proceedings or actions described in clauses (a) through (e) ofthis Section 12.6.

 

**Section12.8.**        Companyto Reserve Common Stock.

 

The Companyshall at all times reserve and keep available, free from preemptive rights, outof its authorized but unissued Common Stock, for the purpose of effecting the

 

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conversion of the Securities,the full number of shares of fully paid and nonassessable Common Stock thenissuable upon the conversion of all Outstanding Securities.

 

**Section12.9.**        CommonStock to be Fully Paid and Nonassessable.

 

The Companycovenants that all Common Stock which may be issued upon conversion ofSecurities will upon issue be fully paid and nonassessable and, except asprovided in Section 12.10, the Company will pay all taxes, liens and chargeswith respect to the issue thereof.

 

**Section12.10.**      Taxeson Conversions.

 

Except asprovided in the next sentence, the Company will pay any and all taxes (otherthan taxes on income) and duties that may be payable in respect of the issue ordelivery of shares of Common Stock on conversion of Securities pursuant toArticle 12.  A Holder delivering aSecurity for conversion shall be liable for and will be required to pay any taxor duty which may be payable in respect of any transfer involved in the issueand delivery of shares of Common Stock in a name other than that of the Holderof the Security or Securities to be converted, and no such issue or deliveryshall be made unless the Person requesting such issue has paid to the Companythe amount of any such tax or duty, or has established to the satisfaction ofthe Company that such tax or duty has been paid.

 

**Section 12.11.**      Cancellation of Converted Securities.

 

All Securitiesdelivered for conversion shall be delivered to the Trustee to be canceled by orat the direction of the Trustee.

 

**Section 12.12.**      Responsibility of Trustee for ConversionProvisions.

 

The Trustee,subject to the provisions of Section 5.1, and any Conversion Agent shall not atany time be under any duty or responsibility to any Holder to determine whetherany facts exist which may require any adjustment of the Conversion Price, orwith respect to the nature or intent of any such adjustments when made, or withrespect to the method employed, or herein or in any supplemental indentureprovided to be employed, in making the same. Neither the Trustee, subject to the provisions of Section 5.1, nor anyConversion Agent shall be accountable with respect to the validity or value (ofthe kind or amount) of any Common Stock or of any other securities or property,which may at any time be issued or delivered upon the conversion of anySecurity; and it or they do not make any representation with respectthereto.  Neither the Trustee, subjectto the provisions of Section 5.1, nor any Conversion Agent shall be responsiblefor any failure of the Company to make any cash payment or to issue, transferor deliver any shares of stock or share certificates or other securities orproperty upon the surrender of any Security for the purpose of conversion; andthe Trustee, subject to the provisions of Section 5.1, and any Conversion Agentshall not be responsible or liable for any failure of the Company to complywith any of the covenants of the Company contained in this Article.

 

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**ARTICLE 13**  [INTENTIONALLYOMITTED]

 

**ARTICLE 14**     OTHERPROVISIONS OF GENERAL APPLICATION

 

**Section 14.1**.        Trust Indenture Act Controls.

 

This Indentureis subject to the provisions of the TIA which are required to be part of thisIndenture, and shall, to the extent applicable, be governed by such provisions.

 

**Section14.2**.        Notices.

 

Any notice orcommunication to the Company or the Trustee is duly given if in writing (whichmay be by facsimile with the original to follow) and delivered in person ormailed by first-class mail to the address set forth below:

 

(a)           if to the Company:

 

WatsonPharmaceuticals, Inc.

311 BonnieCircle

Corona,California 92880

Attention:General Counsel

Fax:  (909) 270-1096

Telephone:  (909) 493-5300

 

With a copyto:

 

Latham &Watkins LLP

650 TownCentre Drive, 20th Floor

Costa Mesa, California92626-1925

Attention:  Charles K. Ruck, Esq.

Fax:  (714) 755-8290

Telephone:  (714) 755-8245

 

(b)           if to the Trustee:

 

Wells FargoBank, National Association

707 WilshireBoulevard, 17th Floor

Los Angeles,California 90017

Attn:  Jeanie Mar, Vice President

Fax:(213)614-3355

Telephone:(213) 614-3349

 

The Company orthe Trustee by notice to the other may designate additional or differentaddresses for subsequent notices or communications.

 

Any notice orcommunication to a Holder shall be mailed by first class mail to his addressshown on the Register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect insuch notice or communication shall not affect its sufficiency with

 

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respect to other Holders.  If the company mails a notice orcommunication to Holders, it shall mail a copy to the Trustee at the same time

 

If a notice orcommunication is mailed or sent in the manner provided above within the timeprescribed it is duly given as of the date it is mailed, whether or not theaddressee receives it, except that notice to the Trustee shall only beeffective upon receipt thereof by the Trustee.

 

**Section14.3.**        Communicationby Holders with Other Holders.

 

Holders may communicatepursuant to Section 312(b) of the TIA with other Holders with respect to theirrights under the Securities or this Indenture. The Company, the Trustee, the Registrar and anyone else shall have theprotection of Section 312(c) of the TIA.

 

**Section14.4.**        Actsof Holders of Securities.

 

(a)           Any request, demand, authorization,direction, notice, consent, waiver or other action provided by this Indentureto be given or taken by Holders may be embodied in and evidenced by one or moreinstruments of substantially similar tenor signed by such Holders in person orby agent or proxy duly appointed in writing.

 

Except asherein otherwise expressly provided, such action shall become effective whensuch instrument or instruments or record or both are delivered to the Trusteeand, where it is hereby expressly required, to the Company.  Such instrument or instruments and record(and the action embodied therein and evidenced thereby) are herein sometimesreferred to as the “**Act**” of theHolders signing such instrument or instruments.  Proof of execution of any such instrument or of a writingappointing any such agent or proxy, or of the holding by any Person of aSecurity, shall be sufficient for any purpose of this Indenture and (subject toSection 5.1) conclusive in favor of the Trustee and the Company if made in themanner provided in this Section.

 

(b)           The fact and date of the execution byany Person of any such instrument or writing may be provided in any mannerwhich the Trustee reasonably deems sufficient.

 

(c)           The principal amount and serialnumbers of Securities held by any Person, and the date of such Person holdingthe same, shall be proved by the Register.

 

(d)           Any request, demand, authorization,direction, notice, consent, election, waiver or other Act of the Holders of anySecurity shall bind every future Holder of the same Security and the Holder ofevery Security issued upon the registration of transfer thereof or in exchangetherefor or in lieu thereof in respect of anything done, omitted or suffered tobe done by the Trustee, the Company in reliance thereon, whether or notnotation of such action is made upon such Security.

 

**Section14.5.**        Certificateand Opinion as to Conditions Precedent.

 

In any casewhere several matters are required to be certified by, or covered by an opinionof, any specified Person, it is not necessary that all such matters becertified by, or

 

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covered by the opinion of, onlyone 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 mattersand one or more other such Persons as to other matters, and any such Person maycertify or give an opinion as to such matters in one or several documents.

 

Anycertificate or opinion of an Officer of the Company may be based, insofar as itrelates to legal matters, upon an Opinion of Counsel, unless such Officerknows, or in the exercise of reasonable care should know, that the Opinion ofCounsel with respect to the matters upon which such certificate or opinion isbased is erroneous.  Any such Opinion ofCounsel may be based, insofar as it relates to factual matters, upon acertificate or representations by, an Officer or Officers of the Company statingthat the information with respect to such factual matters is in the possessionof the Company unless such counsel knows, or in the exercise of reasonable careshould know, that the certificate or representations with respect to suchmatters are erroneous.

 

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

 

Upon anyapplication or request by the Company to the Trustee to take any action underany provision of this Indenture, the Company shall furnish to the Trustee anOfficers’ Certificate stating that all conditions precedent, if any, providedfor in this Indenture relating to the proposed action have been complied withand an Opinion of Counsel stating that in the opinion of such Counsel all suchconditions precedent, if any, have been complied with, except that in the caseof any such application or request as to which the furnishing of such documentsis specifically required by any provision of this Indenture relating to suchparticular application or request, no additional certificate or opinion need befurnished; *provided*, *however*, that, at any time that an Opinionof Counsel is required to be delivered hereunder, the opining counsel may, withthe consent of the Trustee, deliver to the Trustee the Opinion of Counsel inquestion addressed to a party other than the Trustee with text to the effectthat the Trustee may rely on such opinion rather than by delivering a separateOpinion of Counsel to the Trustee directly.

 

**Section14.6.**        StatementsRequired in Certificate or Opinion.

 

Eachcertificate or opinion with respect to compliance with a condition or covenantprovided for in this Indenture shall include:

 

(a)           a statement thateach individual signing such certificate or opinion on behalf of the Company,has read such covenant or condition and the definitions herein relatingthereto;

 

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

 

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

 

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(d)           a statement as towhether, in the opinion of each such individual, such condition or covenant hasbeen complied with.

 

**Section14.7.**        Effectof Headings and Table of Contents.

 

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

 

**Section14.8.**        Successorsand Assigns.

 

All covenantsand agreements in this Indenture by the Company shall bind its successors andassigns, whether so expressed or not.

 

**Section14.9.**        SeparabilityClause.

 

In case anyprovision in this Indenture or the Securities shall be invalid, illegal orunenforceable, the validity, legality and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.

 

**Section14.10.**      Benefitsof Indenture.

 

Nothingcontained in this Indenture or in the Securities, express or implied, shallgive to any Person, other than the parties hereto and their successorshereunder and the Holders, any benefit or legal or equitable right, remedy orclaim under this Indenture.

 

**Section14.11.**      GoverningLaw.

 

This Indentureand the Securities shall be governed by, and construed in accordance with, theLaws of the State of New York.

 

**Section14.12.**      Counterparts.

 

Thisinstrument may be executed in any number of counterparts, each of which when soexecuted shall be deemed to be an original but all such counterparts shalltogether constitute but one and the same instrument.

 

**Section14.13.**      LegalHolidays.

 

In any casewhere any Interest Payment Date, Redemption Date, Repurchase Date or StatedMaturity of any Security or the last day on which a Holder has a right toconvert such Security shall not be a Business Day at any Place of Payment orPlace of Conversion, then (notwithstanding any other provision of thisIndenture or of the Securities) payment of Principal on or Interest (includingContingent Interest) on or conversion of the Securities, need not be made atsuch Place of Payment or Place of Conversion on such day, but may be made onthe next succeeding Business Day at such Place of Payment or Place ofConversion with the same force and effect as if made on the Interest PaymentDate, Redemption Date, Repurchase Date or at the Stated Maturity or on suchlast day for conversion; *provided, however*, that in the case thatpayment is made on such succeeding Business Day, no Interest shall accrue onthe amount so

 

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payable for the period from andafter such Interest Payment Date, Redemption Date, Repurchase Date or StatedMaturity, as applicable.

 

**Section14.14.**      RecourseAgainst Others.

 

No recoursefor the payment of the Principal of or Interest (including Contingent Interest)on any Securities, or for any claim based thereon or otherwise in respectthereof, shall be had against any incorporator, stockholder, officer ordirector or manager, as such, past, present or future, of the Company of anysuccessor entity to either the Company, whether by virtue of any constitution,statute or rule of law or by the enforcement of any assessment or penalty orotherwise, all such liability being, by the acceptance thereof and as part ofthe consideration for the issue thereof, expressly waived and released.

 

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

 
|   | WATSON PHARMACEUTICALS, INC.           |
|--------|----------------------------------------|
|   |                                   |   |
|   |                                   |   |
|   | By:                                    |   /S/ Allen Chao |   |
|   |                                   | Name:  Allen Chao, Ph.D. |
|   |                                   | Title:  Chairman and Chief Executive Officer |
|   |                                   |   |
|   | WELLS FARGO BANK, NATIONAL             |
|   | ASSOCIATION, AS TRUSTEE AND NOT IN ITS |
|   | INDIVIDUAL CAPACITY                    |
|   |                                   |   |
|   | By:                                    | /S/ Jeanie  Mar |   |
|   |                                   | Name:  Jeanie Mar |
|   |                                   | Title: Vice  President |

 

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**EXHIBIT A**

 

**FORM OF SECURITY**

 

UNLESS THISCERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORYTRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FORREGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED ISREGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTEDBY 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 OFDTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TOANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,HAS AN INTEREST HEREIN.

 

THIS SECURITYMAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC OR BY A NOMINEE OF DTC TO DTCOR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTCOR A NOMINEE OF SUCH SUCCESSOR.

 

A-1

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**WATSON PHARMACEUTICALS, INC.**

 

**1.75% Convertible Contingent SeniorDebentures due March 15, 2023**

 

**CUSIPNO.  942683202AB9**

 
| **No.       ** |   | **Principal Amount** | **$** | **                      ** |
|----------------------------------------------|--------|----------------------|-------|------------------------------------------------------------------------------------------------------------------------------------------|

 

WatsonPharmaceuticals, Inc., a Nevada corporation (including any successorcorporation under the Indenture hereinafter referred to, the “**Company**”), for value received, herebypromises to pay to Cede & Co., or its registered assigns, the principal sumof                                                     U.S.Dollars ($                           )on March 15, 2023.

 

InterestPayment Dates: March 15 and September 15, commencing September 15, 2003.

 

Regular RecordDates: March 1 and September 1.

 

Reference ishereby made to the further provisions of this Security set forth below, whichfurther provisions shall for all purposes have the same effect as if set forthat this place.

 

IN WITNESSWHEREOF, the Company has caused this Security to be duly executed manually orby facsimile by its duly authorized officers.

 

 
|   | WATSON  PHARMACEUTICALS, INC. |
|--------|-------------------------------|
|   |                          |   |
|   | By:                           |   |   |
|   |                          | Name: |
|   |                          | Title: |
|   |                          |   |
|   | By:                           |   |   |
|   |                          | Name: |
|   |                          | Title: |
|   |                          |   |
|   | Dated:                        |   | , 20 |   |   |
|        |                               |  |  |  |  |  |  |

 

Trustee’s Certificate ofAuthentication

 

This is one of the 1.75%Convertible Contingent Senior Debentures due March 15, 2023 described in thewithin-named Indenture.

 
| WELLS FARGO  BANK, NATIONAL ASSOCIATION, as Trustee |
|-----------------------------------------------------|
|                                                |
| By:                                                 |   |
| *Authorized Signatory*                              |
|                                                |
| Dated:                                              |   | , 20 |   |   |
|                                                     |  |  |  |  |  |

 

A-2

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**WATSON PHARMACEUTICALS, INC.**

 

**1.75% Convertible Contingent SeniorDebentures due March 15, 2023**

 

SECTION 1            Indenture; Securities.

 

This Securityis one of a duly authorized series of the 1.75% Convertible Contingent SeniorDebentures due March 15, 2023 (the “**Securities**”)of Watson Pharmaceuticals, Inc., a Nevada corporation (including any successorPerson under the Indenture hereinafter referred to, the “**Company**”), issued under an Indenture, datedas of March 7, 2003 (the “**Indenture**”),between the Company and Wells Fargo Bank, National Association, as trustee (the“**Trustee**”).  The terms of the Security include thosestated in the Indenture and those made part of the Indenture by reference tothe Trust Indenture Act of 1939, as amended (“**TIA**”).  This Security is subject to all such terms,and Holders are referred to the Indenture and the TIA for a statement of allsuch terms.  To the extent permitted byapplicable law, in the event of any inconsistency or difference between theterms of this Security and the terms of the Indenture, the terms of theIndenture shall control.  Capitalizedterms used but not defined herein have the meanings assigned to them in theIndenture referred to below unless otherwise indicated.

 

SECTION 2            Principal and Interest.

 

The Companypromises to pay Interest on the principal amount of the Securities at theInterest Rate from the date of issuance until repayment in full at StatedMaturity, redemption or purchase.  TheCompany will pay Interest (including Contingent Interest) on this Securitysemi-annually in arrears on March 15 and September 15 of each year (each, an “**Interest Payment Date**”), commencingSeptember 15, 2003.

 

The Securitiesshall bear Interest from March 7, 2003 until the Principal thereof is paid ormade available for payment, or until such date on which the Securities areconverted, redeemed or purchased as provided herein, (i) prior to theoccurrence of a Reset Transaction, at a rate of 1.75% per annum, and (ii)following the occurrence of a Reset Transaction, at the Adjusted Interest Raterelated to such Reset Transaction to, but not including, the effective date ofany succeeding Reset Transaction. Interest shall be payable semi-annually in arrears on each InterestPayment Date.

 

In addition,Contingent Interest will accrue on this Security during any six-month periodfrom March 15 to September 14 and from September 15 to March 14, commencingwith the six-month period beginning September 15, 2003, under the conditionsspecified in the Indenture at a rate equal to the greater of (i) a per annumrate equal to 5.00% of the Company’s then-current estimated per annum borrowingrate for senior non-convertible fixed-rate Indebtedness with a Maturity andother terms comparable to this Security and (ii) 0.33% per annum.

 

Interest(including Contingent Interest) on the Securities shall be computed (i) for anyfull semi-annual period for which a particular Interest Rate is applicable, onthe basis of a 360-day year comprised of twelve 30-day months and (ii) for anyperiod for which a particular

 

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Interest Rate is applicable forless than a full semiannual period for which Interest is calculated, on thebasis of a 30-day month and, for such periods of less than a month, the actualnumber of days elapsed over a 30-day month. For purposes of determining the Interest Rate, the Trustee may assumethat a Reset Transaction has not occurred unless the Trustee has received anOfficers’ Certificate stating that a Reset Transaction has occurred andspecifying the Adjusted Interest Rate then in effect.

 

Furtherreference is made to Sections 2.1(c) through Section 2.1(f) of the Indenturefor other provisions of the Securities relating to the payment of Interest andContingent Interest.

 

If the Companyfails to make a payment of Principal of or Interest (including ContingentInterest) on any Security when due and payable, it shall pay such Interest onsuch amounts (to the extent lawful), which shall be calculated using theapplicable Interest Rate (such amounts, the “**DefaultedInterest**”).  It may elect topay such Defaulted Interest, plus any other Interest (including ContingentInterest) payable on it, to the Persons who are Holders on which the Interest(including Contingent Interest) is due on a subsequent special recorddate.  The Company shall notify theTrustee in writing of the amount of Defaulted Interest proposed to be paid oneach such Security. The Company shall fix any such special record date andpayment date for such payment.  At least15 days before any such special record date, the Company shall mail to Holdersaffected thereby a notice that states the special record date, the InterestPayment Date and amount to be paid.

 

SECTION 3            Method of Payment.

 

Interest(including Contingent Interest) on this Security which is payable, and ispunctually paid or duly provided for, on any Interest Payment Date shall bepaid to the Person in whose name that Security (or one or more PredecessorSecurities) is registered at the close of business on the Regular Record Datefor such Interest.  Principal of andInterest (including Contingent Interest) on Global Securities will be payable,for the benefit of the Holders of this Security, to the Depositary inimmediately available funds.

 

Principal onPhysical Securities will be payable at the office or agency of the Companymaintained for such purpose, initially the Corporate Trust Office of theTrustee.  Interest (including ContingentInterest) on Physical Securities will be payable by (i) a U.S. Dollar checkdrawn on a bank in The City of New York mailed to the address of the Personentitled thereto as such address shall appear in the Register, or (ii) uponapplication to the Registrar not later than the relevant Regular Record Date bya Holder of an aggregate Principal amount of Securities in excess of$5,000,000, wire transfer in immediately available funds.

 

SECTION 4            Paying Agent and Registrar.

 

Initially,Wells Fargo Bank, National Association will act as Paying Agent andRegistrar.  The Company may change thePaying Agent or Registrar without notice to any Holder.

 

 

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SECTION 5            Optional Redemption

 

Reference ismade to Article 10 of the Indenture regarding the Company’s right to optionallyredeem the Securities, which is incorporated into this Security by reference asif stated herein in its entirety.

 

SECTION 6            Purchase Right Upon a Specific Dateor Repurchase Event.

 

Reference ismade to Article 11 of the Indenture regarding the Company’s obligations to theHolders upon a Repurchase Event and the Holders’ rights to require the Companyto repurchase their Securities upon a Repurchase Event, which is incorporatedinto this Security by reference as if stated herein in its entirety.

 

SECTION 7            Conversion Right.

 

Reference ismade to Article 12 of the Indenture regarding the Holders’ right to converttheir Securities and related matters, which is incorporated into this Securityby reference as if stated herein in its entirety.

 

SECTION 8            No Sinking Fund.

 

The Securitiesare not subject to a sinking fund.

 

SECTION 9            Absolute Obligation.

 

No referenceherein to the Indenture and no provision of this Security or of the Indentureshall alter or impair the obligation of the Company under the Indenture andthis Security which is absolute and unconditional, to pay the Principal of orInterest (including Contingent Interest) on this Security at the place and timeand in the coin or currency herein prescribed.

 

SECTION 10          Denominations; Transfer; Exchange.

 

The Securitiesare issuable in registered form, without coupons, in denominations of $1,000and integral multiples of $1,000 in excess thereof.  A Holder may transfer and register the transfer or exchange ofSecurities in accordance with the Indenture.

 

Pursuant tothe Indenture, when this Security (or any portion thereof in integral multiplesof $1,000 in principle amount) is presented to the Registrar with a request toregister the transfer or to exchange it for an equal principal amount otherauthorized denominations, the Registrar shall register the transfer or make theexchange as requested if the requirements hereunder for such transactions aremet (including that such portions thereof are duly endorsed or accompanied by awritten instrument of transfer duly executed by the Holder thereof or by anattorney who is authorized in writing to act on behalf of the Holder).  Subject to Section 2.4 of the Indenture, topermit registrations of transfers and exchanges, the Company shall execute andthe Trustee shall authenticate Securities at the Registrar’s request.  No service charge shall be made for anyregistration of transfer or exchange or redemption of the Securities, but theCompany may require payment of a sum sufficient to cover any transfer tax orsimilar governmental charge payable in connection therewith (other than anysuch transfer taxes or other

 

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similar governmental chargepayable upon exchanges pursuant to Sections 2.14, 7.5 or 10.7 of theIndenture).

 

Pursuant tothe Indenture, neither the Company nor the Registrar shall be required toexchange or register a transfer of this Security (or any portion thereof):

 

(a)           for a period of 15days prior to the day of any selection of any portion of this Security forredemption under Article 10 hereof;

 

(b)           so selected forredemption or, if a portion of this Security is selected for redemption, suchportion thereof selected for redemption; or

 

(c)           surrendered forconversion or, if a portion of this Security is surrendered for conversion,such portion thereof surrendered for conversion.

 

In the eventof redemption, conversion or purchase of the Securities in part only, a newSecurity or Securities for the unredeemed, unconverted or unpurchased portionthereof will be issued in the name of the Holder hereof.

 

SECTION 11          Persons Deemed Owners.

 

The registeredHolder of this Security shall be treated as its owner for all purposes.

 

SECTION 12          Discharge Prior to Redemption orStated Maturity.

 

Subject tocertain conditions contained in the Indenture, the Company may discharge itsobligations under the Securities and the Indenture if (1)(A) all of theOutstanding Securities shall become due and payable at their scheduled StatedMaturity within one year or (B) all of the Outstanding Securities are scheduledfor redemption within one year or have all been converted, and (2) the Companyshall have deposited with the Trustee cash or, in the event of a conversionpursuant to the terms of the Indenture, Common Stock, sufficient to pay allamounts due and owing on all Outstanding Securities on the date of theirscheduled maturity or the scheduled date of redemption, as the case may be.

 

SECTION 13          Amendment; Supplement; Waiver.

 

The Indenturepermits, with certain exceptions as therein provided, the amendment thereof andthe modification of the rights and obligations of the Company and the rights ofthe Holders of the Securities under the Indenture at any time by the Companyand the Trustee with the consent of the Holders of a majority of the aggregate principalamount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders ofspecified percentages in principal amount of the Securities at the timeOutstanding, on behalf of the Holders of all the Securities, to waive complianceby the Company with certain provisions of the Indenture and certain pastdefaults under the Indenture and their consequences and to make any changes ormodifications necessary in connection with the registration of the Securitiesunder the Securities Act as contemplated in the Registration RightsAgreement.  Any such consent or waiverby the Holder of this Security shall be conclusive and binding upon such 

 

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Holder and upon all futureHolders of this Security and of any Security issued upon registration oftransfer hereof or in exchange herefor or in lieu hereof, whether or notnotation of such consent or waiver is made upon this Security or such otherSecurity.

 

No referenceherein to the Indenture and no provision of this Security or of the Indentureshall alter or impair the obligation of the Company, which is absolute andunconditional, to pay the Principal of and Interest (including ContingentInterest) on this Security at the times, places and rate, and in the coin orcurrency, herein prescribed or to convert this Security (or pay cash in lieu ofconversion) as provided in the Indenture.

 

SECTION 14          Defaults and Remedies.

 

Reference ismade to the Indenture for the Events of Default, remedies and relatedprovisions with respect to the Securities, which is incorporated into thissecurity by reference as if stated herein in its entirety.

 

SECTION 15          Authentication.

 

This Securityshall not be valid until the Trustee executes the certificate of authenticationin the space provided therefore on the Security.

 

SECTION 16          Abbreviations.

 

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

 

SECTION 17          CUSIP Numbers.

 

Pursuant to arecommendation promulgated by the Committee on Uniform Security IdentificationProcedures, the Company has caused one or more CUSIP numbers, as appropriate,to be printed on this Security and the Trustee may use CUSIP numbers in noticesof redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either asprinted on this Security or as contained in any notice of redemption andreliance may be placed only on the other identification numbers placed thereon.

 

SECTION 18          Governing Law.

 

The Indentureand this Security shall be governed by, and construed in accordance with, thelaws of the State of New York.

 

SECTION 19          Successor Corporation.

 

In the event asuccessor Person assumes all the obligations of the Company under thisSecurity, pursuant to the terms hereof and of the Indenture, the Company willbe released from all such obligations.

 

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SECTION 20          Registration Rights.

 

The Holders ofthe Securities are entitled to the benefits of a Resale Registration RightsAgreement, dated as of March 7, 2003, among the Company, Lehman Brothers Inc.,Morgan Stanley & Co. Incorporated, CIBC World Markets Corp., WachoviaSecurities, Inc., Banc of America Securities LLC, Comerica Securities, Inc. andWells Fargo Securities, LLC, including the receipt of additional amounts upon aregistration default (as defined in such agreement).

 

SECTION 21          Tax Treatment.

 

The Companyagrees, and by acceptance of a beneficial ownership interest in the Securitieseach beneficial holder of the Securities will be deemed to have agreed, forUnited States federal income tax purposes (1) to treat the Securities asindebtedness that is subject to Treas. Reg. Sec. 1.1275-4 (the “**Contingent Payment Regulations**”) and, forpurposes of the Contingent Payment Regulations, to treat the fair market valueof any stock beneficially received by a beneficial holder upon any conversionof the Securities as a contingent payment and (2) to be bound by the Company’sdetermination that the “comparable yield” and “projected payment schedule,” withinthe meaning of the Contingent Payment Regulations, with respect to theSecurities.  A Holder of the Securitiesmay obtain the amount of original issue discount, issue date, yield tomaturity, comparable yield and projected payment schedule by submitting awritten request for it to the Company at the Company’s address specified inSection 14.2 of the Indenture.

 

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**ASSIGNMENT FORM**

 

*To assign this Security, fill in the formbelow and*have*yoursignature guaranteed: (I) or (we) assign and transfer this Security to:*

 

____________________________________________________

(*Insert assignee’s social securityor tax I.D. number*)

 

____________________________________________________

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

 

and irrevocably appoint_____________ to transfer this Security on the books of the Company.  The agent may substitute another to act forhim.

 

YourName:____________________________________________________________________

(*Print your name exactly as it appears on the face ofthis Security*)

 

In connectionwith any transfer of this Security occurring prior to the date which is the endof the period referred to in Rule 144(k) under the Securities Act (other than atransfer pursuant to an effective registration statement under the SecuritiesAct), the undersigned confirms that without utilizing any general solicitationor general advertising that:

 

[Check One]

 

o (a)      this Security is being transferred incompliance with the exemption from registration under the Securities Act of1933, as amended, provided by Rule 144A thereunder.

 

or

 

o (b)      this Security is being transferred otherthan in accordance with (a) above and documents are being furnished whichcomply with the conditions of transfer set forth in this Security and theIndenture.

 

If none of the foregoing boxesis checked, the Trustee or other Registrar shall not be obligated to registerthis Security in the name of any Person other than the Holder hereof unless theconditions to any such transfer of registration set forth herein and inSections 2.7, 2.8 and 2.17 of the Indenture shall have been satisfied.

                                                                                                                            
|   | Dated:                |                                                                |   |
|--------|-----------------------|---------------------------------------------------------------------|--------|
|   |                  |                                                                |
|   | Your Signature:       |                                                                |
|   |                  | (*Sign exactly as your name appears on the face of  this Security*) |
|   |                  |                                                                |
|   | Signature Guarantee*: |                                                                |
|        |                       |                                                                     |        |  |

 

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*              *Participant in a recognized Signature GuaranteeMedallion Program (or other signature guarantor acceptable to the Trustee).*

 

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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.

 

Theundersigned represents and warrants that it is purchasing this Security for itsown account or an account with respect to which it exercises sole investmentdiscretion, in each case for investment and not with a view to distribution,and that it and any such account is a “Qualified Institutional Buyer” withinthe meaning of Rule 144A under the Securities Act of 1933 and is aware that thesale to it is being made in reliance on Rule 144A and acknowledges that it hasreceived such information regarding the Company as the undersigned hasrequested pursuant to Rule 144A or has determined not to request suchinformation and that it is aware that the transferor is relying upon theundersigned’s foregoing representations in order to claim the exemption fromregistration provided by Rule 144A.

 

Dated:________________________

 

NOTICE:  To be executed by an executive officer.

 

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**SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES**

 

*The following exchanges of a part of thisGlobal Security for Physical Securities have been made:*

* *
| **Date of Exchange** |   | **Amount of  decrease in  Principal Amount of  this Global Security** |   | **Amount of  increase in  Principal Amount of  this Global Security** |   | **Principal  Amount of this  Global Security  following such decrease  (or increase)** |   | **Signature  of  authorized officer of  Trustee** |   |
|----------------------|--------|-----------------------------------------------------------------------|--------|-----------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------|--------|---------------------------------------------------|--------|

 

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**EXHIBIT B**

 

**FORM OF REPURCHASE EVENT PURCHASE NOTICE**

 

TO: Watson Pharmaceuticals,Inc.

311 BonnieCircle

Corona,California 92880

 

Theundersigned registered owner of this Security hereby irrevocably acknowledgesreceipt of a notice from Watson Pharmaceuticals, Inc. (the “**Company**”) as to the occurrence of aRepurchase Event with respect to the Company and requests and instructs theCompany to repay the entire principal amount of this Security, or the portionthereof (which is $1,000 principal amount or an integral multiple thereof)below designated, in accordance with the terms of the Indenture referred to inthis Security, together with Interest (including Contingent Interest), if any,accrued and unpaid to, but excluding, such date, to the registered Holder hereof.

 

 

Your Name:____________________________________________________________________

(*Print your name exactly as it appears on the face of this Security*)

 

Dated: _____________________________________________________________________________

 
|   | Your  Signature:       |                                                                |   |
|--------|------------------------|---------------------------------------------------------------------|--------|
|   |                   | (*Sign exactly as your name appears on the face of  this Security*) |
|   |                   |                                                                |
|   | Signature  Guarantee*: |                                                                |   |
|        |                        |                                                                     |        |  |  |

 

SocialSecurity or other Taxpayer IdentificationNumber:______________________________                                   

 

Principalamount to be converted (if less than all): $ __________________________________

 

Certificatenumber (if applicable:                                                                                                                                    

 

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*              *Participant in a recognized Signature GuaranteeMedallion Program (or other signature guarantor acceptable to the Trustee).*

 

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**EXHIBIT C**

 

**FORM OF CONVERSION NOTICE**

 

TO: Watson Pharmaceuticals,Inc.

311 BonnieCircle

Corona,California 92880

 

Theundersigned registered owner of this Security hereby irrevocably exercises theoption to convert this Security, or the portion hereof (which is $1,000principal amount or an integral multiple thereof) below designated, into sharesof Common Stock in accordance with the terms of the Indenture referred to inthis Security, and directs that the shares issuable and deliverable upon suchconversion, together with any check in payment for fractional shares and anySecurities representing any unconverted principal amount hereof, be issued anddelivered to the registered Holder hereof unless a different name has beenindicated below.  If shares or anyportion of this Security not converted are to be issued in the name of a Personother than the undersigned, the undersigned will pay all transfer taxes payablewith respect thereto.  To the extentprovided in the Indenture, any amount required to be paid to the undersigned onaccount of Interest (including Contingent Interest), if any, accompanies thisSecurity.

 

Your Name:_____________________________________________________________________

(*Print your name exactly as it appears on the face of this Security*)

 

Dated: ___________________________________________________________________________

 

YourSignature: ___________________________________________________________________

(*Sign exactly as your name*appears*on the face of this Security*)

 

SignatureGuarantee*: ______________________________________________________________

 

SocialSecurity or other Taxpayer IdentificationNumber: ___________________________________

 

Principalamount to be converted (if less than all):$________________________________________

 

*Fill in for registration of shares (if to beissued) and Securities (if to be delivered) other than to and in the name ofthe registered Holder*

 

________________________________________________________________________

*(Name)*

________________________________________________________________________

(*Street Address*)

________________________________________________________________________

(*City, State and Zip Code*)

 

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*              *Participant in a recognized Signature GuaranteeMedallion Program (or other signature guarantor acceptable to the Trustee).*

 

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