Exhibit 4.1


 


 


 


 


 


 


VEECO
INSTRUMENTS INC.

AS ISSUER




AND




U.S. BANK TRUST NATIONAL ASSOCIATION

AS TRUSTEE


4.125%
Convertible Subordinated Notes due April 15, 2012




FIRST SUPPLEMENTAL INDENTURE




Dated as of April 20, 2007


 


 


 


 


 


 


















TABLE OF
CONTENTS


	
  ARTICLE 1 Definitions and Incorporation by
  Reference

  	
  1

  
	
   

  	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
  Section 1.02

  	
  Other Definitions

  	
  11

  
	
   

  	
  Section 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
  12

  
	
   

  	
  Section 1.04

  	
  Rules of Construction

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 The Securities

  	
  13

  
	
   

  	
  Section 2.01

  	
  Title; Amount and Issue of Securities; Principal and
  Interest

  	
  13

  
	
   

  	
  Section 2.02

  	
  Form of Securities

  	
  14

  
	
   

  	
  Section 2.03

  	
  Legends

  	
  14

  
	
   

  	
  Section 2.04

  	
  Execution and Authentication

  	
  15

  
	
   

  	
  Section 2.05

  	
  Registrar and Paying Agent

  	
  16

  
	
   

  	
  Section 2.06

  	
  Paying Agent to Hold Money in Trust

  	
  17

  
	
   

  	
  Section 2.07

  	
  Holder Lists

  	
  17

  
	
   

  	
  Section 2.08

  	
  General Provisions Relating to Transfer and Exchange

  	
  18

  
	
   

  	
  Section 2.09

  	
  Book-Entry Provisions for the Global Securities

  	
  18

  
	
   

  	
  Section 2.10

  	
  Mutilated, Destroyed, Lost or Wrongfully Taken
  Securities

  	
  20

  
	
   

  	
  Section 2.11

  	
  Outstanding Securities

  	
  21

  
	
   

  	
  Section 2.12

  	
  Temporary Securities

  	
  21

  
	
   

  	
  Section 2.13

  	
  Cancellation

  	
  22

  
	
   

  	
  Section 2.14

  	
  Payment of Interest; Defaulted Interest

  	
  22

  
	
   

  	
  Section 2.15

  	
  Computation of Interest

  	
  23

  
	
   

  	
  Section 2.16

  	
  CUSIP and ISIN Numbers

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 Covenants

  	
  23

  
	
   

  	
  Section 3.01

  	
  Payment of Securities

  	
  23

  
	
   

  	
  Section 3.02

  	
  Maintenance of Office or Agency

  	
  24

  
	
   

  	
  Section 3.03

  	
  Corporate Existence

  	
  24

  
	
   

  	
  Section 3.04

  	
  Payment of Taxes and Other Claims

  	
  24

  
	
   

  	
  Section 3.05

  	
  Compliance Certificate

  	
  24

  
	
   

  	
  Section 3.06

  	
  Further Instruments and Acts

  	
  25

  
	
   

  	
  Section 3.07

  	
  Statement by Officers as to Default

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 Successor Company

  	
  25

  
	
   

  	
  Section 4.01

  	
  Consolidation, Merger and Sale of Assets

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 Reporting Obligations

  	
  26

  
	
   

  	
  Section 5.01

  	
  Reporting Obligations

  	
  26

  
	
   

  	
  Section 5.02

  	
  Reporting in Compliance with TIA

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 Redemption of Securities

  	
  26

  
	
   

  	
  Section 6.01

  	
  Optional Redemption

  	
  26

  
	
   

  	
  Section 6.02

  	
  Election to Redeem; Notice to Trustee

  	
  27

  



 


 



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  Section 6.03

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  27

  
	
   

  	
  Section 6.04

  	
  Notice of Redemption

  	
  28

  
	
   

  	
  Section 6.05

  	
  Deposit of Redemption Price

  	
  29

  
	
   

  	
  Section 6.06

  	
  Securities Payable on Redemption Date

  	
  29

  
	
   

  	
  Section 6.07

  	
  Securities Redeemed in Part

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 Defaults and Remedies

  	
  29

  
	
   

  	
  Section 7.01

  	
  Events of Default

  	
  29

  
	
   

  	
  Section 7.02

  	
  Acceleration

  	
  31

  
	
   

  	
  Section 7.03

  	
  Other Remedies

  	
  31

  
	
   

  	
  Section 7.04

  	
  Waiver of Past Defaults

  	
  32

  
	
   

  	
  Section 7.05

  	
  Control by Majority

  	
  32

  
	
   

  	
  Section 7.06

  	
  Limitation on Suits

  	
  32

  
	
   

  	
  Section 7.07

  	
  Rights of Holders to Receive Payment

  	
  33

  
	
   

  	
  Section 7.08

  	
  Collection Suit by Trustee

  	
  33

  
	
   

  	
  Section 7.09

  	
  Trustee May File Proofs of Claim

  	
  33

  
	
   

  	
  Section 7.10

  	
  Priorities

  	
  33

  
	
   

  	
  Section 7.11

  	
  Restoration of Rights and Remedies

  	
  33

  
	
   

  	
  Section 7.12

  	
  Undertaking of Costs

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 Trustee

  	
  34

  
	
   

  	
  Section 8.01

  	
  Duties of Trustee

  	
  34

  
	
   

  	
  Section 8.02

  	
  Rights of Trustee

  	
  35

  
	
   

  	
  Section 8.03

  	
  Individual Rights of Trustee

  	
  36

  
	
   

  	
  Section 8.04

  	
  Trustee’s Disclaimer

  	
  37

  
	
   

  	
  Section 8.05

  	
  Notice of Defaults

  	
  37

  
	
   

  	
  Section 8.06

  	
  Reports by Trustee to Holders

  	
  37

  
	
   

  	
  Section 8.07

  	
  Compensation and Indemnity

  	
  37

  
	
   

  	
  Section 8.08

  	
  Replacement of Trustee

  	
  38

  
	
   

  	
  Section 8.09

  	
  Successor Trustee by Merger

  	
  39

  
	
   

  	
  Section 8.10

  	
  Eligibility; Disqualification

  	
  39

  
	
   

  	
  Section 8.11

  	
  Preferential Collection of Claims Against Company

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 Discharge of First Supplemental Indenture

  	
  39

  
	
   

  	
  Section 9.01

  	
  Discharge of Liability on Securities

  	
  39

  
	
   

  	
  Section 9.02

  	
  Reinstatement

  	
  40

  
	
   

  	
  Section 9.03

  	
  Officers’ Certificate; Opinion of Counsel

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 Amendments

  	
  41

  
	
   

  	
  Section 10.01

  	
  Without Consent of Holders

  	
  41

  
	
   

  	
  Section 10.02

  	
  With Consent of Holders

  	
  42

  
	
   

  	
  Section 10.03

  	
  Compliance with Trust Indenture Act

  	
  43

  
	
   

  	
  Section 10.04

  	
  Revocation and Effect of Consents and Waivers

  	
  43

  
	
   

  	
  Section 10.05

  	
  Notation on or Exchange of Securities

  	
  43

  
	
   

  	
  Section 10.06

  	
  Trustee to Sign Amendments

  	
   

  



 



 ii
 









 


	
  ARTICLE 11 Purchase at the Option of Holders
  Upon a Fundamental Change; Purchase at the Option of Holders

  	
  44

  
	
   

  	
  Section 11.01 

  	
  Purchase at the Option of the Holder Upon a
  Fundamental Change 

  	
  44

  
	
   

  	
  Section 11.02 

  	
  Further Conditions and Procedures for Purchase at
  the Option of the Holder Upon a Fundamental Change 

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 Conversion

  	
  49

  
	
   

  	
  Section 12.01

  	
  Conversion of Securities

  	
  49

  
	
   

  	
  Section 12.02

  	
  Adjustments to the Conversion Rate

  	
  56

  
	
   

  	
  Section 12.03 

  	
  Adjustment to Common Stock Delivered Upon Certain
  Fundamental Changes 

  	
  63

  
	
   

  	
  Section 12.04 

  	
  Effect of Recapitalizations, Reclassifications, and
  Changes of Common Stock 

  	
  64

  
	
   

  	
  Section 12.05

  	
  Responsibility of Trustee

  	
  66

  
	
   

  	
  Section 12.06

  	
  Stockholder Rights Plan

  	
  66

  
	
   

  	
  Section 12.07

  	
  No Stockholder Rights

  	
  66

  
	
   

  	
  Section 12.08

  	
  Other Adjustments to the Conversion Rate

  	
  67

  
	
   

  	
  Section 12.09

  	
  Withholding Taxes for Adjustments in Conversation
  Rate 

  	
  67

  
	
   

  	
   

  
	
  ARTICLE 13 Subordination

  	
  67

  
	
   

  	
  Section 13.01

  	
  Agreement to Subordinate

  	
  67

  
	
   

  	
  Section 13.02

  	
  Liquidation, Dissolution, Bankruptcy

  	
  67

  
	
   

  	
  Section 13.03

  	
  Default on Designated Senior Indebtedness

  	
  68

  
	
   

  	
  Section 13.04

  	
  Acceleration of Securities

  	
  69

  
	
   

  	
  Section 13.05

  	
  When Distribution Must Be Paid Over

  	
  69

  
	
   

  	
  Section 13.06

  	
  Notice by the Company

  	
  69

  
	
   

  	
  Section 13.07

  	
  Subrogation

  	
  70

  
	
   

  	
  Section 13.08

  	
  Relative Rights

  	
  70

  
	
   

  	
  Section 13.09

  	
  Subordination May Not Be Impaired by the Company

  	
  70

  
	
   

  	
  Section 13.10

  	
  Distribution or Notice to Representative.

  	
  70

  
	
   

  	
  Section 13.11

  	
  Rights of Trustee and Paying Agent

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 Miscellaneous

  	
  71

  
	
   

  	
  Section 14.01

  	
  Trust Indenture Act Controls

  	
  71

  
	
   

  	
  Section 14.02

  	
  Notices

  	
  71

  
	
   

  	
  Section 14.03

  	
  Communication by Holders with other Holders

  	
  72

  
	
   

  	
  Section 14.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
  72

  
	
   

  	
  Section 14.05

  	
  Statements Required in Certificate or Opinion

  	
  72

  
	
   

  	
  Section 14.06

  	
  When Securities Are Disregarded

  	
  72

  
	
   

  	
  Section 14.07

  	
  Rules by Trustee, Paying Agent and Registrar

  	
  73

  
	
   

  	
  Section 14.08

  	
  Legal Holidays

  	
  73

  
	
   

  	
  Section 14.09

  	
  Governing Law; Jurisdiction

  	
  73

  
	
   

  	
  Section 14.10

  	
  No Recourse Against Others

  	
  73

  
	
   

  	
  Section 14.11

  	
  Successors

  	
  73

  
	
   

  	
  Section 14.12

  	
  Multiple Originals

  	
  73

  



 



 iii
 









 


	
  

  	
  Section 14.13

  	
  Table of Contents; Headings

  	
  73

  
	
   

  	
  Section 14.14

  	
  Severability Clause

  	
  74

  
	
   

  	
  Section 14.15

  	
  Calculations

  	
  74

  



 



 iv















FIRST SUPPLEMENTAL INDENTURE dated as of April 20, 2007, by and
between Veeco Instruments Inc., a Delaware corporation (the “Company”) and U.S. Bank Trust National
Association, as Trustee hereunder (the “Trustee”).


RECITALS OF THE COMPANY


The Company and the Trustee entered into that certain Indenture dated
as of April 16, 2007 (the “Original Indenture”),
relating to the Company’s debt securities. 
Pursuant to the Original Indenture, the Company may issue separate
series of debt securities and the Company and the Trustee are entering into
this First Supplemental Indenture to establish the form and terms of a series
of such securities.


The Company has duly authorized the creation of an issue of its 4.125%
Convertible Subordinated Notes due April 15, 2012 of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this First Supplemental
Indenture.


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


This First Supplemental Indenture is subject to, and shall be governed
by, the provisions of the Trust Indenture Act that are required to be a part of
and to govern Indentures qualified under the Trust Indenture Act.


NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:


Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company’s 4.125%
Convertible Subordinated Notes due April 15, 2012 (the “Securities”) on the date hereof.


ARTICLE 1

Definitions and Incorporation by Reference


Section 1.01           Definitions.


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


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













 


“Beneficial Owner” shall
mean any Person who is considered a beneficial owner of a security in
accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act.


“Board of Directors”
means:


(a)   with respect to a corporation, the board of
directors of the corporation or any committee thereof duly authorized to act on
behalf of such board;


(b)   with respect to a partnership, the board of
directors of the general partner of the partnership;


(c)   with respect to a limited liability company,
the managing member or members or any controlling committee of managing members
thereof; and


(d)   with respect to any other Person, the board
or committee of such Person serving a similar function.


“Business Day” means each
day that is not a Saturday, Sunday or other day on which banking institutions
in New York, New York are authorized or required by law to close.


“Capital Stock” of any
Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity.


“Common Equity” of any
Person means Capital Stock of such Person that is generally entitled to (1)
vote in the election of directors of such Person or (2) if such Person is not a
corporation, vote or otherwise participate in the selection of the governing
body, partners, managers or others that will control the management or policies
of such Person.


“Common Stock” means the
Company’s Common Stock, par value $0.01 per share.


“Conversion Agent” means
the office or agency appointed by the Company where Securities may be presented
for conversion.  The Conversion Agent
appointed by the Company shall initially be the Trustee.


“Conversion Price” means,
in respect of each $1,000 principal amount of Securities, $1,000 divided by the
Conversion Rate, as may be adjusted from time to time as set forth herein.


“Conversion Rate” means,
in respect of each $1,000 principal amount of Securities, an initial rate of
36.7277 shares of Common Stock, subject to adjustments as set forth herein.


“Credit Agreement” has the
meaning set forth in the definition of “Designated Senior Indebtedness.”


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



 2
 









 


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


“Definitive Securities”
means certificated Securities that are not Global Securities.


“Designated Senior Indebtedness”
means the Company’s Credit Agreement (the “Credit
Agreement”), dated as of March 15, 2005, among the Company, the
lenders named therein and HSBC Bank USA, National Association, as
administrative agent for the lenders, as amended from time to time, and any
other Senior Indebtedness in which the governing instrument or agreement
expressly provides that such Senior Indebtedness, subject to limitations and
conditions in such instrument or agreement, shall be “Designated Senior
Indebtedness” for purposes of the First Supplemental Indenture.


“DTC” means The Depository
Trust Company, its nominees and their respective successors and assigns, or
such other depository institution hereinafter appointed by the Company pursuant
to the terms of this First Supplemental Indenture.


“Ex-Dividend Date” means,
in respect of an issuance, a dividend or distribution to holders of Common
Stock, the first date on which Common Stock trades on the applicable exchange
or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question.


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


“Excluded Indebtedness”
means Indebtedness of the Company or any Subsidiary with a principal amount not
in excess of Ten Million Dollars ($10,000,000) which is secured (in whole or
part) by a mortgage in effect when the Company or any Subsidiary acquires a
Person (whether by means of a share exchange or tender offer applicable to such
Person’s Common Equity, combination or merger of such Person with the Company,
or the purchase or lease by the Company, or other transfer to the Company, of
all or substantially all of such Person’s assets) that owns the real property
subject to the mortgage.


“Fair Market Value” means
the amount that a willing buyer would pay a willing seller in an arm’s length
transaction.


“First Supplemental Indenture”
means this First Supplemental Indenture, as amended or supplemented from time
to time.


A “Fundamental Change”
shall be deemed to have occurred if any of the following occurs:


(a)   consummation of any transaction or event
(whether by means of a share exchange or tender offer applicable to the Common
Stock, a liquidation, consolidation, recapitalization, reclassification,
combination or merger of the Company, or a sale, lease or other transfer of all
or substantially all of the consolidated assets of the Company and its
Subsidiaries) or a series of related transactions or events pursuant to which
all of the outstanding Common Stock is exchanged for or converted into the
right to receive cash, securities or other property; provided,



 3
 









however,
that a transaction or series of related transactions in which the holders of
more than fifty percent (50%) of all classes of the Company’s Common Equity
immediately prior to such transaction or series of related transactions own,
directly or indirectly, more than fifty percent (50%) of all classes of Common
Equity of the continuing or surviving entity or transferee, or any Affiliate
thereof, immediately after such event shall not be a Fundamental Change;


(b)           any “person” or “group” within the
meaning of Section 13(d) of the Exchange Act, other than an Affiliate of
the Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any such Subsidiary files any schedule, form or report under the
Exchange Act disclosing that such person or group has become the Beneficial
Owner of Common Equity of the Company representing more than fifty percent
(50%) of the ordinary voting power of the Company’s Common Equity;


(c)           during any period of twelve (12)
consecutive months after the date of original issuance of the Securities,
Persons who at the beginning of such twelve (12)-month period constituted the
Company’s Board of Directors, together with any new Persons whose election,
appointment, designation or nomination was approved by a vote of the majority
of the Persons then still comprising the Board of Directors who were either
members of the Board of Directors at the beginning of such period or whose
election, appointment, designation or nomination was previously so approved,
cease for any reason to constitute a majority of the Board of Directors of the
Company; or


(d)           the Common Stock (or other Common
Equity for which the Securities are then convertible) ceases to be listed on a
U.S. national or regional securities exchange or quoted on an established
automated over-the-counter trading market in the United States for a period of
thirty (30) consecutive Scheduled Trading Days.


provided, however, that


(i)            a Fundamental Change shall not be
deemed to have occurred if the Last Reported Sale Price of the Common Stock for
any five (5) Trading Days within (A) the period of ten (10) consecutive Trading
Days ending immediately after the later of the date of the Fundamental Change or
the date of the public announcement of the Fundamental Change, in the case of a
Fundamental Change relating to the acquisition of shares of the Company’s
Capital Stock, and (B) the period of ten (10) consecutive Trading Days
ending immediately after the date of the Fundamental Change, in the case of a
Fundamental Change relating to a merger, consolidation or asset sale, lease or
other transfer, equals or exceeds one hundred five percent (105%) of the
Conversion Price applicable to the Securities on each of those Trading Days; provided further, however, that the exception to the
definition of “Fundamental Change” set forth in this subsection (i) shall not
apply if determining whether a Fundamental Change has occurred for the purposes
of Section 12.01(a)(iv) hereof; and


(ii)           a Fundamental Change described in
clause (a) of the definition above shall not be deemed to have occurred if
at least 90% of the consideration received or to be received by the holders of
the Common Stock, excluding cash payments for fractional shares and cash
payments in respect of statutory dissenters’ appraisal rights, in 



 4
 









connection with the transaction or
transactions constituting the Fundamental Change described in clause (a)
consists of shares of common stock (or depository receipts or other
certificates representing or evidencing common equity interests) traded on a
U.S. national or regional securities exchange or quoted on an established
automated over-the-counter trading market in the United States (or will be so
traded or quoted immediately following such transaction or transactions) (such
securities being referred to as “Publicly
Traded Securities”) and as a result of such transaction or
transactions the Securities become convertible for such Publicly Traded
Securities (or depository receipts or other certificates representing or
evidencing common equity interests) pursuant to the terms of this First
Supplemental Indenture.


“GAAP” means generally
accepted accounting principles set forth in the opinions and pronouncements of
the (i) Public Company Accounting Oversight Board, (ii) statements
and pronouncements of the Financial Accounting Standards Board, (iii) in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession as in effect from time to time and
(iv) the rules and regulations of the SEC governing to inclusion of
financial statements in period reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff
of the SEC.


“Global Securities” means
certificated Securities in global form, without interest coupons, substantially
in the form of Exhibit A hereto and registered in the name of DTC or a
nominee of DTC.


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


“Indebtedness” means, with
respect to any Person, without duplication:


(a)           all indebtedness, obligations and
other liabilities, contingent or otherwise, of such Person for borrowed money,
and whether or not the recourse of the obligee is to the whole of the assets of
the Person or only a portion of the assets (including overdrafts, foreign
exchange contracts, currency exchange agreements and interest rate protection
agreements), all obligations, contingent or otherwise, including reimbursement
obligations, of such Person in connection with any letters of credit, bank
guarantees or bankers’ acceptances issued under letter of credit facilities,
acceptance facilities or other similar facilities, any loans or advances from
banks, whether or not evidenced by notes or similar instruments and all
obligations incurred, assumed or guaranteed by the Person in connection with
the acquisition by it or by any Subsidiary of any business, assets or property;


(b)           all obligations and other
liabilities, contingent or otherwise, of such Person evidenced by credit or
loan agreements, bonds, debentures, notes or other written obligations, whether
or not the recourse of the lender is to all of the assets of the Person or to
only a portion thereof;



 5
 









 


(c)           all obligations and liabilities,
contingent or otherwise, in respect of leases of the Person required, in
conformity with GAAP, to be accounted for as capitalized lease obligations on
the balance sheet of the Person;


(d)           all obligations evidenced by a note
or similar instrument given in connection with acquisition of any businesses,
properties or assets of any kind;


(e)           all obligations issued or assumed as
the deferred purchase price of property or services, but excluding trade
accounts payable and accrued liabilities arising in the ordinary course of
business;


(f)            all obligations and other
liabilities, contingent or otherwise, in respect of leases or related
documents, including a purchase agreement, of the Person in connection with the
lease of real property or improvements thereon (or any personal property
included as part of any such lease), which provides that the Person is
contractually obligated to purchase or cause a third party to purchase the
leased property or pay an agreed upon residual value of the leased property to
the lessor and thereby guarantees a residual value of the leased property to
the lessor (whether or not such lease transaction is characterized as an
operating lease or a capitalized lease in accordance with GAAP),


(g)           all obligations, contingent or
otherwise, with respect to an interest rate, currency or other swap, cap, floor
or collar agreement, hedge agreement, forward contract or similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument
or agreement;


(h)           pension plan obligations;


(i)            all direct or indirect guarantees or
similar agreements, and obligations or liabilities, contingent or otherwise, to
purchase or otherwise acquire or otherwise assure a creditor against loss in
respect of indebtedness, obligations or liabilities of another Person,
including a Subsidiary, of the kind described in clauses (a) through (h);


(j)            any indebtedness or other
obligations described in clauses (a) through (h) above secured by any mortgage,
pledge, lien or other encumbrances existing on property owned or held by the
Person, regardless of whether the indebtedness or other obligation has been
assumed by the Person; and


(k)           any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications, supplements to, any
indebtedness, obligation or liability of the kind described in clauses (a)
through (j).


“Interest Payment Date”
has the meaning set forth in Exhibit A attached hereto.


“Issue Date” means
April 20, 2007.


“Last Reported Sale Price”
of the Common Stock on any date means the closing sale price per share of the
Common Stock (or, if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of the average
bid and average 



 6
 









ask prices) on that date as reported in the composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock is listed for trading.


If the Common Stock is not listed for trading on a U.S. national or
regional securities exchange on the relevant date, the Last Reported Sale Price
shall be the mid-point of the last quoted bid and ask prices for the Common
Stock in the over-the-counter market on the relevant date as reported by the
National Quotation Bureau or similar organization.


If the Common Stock is not so quoted, the Last Reported Sale Price
shall be the average of the midpoint of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for
this purpose.


“Majority Owner” of a
Person means the Beneficial Owner of more than fifty percent (50%) of the total
voting power of all shares of the respective Person’s Common Equity.


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


“Observation Period”
means, with respect to a conversion of any Security, the twenty five (25)
consecutive VWAP Trading Day period beginning on and including the third
Trading Day immediately following the related Conversion Date for such
Security, provided that with
respect to any related Conversion Date for such Security occurring
(a) after the date of issuance by the Company of a notice of redemption pursuant
to Section 6.04, or (b) the twenty-eighth (28th) Scheduled Trading
Day prior to the Stated Maturity date, the Observation Period shall be the
twenty five (25) consecutive VWAP Trading Days beginning on and including
the twenty-eighth (28th) Scheduled Trading Day prior to the applicable
Redemption Date or Stated Maturity date, respectively.


“Offering Memorandum”
means the Exchange Offer Memorandum, dated April 20, 2007, relating to the
offering by the Company of the Securities.


“Officer” means, with respect
to any Person, the Chairman of the Board (if an executive officer), the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Chief Administrative Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Vice President of
such Person (or, if the Person is a limited liability company, its managing
member or the Person or body performing similar duties to a managing member).


“Officers’ Certificate”
means a certificate signed on behalf of the Company by two Officers of the
Company, one of whom must be, in the case of the Officers’ Certificate referred
to in Section 3.05 hereof, the principal executive officer, the principal
financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Section 14.05 hereof.



 7
 









 


“Opinion of Counsel” means
a written opinion from legal counsel who is acceptable to the Trustee.  The counsel may be an employee of or counsel
to the Company or the Trustee.


“Person” means any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, limited liability company,
government or any agency or political subdivision hereof or any other entity.


“Preferred Stock”, as
applied to the Capital Stock of any corporation, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.


“Record Date” means, in
respect of a dividend or distribution to holders of Common Stock, the date
fixed for determination of holders of Common Stock entitled to receive such
dividend or distribution.


“Redemption Date” means,
with respect to any redemption of Securities, the date of redemption with
respect thereto.


“Regular Record Date” for
the payment of interest on the Securities, means the April 1 (whether or
not a Business Day) immediately preceding an Interest Payment Date on
April 15 and the October 1 (whether or not a Business Day)
immediately preceding an Interest Payment Date on October 15.


“Rule 144A” means
Rule 144A under the Securities Act.


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


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


“Securities Act” means the
Securities Act of 1933 (15 U.S.C. 
§§ 77a — 77aa), as amended, and the rules and regulations of the
SEC promulgated thereunder.


“Securities Custodian”
means the custodian with respect to the Global Security (as appointed by DTC),
or any successor Person thereto and shall initially be the Trustee.


“Senior Indebtedness”
means the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar proceeding,
whether or not a claim for post-petition interest is allowable as a claim in
such proceeding) and rent payable on or in connection with, and all fees,
costs, expenses and other amounts accrued or due or in connection with,
Indebtedness of the Company, whether outstanding on the date of this Indenture
or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), provided that the
following shall not constitute Senior Indebtedness:



 8
 









 


(a)           Indebtedness or any other obligations
of the Company that by their terms rank equal or junior in right of payment to
the Securities;


(b)           Indebtedness evidenced by the
Securities;


(c)           Indebtedness of the Company that is
subordinate to its general unsecured obligations by operation of law;


(d)           accounts payable or other liabilities
owed or owning by the Company to trade creditors including guarantees thereof
or instruments evidencing such liabilities;


(e)           amounts owed by the Company for
compensation to employees or for services rendered to it;


(f)            Indebtedness of the Company to any
Subsidiary or any other Affiliate of the Company or any of such Affiliate’s
Subsidiaries, but excluding any such Indebtedness pledged as security for any
Senior Indebtedness;


(g)           Indebtedness of the Company evidenced
by any guarantee of any Indebtedness ranking equal or junior in right of
payment to the Securities; and


(h)           Indebtedness which, when incurred and
without respect to any election under Section 1111(b) of Title 11 of the United
States Code, is without recourse to the Company.


Without limitation, “Senior Indebtedness” includes all amounts payable
on or in connection with, and all fees, costs, expenses and other amounts
accrued or due on or in connection with, Indebtedness of the Company under the
Company’s Credit Agreement.


“Significant Subsidiary”
means any Subsidiary that would be a “Significant Subsidiary” of the Company
within the meaning of Rule 1-02 under Regulation S-X promulgated by
the SEC.


“Stated Maturity” means
April 15, 2012.


“Stock Price” means, in
respect of a Fundamental Change, the price per share of Common Stock paid in
connection with such Fundamental Change, which shall be equal to (a) if
such Fundamental Change is a transaction set forth in clause (b) of the
definition thereof, and holders of Common Stock receive only cash in such
transaction, the cash amount paid per share of Common Stock, and (b) in
all other cases, the average of the Last Reported Sale Prices of the Common
Stock over the five Trading Day period ending on the Trading Day preceding the
Effective Date of such Fundamental Change.


“Subsidiary” means, with
respect to any Person, (a) any corporation, association or other business
entity of which more than fifty percent (50%) of the total Common Equity is at
the time owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination thereof),
(b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(ii) the only general partners of which are such Person or of one or more
Subsidiaries of such 



 9
 









Person (or any combination thereof) and (c) any
other Person whose results for financial reporting purposes are consolidated
with those of such Person in accordance with GAAP.


“TIA” or “Trust Indenture Act” means the Trust
Indenture Act of 1939 (15 U.S.C. 
§§ 77aaa-77bbbb), as in effect on the date of this First
Supplemental Indenture, except as provided in Section 10.03.


“Trading Day” means any
day during which (a) trading in the Common Stock generally occurs on the
principal U.S. national or regional securities exchange in which the Common
Stock is listed for trading, and (b) there is no Market Disruption Event.


“Trading Price” of the
Securities on any date of determination means the average of the secondary
market bid quotations per One Thousand Dollars ($1,000) principal amount of the
Securities obtained by the Trustee for Two Million Dollars ($2,000,000)
principal amount of the Securities at approximately 3:30 p.m., New York
City time, on such determination date from three independent nationally
recognized securities dealers selected by the Company; provided that, if three such bids cannot
reasonably be obtained by the Trustee but two such bids can reasonably be
obtained, then the average of the two bids shall be used, and if only one such
bid can reasonably be obtained by the Trustee, that one bid shall be used.  If the Trustee cannot reasonably obtain on
any Trading Day at least one bid for Two Million Dollars ($2,000,000) principal
amount of the Securities from a nationally recognized securities dealer, or, in
the Company’s reasonable judgment, the bid quotations are not indicative of the
secondary market value of the Securities, then the Trading Price per One
Thousand Dollars ($1,000) principal amount of Securities for such Trading Day
will be deemed to be less than ninety eight percent (98%) of the product of the
Last Reported Sale Price of the Common Stock and the applicable Conversion
Rate.


“Trust Officer” means,
when used with respect to the Trustee, the officer within the corporate trust
department of the Trustee having direct responsibility for the administration
of this First Supplemental Indenture.


“Trustee” means the party
named as such in this First Supplemental Indenture until a successor replaces
it and, thereafter, means the successor.


“UCC” means the Uniform
Commercial Code as in effect in the State of New York.


“VWAP Trading Day” means
any Scheduled Trading Day on which (a) there is no VWAP Market Disruption
Event and (b) The NASDAQ Global Select Market or, if the Common Stock is
not quoted on The NASDAQ Global Select Market, the principal U.S. national or
regional securities exchange on which the Common Stock is listed, is open for
trading or, if the Common Stock is not so listed, admitted for trading or
quoted, any Business Day.  A “VWAP
Trading Day” only includes those Scheduled Trading Days that have a scheduled
closing time of 4:00 p.m., New York City time, or the then standard
closing time for regular trading on the relevant exchange or trading
system.  “VWAP Market Disruption Event” means, for purpose of the
definition of VWAP Trading Day, (i) failure by the primary U.S. national
securities exchange or market on which the Common Stock is listed or admitted
to trading to open for trading during its regular trading session or
(ii) the occurrence or existence prior to 1:00 p.m.,



 10















New York City time, on any Scheduled Trading Day for
the Common Stock for an aggregate one half-hour period of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the stock exchange or otherwise) in the Common Stock or in any
options contracts or future contracts relating to the Common Stock.


Section 1.02           Other
Definitions.




	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Additional Shares”

  	
   

  	
  12.03(a)

  
	
  “Agent Members”

  	
   

  	
  2.09(a)

  
	
  “Authenticating Agent”

  	
   

  	
  2.04

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Company Notice”

  	
   

  	
  11.02(a)

  
	
  “Company Notice Date”

  	
   

  	
  11.02(a)

  
	
  “Company Order”

  	
   

  	
  2.04

  
	
  “Conversion Date”

  	
   

  	
  12.01(c)

  
	
  “Conversion Obligation”

  	
   

  	
  12.01(d)(i)

  
	
  “Daily Settlement Amount”

  	
   

  	
  12.01(d)(i)

  
	
  “Daily Conversion Value”

  	
   

  	
  12.01(d)(i)

  
	
  “Daily VWAP”

  	
   

  	
  12.01(d)(i)

  
	
  “Defaulted Interest”

  	
   

  	
  2.14

  
	
  “Designated Institution”

  	
   

  	
  12.01(f)

  
	
  “Effective Date”

  	
   

  	
  12.03(b)

  
	
  “Event of Default”

  	
   

  	
  7.01

  
	
  “Form of Fundamental Change Purchase Notice”

  	
   

  	
  11.01(b)

  
	
  “Fundamental Change Purchase Date”

  	
   

  	
  11.01

  
	
  “Fundamental Change Purchase Notice”

  	
   

  	
  11.01(b)

  
	
  “Fundamental Change Purchase Price”

  	
   

  	
  11.01

  
	
  “Global Security Legend”

  	
   

  	
  2.03(a)

  
	
  “Legal Holiday”

  	
   

  	
  14.08

  
	
  “Measurement Period”

  	
   

  	
  12.01(a)(ii)

  
	
  “Non-Payment Default”

  	
   

  	
  13.03(b)

  
	
  “Original Indenture”

  	
   

  	
  Recitals

  
	
  “Paying Agent”

  	
   

  	
  2.05

  
	
  “Payment Blockage Period”

  	
   

  	
  13.03(c)

  
	
  “Payment Default”

  	
   

  	
  13.03(a)

  
	
  “Permitted Junior Securities”

  	
   

  	
  13.02

  
	
  “Redemption Price”

  	
   

  	
  6.01(b)

  
	
  “Reference Property”

  	
   

  	
  12.04(a)

  
	
  “Registrar”

  	
   

  	
  2.05

  
	
  “Relevant Date”

  	
   

  	
  12.01(d)(iii)

  
	
  “Reorganization Event”

  	
   

  	
  12.04(a)

  
	
  “Securities”

  	
   

  	
  Recitals

  
	
  “Securities Register”

  	
   

  	
  2.05

  
	
  “Settlement Amount”

  	
   

  	
  12.01(d)(i)

  







 11
 









 




	
  “Special Interest Payment Date”

  	
   

  	
  2.14(a)

  
	
  “Special Record Date”

  	
   

  	
  2.14(a)

  
	
  “Spin-Off”

  	
   

  	
  12.02(c)

  
	
  “Successor Company”

  	
   

  	
  4.01(a)

  
	
  “Trustee”

  	
   

  	
  Preamble

  






Section 1.03           Incorporation by Reference of
Trust Indenture Act.  This First
Supplemental Indenture is subject to the mandatory provisions of the TIA which
are incorporated by reference in and made a part of this First Supplemental
Indenture.  The following TIA terms have
the following meanings:


“Commission” means the
SEC.


“indenture securities”
means the Securities.


“indenture security holder”
means a Holder.


“First Supplemental Indenture to be
qualified” means this First Supplemental Indenture.


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


“obligor” on the
Securities means the Company and any other successor obligor on the Securities.


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


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


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


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


(c)           “or” is not
exclusive;


(d)           “including” means
including without limitation;


(e)           words in the
singular include the plural and words in the plural include the singular;


(f)            the principal
amount of any non-interest bearing or other discount security at any date shall
be the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and



 12
 









 


(g)           the principal amount
of any Preferred Stock shall be the greater of (i) the maximum liquidation
value of such Preferred Stock and (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock.


ARTICLE 2

The Securities


Section 2.01           Title;
Amount and Issue of Securities; Principal and Interest.


(a)           The Securities shall
be known and designated as the “4.125% Convertible Subordinated Notes due
April 15, 2012” of the Company.  The
aggregate principal amount of Securities which may be authenticated and
delivered under this First Supplemental Indenture is initially limited to One
Hundred Forty Four Million Dollars ($144,000,000), except for Securities
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Securities pursuant to Section 2.03, 2.04, 2.08,
2.09, 2.10, 2.12, 6.07, 10.05, 11.02, or 12.01; provided that additional Securities may be issued in an
unlimited aggregate principal amount from time to time thereafter as set forth
pursuant to Section 2.04 but only if any such additional Securities are
considered part of the same issue of Securities as the Securities issued and
sold pursuant to the Offering Memorandum for U.S. federal income tax purposes.  The Securities shall be issuable in
denominations of One Thousand Dollars ($1,000) or multiples thereof.


(b)           The Securities shall
mature on April 15, 2012 unless earlier converted, redeemed or repurchased
in accordance with the provisions hereof.


(c)           Interest on the
Securities shall accrue from and including the date specified on the face of
such Securities until the principal thereof is paid or made available for
payment.  Interest shall be payable
semiannually in arrears on April 15 and October 15 in each year,
commencing October 15, 2007.


(d)           A Holder of any
Security at 5:00 p.m., New York City time, on a Regular Record Date shall
be entitled to receive interest, on such Security on the corresponding Interest
Payment Date, notwithstanding the conversion of such Securities at any time
after the close of business on such Regular Record Date.  Securities surrendered for conversion during
the period after 5:00 p.m., New York City time, on any Regular Record Date
to 9:00 a.m., New York City time, on the corresponding Interest Payment
Date must be accompanied by payment of an amount equal to the interest that the
Holder is to receive on the Securities. 
Notwithstanding the foregoing, no such payment of interest need be made
by any converting Holder (i) if the Company has specified a Redemption
Date that is after a Regular Record Date and on or prior to the third Scheduled
Trading Day following the corresponding Interest Payment Date, (ii) if the
Company has specified a Fundamental Change Purchase Date that is after a
Regular Record Date and on or prior to the third Scheduled Trading Day
following the corresponding Interest Payment Date, or (iii) to the extent
of any overdue interest existing at the time of conversion of such
Security.  Except as described above, no
interest on exchanged Securities will be payable by the Company on any Interest
Payment Date subsequent to the date of conversion, and delivery of shares of
Common Stock or the combination of cash and shares of Common Stock, if
applicable, pursuant to Article 12 hereunder, together with any cash
payment for any fractional share, upon 



 13
 









conversion
will be deemed to satisfy in full the Company’s obligation to pay the principal
amount of the Securities and accrued and unpaid interest to, but not including,
the related Conversion Date.


(e)           Principal of, and
interest on, Global Securities shall be payable to DTC in immediately available
funds.


(f)            Principal of
Definitive Securities shall be payable at the office or agency of the Company
maintained for such purpose, which initially shall be the corporate trust
office of the Trustee.  Interest on
Definitive Securities will be payable (i) to Holders having an aggregate
principal amount of Two Million Dollars ($2,000,000) or less, by check mailed
to the Holders of these Securities and (ii) to Holders having an aggregate
principal amount of more than Two Million Dollars ($2,000,000), either by check
mailed to each Holder or, upon application by a Holder to the Registrar not
later than the relevant Regular Record Date, by wire transfer in immediately
available funds to such Holder’s account within the United States, which
application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary.


Section 2.02           Form
of Securities.


(a)           Except as otherwise
provided pursuant to this Section 2.02, the Securities are issuable in
fully registered form without coupons in substantially the form of
Exhibit A hereto, with such applicable legends as are provided for in
Section 2.03.  The Securities are
not issuable in bearer form.  The terms
and provisions contained in the form of Security shall constitute, and are
hereby expressly made, a part of this First Supplemental Indenture and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this First Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.  Any
of the Securities may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the Officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this First
Supplemental Indenture, or as may be required to comply with any law or with
any Rule or regulation made pursuant thereto or with any Rule or
regulation of any securities exchange or automated quotation system on which
the Securities may be listed or designated for issuance, or to conform to
usage.


(b)           The Securities shall
be issued initially in the form of one or more permanent Global Securities,
with the applicable legends as provided in Section 2.03.  Each Global Security shall be duly executed
by the Company and authenticated and delivered by the Trustee, and shall be
registered in the name of DTC or its nominee and retained by the Trustee, as
Securities Custodian, at its corporate trust office, for credit to the accounts
of the Agent Members holding the Securities evidenced thereby.  The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as Securities Custodian, and of DTC or its
nominee, as hereinafter provided.


Section 2.03           Legends.  Except for the Global Security, no Security
issued hereunder shall bear a restrictive security legend nor shall any Common
Stock certificate representing shares of the Common Stock issued upon
conversion of any Security issued hereunder bear a 



 14
 









restrictive
security legend, except as otherwise set forth herein.  If the Company shall determine that any
Security (or any certificate representing shares of Common Stock issued upon
conversion of any Security) is restricted, it shall notify the Holder thereof
and make arrangements to issue a new Security (or certificate of Common Stock) with
appropriate restricted securities legend.


(a)           Global Security
Legend.  Each Global Security shall
bear the following legend (the “Global
Security Legend”) on the face thereof:


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


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
FIRST SUPPLEMENTAL INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED
HERETO.”


(b)           Legend for
Definitive Securities.  Definitive
Securities shall bear a legend substantially in the following form:


“THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO
SUCH EXCHANGE, WILL HOLD NO SECURITIES.”


Section 2.04           Execution
and Authentication.  One Officer
shall sign the Securities for the Company by manual or facsimile
signature.  If an Officer whose signature
is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.


A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. 
The signature of the Trustee on a Security shall be conclusive 



 15
 









evidence that such Security has been duly and validly
authenticated and issued under this First Supplemental Indenture.  A Security shall be dated the date of its
authentication.


At any time and from time to time after the execution and delivery of
this First Supplemental Indenture, the Company may deliver Securities executed
by the Company in an unlimited aggregate principal amount to the Trustee for
authentication, together with a written order of the Company signed by two
Officers or by an Officer and an Assistant Secretary of the Company (the “Company Order”) for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this First
Supplemental Indenture provided and not otherwise.  All Securities issued on the Issue Date shall
be identical in all respects with any such Securities authenticated and
delivered thereafter, other than issue dates, the date from which interest
accrues, appropriate CUSIP numbers or other identifying notations and any
changes relating thereto. 
Notwithstanding anything to the contrary contained in this First
Supplemental Indenture, subject to Section 2.11, all Securities issued
under this First Supplemental Indenture shall vote and consent together on all
matters as one class and no series of Securities will have the right to vote or
consent as a separate class on any matter.


The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to
authenticate the Securities.  Initially,
the Trustee will act as the Authenticating Agent.  Any such instrument shall be evidenced by an
instrument signed by a Trust Officer of the Trustee, a copy of which shall be
furnished to the Company.  Unless limited
by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so.  Each reference in this First Supplemental
Indenture to authentication by the Trustee includes authentication by the Authenticating
Agent.  An Authenticating Agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.


In case the Company, pursuant to Article 4, shall be consolidated
or merged with or into, or shall convey, transfer or lease all or substantially
all of its properties and assets to, any Person, and the Successor Company, if
not the Company, shall have executed an indenture supplemental hereto with the
Trustee pursuant to Article 4, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer or lease
may, from time to time, at the request of the Successor Company, be exchanged
for other Securities executed in the name of the Successor Company with such
changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Order of the Successor
Company, shall authenticate and deliver Securities as specified in such order
for the purpose of such exchange.  If
Securities shall at any time be authenticated and delivered in any new name of
a Successor Company pursuant to this Section 2.04 in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor Company, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.


Section 2.05           Registrar
and Paying Agent.  The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for conversion (the “Registrar”)
and an office or agency where Securities may be presented for payment (the 



 16
 









“Paying Agent”).  The Registrar shall keep a register of the
Securities and of their transfer and conversion (the “Securities Register”).  The Company may have one or more
co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent and the term “Registrar” includes any co-registrar.


The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this First Supplemental Indenture,
which shall incorporate the terms of the TIA. 
The agreement shall implement the provisions of this First Supplemental
Indenture that relate to such agent.  The
Company shall notify the Trustee of the name and address of each such
agent.  If the Company fails to maintain
a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to
Section 8.07.  The Company or any of
its domestically organized, wholly owned Subsidiaries may act as Paying Agent,
Registrar or transfer agent.


The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities.  The Company
may remove any Registrar or Paying Agent upon written notice to such Registrar
or Paying Agent and to the Trustee; provided, however, that no such removal shall
become effective until (i) acceptance of any appointment by a successor as
evidenced by an appropriate agreement entered into by the Company and such
successor Registrar or successor Paying Agent, as the case may be, and
delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above.  The Registrar or Paying Agent may resign at
any time upon written notice to the Company and the Trustee.


Section 2.06           Paying
Agent to Hold Money in Trust.   By no
later than 11:00 a.m., New York City time, on the date on which any
principal of, or interest on, any Security is due and payable, the Company
shall deposit with the Paying Agent a sum sufficient in immediately available
funds to pay such principal, or interest when due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Holders or the Trustee all money held by such Paying
Agent for the payment of principal of, or interest on, the Securities and shall
notify the Trustee in writing of any default by the Company in making any such
payment.  If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. 
The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any
funds disbursed by such Paying Agent. 
Upon complying with this Section 2.06, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money
delivered to the Trustee.  Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.


Section 2.07           Holder
Lists.  The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders and shall otherwise comply with TIA
§ 312(a).  If the Trustee is not the
Registrar, or to the extent otherwise required under the TIA, the Company shall
furnish or cause the Registrar to furnish to the Trustee, in writing at least
five Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing, a list in such form and as of such 



 17
 









date
as the Trustee may reasonably require of the names and addresses of Holders and
the Company shall otherwise comply with TIA § 312(a).


Section 2.08           General
Provisions Relating to Transfer and Exchange.  The Securities are issuable only in
registered form.  A Holder may transfer a
Security only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this First
Supplemental Indenture.  No such transfer
shall be effected until, and such transferee shall succeed to the rights of a
Holder only upon, final acceptance and registration of the transfer by the
Registrar in the Securities Register. 
Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Holder of such Global Security (or its agent) and that ownership of a
beneficial interest in the Global Security shall be required to be reflected in
a book-entry.


When Securities are presented to the Registrar with a request to
register the transfer or to exchange them for an equal aggregate principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder).  Subject to Section 2.04,
to permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Securities at the Registrar’s request.  No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge required by law or permitted under the terms of
this First Supplemental Indenture.


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


(a)           selected for
redemption under Article 6 or, if a portion of any Security is selected
for redemption, the portion thereof selected for redemption;


(b)           surrendered for
conversion or, if a portion of any Security is surrendered for conversion, the
portion thereof surrendered for conversion; or


(c)           in certificated form
for a period of fifteen (15) days prior to mailing a notice of redemption under
Article 6.


The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
First Supplemental Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
Beneficial Owners of any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this First
Supplemental Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.



 18
 









 


Section 2.09           Book-Entry
Provisions for the Global Securities.


(a)           The Global
Securities initially shall:


(i)          be registered in the name of DTC (or a
nominee thereof);


(ii)         be delivered to the Trustee as Securities
Custodian; and


(iii)        bear the applicable legends set forth in
Section 2.03.


Members of, or participants in, DTC (“Agent
Members”) shall have no rights under this First Supplemental
Indenture with respect to any Global Security held on their behalf by DTC, or
the Trustee as its custodian, or under such Global Security, and DTC may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing
contained herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by DTC or impair, as between DTC and the Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.


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


(c)           A Global Security
may not be transferred, in whole or in part, to any Person other than DTC (or a
nominee thereof) or to a successor thereof (or such successor’s nominee), and
no such transfer to any such other Person may be registered.  Beneficial interests in a Global Security may
be transferred in accordance with the rules and procedures of DTC.


(d)           If at any time:


(i)           DTC notifies the Company in writing
that it is unwilling or unable to continue to act as depositary for the Global
Securities and a successor depositary for the Global Securities is not
appointed by the Company within ninety (90) days of such notice;


(ii)          DTC ceases to be registered as a “clearing
agency” under the Exchange Act and a successor depositary for the Global
Securities is not appointed by the Company within 90 days of such cessation;


(iii)         the Company, at its option, notifies
the Trustee in writing that it elects to cause the issuance of the Definitive
Securities under this First Supplemental Indenture in exchange for all or any
part of the Securities represented by a Global Security or Global Securities,
subject to the procedures of DTC; or


(iv)        an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC for the issuance
of Definitive Securities in exchange for such Global Security or Global
Securities;



 19
 









 


the
Securities Custodian shall surrender such Global Security or Global Securities
to the Trustee for cancellation and the Company shall execute, and the Trustee,
upon receipt of an Officers’ Certificate and Company Order for the
authentication and delivery of Securities, shall authenticate and deliver in
exchange for such Global Security or Global Securities, Definitive Securities
in an aggregate principal amount equal to the aggregate principal amount of
such Global Security or Global Securities. 
Such Definitive Securities shall be registered in such names as DTC (or
any nominee thereof) shall identify in writing as the Beneficial Owners of the
Securities represented by such Global Security or Global Securities.


(e)           Notwithstanding the
foregoing, in connection with any transfer of beneficial interests in a Global
Security to the Beneficial Owners thereof pursuant to Section 2.09(d), the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal amount
of the beneficial interests in such Global Security to be transferred.


Section 2.10           Mutilated,
Destroyed, Lost or Wrongfully Taken Securities.  If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security if the requirements of
Section 8-405 of the UCC are met, such that the Holder (a) notifies
the Company or the Trustee within a reasonable time after such Holder has
notice of such loss, destruction or wrongful taking and the Registrar has not
registered a transfer prior to receiving such notification, (b) makes such
request to the Company or Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the UCC and
(c) satisfies any other reasonable requirements of the Trustee.  Such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the Company,
the Trustee, the Paying Agent and the Registrar from any loss which any of them
may suffer if a Security is replaced, and, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and make available for delivery, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or wrongfully taken
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.


In case any such mutilated, destroyed, lost or wrongfully taken
Security has become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.


Upon the issuance of any new Security under this Section 2.10, the
Company may require the payment by the Holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) in
connection therewith.


Every new Security issued pursuant to this Section 2.10 in lieu of
any mutilated, destroyed, lost or wrongfully taken Security shall constitute an
original additional contractual obligation of the Company and any other obligor
upon the Securities, whether or not the mutilated, destroyed, lost or
wrongfully taken Security shall be at any time enforceable by



 20















anyone, and shall be entitled to all benefits of this
First Supplemental Indenture equally and ratably with any and all other
Securities duly issued hereunder.


The provisions of this Section 2.10 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or wrongfully taken
Securities.


Section 2.11           Outstanding
Securities.  Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in
this Section 2.11 as not outstanding. 
A Security does not cease to be outstanding in the event the Company or
an Affiliate of the Company holds the Security; provided, however,
that (a) for purposes of determining which Securities are outstanding for
consent or voting purposes hereunder, the provisions of Section 14.06
shall apply and (b) in determining whether the Trustee shall be protected
in making a determination whether the Holders of the requisite principal amount
of outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company
or an Affiliate of the Company shall not be considered outstanding.


If a Security is replaced or paid pursuant to Section 2.10, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.


If the Paying Agent segregates and holds in trust, in accordance with
this First Supplemental Indenture, on a Redemption Date or at Stated Maturity,
money sufficient to pay all principal and interest payable on that date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.


Section 2.12           Temporary
Securities.  In the event that
Definitive Securities are to be issued under the terms of this First
Supplemental Indenture, until such Definitive Securities are ready for
delivery, the Company may prepare and upon receipt of a Company Order the
Trustee shall authenticate temporary Securities.  Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. 
Without unreasonable delay, the Company shall prepare and upon receipt
of a Company Order the Trustee shall authenticate Definitive Securities.  After the preparation of Definitive
Securities, the temporary Securities shall be exchangeable for Definitive
Securities upon surrender of the temporary Securities at any office or agency maintained
by the Company for that purpose and such exchange shall be without charge to
the Holder.  Upon surrender for
cancellation of any one or more temporary Securities, the Company shall
execute, and the Trustee shall authenticate and make available for delivery in
exchange therefor, one or more Definitive Securities representing an equal
principal amount of Securities.  Until so
exchanged, the Holder of temporary Securities shall in all respects be entitled
to the same benefits under this First Supplemental Indenture as a Holder of
Definitive Securities.



 21
 









 


Section 2.13           Cancellation.  The Company at any time may deliver
Securities to the Trustee for cancellation. 
The Registrar, the Conversion Agent and the Paying Agent shall forward
to the Trustee any Securities surrendered to them for registration of transfer,
exchange, conversion or payment.  The
Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, conversion, payment or cancellation and
dispose of such Securities in accordance with its internal policies and
customary procedures including delivery of a certificate describing such
Securities disposed of (subject to the record retention requirements of the
Exchange Act).  The Company may not issue
new Securities to replace Securities it has paid for or exchanged or delivered
to the Trustee for cancellation for any reason other than in connection with a
transfer or conversion.


At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, transferred, redeemed,
repurchased, converted or canceled, such Global Security shall be returned by
the Securities Custodian to the Trustee for cancellation or retained and
canceled by the Trustee.  At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an interest in
another Global Security, redeemed, repurchased, converted or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Securities Custodian for such Global Security) with respect
to such Global Security, by the Trustee or the Securities Custodian, to reflect
such reduction.


Section 2.14           Payment
of Interest; Defaulted Interest. 
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more predecessor Securities) is registered
at the close of business on the Regular Record Date for such payment at the
office or agency of the Company maintained for such purpose pursuant to
Section 2.05.


Any interest on any Security which is payable, but is not paid when the
same becomes due and payable and such nonpayment continues for a period of
thirty (30) days, shall forthwith cease to be payable to the Holder on the
Regular Record Date, and such interest and (to the extent lawful) interest on
such interest at the rate borne by the Securities (such interest and interest
thereon herein collectively called “Defaulted
Interest”) shall be paid by the Company at its election, in each
case, as provided in clause (a) or (b) below:


(a)           The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities (or their respective predecessor Securities) are registered at
the close of business on a Special Record Date (as defined below) for the
payment of such Defaulted Interest, which shall be fixed in the following
manner.  The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security and the date (not less than thirty (30) days after such notice)
of the proposed payment (the “Special
Interest Payment Date”), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided.  Thereupon the
Trustee shall fix a record date (the “Special Record Date”)
for the payment of such Defaulted Interest 



 22
 









which shall be
not more than fifteen (15) days and not less than ten (10) days prior to
the Special Interest Payment Date and not less than ten (10) days after
the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date, and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor to be given in
the manner provided for in Section 14.02, not less than ten (10) days
prior to such Special Record Date. 
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest Payment
Date to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (b).


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


Subject to the foregoing provisions of this Section 2.14, each
Security delivered under this First Supplemental Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.


Section 2.15           Computation
of Interest.  Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.


Section 2.16           CUSIP
and ISIN Numbers.  The Company in
issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in
use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of
redemption as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP or ISIN numbers. 
The Company shall promptly notify the Trustee in writing of any change
in the CUSIP and ISIN numbers.


ARTICLE 3

Covenants


Section 3.01           Payment
of Securities.  The Company shall
promptly pay the principal of, and interest on, the Securities on the dates and
in the manner provided in the Securities and in this First Supplemental
Indenture.  Principal and interest shall
be considered paid on the date due if by 11:00 a.m., New York City time,
on such date the Trustee or the Paying Agent holds in accordance with this
First Supplemental Indenture immediately available funds sufficient to pay all
principal and interest then due.



 23
 









 


The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.


Notwithstanding anything to the contrary contained in this First
Supplemental Indenture, the Company may, to the extent it is required to do so
by law, deduct or withhold income or other similar taxes imposed by the United
States of America from principal or interest payments hereunder.


Section 3.02           Maintenance
of Office or Agency.  The Company
will maintain an office or agency where the Securities may be presented or
surrendered for payment, where, if applicable, the Securities may be
surrendered for registration of transfer or conversion and where notices and
demands to or upon the Company in respect of the Securities and this First
Supplemental Indenture may be served. 
The Company will give prompt written notice to the Trustee of any change
in the location of any such office or agency. 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served to
the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.


The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind any such
designation.  The Company will give
prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.


Section 3.03           Corporate
Existence.  Except as otherwise provided
in Article 4, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect (a) its existence and
(b) the material rights (charter and statutory), licenses and franchises
of the Company, except, in the case of clause (b), to the extent the
Company otherwise reasonably determines it no longer desirable.


Section 3.04           Payment
of Taxes and Other Claims.  The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and
(b) all lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a material liability or lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
reserves, if necessary (in the good faith judgment of management of the
Company), are being maintained in accordance with GAAP or where the failure to
effect such payment will not be disadvantageous to the Holders.


Section 3.05           Compliance
Certificate.  The Company shall
deliver to the Trustee within one hundred twenty (120) days after the end of
each fiscal year of the Company an Officers’ Certificate, one of the signers of
which shall be the principal executive officer, principal financial 



 24
 









officer
or principal accounting officer of the Company, stating that in the course of
the performance by the signers of their duties as Officers of the Company they
would normally have knowledge of any Default or Event of Default and whether or
not the signers know of any Default or Event of Default that occurred during
such period.  If they do, the certificate
shall describe each Default or Event of Default, its status and the action the
Company is taking or proposes to take with respect thereto.  The Company also shall comply with TIA
§ 314(a)(4).


Section 3.06           Further
Instruments and Acts.  Upon request
of the Trustee, the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this First Supplemental Indenture.


Section 3.07           Statement
by Officers as to Default.  The
Company shall deliver to the Trustee, within thirty (30) days after the Company
becomes aware of the occurrence of any Event of Default or Default, an Officers’
Certificate setting forth the details of such events which would constitute an
Event of Default or Default, its status and the action which the Company
proposes to take with respect thereto.


ARTICLE 4

Successor Company


Section 4.01           Consolidation,
Merger and Sale of Assets.  The
Company shall not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all its properties and assets to, another Person,
unless:


(a)           the resulting, surviving or
transferee Person (the “Successor
Company”), if not the Company, shall expressly assume, by
supplemental First Supplemental Indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Securities and this First Supplemental Indenture;


(b)           immediately after giving effect to
such transaction, no Default or Event of Default shall have occurred and be
continuing; and


(c)           the Company shall have delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel, stating that
such consolidation, merger or transfer and such supplemental indenture, if any,
comply with this First Supplemental Indenture.


For purposes of this Section 4.01, the conveyance, transfer or
lease of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially all
of the properties and assets of the Company on a consolidated basis, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.


The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under this First Supplemental
Indenture, but, in the case of a 



 25
 









lease of all or substantially all its properties and
assets, the Company will not be released from the obligation to pay the
principal of, and interest on, the Securities.


ARTICLE 5

Reporting Obligations


Section 5.01           Reporting
Obligations.


(a)           The Company shall
deliver to the Trustee, within fifteen (15) days after filing with the SEC,
copies of its annual reports and of information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act.


(b)           In the event and for
as long as the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act it shall continue to provide the
Trustee with reports containing substantially the same information as would
have been required to be filed with the SEC had the Company continued to have
been subject to such reporting requirements and also mail such documents to
each Holder at such Holder’s registered address, upon the request of any Holder
or Beneficial Owner of the Securities or the Common Stock issued upon
conversion thereof.  In such event, such
reports shall be provided at the times the Company would have been required to
provide reports had it continued to have been subject to Section 13 or
15(d) of the Exchange Act.


(c)           The posting of the
information and reports referred to in Sections 5.01(a) and (b) above on
the Company’s website shall be deemed to satisfy the Company’s obligations
under this Section 5.01; provided
that the Company shall use reasonable efforts to inform Holders of the
availability of such information and reports, which may be satisfied by, among
other things, a press release on any national business press release wire
service.


(d)           Delivery of reports,
information and other documents under this Section 5.01 to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


Section 5.02           Reporting
in Compliance with TIA.  The Company
also shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act.


ARTICLE 6

Redemption of Securities


Section 6.01           Optional
Redemption.


(a)           Prior to
April 20, 2011, the Securities shall not be redeemable, except as provided
in Article 11.



 26
 









 


(b)           On or after
April 20, 2011, subject to the terms and conditions of this
Article 6, the Company may, at its option, redeem at any time for cash all
or a portion of the Securities, at a price (the “Redemption Price”) equal to one hundred percent (100%) of
the principal amount of Securities to be redeemed, plus accrued and unpaid
interest to but excluding the Redemption Date.


(c)           In the event that
the Redemption Date occurs after a Regular Record Date for the payment of
interest and on or prior to the related Interest Payment Date, the Redemption
Price for any such Securities to be redeemed shall be one hundred percent
(100%) of the principal amount of such Securities, and accrued and unpaid
interest shall be paid to the Holder on such Regular Record Date.


Section 6.02           Election
to Redeem; Notice to Trustee.  In
case of any redemption at the election of the Company, the Company shall, on or
prior to the date that is fifteen (15) days prior to the date on which notice
is given to the Holders (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 6.03. 
Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.


Section 6.03           Selection
by Trustee of Securities to Be Redeemed. 
If less than all the Securities are to be redeemed at any time pursuant
to this Article 6, the particular Securities to be redeemed shall be
selected by the Trustee, from the outstanding Securities not previously called
for redemption, by lot or on a  pro rata basis among the Securities or by
such other method as the Trustee shall deem fair and appropriate, including any
method required by DTC or any successor depositary (and in such manner as is
not prohibited by applicable legal requirements) and which may provide for the
selection for redemption of portions of the principal of the Securities; provided,
however,  that no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than One Thousand Dollars ($1,000).


The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.


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


If any Securities selected for partial redemption are thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Securities so selected, the converted
portion of such Securities shall be deemed (so far as may be), solely for
purposes of determining the aggregate principal amount of Securities to be
redeemed by the Company, to be the portion selected for redemption.  Securities which have been converted during a
selection of Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection. 
Nothing in this Section 6.03 shall affect the right of any Holder
to 



 27
 









convert any Securities pursuant to Article 12
before the termination of the conversion right with respect thereto.


Section 6.04           Notice
of Redemption.  Notice of redemption
shall be given in the manner provided for in Section 14.02 not less than
thirty (30) calendar days nor more than sixty (60) calendar days prior to the
Redemption Date, to the Trustee, the Paying Agent and each Holder of Securities
to be redeemed.  The Trustee shall give
notice of redemption in the Company’s name and at the Company’s expense; provided,
however,  that the
Company shall deliver to the Trustee an Officers’ Certificate, at least fifteen
(15) calendar days prior to the date on which notice is required to be given to
the Holders (unless shorter notice shall be satisfactory to the Trustee),
requesting that the Trustee give such notice at the Company’s expense and
setting forth the information to be stated in such notice as provided in the
following items.


All notices of redemption shall state:


(a)           the Redemption Date;


(b)           the Redemption
Price;


(c)           the then current
Conversion Rate and the related Observation Period for conversion of
Securities, and provide a statement that the Securities called for redemption
may be converted at any time before the close of business on the third
Scheduled Trading Day prior to the Redemption Date, and that Holders who wish
to convert Securities must comply with the procedures in Section 12.01(c);


(d)           if less than all
outstanding Securities are to be redeemed, the identification of the particular
Securities (or portion thereof) to be redeemed, as well as the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities to be outstanding after such partial redemption;


(e)           in case any Security
is to be redeemed in part only, the notice which relates to such Security shall
state that on and after the Redemption Date, upon surrender of such Security,
the Holder will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed;


(f)            that on the
Redemption Date, the Redemption Price will become due and payable upon each
such Security, or the portion thereof, to be redeemed, and, unless the Company
defaults in making the redemption payment, that interest on Securities called
for redemption (or the portion thereof) will cease to accrue on and after said
date;


(g)           the place or places
where such Securities are to be surrendered for payment of the Redemption
Price;


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


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



 28
 









 


(j)            the CUSIP or ISIN
number, and that no representation is made as to the accuracy or correctness of
the CUSIP or ISIN number, if any, listed in such notice or printed on the
Securities.


Section 6.05           Deposit
of Redemption Price.  Prior to
11:00 a.m., New York City time, on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in
Section 2.06) an amount of money sufficient to pay the Redemption Price of
all the Securities which are to be redeemed on that date other than Securities
or portions of Securities called for redemption that are beneficially owned by
the Company and have been delivered by the Company to the Trustee for
cancellation.


Section 6.06           Securities
Payable on Redemption Date.  Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price,
and from and after such date (unless the Company shall default in the payment
of the Redemption Price or accrued and unpaid interest) such Securities shall
cease to bear interest.  Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price.


If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Securities.


Section 6.07           Securities
Redeemed in Part.  Any Security which
is to be redeemed only in part (pursuant to the provisions of this
Article 6) shall be surrendered at the office or agency of the Company
maintained for such purpose pursuant to Section 3.02 (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or such Holder’s attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security at the expense of the
Company, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered; provided that each
such new Security will be in a principal amount of One Thousand Dollars
($1,000) or multiple thereof.


ARTICLE 7

Defaults and Remedies


Section 7.01           Events
of Default.  Each of the following is
an “Event of Default”:


(a)           default
in any payment of interest on any Security when the same becomes due and payable,
and such default continues for a period of thirty (30) days;


(b)           default
in the payment of the principal of any Security when the same becomes due and
payable at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration of acceleration or otherwise;



 29
 









 


(c)           failure
by the Company to comply with its obligation to convert the Securities in
accordance with this First Supplemental Indenture, upon exercise of a Holder’s
conversion right and such failure continues for a period of ten (10) days;


(d)           failure by the
Company to give a Company Notice of the occurrence of a Fundamental Change to
Holders pursuant to Section 11.01 or notice of a specified corporate
transaction (as described in Section 12.01(a)(iv)) to Holders, in each
case when due;


(e)           failure by the
Company to comply with its obligations under Article 4;


(f)            failure by the
Company for a period of sixty (60) days after written notice from the Trustee
or Holders of at least twenty five percent (25%) in principal amount of Securities
then outstanding has been received to comply with any obligation, covenant or
agreement in this First Supplemental Indenture or under the Securities (other
than those referred to in Section 7.01(a) through (e) and
Section 7.01(g) through (i));


(g)           default by the
Company or any Subsidiary of the Company in the payment of the principal or
interest on any mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced, any Indebtedness
for money borrowed in excess of Ten Million Dollars ($10,000,000) (other than
Excluded Indebtedness) in the aggregate of the Company and/or any such
Subsidiary, whether such Indebtedness now exists or shall hereafter be created,
resulting in such Indebtedness becoming or being declared due and payable, and
such acceleration shall not have been rescinded or annulled within thirty (30)
days after written notice of such acceleration has been received by the Company
or such Subsidiary from the Trustee (or to the Company and the Trustee from
Holders of at least twenty five percent (25%) in principal amount of
outstanding Securities); or


(h)           the Company or any
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:


(i)            commences a voluntary case or
proceeding;


(ii)           consents to the entry of judgment,
decree or order for relief against it in an involuntary case or proceeding;


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


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


(v)           consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it;


(vi)          takes any corporate action to
authorize or effect any of the foregoing; or


(vii)         takes any comparable action under any
foreign laws relating to insolvency;



 30















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


(i)            is for relief against the Company or
any Significant Subsidiary in an involuntary case;


(ii)           appoints a Custodian of the Company
for all or substantially all of the Company’s or any Significant Subsidiary’s
property; or


(iii)          orders the winding up or liquidation
of the Company or Significant Subsidiary;


and,
in each case, the order or decree or relief remains unstayed and in effect for
ninety (90) days.


The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, Rule or regulation of any administrative or
governmental body.


Notwithstanding the foregoing, a Default under clause (f) or (g)
of this Section 7.01 will not constitute an Event of Default until the
Trustee notifies the Company (or the Holders of twenty five percent (25%) or
more in principal amount of the outstanding Securities notify the Company and
the Trustee) of the Default in writing and the Company does not cure such
Default within the time specified in clause (f) or (g) of this
Section 7.01 after receipt of such notice.


Section 7.02           Acceleration.  If an Event of Default (other than an Event
of Default specified in Section 7.01(h) or
Section 7.01(i) above) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least twenty five percent (25%) in
outstanding principal amount of the outstanding Securities by notice to the
Company and the Trustee, may, and the Trustee at the request of such Holders
shall, declare the principal of and accrued and unpaid interest, if any, on all
the Securities to be due and payable. 
Upon such a declaration, such principal and accrued and unpaid interest
shall be due and payable immediately.  If
an Event of Default specified in Section 7.01(h) or
Section 7.01(i) above occurs and is continuing, the principal of and
accrued and unpaid interest, if any, on all the Securities outstanding shall be
immediately due and payable with no further action by the Trustee or the
Holders.  The Company shall promptly
notify the holders of all Senior Indebtedness if the Trustee declares the
principal and any accrued and unpaid interest, if any, to be due and payable
pursuant to this Section 7.02.


Section 7.03           Other
Remedies.  If an Event of Default
other than an Event of Default specified in Section 7.01(e), occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, or interest on, the Securities or to enforce the performance
of any provision of the Securities or this First Supplemental Indenture.


The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the 



 31
 









right or remedy or constitute a waiver of or
acquiescence in the Event of Default.  No
remedy is exclusive of any other remedy. 
All available remedies are cumulative.


Section 7.04           Waiver
of Past Defaults.  The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may (a) waive, by their consent (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities), an existing Default or Event of Default and its
consequences except (i) a Default or Event of Default resulting from the
non-payment of the principal of, or interest on, a Security, (ii) a
Default or Event of Default resulting from the failure to deliver, upon
conversion, shares of Common Stock or a combination of cash and shares of
Common Stock, if any, as provided under Section 12.01(d) or (iii) a
Default or Event of Default in respect of a provision that under
Section 10.02 cannot be amended without the consent of each Holder affected
and (b) rescind any such acceleration with respect to the Securities and
its consequences if (i) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (ii) all existing Events
of Default, other than the nonpayment of the principal of, or interest on, the
Securities that have become due solely by such declaration of acceleration,
have been cured or waived.  When a
Default or Event of Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any consequent right.


Section 7.05           Control
by Majority.  The Holders of a
majority in principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow any
direction that conflicts with law or this First Supplemental Indenture or,
subject to Sections 8.01 and 8.02, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however,
that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.


Section 7.06           Limitation
on Suits.  Subject to
Section 7.07, a Holder may not pursue any remedy with respect to this
First Supplemental Indenture or the Securities unless:


(a)           such Holder has
previously given to the Trustee written notice stating that an Event of Default
is continuing;


(b)           Holders of at least
twenty five percent (25%) in principal amount of the outstanding Securities
have requested that the Trustee pursue the remedy;


(c)           such Holders have
offered to the Trustee security or indemnity reasonably satisfactory to it
against any loss, liability or expense to be incurred in compliance with such
request;


(d)           the Trustee has not
complied with such request within sixty (60) days after receipt of the request
and the offer of security or indemnity; and


(e)           the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction that, in the opinion of the Trustee, is inconsistent with
such request within such sixty (60)-day period.



 32
 









A Holder may not use this First Supplemental Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.


Section 7.07           Rights
of Holders to Receive Payment. 
Notwithstanding any other provision of this First Supplemental Indenture
(including, without limitation, Section 7.06), the right of any Holder to
receive payment of principal of, or interest on, the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.


Section 7.08           Collection
Suit by Trustee.  If an Event of
Default specified in clauses (a) or (b) of Section 7.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 8.07.


Section 7.09           Trustee
May File Proofs of Claim.  The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company or its creditors or properties and, unless
prohibited by law or applicable regulations, may be entitled and empowered to
participate as a member of any official committee of creditors appointed in
such matter, and may vote on behalf of the Holders in any election of a trustee
in bankruptcy or other Person performing similar functions, and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
to the Trustee under Section 8.07.


Section 7.10           Priorities.  If the Trustee collects any money or property
pursuant to this Article 7, it shall pay out the money or property in the
following order:


FIRST:  to the Trustee for
amounts due under Section 8.07;


SECOND:  to Holders for amounts
due and unpaid on the Securities for principal or interest ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal and interest, respectively; and


THIRD:  to the Company.


The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 7.10. 
At least fifteen (15) days before such record date, the Company shall
mail to each Holder and the Trustee a notice that states the record date, the
payment date and amount to be paid.


Section 7.11           Restoration
of Rights and Remedies.  If the
Trustee or any Holder has instituted a proceeding to enforce any right or
remedy under this First Supplemental Indenture 



 33
 









and the proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to the
Holder, then, subject to any determination in the proceeding, the Company, the
Trustee and the Holders will be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, the Trustee and the Holders will continue as though no such proceeding
had been instituted.


Section 7.12           Undertaking
of Costs.  In any suit for the
enforcement of any right or remedy under this First Supplemental Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant.  This Section 7.12 does
not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to Section 7.07 or a suit by Holders of more than ten percent
(10%) in outstanding principal amount of the Securities.


ARTICLE 8

Trustee


Section
8.01           Duties of Trustee.


(a)           If
an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this First Supplemental Indenture and use
the same degree of care and skill in its exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person’s own
affairs; provided that if an
Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this First
Supplemental Indenture at the request or direction of any of the Holders unless
such Holders have offered to the Trustee reasonable indemnity or security
against loss, liability or expense that might be incurred in compliance with
such request or direction.


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


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


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


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



 34
 









(i)            this
paragraph does not limit the effect of paragraph (b) of this
Section 8.01;


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


(iii)          the Trustee shall
not be liable with respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant to
Section 7.05.


(d)           Every
provision of this First Supplemental Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this
Section 8.01.


(e)           The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.


(f)            Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.


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


(h)           Every
provision of this First Supplemental Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 8.01 and to the provisions of
the TIA.


(i)            Unless
otherwise specifically provided in this First Supplemental Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.


Section 8.02           Rights
of Trustee.  Subject to
Section 8.01:


(a)           The
Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed
or presented by the proper Person.  The
Trustee need not investigate any fact or matter stated in the document.  The Trustee shall receive and retain
financial reports and statements of the Company as provided herein, but shall
have no duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the Company.


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel. 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on an Officers’ Certificate and an Opinion of
Counsel.



 35
 









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


(d)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers, unless
the Trustee’s conduct constitutes willful misconduct or negligence.


(e)           The
Trustee may consult with counsel of its selection, and the advice or Opinion of
Counsel with respect to legal matters relating to this First Supplemental
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.


(f)            The
Trustee shall not be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) resulting from actions taken in good faith and which the
Trustee believes to be authorized or within its rights or powers, unless the
Trustee’s conduct constitutes willful misconduct or negligence.


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


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


(i)            The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless an Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a Default or Event of Default is
received by an Officer of the Trustee from the Company or the Holders of twenty
five percent (25%) in aggregate principal amount of the outstanding Securities,
and such notice references the specific Default or Event of Default, the
Securities and this First Supplemental Indenture.


(j)            The
Trustee shall not be required to give any bond or surety in respect of the
performance of its power and duties hereunder.


(k)           The
Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.


Section 8.03           Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.  Any Paying Agent or Registrar may do the same
with like rights.  However, the Trustee
must comply with Sections 8.10 and 8.11. 
In addition, the Trustee shall be permitted to engage in transactions
with the Company; provided, however,
that if, during the continuance of any Default, the Trustee acquires
any conflicting interest the Trustee must (i) eliminate such conflict
within ninety (90) 



 36
 









days of acquiring such conflicting interest,
(ii) apply to the SEC for permission to continue acting as Trustee or
(iii) resign.


Section 8.04           Trustee’s
Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this First Supplemental Indenture or the Securities, shall not be accountable
for the Company’s use of the proceeds from the Securities, shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee and shall not be responsible for any statement of
the Company in this First Supplemental Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee’s certificate of authentication.


Section 8.05           Notice
of Defaults.  If a Default or Event
of Default occurs and is continuing and if a Trust Officer of the Trustee has
actual knowledge thereof, the Trustee shall mail by first class mail to each
Holder at the address set forth in the Securities Register notice of the
Default or Event of Default within ninety (90) days after it occurs.  Except in the case of a Default or Event of
Default in payment of principal of, or interest on, any Security (including
payments pursuant to the optional redemption or required repurchase provisions
of such Security, if any), the Trustee may withhold the notice if and so long
as it determines in good faith that withholding the notice is in the interests
of Holders.


Section 8.06           Reports
by Trustee to Holders.  Within sixty
(60) days after each April 15 beginning with the April 15 following
the date of this First Supplemental Indenture, the Trustee shall mail to each
Holder a brief report dated as of such April 15 that complies with TIA
§ 313(a), if required by such TIA § 313(a).  The Trustee also shall comply with TIA
§ 313(b).  The Trustee shall also
transmit by mail all reports required by TIA § 313(c). A copy of each such
report, at the time of such mailing to the Holders, shall be furnished to the
Company and filed with each stock exchange upon which the Securities are
listed, and with the SEC.  The Company
agrees to notify the Trustee when and as the Securities are or become admitted
to trading on any stock exchange.


 


Section 8.07           Compensation
and Indemnity.  The Company shall pay
to the Trustee from time to time such compensation for its acceptance of this
First Supplemental Indenture and services hereunder as the Company and the
Trustee shall from time to time agree in writing.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  In addition to the compensation the Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it.  Such
expenses shall include the reasonable compensation and out-of-pocket expenses,
disbursements and advances of the Trustee’s agents, counsel, accountants and
experts.  The Company shall indemnify the
Trustee against any and all loss, liability, damages, claims or expense
(including reasonable attorneys’ fees and expenses) incurred by it without
negligence or bad faith on its part in connection with the administration of
this trust and the performance of its duties hereunder, including the costs and
expenses of enforcing this First Supplemental Indenture (including this
Section 8.07) and of defending itself against any claims (whether asserted
by any Holder, the Company, or otherwise). 
The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity.  Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder.  The Company shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Company’s expense in the defense.  The
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel, provided that
the Company shall not be required to pay such fees and expenses if it assumes
the Trustee’s defense, and, in the reasonable judgment of outside counsel to
the Trustee, there is no conflict of interest between the Company and the
Trustee in connection with such defense. 
The 



 37
 









Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee’s own willful misconduct, negligence or bad faith.


To secure the Company’s payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of, or interest on, particular Securities.  Such lien shall survive the satisfaction and
discharge of this First Supplemental Indenture. 
The Trustee’s right to receive payment of any amounts due under this
Section 8.07 shall not be subordinate to any other unsecured liability or
debt of the Company.


The Company’s payment obligations pursuant to this Section 8.07
shall survive the discharge of this First Supplemental Indenture.  When the Trustee incurs expenses after the
occurrence of a Default specified in Section 7.01(h) or
Section 7.01(i) with respect to the Company, the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.


Section 8.08           Replacement
of Trustee.  The Trustee may resign
at any time by so notifying the Company. 
The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint a successor
Trustee.  The Company shall remove the
Trustee if:


(a)           the
Trustee fails to comply with Section 8.10;


(b)           the
Trustee is adjudged bankrupt or insolvent;


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


(d)           the
Trustee otherwise becomes incapable of acting.


If the Trustee resigns or is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.


A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.  Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this First Supplemental
Indenture.  The successor Trustee shall
mail a notice of its succession to Holders. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in
Section 8.07.


If a successor Trustee does not take office within sixty (60) days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least ten percent (10%) in principal amount of the Securities may
petition, at the Company’s expense, any court of competent jurisdiction for the
appointment of a successor Trustee.



 38
 









If the Trustee fails to comply with Section 8.10, unless the
Trustee’s duty to resign is stayed as provided in TIA § 310(b), any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.


Notwithstanding the replacement of the Trustee pursuant to this
Section 8.08, the Company’s obligations under Section 8.07 shall
continue for the benefit of the retiring Trustee.


Section 8.09           Successor
Trustee by Merger.  If the Trustee
consolidates with, merges or exchanges into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.


In case at the time such successor or successors by merger, exchange or
consolidation to the Trustee shall succeed to the trusts created by this First
Supplemental Indenture, any of the Securities shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Securities in the name of any predecessor Trustee shall only
apply to its successor or successors by merger, consolidation or exchange.


Section 8.10           Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of TIA § 310(a).  The Trustee shall have a combined capital and
surplus of at least One Hundred Million ($100,000,000) as set forth in its most
recent published annual report of condition. 
The Trustee shall comply with TIA § 310(b); provided,
however, that there shall be excluded from the operation of TIA
§ 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding, including the Original Indenture and the Indenture governing
the Company’s 4.125% Convertible Subordinated Notes due December 21, 2008,
if the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.


Section 8.11           Preferential
Collection of Claims Against Company. 
The Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). 
A Trustee who has resigned or been removed shall be subject to TIA
§ 311(a) to the extent indicated.


ARTICLE 9

Discharge of First Supplemental Indenture


Section 9.01           Discharge
of Liability on Securities.  When
(a) the Company shall deliver to the Registrar for cancellation all
Securities theretofore authenticated (other than any Securities which have been
mutilated, destroyed, lost or wrongfully taken and in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Securities not
theretofore canceled or delivered to the Registrar for cancellation shall have
(i) been deposited for conversion (after all related Observation Periods
have elapsed) and the Company shall deliver to the Holders shares of Common
Stock or a 



 39
 









combination of cash and shares of Common Stock, as
applicable, sufficient to pay all amounts owing in respect of all Securities
(other than any Securities which shall have been mutilated, destroyed, lost or
wrongfully taken and in lieu of or in substitution for which other Securities
shall have been authenticated and delivered) not theretofore canceled or
delivered to the Registrar for cancellation or (ii) become due and payable
on the Stated Maturity, Purchase Date, Fundamental Change Purchase Date or
Redemption Date, as applicable, and the Company shall deposit with the Trustee
cash and shares of Common Stock, as applicable, sufficient to pay all amounts
owing in respect of all Securities (other than any Securities which shall have
been mutilated, destroyed, lost or wrongfully taken and in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered) not theretofore canceled or delivered to the Registrar for
cancellation, including the principal amount and interest accrued and unpaid to
such Stated Maturity, Purchase Date, Fundamental Change Purchase Date or
Redemption Date, as the case may be, and if in either case (a) or
(b) the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this First Supplemental Indenture with respect
to the Securities shall cease to be of further effect (except as to
(x) remaining rights of registration of transfer, substitution and
exchange and conversion of Securities; (y) rights hereunder of Holders to
receive from the Trustee payments of the amounts then due, including interest,
with respect to the Securities and the other rights, duties and obligations of
Holders, as beneficiaries hereof solely with respect to the amounts, if any, so
deposited with the Trustee; and (z) the rights, obligations and immunities
of the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar under this First Supplemental Indenture with respect to the
Securities), and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel as required by
Section 9.03 and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this First Supplemental
Indenture with respect to the Securities; however, the Company hereby agrees to
reimburse the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar for any costs or expenses thereafter reasonably and properly incurred
by the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar and to compensate the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar for any services thereafter reasonably and
properly rendered by the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar in connection with this First Supplemental
Indenture with respect to the Securities.


Section 9.02           Reinstatement.  If the Trustee or the Paying Agent is unable
to apply any money to the Holders entitled thereto by reason of any order or
judgment of any court of governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company’s obligations under this
First Supplemental Indenture with respect to the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 9.01
until such time as the Trustee or the Paying Agent is permitted to apply all
such money in accordance with this First Supplemental Indenture and the
Securities to the Holders entitled thereto; provided, however,
that if the Company makes any payment of principal amount of, or
interest on, any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.


Section 9.03           Officers’
Certificate; Opinion of Counsel. 
Upon any application or demand by the Company to the Trustee to take any
action under Section 9.01, the Company shall


 



 40















furnish
to the Trustee an Officers’ Certificate or Opinion of Counsel stating that all
conditions precedent, if any, provided for in this First Supplemental Indenture
relating to the proposed action have been complied with.


ARTICLE
10

Amendments


Section 10.01         Without
Consent of Holders.  The Company and
the Trustee may amend this First Supplemental Indenture and the Securities
without notice to or consent of any Holder:


(a)           to cure any
ambiguity, omission, defect or inconsistency in this First Supplemental Indenture
in a manner that does not individually or in the aggregate adversely affect the
rights of any Holder of Securities in any respect;


(b)           to comply with
Article 4 in respect of the assumption by a Successor Company of an
obligation of the Company under this First Supplemental Indenture;


(c)           to secure the
Securities;


(d)           to add to the
covenants of the Company for the benefit of the Holders or to surrender any
right or power herein conferred upon the Company under this First Supplemental
Indenture;


(e)           to comply with any
requirement of the SEC in connection with the qualification of this First
Supplemental Indenture under the TIA;


(f)            to provide for the
acceptance of appointment by a successor Trustee or Paying Agent or facilitate
the administration of the trusts under this First Supplemental Indenture by
more than one Trustee or Paying Agent;


(g)           to add to any Events
of Default for the benefit of Holders of Securities;


(h)           to make any change
that does not materially adversely affect the rights of any Holder;


(i)            to conform the text
of this First Supplemental Indenture or the Securities to the “Description of Notes” section of the Offering Memorandum;


(j)            to change or
eliminate any provision in this First Supplemental Indenture, provided, that such change or elimination
will become effective only when there are no Securities outstanding which are
entitled to the benefit of such provision; or


(k)           to supplement any
provision of this First Supplemental Indenture to the extent necessary to
permit or facilitate defeasance and discharge of the Securities, provided, that such action shall not
adversely affect the interests of the Holders in any material respect.


After an amendment under this Section 10.01 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all 



 41
 









Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 10.01.


Section 10.02         With
Consent of Holders.  The Company and
the Trustee may amend this First Supplemental Indenture and the Securities
without notice to any Holder but with the written or electronic consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities), and
subject to the provisions of Section 7.04, past Defaults or compliance
with the provisions of this First Supplemental Indenture or the Securities
issued hereunder or related Guarantees may be waived with the written consent
of the Holders of at least a majority in principal amount of the Securities
then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities).  However, without the
consent of each Holder affected, an amendment or waiver may not:


(a)           reduce the
percentage in aggregate principal amount of Securities whose Holders must
consent to an amendment of this First Supplemental Indenture, to waive
compliance with specified provisions hereof or any past default or reduce the
voting requirements set forth herein;


(b)           reduce the principal
amount of, or the rate of interest, on any Security, or change any Redemption
Date or reduce any Redemption Price;


(c)           change the Stated
Maturity or the date on which the Company shall pay interest in respect of any
Security;


(d)           impair the right of
any Holder to institute suit for the enforcement of any payment on or with
respect to such Holder’s Securities or the delivery of shares of Common Stock
or cash, if any, pursuant to Section 12.01(d);


(e)           make any change that
impairs or adversely affects the right of any Holder to convert such Holder’s
Securities;


(f)            reduce the
Redemption Price, the Fundamental Change Purchase Price or the Purchase Price
payable upon the redemption, repayment, purchase or conversion of any Security
(or the time when such redemption, repayment, purchase or conversion may be
made);


(g)           change the place of
payment, or the coin or currency, for the payment of the principal amount of,
or any interest on, the Securities (it being understood that all references to
cash in this First Supplemental Indenture and the Securities are to U.S. legal
tender); or


(h)           make any changes to
Section 10.02(a) through (g), or any provisions of this First Supplemental
Indenture relating to the waiver of certain past defaults or certain covenants,
except to increase the percentage of Holders required to effect such action or
to provide that specified other provisions of this First Supplemental Indenture
may not be modified or waived without the consent of the Holders of each
Security affected thereby.


It shall not be necessary for the consent of the Holders under this Section 10.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if 



 42
 









such consent approves the substance thereof.  A consent to any amendment or waiver under
this First Supplemental Indenture by any Holder of the Securities given in
connection with a tender or exchange of such Holder’s Securities will not be
rendered invalid by such tender or exchange.


After an amendment under this Section 10.02 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 10.02.


Section 10.03         Compliance
with Trust Indenture Act.  Every
amendment or supplement to this First Supplemental Indenture or the Securities
shall comply with the TIA as then in effect.


Section 10.04         Revocation
and Effect of Consents and Waivers. 
A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder’s Security, even
if notation of the consent or waiver is not made on the Security.  However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective or otherwise in accordance with any
related solicitation documents.  After an
amendment or waiver becomes effective, it shall bind every Holder.  An amendment or waiver shall become effective
upon receipt by the Trustee of the requisite number of written or electronic
consents under Section 10.01 or 10.02, as applicable.


The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this First Supplemental Indenture.  If
a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date.  No such consent shall become valid or
effective more than one hundred twenty (120) days after such record date.


Section 10.05         Notation
on or Exchange of Securities.  If an
amendment changes the terms of a Security, the Trustee may require the Holder
of the Security to deliver it to the Trustee. 
The Trustee may place an appropriate notation on the Security regarding
the changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. 
Failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment.


Section 10.06         Trustee
to Sign Amendments.  The Trustee
shall sign any amendment authorized pursuant to this Article 10 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may but need not sign it.  In
signing such amendment the Trustee shall be entitled to receive and (subject to
Sections 8.01 and 



 43
 









8.02)
shall be fully protected in relying upon an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this First Supplemental Indenture.


ARTICLE
11

Purchase at the Option of Holders Upon a Fundamental

Change; Purchase at the Option of Holders


Section 11.01         Purchase
at the Option of the Holder Upon a Fundamental Change.  If a Fundamental Change shall occur at any
time, each Holder shall have the right, at such Holder’s option, to require the
Company to purchase any or all of such Holder’s Securities on a date specified
by the Company that is no later than the thirty fifth (35th) calendar day after
the date of the Company Notice of the occurrence of such Fundamental Change
(subject to extension to comply with applicable law, as provided in
Section 11.02(d)) (the “Fundamental
Change Purchase Date”).  The
Company shall purchase such Securities at a price (the “Fundamental Change Purchase Price”), which
shall be paid in cash, equal to one hundred percent (100%) of the principal
amount of the Securities to be purchased plus accrued and unpaid interest, to
but excluding the Fundamental Change Purchase Date, unless the Fundamental
Change Purchase Date is between a Regular Record Date and the Interest Payment
Date to which it relates, in which case the Fundamental Change Purchase Price
shall equal one hundred percent (100%) of the principal amount of Securities to
be purchased and accrued and unpaid interest shall be paid to the Holder of
record on the Regular Record Date.


(a)           Notice of
Fundamental Change.  The Company, or
at its request (which must be received by the Paying Agent at least three
Business Days (or such lesser period as agreed to by the Paying Agent) prior to
the date the Paying Agent is requested to give such notice as described below)
the Paying Agent, in the name of and at the expense of the Company, shall mail
to all Holders and the Trustee a Company Notice of the occurrence of a
Fundamental Change and of the purchase right arising as a result thereof,
including the information required by Section 11.02(a) hereof, on or
before the twentieth (20th) calendar day after the occurrence of such
Fundamental Change.  The Company shall
promptly furnish to the Paying Agent a copy of such Company Notice.


(b)           Exercise of
Option.  For a Security to be so
purchased at the option of the Holder, such Holder must deliver to the Paying
Agent such Security duly endorsed for transfer, together with a written notice
of purchase (a “Fundamental Change
Purchase Notice”) in the form entitled “Form of Fundamental
Change Purchase Notice” attached to the Security duly completed, on
or before the Business Day immediately preceding the Fundamental Change
Purchase Date, subject to extension to comply with applicable law.  The Fundamental Change Purchase Notice shall
state:


(i)            if certificated, the certificate
numbers of the Securities which the Holder shall deliver to be purchased, or if
not certificated, such notice must comply with appropriate DTC procedures;


(ii)           the portion of the principal amount
of the Securities which the Holder shall deliver to be purchased, which portion
must be One Thousand Dollars ($1,000) in principal amount or a multiple
thereof; and



 44
 









 


(iii)          that such Securities shall be
purchased as of the Fundamental Change Purchase Date pursuant to the terms and
conditions specified in paragraph 4 of the Securities and in this First
Supplemental Indenture.


(c)           Procedures.  The Company shall purchase from a Holder,
pursuant to this Section 11.01, Securities if the principal amount of such
Securities is One Thousand Dollars ($1,000) or a multiple of One Thousand
Dollars ($1,000) if so requested by such Holder.


Any purchase by the Company contemplated pursuant to the provisions of
this Section 11.01 shall be consummated by the delivery of the Fundamental
Change Purchase Price to be received by the Holder within two (2) Business Days
following the later of the Fundamental Change Purchase Date or the time of
book-entry transfer and delivery of the Securities.


Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Fundamental Change Purchase Notice contemplated by this
Section 11.01 shall have the right at any time prior to the close of
business on the Business Day prior to the Fundamental Change Purchase Date to
withdraw such Fundamental Change Purchase Notice (in whole or in part) by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 11.02(b).


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


At or before 11:00 a.m. (New York City time) on the Fundamental
Change Purchase Date, the Company shall deposit with the Paying Agent (or if
the Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash sufficient to pay the aggregate Fundamental
Change Purchase Price of the Securities to be purchased pursuant to this
Section 11.01.  Payment by the
Paying Agent of the Fundamental Change Purchase Price for such Securities shall
be made within two (2) Business Days following the later of the Fundamental
Change Purchase Date and the time of book-entry transfer or delivery of such
Securities.  If the Paying Agent holds,
in accordance with the terms of this First Supplemental Indenture, cash
sufficient to pay the Fundamental Change Purchase Price of such Securities on
the Fundamental Change Purchase Date, then, on and after such date, such
Securities shall cease to be outstanding and interest on such Securities shall
cease to accrue, whether or not book-entry transfer of such Securities is made
or such Securities are delivered to the Paying Agent, and all other rights of
the Holder shall terminate (other than the right to receive the Fundamental Change
Purchase Price and previously accrued and unpaid interest upon delivery or
transfer of the Securities).  Nothing
herein shall preclude any withholding tax required by law.


The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all cash held by the Paying Agent for the payment of the
Fundamental Change Purchase Price and shall notify the Trustee of any default
by the Company in making any such payment. 
If the Company or an Affiliate of the Company acts as Paying Agent, it
shall segregate the cash held by it as Paying Agent and hold it as a separate
trust fund.  The Company at any time may
require a Paying Agent to deliver all cash held by it to the Trustee and to
account for any funds disbursed by the Paying 



 45
 









Agent.  Upon
doing so, the Paying Agent shall have no further liability for the cash
delivered to the Trustee.


Section 11.02         Further
Conditions and Procedures for Purchase at the Option of the Holder Upon a
Fundamental Change.


(a)           Notice of
Purchase Date or Fundamental Change. 
The Company shall send notices (each, a “Company Notice”) to the Holders, the Trustee, the Paying
Agent and Beneficial Owners as required by applicable law on or before the
twentieth (20th) calendar day after the occurrence of the Fundamental Change
(each such date of delivery, a “Company Notice Date”).  Each Company Notice shall include a form of
Fundamental Change Purchase Notice to be completed by a Holder and shall state:


(i)            the applicable Fundamental Change
Purchase Price;


(ii)           if conversion is permitted under
Section 12.01(a)(iv), the Conversion Rate at the time of such notice and
any expected adjustments to the Conversion Rate;


(iii)          the applicable Fundamental Change
Purchase Date and the last date on which a Holder may exercise its repurchase
rights under Section 11.01;


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


(v)           that Securities must be surrendered
to the Paying Agent to collect payment of the Fundamental Change Purchase
Price;


(vi)          that Securities as to which a
Fundamental Change Purchase Notice has been delivered may be surrendered for
conversion only if the applicable Fundamental Change Purchase Notice has been
withdrawn in accordance with the terms of this First Supplemental Indenture;


(vii)         that the Fundamental Change Purchase
Price for any Securities as to which a Fundamental Change Purchase Notice has
been given and not withdrawn shall be paid by the Paying Agent within two (2)
Business Days following the later of the Fundamental Change Purchase Date and
the time of book-entry transfer or delivery of such Securities;


(viii)        the procedures the Holder must follow
under Section 11.01;


(ix)           that, unless the Company defaults in
making payment of such Fundamental Change Purchase Price on Securities covered
by any Fundamental Change Purchase Notice interest will cease to accrue on and
after the Fundamental Change Purchase Date;


(x)            the CUSIP or ISIN number of the
Securities;


(xi)           the procedures for withdrawing a
Fundamental Change Purchase Notice; and



 46
 









 


(xii)          the events causing a Fundamental
Change and the effective date of the Fundamental Change.


Simultaneously with providing such Company Notice, the Company will
disseminate a press release through Dow Jones & Company, Inc. or Bloomberg
Business News announcing the occurrence of the fundamental change or publish a
notice containing the information in such Company Notice in a newspaper of
general circulation in The City of New York or through such other public medium
at it may use at the time.  In addition,
the Company will publish such information on the Company’s then existing
website.


At the Company’s request, made at least five (5) Business Days
prior to the date upon which such notice is to be mailed, and at the Company’s
expense, the Paying Agent shall give the Company Notice in the Company’s name; provided,
however,  that, in all
cases, the text of the Company Notice shall be prepared by the Company.


(b)           Adequacy and
Effect of Purchase Notice or Fundamental Change Purchase Notice; Withdrawal;
Effect of Event of Default.  The
Company shall reasonably determine whether the Fundamental Change Purchase
Notice delivered by the relevant Holders satisfies the conditions set out in Section 11.01
and Section 11.02 for such notices. 
The Company’s determination under this Section 11.02(b) will be
binding and conclusive, absent manifest error.


Upon receipt by the Company of a Fundamental Change Purchase Notice
specified in Section 11.01(b), the Holder of the Securities in respect of
which such Fundamental Change Purchase Notice was given shall (unless such
Fundamental Change Purchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Fundamental Change
Purchase Price with respect to such Securities. 
Such Fundamental Change Purchase Price shall be paid by the Paying Agent
to such Holder within two (2) Business Days following the later of (a) the
Fundamental Change Purchase Date, with respect to such Securities (provided the conditions in this
Article 11 have been satisfied) and (b) the time of delivery or
book-entry transfer of such Securities to the Paying Agent by the Holder
thereof in the manner required by Section 11.01.  Securities in respect of which a Fundamental
Change Purchase Notice has been given by the Holder thereof may not be
exchanged on or after the date of the delivery of such Fundamental Change
Purchase Notice unless such Fundamental Change Purchase Notice has first been
validly withdrawn as specified in the following two paragraphs.


A Fundamental Change Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent at any
time prior to 5:00 p.m., New York City time, on the Business Day prior to
the Fundamental Change Purchase Date to which it relates, specifying:


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


(ii)           if certificated, the certificate
number of the Securities in respect of which such notice of withdrawal is being
submitted, or, if not certificated, the written notice of withdrawal must
comply with appropriate DTC procedures; and



 47
 









 


(iii)          the principal amount, if any, of such
Securities which remains subject to the original Fundamental Change Purchase
Notice and which has been or shall be delivered for purchase by the Company.


There shall be no purchase of any Securities pursuant to
Section 11.01 if an Event of Default has occurred and is continuing (other
than a default that is cured by the payment of the Fundamental Change Purchase
Price).  The Paying Agent shall promptly
return to the respective Holders thereof any Securities (x) with respect
to which a Fundamental Change Purchase Notice has been withdrawn in compliance
with this First Supplemental Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default that is cured by the
payment of the Fundamental Change Purchase Price) in which case, upon such
return, the Fundamental Change Purchase Notice with respect thereto shall be
deemed to have been withdrawn.


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


(d)           Covenant to
Comply with Securities Laws Upon Purchase of Securities.  In connection with any offer to purchase Securities
under Section 11.01, the Company shall, to the extent applicable,
(i) comply with Rules 13e-4 and 14e-1 (and any successor provisions
thereto) under the Exchange Act, if applicable; (ii) file the related
Schedule TO (or any successor schedule, form or report) under the Exchange Act,
if applicable; and (iii) otherwise comply with all applicable federal and
state securities laws so as to permit the rights and obligations under
Section 11.01 to be exercised in the time and in the manner specified in Section 11.01.


(e)           Repayment to the
Company.  Subject to applicable
abandoned property laws, the Trustee and the Paying Agent shall return to the
Company any cash or property that remains unclaimed, as provided in
paragraph 8 of the Securities, together with interest that the Trustee or
Paying Agent, as the case may be, has expressly agreed in writing to pay, if
any, that is held by them for the payment of a Fundamental Change Purchase
Price; provided, however, that to the extent that the
aggregate amount of cash or property deposited by the Company pursuant to
Section 11.01(c) exceeds the aggregate Fundamental Change Purchase Price
of the Securities or portions thereof which the Company is obligated to
purchase as of the Fundamental Change Purchase Date then promptly on and after
the Business Day following the Fundamental Change Purchase Date the Trustee and
the Paying Agent shall return any such excess to the Company together with
interest that the Trustee or Paying Agent, as the case may be, has expressly agreed
in writing to pay, if any.


(f)            Officers’
Certificate.  At least three (3)
Business Days before the Company Notice Date, the Company shall deliver an
Officers’ Certificate to the Trustee specifying whether 



 48
 









the Company
desires the Trustee to give the Company Notice required by
Section 11.02(a) herein.


ARTICLE
12

Conversion


Section 12.01         Conversion
of Securities.


(a)           Right to Convert.  Subject to the procedures for exchange set
forth in this Article 12, a Holder may convert its Securities at the
Conversion Rate during a specified period when one or more of the conditions
specified below are met.  Whenever the
Securities shall become convertible upon one or more of the conditions stated
in clauses (i), (ii), (iv)(A), (iv)(B) or (iv)(C) below, the Company or, at the
Company’s request, the Trustee in the name and at the expense of the Company,
shall notify the Holders of the event triggering such convertibility in the
manner provided in Section 14.02 and, in the case of one or more
conditions stated in clauses (iv)(B) or (iv)(C), the Company shall also publish
a notice in accordance with Section 11.02(a).  For the avoidance of doubt, the Trustee has
no duty to determine if Securities have become convertible, and its only
obligation is to notify Holders of such at the Company’s request.  Whenever the Securities shall become
convertible upon the condition stated in clause (iii), notice of the event
triggering such convertibility shall be given in accordance with the provisions
of Section 6.04.  Any notice so given
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.


(i)            Conversion Upon Satisfaction of
Market Price Condition.  A Holder may
surrender all or a portion of its Securities for conversion during any fiscal
quarter (and only during such fiscal quarter) commencing after June 30,
2007 if, and only if, the Last Reported Sale Price for the Common Stock for at
least twenty (20) Trading Days (whether or not consecutive) during the period
of thirty (30) consecutive Trading Days ending on the last Trading Day of the
immediately preceding fiscal quarter as determined by the Company is greater
than or equal to one hundred thirty percent (130%) of the Conversion Price in
effect on such last Trading Day.  The
Board of Directors of the Company will make appropriate adjustments in its good
faith determination, to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, during that thirty (30)
consecutive Trading Day period.


(ii)           Conversion Upon Satisfaction of
Trading Price Condition.  A Holder
may surrender its Securities for conversion during the five (5)
consecutive Trading Day period after any five (5) consecutive Trading Day
period (the “Measurement Period”)
in which the Trading Price per One Thousand Dollars ($1,000) principal amount
of Securities, as determined following a request by a Holder in accordance with
the procedures set forth in this Section 12.01(a)(ii), for each Trading
Day of the Measurement Period was less than ninety eight percent (98%) of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate for such Trading Day.  In
connection with any exchange in accordance with this Section 12.01(a)(ii),
the Trustee shall have no obligation to determine the Trading Price of the
Securities unless requested by the Company; and the Company shall have no
obligation to make such request unless a 



 49
 









Holder provides the Company with reasonable
evidence that the Trading Price per One Thousand Dollars ($1,000) principal
amount of Securities would be less than ninety eight percent (98%) of the
product of the Last Reported Sale Price of the Common Stock and the applicable
Conversion Rate.  Promptly after
receiving such evidence, the Company shall instruct the Trustee to determine
the Trading Price of the Securities beginning on the next Trading Day and on
each successive Trading Day until the Trading Price per One Thousand Dollars
($1,000) principal amount of Securities for any Trading Day is greater than or
equal to ninety eight percent (98%) of the product of the Last Reported Sale
Price of the Common Stock and the applicable Conversion Rate.


(iii)          Conversion Upon Notice of
Redemption.  If the Company calls any
or all of the Securities for Redemption, a Holder may surrender for conversion
all or a portion of its Securities called for redemption at any time prior to
the close of business on the second Scheduled Trading Day prior to the related
Redemption Date, even if the Securities are not otherwise convertible at such
time, after which time a Holder’s right to convert will expire unless the
Company defaults in the payment of the Redemption Price.  For the avoidance of doubt, if the Company
gives two or more notices of redemption such that the Observation Periods
applicable to the relevant Redemption Dates overlap, the Observation Period
based on the first notice of redemption that is given shall be applicable to such
Securities.


(iv)          Conversion Upon Specified
Transactions.


(A)          If
the Company elects to (1) distribute to all holders of Common Stock any
rights or warrants entitling them to purchase, for a period expiring within
forty five (45) days after the Ex-Dividend Date of the distribution,
shares of Common Stock at a price per share less than the average of the Last
Reported Sale Price of Common Stock for the ten (10) consecutive Trading
Day period ending on the Trading Day immediately preceding the Ex-Dividend Date
for such distribution, or (2) distribute to all holders of Common Stock
assets, debt securities or rights to purchase securities of the Company, which
distribution has a per share Fair Market Value, as determined by the Company’s
Board of Directors, exceeding fifteen percent (15%) of the Last Reported Sale
Price of the Common Stock on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution, then, in each case, the Company must
notify the Holders of such distribution and of their rights under this
clause (A), in the manner provided in Section 14.02, at least twenty
five (25) Scheduled Trading Days prior to the Ex-Dividend Date for such
distribution.  Once the Company has given
such notice, Holders may surrender Securities for conversion at any time until
the earlier of 5:00 p.m., New York City time, on the Business Day
immediately prior to such Ex-Dividend Date and the announcement that such
distribution will not take place even if the Securities are not otherwise
convertible at such time. 
Notwithstanding the foregoing, a Holder may not surrender Securities for
conversion if such Holder may participate (as a result of holding the
Securities, and at the same time as holders of Common Stock participate) in any
of the transactions described in this Section 12.01(a)(iv) as if such
Holder of the Securities held a number of shares of Common Stock equal to the
applicable



 50















Conversion Rate, multiplied by the principal amount (expressed in
thousands) of Securities held by such Holder, without being required to convert
the Securities.


(B)           If
the Company is party to a transaction described in clause (a) of the
definition of Fundamental Change (after giving effect to the proviso set forth
in the definition thereof relating to Publicly Traded Securities) or a
combination, merger, binding share exchange or sale, lease or other transfer of
all or substantially all of the Company’s and its Subsidiaries’ assets, taken
as a whole, in each case pursuant to which the Common Stock would be converted
into cash, securities and/or other property that does not constitute a
Fundamental Change, the Company must notify Holders of such an event and of
their rights under this clause (B), in the manner provided in
Section 14.02, at least twenty five (25) Scheduled Trading Days prior
to the anticipated effective date for such transaction.  Once the Company has given such notice,
Holders may surrender Securities for conversion at any time until five (5)
Scheduled Trading Days after the actual effective date of such transaction.


(C)           A
Holder may surrender all or a portion of such Holder’s Securities for
conversion, if a Fundamental Change of the type described in clause (b),
(c) or (d) in the definition thereof occurs.  In such event, Holders may surrender
Securities for conversion at any time beginning on the actual effective date of
such Fundamental Change until and including the date which is five (5) Scheduled
Trading Days after the actual effective date of such transaction or, if later,
until the related Fundamental Change Purchase Date.


A Holder may convert a portion of the principal amount of Securities if
the portion is One Thousand Dollars ($1,000) or a multiple of One Thousand
Dollars ($1,000).  The number of shares
of Common Stock issuable or the combination of cash payable and the number of
shares of Common Stock issuable, if any, upon conversion of a Security shall be
determined as set forth in Section 12.01(d).


(b)           Conversion During
Specified Period Immediately Prior to Stated Maturity.  Notwithstanding anything herein to the
contrary, a Holder may surrender its Securities for conversion beginning on
January 15, 2012, until the close of business on the second (2nd) Business
Day immediately preceding the Stated Maturity.


(c)           Conversion
Procedures.  The following procedures
shall apply to the conversion of Securities:


(i)            In respect of a Definitive Security,
a Holder must (A) complete and manually sign the conversion notice on the back
of the Security, or a facsimile of such conversion notice; (B) deliver such
conversion notice, which is irrevocable, and the Security to the Conversion
Agent; (C) to the extent any shares of Common Stock issuable upon conversion
are to be issued in a name other than the Holder’s, furnish appropriate
endorsements and transfer documents as may be required by the Conversion Agent;
(D) if required pursuant to Section 12.01(h), pay all transfer or similar
taxes; and (E) if required 



 51
 









pursuant to Section 2.01(d), pay funds
equal to interest payable on the next Interest Payment Date to which such
Holder is not entitled.


(ii)           In respect of a beneficial interest
in a Global Security, a Beneficial Owner must comply with DTC’s procedures for
exchanging a beneficial interest in a Global Security and, if required pursuant
to Section 2.01(d), pay funds equal to interest payable on the next
Interest Payment Date to which such Beneficial Owner is not entitled, and if
required, taxes or duties, if any.


The date a Holder satisfies the foregoing requirements is the “Conversion Date” hereunder.


If a Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable or the combination of the cash
payable and number of shares of Common Stock issuable upon the conversion, if
any, shall be based on the total principal amount of the Securities exchanged.


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


Delivery of shares of Common Stock will be accomplished by delivery to
the Conversion Agent of certificates for the relevant number of shares of
Common Stock, other than in the case of Holders of Global Securities in
book-entry form with DTC, in which case shares of Common Stock shall be
delivered in accordance with DTC customary practices.  In addition, the Company will pay cash for
any fractional shares of Common Stock in accordance with Section 12.01(g).


(d)           Settlement Upon
Conversion.  In the event that the
Company receives a Holder’s notice of conversion upon fulfillment of one or
more of the conditions to conversion described in this Section 12.01, the
Company will notify the relevant Holders within two (2) Scheduled Trading Days
following the Conversion Date whether the Company will satisfy its obligation
to convert the Securities through delivery of (x) shares of Common Stock
pursuant to clause (ii) below or (y) a combination of cash and shares of Common
Stock pursuant to clause (i) below. 
However, the Company will not be permitted to elect the option described
in either (x) or (y) if the Company has made the election to waive either
option pursuant to an election made under Section 12.01(e).


(i)            Net Share Settlement.  If the Company chooses or has to satisfy its
obligation to convert the Securities (the “Conversion Obligation”) by a combination of cash and shares
of Common Stock, upon conversion the Company will, except as provided in
Section 12.01(f), deliver to converting Holders, in respect of each $1,000
principal amount of Securities being converted, a “Settlement
Amount” equal to the sum of the Daily Conversion Values for each of
the twenty five (25) VWAP Trading Days during the Observation Period for such
Security.


“Daily Settlement Amount,” for each of the twenty five (25)
VWAP Trading Days during the Observation Period, shall consist of:



 52
 









 


(A)          cash equal to the lesser of Forty
Dollars ($40) and the Daily Conversion Value; and


(B)           to the extent the Daily Conversion
Value exceeds Forty Dollars ($40), a number of shares of the Common Stock equal
to, (A) the difference between the Daily Conversion Value and Forty Dollars
($40), divided by (B) the Daily VWAP for such VWAP Trading Day.


“Daily Conversion
Value” means, for each of the twenty five (25) consecutive VWAP
Trading Days during the Observation Period, four percent (4%) of the product of
(1) the applicable Conversion Rate and (2) the Daily VWAP of the Common Stock
on such VWAP Trading Day.


“Daily VWAP”
means, for each of the twenty five (25) consecutive VWAP Trading Days
during the Observation Period, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “VECO UN
<EQUITY> VAP <GO>”, or its equivalent successor page, in respect of
the period from 9:30 a.m. to 4:00 p.m., New York City time, on such
VWAP Trading Day, or if such volume-weighted average price is unavailable or if
such page or its equivalent is unavailable, the (a) price of each trade in
shares of Common Stock multiplied by the number of shares of Common Stock in
each such trade (b) divided by the total number of shares of Common Stock
traded, in each case during such VWAP Trading Day from 9:30 a.m. to
4:00 p.m., New York City time on The NASDAQ Global Select Market or, if
the Common Stock is not traded on The NASDAQ Global Select Market, the principal
U.S. national or regional securities exchange on which the Common Stock is
listed, by a nationally recognized independent investment banking firm retained
for this purpose by the Company.


The Settlement Amount in respect of any Security
exchanged pursuant to this clause (i) will be delivered to converting
Holders as soon as practicable following the last day of the Observation Period
for the Conversion Date for such Security.


(ii)           Full Share Settlement.  If the Company elects to satisfy its
Conversion Obligation in shares of Common Stock pursuant to this
Section 12.01(d), upon conversion the Company will, except as provided in
Section 12.01(f), deliver to any converting Holder a number of shares of
Common Stock equal to (A) the aggregate principal amount of Securities being
converted by such Holder divided by One Thousand Dollars ($1,000), multiplied
by (B) the applicable Conversion Rate.


The shares of Common Stock delivered pursuant to this
clause (ii) (and cash in lieu of any fractional shares) will be
delivered through the Conversion Agent or DTC as soon as practicable following
the last day of the Observation Period for the Conversion Date for such
Security.


(iii)          Holder of Record.  With respect to a conversion of a Security
pursuant hereto, at and after the close of business on the last Trading Day
(the “Relevant Date”)
of the Observation Period applicable to such conversion, the Person in whose
name any 



 53
 









certificate representing any shares of Common
Stock issuable upon such conversion is registered shall be treated as a
stockholder of record of the Company; provided, however, that if any such shares of
Common Stock constitute Additional Shares, then the Relevant Date with respect
to such shares that constitute Additional Shares shall instead be deemed to be
the later of (A) the last Trading Day of the Observation Period applicable
to such conversion, and (B) the Effective Date of the Fundamental Change
resulting in the Additional Shares.  On
and after the Conversion Date with respect to a conversion of a Security
pursuant hereto, all rights of the Holder of such Security shall terminate,
other than the right to receive the consideration deliverable upon conversion
of such Security as provided herein.  A
Holder of a Security is not entitled, as such, to any rights of a holder of
Common Stock until, if such Holder converts such Security and is entitled
pursuant hereto to receive shares of Common Stock in respect of such
conversion, the close of business on the Relevant Date or respective Relevant
Dates, as the case may be, with respect to such conversion.


(iv)          Continued NASDAQ Listing Standards.  Notwithstanding anything to the contrary in
this First Supplemental Indenture, in no event will the Company issue shares of
Common Stock beyond the maximum level permitted by the continued listing
standards of The Nasdaq Stock Market.  In
accordance with such listing standards, the restrictions set forth in this
Section 12.01(d)(iv) will apply at any time when Securities are outstanding,
regardless of whether the Company has a class of securities listed on The
Nasdaq Stock Market.


(e)           Irrevocable
Election of Settlement Method.  At
any time, upon ten (10) Business Days’ prior written notice to the Trustee and
the Holders, the Company may irrevocably waive, in its sole discretion and
without the consent of the Holders, by notice to the Trustee and the Holders,
its right to satisfy its Conversion Obligation in either (i) shares of Common
Stock based on the applicable Conversion Rate, or (ii) a combination of cash and
shares of Common Stock, as set forth in Section 12.01(d), such that following
its delivery of such notice the Company may no longer satisfy its Conversion
Obligation by the method specified in either Section 12.01(d)(i) or Section
12.01(d)(ii), to the extent the Company elects in such notice.


(f)            Surrender to a
Financial Institution in Lieu of Conversion.  When a Holder surrenders Securities for
conversion, the Company may direct the Conversion Agent to surrender such
Securities to a financial institution designated by the Company (the “Designated Institution”) for transfer in lieu of
conversion.  In order to accept any
Securities surrendered for conversion, the Designated Institution must agree to
deliver, in exchange for such Securities, cash or a combination of cash and
shares of Common Stock, if applicable, equal to the consideration due upon
conversion, as determined under Section 12.01(d).  By the close of business on the Scheduled
Trading Day immediately preceding the start of the Observation Period, the
Company will notify the Holder surrendering Securities for conversion that
(i) it has directed the Designated Institution to accept the Securities in
lieu of conversion, and (ii) whether the Designated Institution will
deliver, upon conversion, cash or a combination of cash and shares of Common
Stock, if applicable, equal to the consideration due upon exchange, as
determined under Section 12.01(d). 
If the Designated Institution accepts any such Securities, it will
deliver the appropriate cash or cash and shares of Common Stock, if applicable,
as the case may be, to the Conversion Agent and the Conversion Agent will
deliver the cash or cash and



 54
 









shares of
Common Stock, if applicable, as the case may be, to the Holder.  Any Securities accepted by the Designated
Institution in lieu of conversion will remain outstanding.  If the Designated Institution agrees to
accept any Securities surrendered for conversion but does not timely deliver
the related consideration, or if such Designated Institution does not accept
the Securities for conversion, the Company will, as promptly as practical
thereafter convert the Securities into cash or cash and shares of Common Stock,
if applicable, in accordance with the election made by the Company in the
initial notice to the Holders surrendering the Securities and based on the
Observation Period as determined under Section 12.01(d).  The Company’s designation of a financial
institution to which the Securities may be surrendered for conversion does not
require the institution to accept any Securities.  The Company will not pay any consideration
to, or otherwise enter into any agreement with, the Designated Institution for
or with respect to such designation.


(g)           Cash Payments in
Lieu of Fractional Shares.  The
Company shall not deliver a fractional share of Common Stock upon conversion of
the Securities.  Instead the Company
shall deliver cash for the current market value of the fractional share.  The current market value of a fractional
share shall be determined to the nearest 1/10,000th of a share by multiplying
the Daily VWAP of a full share of Common Stock on the final Trading Day of the
related Observation Period by the fractional amount and rounding the product to
the nearest whole cent.


(h)           Taxes on
Conversion.  If a Holder converts
Securities, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock issued to satisfy the
Net Amount.  However, the Holder shall
pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder’s name. 
The Conversion Agent may refuse to deliver the certificates representing
the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which shall be due
because the shares are to be issued in a name other than the Holder’s name, but
the Conversion Agent shall have no duty to determine if any such tax is
due.  Nothing herein shall preclude any
withholding of tax required by law.


(i)            Certain
Covenants of the Company.


(i)            The Company shall, prior to issuance
of any Securities hereunder, and from time to time as may be necessary, reserve
out of its authorized but unissued Common Stock or shares of Common Stock held
in treasury, a sufficient number of shares of Common Stock, free of preemptive
rights, to permit the conversion of the Securities and to deliver any shares of
Common Stock required to be delivered by the Company upon conversion of the
Securities in accordance with this Article 12.


(ii)           All shares of Common Stock delivered
upon conversion of the Securities shall be newly issued shares or treasury
shares, shall be duly and validly issued and fully paid and nonassessable and
shall be free from preemptive rights and free of any lien or adverse claim.


(iii)          The Company shall endeavor promptly to
comply with all federal and state securities laws regulating the issuance and
delivery of shares of Common Stock upon the conversion of Securities, if any,
and shall cause to have listed or quoted all such 



 55
 









shares of Common Stock on each U.S. national
securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.


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


Section 12.02         Adjustments
to the Conversion Rate.  The applicable
Conversion Rate shall be adjusted by the Company as follows:


(a)           If the Company
issues shares of Common Stock as a dividend or distribution on shares of the
Common Stock, or effects a share split or share combination, the Conversion
Rate will be adjusted based on the following formula:


CR1 =
CR0 x (OS1/OS0)


where,


CR0              =    the
Conversion Rate in effect immediately prior to the Ex-Dividend Date for such
dividend or distribution, or the effective date of such share split or share
combination, as the case may be;


CR1              =    the
new Conversion Rate in effect immediately after the Ex-Dividend Date for such
dividend or distribution, or the effective date of such share split or share
combination, as the case may be;


OS0              =    the
number of shares of Common Stock outstanding immediately prior to the
Ex-Dividend Date for such dividend or distribution, or the effective date of
such share split or share combination, as the case may be;


OS1              =    the
number of shares of Common Stock outstanding immediately after such dividend or
distribution, or the effective date of such share split or share combination,
as the case may be.


 


Such adjustment shall become effective on the date that is immediately
after (i) the Ex-Dividend Date for such dividend or distribution, or
(ii) the date on which such split or combination becomes effective, as
applicable.  If any dividend or
distribution of the type described in this Section 12.02(a) is declared
but not so paid or made, the new Conversion Rate shall again be adjusted to the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.


(b)           If the Company
distributes to all holders of its Common Stock any rights, warrants, options or
other securities entitling them to purchase, for a period of not more than 



 56
 









forty
five (45) days after the Ex-Dividend Date for the distribution,
shares of Common Stock at a price per share less than the average of the Last
Reported Sale Prices of the Common Stock for the ten (10) consecutive
Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend
Date for such distribution, the Conversion Rate will be adjusted based on the
following formula:


CR1 = CR0 x ((OS0 + X) / (OS0 + Y))


where,


CR0              =    the
Conversion Rate in effect immediately prior to the Ex-Dividend Date for
such distribution;


CR1              =    the
new Conversion Rate in effect immediately after the Ex-Dividend Date for
such distribution;


OS0              =    the
number of shares of Common Stock outstanding immediately prior to the
Ex-Dividend Date for such distribution;


X                                       =    the
total number of shares of Common Stock issuable pursuant to such rights or
warrants, options or other securities; and


Y                                        =    the
number of shares of Common Stock equal to the quotient of (A) the aggregate
price payable to exercise such rights, warrants, options or other securities,
and (B) the average of the Last Reported Sale Prices of the Common Stock over
the ten (10) consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution.


If the application of the formula set forth in this
Section 12.02(b) would result in a decrease in the Conversion Rate, the
Company shall make no adjustment to the Conversion Rate.


For purposes of this Section 12.02(b), in determining whether any
rights, warrants, options or other securities entitle the Holders to subscribe
for or purchase, or exercise a conversion right for, shares of Common Stock at
less than the average of the applicable Last Reported Sale Prices, and in
determining the aggregate exercise or conversion price payable for such shares
of Common Stock, there shall be taken into account any consideration received
by the Company for such rights, warrants, options or other securities, and any
amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be determined by the Company’s Board of
Directors.


If any right, warrant, option or other security described in this
Section 12.02(b) is not exercised or converted prior to the expiration of
the exercisability or convertibility thereof, the new Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect if such right,
warrant, option or other security had not been so issued.  Any adjustment made pursuant to this
Section 12.02(b) shall become effective immediately after the Ex-Dividend
Date for the applicable distribution.



 57
 









 


(c)           If the Company
distributes shares of Capital Stock, evidences of its indebtedness or other
assets or property of the Company to all holders of the Common Stock,
excluding:


(i)            dividends, distributions, rights,
warrants, options or other securities referred to in clause (a) or
(b) above;


(ii)           dividends or distributions paid
exclusively in cash referred to in paragraph (d) below; and


(iii)          Spin-Offs, to which the provisions set
forth below in this clause (c) shall apply;


then
the Conversion Rate will be adjusted based on the following formula:


CR1 = CR0 x (SP0/(SP0-FMV)


where,


CR0              =    the
Conversion Rate in effect immediately prior to the Ex-Dividend Date for
such distribution;


CR1              =    the
new Conversion Rate in effect immediately after the Ex-Dividend Date for
such distribution;


SP0               =    the
average of the Last Reported Sale Prices of the Common Stock over the
ten (10) consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution; and


FMV                     =    the
average of the Fair Market Values (as determined in good faith by the Board of
Directors of the Company) of the shares of Capital Stock, evidences of
indebtedness, assets or property distributed with respect to each outstanding
share of Common Stock over the ten (10) consecutive Trading-Day period
ending on the Trading Day immediately preceding the Ex-Dividend Date for
such distribution.


Such adjustment shall become effective immediately after the Ex-Dividend
Date for the applicable distribution.


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


CR1 = CR0 x ((FMV0 + MP0)/MP0)



 58
 









 


where,


CR0              =    the
Conversion Rate in effect immediately prior to the tenth (10th) Trading Day immediately following, and
including, the effective date of the Spin-Off;


CR1              =    the
new Conversion Rate in effect immediately after the tenth (10th) Trading Day immediately following, and
including, the effective date of the Spin-Off;


FMV0        =    the
average of the Last Reported Sale Prices of the Capital Stock or similar equity
interest distributed to holders of Common Stock applicable to one share of
Common Stock over the first ten (10) consecutive Trading Day period
immediately following, and including, the effective date of the Spin-Off; and


MP0            =    the
average of the Last Reported Sale Prices of Common Stock over the first
ten (10) consecutive Trading Day period immediately following, and
including, the effective date of the Spin-Off.


Such adjustment shall occur immediately after the tenth (10th) Trading Day immediately
following, and including, the effective date of the Spin-Off provided that, for purposes of determining
the Conversion Rate, in respect of any conversion during the ten (10)
Trading Days following the effective date of any Spin-Off, references within
the portion of this clause (c) related to “Spin-Offs” to ten (10)
Trading Days shall be deemed replaced with such lesser number of Trading Days
as have elapsed between the effective date of such Spin-Off and the relevant
Conversion Date.


If any such dividend or distribution described in this clause (c)
is declared but not paid or made, the new Conversion Rate shall be readjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


(d)           If any cash dividend
or distribution is made to all holders of Common Stock, the Conversion Rate
will be adjusted based on the following formula:


CR1 = CR0 x (SP0/(SP0-C)


where,


CR0              =    the
Conversion Rate in effect immediately prior to the Ex-Dividend Date for such
distribution;


CR1              =    the
new Conversion Rate in effect immediately after the Ex-Dividend Date for such
distribution;


SP0               =    the
Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution; and



 59
 









 


C                                        =    the
amount in cash per share of Common Stock distributed to holders of Common
Stock.


An adjustment to the Conversion Rate made pursuant to this
clause (d) shall become effective immediately after the Ex-Dividend Date
for the applicable dividend or distribution. 
If any dividend or distribution described in this clause (d) is
declared but not so paid or made, the new Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


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


CR1 = CR0 x (AC + (SP1 x
OS1))/(SP1 x OS0)


where,


CR0              =    the
Conversion Rate in effect at the close of business on the last Trading Day of
the ten (10) consecutive Trading Day period commencing on the Trading Day
next succeeding the date such tender or exchange offer expires;


CR1              =    the
new Conversion Rate in effect immediately following the last Trading Day of the
ten (10) consecutive Trading Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer expires;


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


OS0              =    the
number of shares of Common Stock outstanding immediately prior to the
expiration of such tender or exchange offer;


OS1              =    the
number of shares of Common Stock outstanding immediately after the expiration
of such tender or exchange offer (after giving effect to the purchase or
exchange of shares pursuant to such tender or exchange offer); and


SP1               =    the
average of the Last Reported Sale Prices of Common Stock over the ten (10)
consecutive Trading Day period commencing on the Trading Day next succeeding
the date such tender or exchange offer expires.



 60















The adjustment to the Conversion Rate under this clause (e) shall
become effective immediately following the tenth (10th) Trading Day next succeeding the date
such tender or exchange offer expires; provided
that, for purposes of determining the Conversion Rate, in respect of
any conversion during the ten (10) Trading Days following the date that
any tender or exchange offer expires, references within this clause (e) to
ten (10) Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the date such tender or exchange offer
expires and the relevant Conversion Date. 
If the Company or one of its Subsidiaries is obligated to purchase
Common Stock pursuant to any such tender or exchange offer but are permanently
prevented by applicable law from effecting any such purchase or all such
purchases are rescinded, the new Conversion Rate shall be readjusted to be the
Conversion Rate that would be in effect if such tender or exchange offer had
not been made.


(f)            Without limiting
the foregoing provisions of this Section 12.02, no adjustment will be made
thereunder, nor shall an adjustment be made to the ability of a Holder to
convert, for any distribution described therein if the Holder will otherwise
participate in the distribution without conversion of such Holder’s securities
as if such Holder held a number of shares of Common Stock equal to the
applicable Conversion Rate, multiplied by the principal amount (expressed in
thousands) of Securities held by such holder, without having to convert its
Securities.  Further, if the application
of the foregoing formulae in this Section 12.02 would result in a decrease
in the Conversion Rate, no adjustment to the Conversion Rate will be made (except
on account of share combinations).


(g) No adjustment to the Conversion Rate will be made unless as
specifically set forth in this Section 12.02 and in
Section 12.03.  Further, in the
event of an adjustment to the Conversion Rate pursuant to Section 12.02(d)
or Section 12.02(e), in no event will the Conversion Rate exceed 71.09 shares
of Common Stock per One Thousand Dollars ($1,000) principal amount of
Securities, subject to adjustment pursuant to clauses (a), (b) or
(c) above.  For the avoidance of
doubt, this cap on the Conversion Rate will not apply to an adjustment to the
Conversion Rate pursuant to Section 12.02(a), Section 12.02(b) and
Section 12.02(c).


(h)           Without limiting the
foregoing, no adjustment to the Conversion Rate need be made:


(i)          upon the issuance of
any shares of Common Stock pursuant to any public or private offering;


(ii)         upon the issuance of
any shares of Common Stock pursuant to any present or future plan providing for
the reinvestment of dividends or interest payable on securities of the Company
and the investment of additional optional amounts in shares of Common Stock
under any plan;


(iii)        upon the issuance of
any shares of Common Stock or options or rights to purchase shares of Common
Stock pursuant to any present or future employee, director or consultant
benefit plan or program or employment agreement or employee stock purchase plan
of or assumed by the Company or any of its Subsidiaries;



 61
 









 


(iv)        upon the issuance of
any shares of Common Stock pursuant to any option, warrant, right, or
exercisable, convertible or exchangeable security not described in
clause (ii) above and outstanding as of the Issue Date;


(v)         for a change in the
par value of the Common Stock;


(vi)        for accrued and unpaid
dividends or Interest; or


(vii)       as a result of a
tender offer solely to holders of fewer than 100 shares of the Company’s Common
Stock.


(i)            No adjustment to
the Conversion Rate will be required unless the adjustment would require an
increase or decrease of at least one percent (1%) of the Conversion Rate.  If the adjustment is not made because the
adjustment does not change the Conversion Rate by at least one percent (1%),
then the adjustment that is not made will be carried forward and taken into
account in any future adjustment.  All
required calculations will be made to the nearest cent or one one-thousandth
(1/1000th) of a share of Common Stock, as the case may be.  Notwithstanding the foregoing, if the
Securities are called for redemption, all adjustments not made on or prior to
the date thirty (30) days prior to the applicable Redemption Date will be made
effective as of such date thirty (30) days prior to such Redemption Date.


(j)            Whenever the
Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Conversion Agent other than the Trustee an Officers’
Certificate setting forth the Conversion Rate after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.  Unless and until a Trust Officer of the
Trustee shall have received such Officers’ Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume that the last Conversion Rate of which it has knowledge is still in
effect.  Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the Holder of each Security at such Holder’s
last address appearing on the Securities Register provided for in
Section 2.05 of this First Supplemental Indenture within twenty (20) days
after execution thereof.  Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.


(k)           For purposes of this
Section 12.02, the number of shares of Common Stock outstanding at any
time shall not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.  If
the Company pays any dividend or makes any distribution on, or issues any
rights, options or warrants in respect of, shares of Common Stock held in
treasury by the Company, the Company shall not issue, transfer or convey such
shares of Common Stock in a manner that would have the effect of circumventing
the provisions of this Section 12.02.


(l)            Whenever any
provision of this Article 12 requires a calculation of an average of Last
Reported Sale Prices or Daily VWAP over a span of multiple days, the Company
will make appropriate adjustments (determined in good faith by the Company’s
Board of Directors) to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring 



 62
 









an adjustment
to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any
time during the period from which the average is to be calculated.


Section 12.03         Adjustment
to Common Stock Delivered Upon Certain Fundamental Changes.


(a)           If a Holder elects
to convert Securities pursuant to Section 12.01(a)(iv) above in connection
with a corporate transaction described therein and the transaction constitutes
a Fundamental Change, then, the Conversion Rate for such Securities shall be
increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below.  Any conversion will be deemed to have
occurred in connection with such Fundamental Change if such Securities are
surrendered for conversion at a time when the Securities would be convertible
in light of the expected or actual occurrence of a Fundamental Change and
notwithstanding the fact that a Security may then be convertible because
another condition to conversion also has been satisfied.


(b)           The number of
Additional Shares will be determined by reference to the table attached as
Schedule A hereto, based on the actual effective date on which the Fundamental
Change occurs or becomes effective (the “Effective Date”) and the Stock Price paid per share of
Common Stock with respect to such Fundamental Change; provided that if the Stock Price is
between two Stock Price amounts set forth in such table or the Effective Date
is between two Effective Dates in the table, the number of Additional Shares
will be determined by a straight-line interpolation between the number of
Additional Shares set forth for the higher and lower Stock Price amounts and
the two dates, as applicable, based on a 365-day year; provided further that if the Stock Price
is greater than $80.00 per share (subject to adjustment as set forth in
clause (d) below) or less than $19.73 per share (subject to adjustment as
set forth in clause (d) below), then no Additional Shares will be issued
upon conversion.  Notwithstanding the
foregoing, the Conversion Rate shall not exceed 50.6842 shares of Common
Stock per One Thousand Dollars ($1,000) principal amount of Securities on
account of adjustments pursuant to this Section 12.03, subject to
adjustments set out in Section 12.02(a) through (e).


(c)           If a Holder elects
to convert a Security as described in this Section 12.03 prior to the
Effective Date of any Fundamental Change, and the Fundamental Change does not
occur, the Holder will not be entitled to Additional Shares in connection with
such conversion.


(d)           The Stock Prices set
forth in the first row of the table in Schedule A hereto will be adjusted as of
any date on which the Conversion Rate of the Securities is otherwise adjusted
pursuant to Section 12.02.  The adjusted
Stock Prices will equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to such adjustment and the denominator of which is the
Conversion Rate as so adjusted.  The
number of Additional Shares set forth in such table will be adjusted in the
same manner as the Conversion Rate as set forth in Section 12.02.


(e)           Settlement of
Securities tendered for conversion upon a Fundamental Change, as to which the
Conversion Rate will be increased by Additional Shares pursuant to this
Section 12.03 shall occur as follows:



 63
 









 


(i)            if the last day of the applicable
Observation Period for such Securities is prior to the third Scheduled Trading
Day immediately preceding the Effective Date, the Company shall deliver cash or
cash and shares of Common Stock (together, if shares of Common Stock, with cash
in lieu of fractional shares), determined in accordance with
Section 12.01(d) by delivering the amount of cash and shares of Common
Stock based on the applicable Conversion Rate then in effect without such
Additional Shares, as promptly as practicable immediately following the last
day of the applicable Observation Period; provided
that such Settlement Amount and related Daily Conversion Values
shall be based on the Conversion Rate without giving effect to the Additional
Shares to be added thereto as set forth in this subsection.  As soon as practicable following the
Effective Date, the Company shall calculate the increase in such amount of cash
and Reference Property deliverable in lieu of Common Stock, as if the
applicable Conversion Rate had been increased by such number of Additional
Shares during the related Observation Period (and based upon the same Daily
VWAP for each Trading Day in such Observation Period).  If such increased amount results in an
increase to the amount of cash to be paid to Holders, the Company will pay such
increase in cash, and if such increased Settlement Amount results in an
increase to the number of shares of Common Stock, the Company will deliver such
increase by delivering Reference Property based on such increased number of
shares of Common Stock.  Any shares of
Common Stock to be delivered following the Effective Date shall be subject to
Section 12.04 and shall be delivered in Reference Property.


(ii)           If the last day of the applicable
Observation Period for such Securities is on or after the third Scheduled
Trading Day immediately preceding the Effective Date, the Company shall deliver
the shares of Common Stock or the Settlement Amount (together, in each case,
with cash in lieu of fractional shares) determined in accordance with
Section 12.01(d) (such determination, for the avoidance of doubt, to
include the number of Additional Shares to be added to the Conversion Rate as
set forth in this subsection) on the later to occur of (x) the Effective
Date and (y) as promptly as practicable following the last day of the
Observation Period.  Any shares of Common
Stock to be delivered on or following the Effective Date shall be subject to
Section 12.04 and shall be delivered in Reference Property.


In no event shall the Company pay any such increase to the Conversion
Rate or to the Settlement Amount if the transaction causing the increase to the
Conversion Rate pursuant to this subsection never becomes effective.


Section 12.04         Effect
of Recapitalizations, Reclassifications, and Changes of Common Stock.


(a)           If any of the
following events occur:  (i) any
recapitalization, reclassification or change of the outstanding shares of
Common Stock (other than a subdivision or combination to which
Section 12.02(a) applies), (ii) any consolidation, merger, binding
share exchange or combination of the Company with another Person, or
(iii) any sale or conveyance to another Person of all or substantially all
of the property and assets of the Company and its Subsidiaries, in each case as
a result of which Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any
combination thereof) (any 



 64
 









such event or
transaction, a “Reorganization Event”),
then, following the effective time of the Reorganization Event, the right to
receive shares of Common Stock upon conversion of Securities, if any, will be
changed into a right to receive the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination
thereof) (the “Reference Property”) that a Holder
of a like number of shares of Common Stock immediately prior to such
Reorganization Event would have been entitled to receive upon such
Reorganization Event.  If the
Reorganization Event causes Common Stock to be exchanged into the right to
receive more than a single type of consideration (determined based in part upon
any form of stockholder election), the Reference Property will be deemed to be
the weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election.  The Company will notify Holders of the
weighted average as soon as practicable after such determination is made.  Upon such Reorganization Event, the Company
or any Successor Company will enter into a supplemental indenture consistent
with the foregoing.  Such supplemental
indenture shall provide for provisions and adjustments which shall be as nearly
equivalent as may be practicable to the provisions and adjustments provided for
in this Article 12, Article 10 and Article 11 and the definition
of Fundamental Change, as appropriate, as determined in good faith by the
Company’s Board of Directors (which determination shall be conclusive and
binding), to make such provisions apply to such other Person if different from
the original issuer of the Securities.


(b)           Following the
effective time of any such Reorganization Event, settlement of Securities
converted shall be in units of Reference Property or cash and units of
Reference Property, if applicable, determined in accordance with
Section 12.01(d)(i) and Section 12.01(d)(ii) above based on
the Daily Conversion Value and Daily VWAP of such Reference Property.  For the purposes of determining such Daily
Conversion Value and Daily VWAP, (i) if the Reference Property includes
securities for which the price can be determined in a manner contemplated by
the definition of Daily VWAP, then the value of such securities shall be
determined in accordance with the principles set forth in such definition, as
determined in good faith by the Company’s Board of Directors (which
determination shall be conclusive and binding); (ii) if the Reference
Property includes other property (other than securities as to which
clause (i) applies or cash), then the value of such property shall be
the Fair Market Value of such property as determined by the Company’s Board of
Directors in good faith; and (iii) if the Reference Property includes
cash, then the value of such cash shall be the amount thereof.


(c)           The Company shall
cause notice of the execution of any supplemental indenture required by this
Section 12.04 to be mailed to each Holder, at its address appearing on the
Securities Register provided for in Section 2.05 of this First
Supplemental Indenture, within twenty (20) calendar days after execution
thereof.  Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.


(d)           The above provisions
of this Section 12.04 shall similarly apply to successive Reorganization
Events.


(e)           If this
Section 12.04 applies to any event or occurrence, Section 12.02 shall
not apply in respect of such event or occurrence.



 65
 









 


(f)            The Company shall
not become a party to any Reorganization Event unless its terms are consistent
with the foregoing.  None of the
foregoing provisions shall affect the right of a Holder of Securities to
convert the Securities as set forth in Section 12.01 prior to the
effective time of such Reorganization Event.


Section 12.05         Responsibility
of Trustee.  The Trustee and any
other Conversion Agent shall not at any time be under any duty or
responsibility to the Company or any Holder of Securities to determine when the
Securities become convertible, the Conversion Rate, or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same.  The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Security; and
the Trustee and any other Conversion Agent make no representations with respect
thereto.  Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any cash or shares of Common Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 12.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 12.04 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by Holders upon the conversion of their Securities
after any Reorganization Event or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Officers’ Certificate with respect thereto.


Section 12.06         Stockholder
Rights Plan.  To the extent that the
Company has a rights plan in effect upon conversion of the Securities into
Common Stock, the Holder will receive upon conversion of the Securities in
respect of which the Company has elected to deliver Common Stock, if applicable,
the rights under the rights plan, unless prior to any conversion, the rights
have expired, terminated or been redeemed or unless the rights have separated
from the Common Stock, in which case, and only in such case, the Conversion
Rate will be adjusted at the time of separation as if the Company distributed
to all holders of Common Stock shares of the Company’s Capital Stock, evidences
of indebtedness or assets as described in Section 12.02(c) above, subject
to readjustment in the event of the expiration, termination or redemption of
such rights.  In lieu of any such
adjustment, the Company may amend such applicable stockholder rights agreement
to provide that upon conversion of the Securities the Holders will receive, in
addition to the Common Stock issuable upon such conversion, the rights which
would have attached to such Common Stock if the rights had not become separated
from the Common Stock under such applicable stockholder rights agreement.


Section 12.07         No
Stockholder Rights.  For the avoidance
of doubt, Holders of Securities will not have any rights as holders of Common
Stock (including voting rights and rights to receive any dividends or other
distributions on the Common Stock) if and until the Securities are converted
into shares of Common Stock.



 66
 









 


Section 12.08         Other
Adjustments to the Conversion Rate. 
In addition to the adjustments set forth above in this Article 12,
the Company may increase the Conversion Rate in order to avoid or diminish any
income tax to the holders of its Common Stock resulting from any dividend or
distribution of Capital Stock (or rights to acquire the Company’s Common Stock)
or from any event treated as such for income tax purposes.  The Company may also, from time to time, to
the extent permitted by applicable law, increase the Conversion Rate by any
amount for any period if the Board of Directors determines that such increase
would be in the Company’s best interests. 
If the Board of Directors makes such a determination, it will be
conclusive and the Company will mail to Holders a notice of the increased
Conversion Rate and the period during which it will be in effect at least
fifteen (15) days prior to the date the increased Conversion Rate takes effect
in accordance with applicable law.


Section 12.09         Withholding
Taxes for Adjustments in Conversation Rate. 
If the Company pays withholding taxes on behalf of a Holder as a result
of an adjustment to the Conversion Rate, the Company may, at its option, set
off such payments against payments of cash and shares of Common Stock on the
Securities.


ARTICLE
13

Subordination


Section 13.01         Agreement
to Subordinate.  The Company agrees,
and each Holder by accepting a Security agrees, that the Indebtedness, interest
and other obligations of any kind evidenced by the Security and this First
Supplemental Indenture are subordinated in right of payment, to the extent and
in the manner provided in this Article 13, to the prior payment in full in cash
of all Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), all secured Indebtedness, and that
such subordination is for the benefit of the holders of Senior Indebtedness.


Section 13.02         Liquidation,
Dissolution, Bankruptcy.  In the
event of any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relating to the Company or to its assets, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or involuntary,
or any assignment for the benefit of creditors or other marshaling of assets or
liabilities of the Company (except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the
conveyance, transfer or lease of its properties and assets substantially upon
the terms and conditions described in Article 4), the holders of Senior
Indebtedness will be entitled to receive payment in full in cash of all Senior
Indebtedness, or provisions shall be made for such payment in full, before the
Holders will be entitled to receive any payment or distribution of any kind or
character (other than with respect to payment or distribution in the form of
equity securities or subordinated securities of the Company or any successor
obligor that, in the case of any such subordinated securities, are subordinated
in right of payment to all Senior Indebtedness that may at the time be
outstanding to at least the same extent as the Securities are so subordinated
(such equity securities or subordinated securities hereinafter being “Permitted Junior Securities”)) on account
of principal of, or premium, if any, or interest on the Securities; and any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or distribution
in the form of Permitted Junior Securities), by set-off or otherwise, to which
the 



 67
 









Holders
or the Trustee would be entitled but for the provisions of this Article 13
shall be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives ratably according to
the aggregate amounts remaining unpaid on account of the Senior Indebtedness to
the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness.


Section 13.03         Default
on Designated Senior Indebtedness.


(a)           No
payment or distribution of any assets of the Company of any kind or character,
whether in cash, property or securities (other than Permitted Junior Securities),
may be made by or on behalf of the Company on account of principal of, premium,
if any, or interest on the Securities or on account of the purchase, redemption
or other acquisition of Securities upon the occurrence of any Payment Default
until such Payment Default shall have been cured or waived in writing or shall
have ceased to exist or such Designated Senior Indebtedness shall have been
discharged or paid in full in cash.  “Payment Default” shall mean a default in
payment, whether at scheduled maturity, upon scheduled installment, by
acceleration or otherwise, of principal of, or premium, if any, or interest on
Designated Senior Indebtedness beyond any applicable grace period.


(b)           Upon
the occurrence of any Default or Event of Default with respect to Designated
Senior Indebtedness, other than any Payment Default pursuant to which the
maturity thereof may be accelerated (a “Non-Payment
Default”) and receipt by the Trustee with respect to the Securities
of written notice thereof from the trustee or other representative of holders
of Designated Senior Indebtedness, of a Non-Payment Default, no payment or
distribution of any assets of the Company of any kind or character, whether in
cash, property or securities (other than Permitted Junior Securities), may be
made by or on behalf of the Company on account of principal of, premium, if
any, or interest on the Securities or on account of the purchase, redemption or
other acquisition of Securities during a Payment Blockage Period (as defined
below).


(c)           The
Payment Blockage Period shall mean the period (each, a “Payment Blockage Period”) that will
commence upon the date of receipt by the Trustee of written notice from the
trustee or such other representative of the holders of the Designated Senior
Indebtedness in respect of which the Non-Payment Default exists and shall end
on the earliest of:


(i)          one hundred seventy
nine (179) days thereafter (provided that any Designated Senior Indebtedness as
to which notice was given shall not theretofore have been accelerated),


(ii)         the date on which
such Non-Payment default is cured, waived or ceases to exist;


(iii)        the date on which
such Designated Senior Indebtedness is discharged or paid in full; and



 68
 









 


(iv)        the date on which such
Payment Blockage Period shall have been terminated by written notice to the
Trustee or the Company from the trustee or such other representative initiating
such Payment Blockage Period,


after
which the Company will resume making any and all required payments in respect
of the Securities, including any missed payments unless a Payment Default then
exists.  In any event, not more than one
Payment Blockage Period may be commenced during any period of 365 consecutive
days.  No Non-Payment Default that
existed or was continuing on the date of the commencement of any Payment
Blockage Period will be, or can be made, the basis for the commencement of a
subsequent Payment Blockage Period, unless such Non-Payment Default has been
cured or waived for a period of not less than 90 consecutive days subsequent to
the commencement of such initial Payment Blockage Period.


Section 13.04         Acceleration
of Securities.  If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Indebtedness of the acceleration.  The holders of Senior Indebtedness,
outstanding at the time of acceleration, shall be entitled to payment in full,
in cash or other payment satisfactory to the holders of Senior Indebtedness, of
all obligations with respect to such Senior Indebtedness before the Holders of
Securities are entitled to receive any payment or other distribution.


Section 13.05         When
Distribution Must Be Paid Over.  In
the event that, notwithstanding the provisions of Section 13.02 and 13.03, any
payment or distribution of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder which is prohibited
by such provisions, then and in such event such payment shall be held in trust
for the benefit of, and shall be paid over and delivered by such Trustee or
Holder to, the Trustee or any other representative of holders of Senior
Indebtedness, as their interest may appear, for application to Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash after giving effect to any concurrent distribution to or for
the holders of Senior Indebtedness.


With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Article 13, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this First Supplemental Indenture against the Trustee.  The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable
to any such holders if the Trustee shall pay over or distribute to or on behalf
of Holders or the Company or any other Person money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article 13,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.


Section 13.06         Notice
by the Company.  The Company shall
promptly notify the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of any obligations with respect to the
Securities to violate this Article 13, but failure to give such notice shall
not affect the subordination of the Securities to the Senior Indebtedness as provided
in this Article 13.



 69
 









 


Section 13.07         Subrogation.  After all Senior Indebtedness is paid in full
and until the Securities are paid in full, Holders shall be subrogated (equally
and ratably with all other Indebtedness that is equal in right of payment to
the Securities) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Indebtedness.  A distribution
made under this Article 13 to holders of Senior Indebtedness that otherwise
would have been made to Holders is not, as between the Company and Holders, a
payment by the Company of the Securities.


Section 13.08         Relative
Rights.  This Article 13 defines the
relative rights of Holders and holders of Senior Indebtedness.  Nothing in this First Supplemental Indenture
shall:  (i) impair, as between the
Company and Holders, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Securities in accordance
with their terms; (ii) affect the relative rights of Holders and creditors of
Holders other than their rights in relation to holders of Senior Indebtedness;
or (iii) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to rights of holders and
owners of Senior Indebtedness to receive distributions and payments otherwise
payable to Holders of Securities.  If the
Company fails because of this Article 13 to pay principal of or interest on a
Security on the Stated Maturity date, the failure is still a Default or Event
of Default.


Section 13.09         Subordination
May Not Be Impaired by the Company. 
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or any Holder or by the failure of
the Company or any Holder to comply with this First Supplemental Indenture.


Without in any way limiting the generality of this
Section 13.09, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Trustee or the Holders and without
impairing or releasing the subordination provided in this Article 13 or the
obligations hereunder of the Holders to the holders of Senior Indebtedness, do
any one or more of the following: 
(a) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or secured;  (b) sell,
exchange, release, foreclose against or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (c) release
any Person liable in any manner for the collection of Senior Indebtedness; and
(d) exercise or refrain from exercising any rights against the Company,
and Subsidiary thereof or any other Person.


Section 13.10         Distribution
or Notice to Representative. 
Whenever a distribution is to be made or a notice given to holders of
any Senior Indebtedness, the distribution may be made and the notice given to
their trustee or representative.


Upon any payment or distribution of assets of the
Company referred to in this Article 13, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such representative(s) or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, all holders of the


 



 70















Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 13.


Section 13.11         Rights of
Trustee and Paying Agent. 
Notwithstanding the provisions of this Article 13 or any other
provisions of this First Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment or distribution by the Trustee, and the Trustee and the
Paying Agent may continue to make payments on the Securities, unless a
Responsible Officer of the Trustee shall have received at its Corporate Trust
Office at least three Business Days prior to the date of such payment written
notice of facts that would cause the payment of any obligations with respect to
the Notes to violate this Article 13. 
Only the Company or a representative of the holders of Designated Senior
Indebtedness may give the notice. 
Nothing in this Article 13 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 8.07.


The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have if it were not
Trustee.


ARTICLE
14

Miscellaneous


Section 14.01         Trust
Indenture Act Controls.  If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with another provision which is required to be included in this First
Supplemental Indenture by the TIA, the provision required by the TIA shall
control.


Section 14.02         Notices.  Any notice or communication shall be in
writing in the English language (including telecopy or e-mail promptly
confirmed in writing) and delivered in person or mailed by first-class mail
addressed as follows:


if to the Company:

Veeco Instruments Inc.

100 Sunnyside Boulevard, Suite B

Woodbury, New York  11797

Attention:  Gregory A. Robbins, Esq.

Facsimile:  516-714-1208



if to the Trustee:

U.S. Bank Trust National Association

100 Wall Street, Suite 1600

New York, New York 10005

Attention: Jean Clarke

Facsimile: (212) 809-5459


The Company or the Trustee by notice to the other may designate
additional or different addresses (including e-mail addresses) for subsequent
notices or communications.


Any notice or communication mailed to a registered Holder shall be
mailed to the Holder at the Holder’s address as it appears on the Securities
Register and shall be sufficiently given if 



 71
 









so mailed within the time prescribed; provided that notices given to Holders
holding Securities in book-entry form may be given through facilities of DTC or
any successor depositary.


Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it, except that notices to the Trustee shall be effective only upon receipt.


Section 14.03         Communication
by Holders with other Holders.  Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect
to their rights under this First Supplemental Indenture or the Securities.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).


Section 14.04         Certificate
and Opinion as to Conditions Precedent. 
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this First Supplemental Indenture, the
Company shall furnish to the Trustee:


(a)           an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this First Supplemental Indenture relating to the proposed
action have been complied with; and


(b)           an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.


Section 14.05         Statements
Required in Certificate or Opinion. 
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this First Supplemental Indenture shall include:


(a)           a statement that the
individual making such certificate or opinion has read such covenant or
condition;


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


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


(d)           a statement as to
whether or not, in the opinion of such individual, such covenant or condition
has been complied with.


In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers’ Certificate or on certificates of public officials.


Section 14.06         When
Securities Are Disregarded.  In
determining whether the Holders of the required principal amount of Securities
have concurred in any direction, waiver or consent, only Securities outstanding
at the time shall be considered in any such determination.



 72
 









Section 14.07         Rules by
Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by, or a meeting of,
Holders.  The Registrar and the Paying
Agent may make reasonable rules for their functions.


Section 14.08         Legal
Holidays.  A “Legal Holiday” is a Saturday, a Sunday or
other day on which commercial banking institutions are authorized or required
to be closed in New York, New York.  If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.  If a Regular Record Date is a
Legal Holiday, the record date shall not be affected.


Section 14.09         Governing
Law; Jurisdiction.  This First
Supplemental Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to any
conflicts of law principles or provisions. 
By its execution and delivery of this First Supplemental Indenture, each
party irrevocably and unconditionally agrees that any legal action, suit or
proceeding against it with respect to any matter arising out of or in
connection with this First Supplemental Indenture or the Securities, or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, may be brought in the courts of the State of New York, county of
New York, or in the United States District Court for the Southern District of
New York.  By execution and delivery of
this First Supplemental Indenture, each party irrevocably and unconditionally
accepts and submits itself to the nonexclusive jurisdiction of such courts with
respect to any such action, suit or proceeding.


Section 14.10         No
Recourse Against Others.  An
incorporator, director, Officer, manager, employee, member, partner or
stockholder of the Company, solely by reason of this status, shall not have any
liability for any obligations of the Company under the Securities, this First
Supplemental Indenture, or for any claim based on, in respect of or by reason
of such obligations or their creation. 
By accepting a Security, each Holder shall waive and release all such
liability; provided, however, the parties acknowledge that
such waiver may not be effective to waive liability under federal securities
laws.  The waiver and release shall be
part of the consideration for the issue of the Securities.


Section 14.11         Successors.  All agreements of the Company in this First
Supplemental Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this First
Supplemental Indenture shall bind its successors.


Section 14.12         Multiple
Originals.  The parties may sign any
number of copies of this First Supplemental Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this First
Supplemental Indenture.  Delivery of an
executed counterpart of a signature page by facsimile transmission shall be
effective as a delivery of a manually executed counterpart of this First
Supplemental Indenture.


Section 14.13         Table of
Contents; Headings.  The table of
contents, cross-reference sheet and headings of the Articles and
Sections of this First Supplemental Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.



 73
 









Section 14.14         Severability
Clause.  In case any provision in
this First Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby and such provision shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability.


Section 14.15         Calculations.  Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under this
First Supplemental Indenture and the Securities.  The Company will make all such calculations
in good faith and, absent manifest error, its calculations will be final and
binding on Holders.  The Company upon
request will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and Conversion Agent is entitled
to rely conclusively upon the accuracy of the Company’s calculations without
independent verification.  The Trustee
will deliver a copy of such schedule to any Holder upon the request of such
Holder.


[SIGNATURE
PAGE FOLLOWS]



 74
 









IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date first written above.


	
  

  	
  VEECO INSTRUMENTS INC.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By: 

  	
  /s/ John F.
  Rein, Jr.

  
	
   

  	
  Name: John F.
  Rein, Jr.

  
	
   

  	
  Title: Executive
  Vice President and

  
	
   

  	
  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  

  	
  U.S. BANK TRUST NATIONAL

  	 

	
   

  	
  ASSOCIATION

  	 

	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jean
  Clarke

  
	
   

  	
  Name: Jean
  Clarke

  
	
   

  	
  Title: Assistant
  Vice President

  
				




 75
 









SCHEDULE
A


The following table sets forth the number of Additional Shares to be
received per $1,000 principal amount of Securities pursuant to
Section 12.03 of this First Supplemental Indenture:


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $19.73

  	
   

  	
  $25.00

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $60.00

  	
   

  	
  $70.00

  	
   

  	
  $80.00

  	
   

  
	
  April 20,
  2007

  	
   

  	
  13.9565

  	
   

  	
  8.7473

  	
   

  	
  6.1155

  	
   

  	
  4.5603

  	
   

  	
  3.5749

  	
   

  	
  2.9092

  	
   

  	
  2.4367

  	
   

  	
  1.8148

  	
   

  	
  1.4232

  	
   

  	
  1.1512

  	
   

  
	
  April 15,
  2008

  	
   

  	
  13.9565

  	
   

  	
  7.8942

  	
   

  	
  5.2462

  	
   

  	
  3.7637

  	
   

  	
  2.8744

  	
   

  	
  2.3021

  	
   

  	
  1.9119

  	
   

  	
  1.4181

  	
   

  	
  1.1157

  	
   

  	
  0.9071

  	
   

  
	
  April 15,
  2009

  	
   

  	
  13.9565

  	
   

  	
  6.7616

  	
   

  	
  4.1106

  	
   

  	
  2.7544

  	
   

  	
  2.0158

  	
   

  	
  1.5798

  	
   

  	
  1.3019

  	
   

  	
  0.9693

  	
   

  	
  0.7702

  	
   

  	
  0.6318

  	
   

  
	
  April 15, 2010

  	
   

  	
  13.9565

  	
   

  	
  5.2539

  	
   

  	
  2.5874

  	
   

  	
  1.4739

  	
   

  	
  0.9962

  	
   

  	
  0.7671

  	
   

  	
  0.6388

  	
   

  	
  0.4909

  	
   

  	
  0.3975

  	
   

  	
  0.3292

  	
   

  
	
  April 15,
  2011

  	
   

  	
  13.9565

  	
   

  	
  3.2723

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  April 15, 2012

  	
   

  	
  13.9565

  	
   

  	
  3.2723

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 



 76
 









EXHIBIT A


[FORM OF FACE OF SECURITY]


 


[Global Security Legend, if applicable]


	
  No.
  [      ]

  	
  Principal Amount
  $[                                    ]

  
	
   

  	
  as revised by
  the Schedule of Increases and

  
	
   

  	
  Decreases in
  Global Security attached hereto.

  
	
   

  	
   

  
	
   

  	
  CUSIP NO.: 922417 AC 4

  
	
   

  	
  ISIN:
  [    ]

  



 


4.125% Convertible Subordinated Notes due April 15,
2012


Veeco Instruments Inc., a Delaware corporation, promises to pay to
[                          ],
or registered assigns, the principal sum of [                                    ]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on April 15, 2012.


	
   

  	
  Interest Payment Dates:

  	
  April 15 and October 15,

  
	
   

  	
   

  	
  commencing October 15, 2007

  
	
   

  	
   

  	
   

  
	
   

  	
  Regular Record
  Dates:

  	
  April 1 and October 1

  
	
   

  	
   

  	
   

  
	
  Additional provisions
  of this Security are set forth on the attached “Terms of Securities.”

  
	
   

  
	
   

  
	
  Dated: April
      , 2007

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VEECO INSTRUMENTS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
  TRUSTEE’S
  CERTIFICATE OF

  	
   

  	
   

  	
  Title:

  
	
  AUTHENTICATION

  	
   

  	
   

  
	
   

  	
   

  
	
  U.S. BANK TRUST
  NATIONAL ASSOCIATION

  	
   

  
	
  as Trustee,
  certifies that this is one of the Securities

  	
   

  
	
  referred to in
  the First Supplemental Indenture

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
								



 



 77
 









TERMS OF SECURITIES

4.125% Convertible Subordinated Notes due April 15, 2012


Veeco Instruments Inc., a Delaware corporation (together with its
successors and assigns under the First Supplemental Indenture hereinafter
referred to, being herein called the “Company”),
issued this Security under a First Supplemental Indenture dated as of
April 20, 2007 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the “First
Supplemental Indenture”), by and between the Company and U.S. Bank
Trust National Association (the “Trustee”),
to which reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders.  Additional
Securities may be issued under the First Supplemental Indenture in an unlimited
aggregate principal amount subject to certain conditions specified in the First
Supplemental Indenture.  Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
such terms in the First Supplemental Indenture, unless the context clearly
indicates otherwise.


1.                                       Interest


The Company promises to pay interest on the principal amount of this
Security at the rate of 4.125% per annum until (but excluding) April 15, 2012.


The Company will pay interest semiannually in arrears on April 15 and
October 15 of each year (each, an “Interest
Payment Date”), commencing October 15, 2007, to Holders of record as
of the relevant Regular Record Date. 
Interest on the Securities will accrue from the most recent date to
which interest has been paid on the Securities or, if no interest has been
paid, from April 20, 2007.  Interest
will be computed on the basis of a 360-day year of twelve 30-day months.


2.                                       Method
of Payment


By no later than 11:00 a.m. (New York City time) on the date on
which any principal of, or interest on, any Security is due and payable, the
Company shall deposit with the Paying Agent money sufficient to pay such
amount.  The Company will pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. 
Payments in respect of Securities represented by a Global Security
(including principal and interest) will be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company.  The Company will pay principal of Definitive
Securities at the office or agency designated by the Company for such purpose.  Interest on Definitive Securities will be
payable (i) to Holders having an aggregate principal amount of Two Million
Dollars ($2,000,000) or less, by check mailed to the Holders of these
Securities and (ii) to Holders having an aggregate principal amount of
more than Two Million Dollars ($2,000,000), either by check mailed to each
Holder or, upon application by a Holder to the Registrar not later than the
relevant record date, by wire transfer in immediately available funds to that
Holder’s account within the United States, which application shall remain in
effect until the Holder notifies, in writing, the Registrar to the contrary.


3.                                       Redemption


No sinking fund is provided for the Securities.  Subject to certain conditions specified in
the First Supplemental Indenture, the Securities will be redeemable, at the
option of the Company, in whole or in part at any time and from time to time,
on or after April 20, 2011, at a Redemption Price specified in the First
Supplemental Indenture.



 78
 









In the event that the Redemption Date occurs after a Regular Record
Date for the payment of interest and on or prior to the related Interest
Payment Date, the Redemption Price for any such Securities to be redeemed shall
be 100.0%  of the principal amount
of such Securities, and accrued and unpaid interest shall be paid to the Holder
on such Regular Record Date.


4.                                       Purchase
by the Company at the Option of the Holder Upon a Fundamental Change


If a Fundamental Change
shall occur at any time, each Holder shall have the right, at such Holder’s
option and subject to the terms and conditions of the First Supplemental
Indenture, to require the Company to purchase all or a portion of its
Securities at a Fundamental Change Purchase Price specified in the First
Supplemental Indenture.


5.                                       Conversion


Subject to the conditions and procedures set forth in the First
Supplemental Indenture, and during the periods specified in the First
Supplemental Indenture, a Holder may convert all or a portion of the
Securities, on or prior to the close of business on the second Business Day
immediately preceding Stated Maturity.


The initial Exchange Rate is          
shares of Common Stock per $1,000 principal amount of Securities, subject to
adjustment in certain events described in the First Supplemental
Indenture.  Upon conversion, the Company
will either (i) deliver shares of Common Stock based on the Conversion
Rate or (ii) pay cash and shares of Common Stock, if any, based on a Daily
Exchange Value calculated on a proportionate basis for each day of the 25-day
Observation Period, as set forth in the First Supplemental Indenture.  The Company shall deliver cash in lieu of any
fractional share of Common Stock.


A Holder may convert a portion of the Securities only if the principal
amount of such portion is $1,000 or a multiple of $1,000.  No payment or adjustment shall be made for
dividends on the Common Stock except as provided in the First Supplemental
Indenture.


6.                                       Denominations;
Transfer; Exchange


The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and multiples of $1,000.  A Holder may transfer or exchange Securities
in accordance with the First Supplemental Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes and fees required by law or permitted by the First Supplemental
Indenture.  The Registrar need not
register the transfer of or exchange of Securities (i) so selected for
redemption or, if a portion of any Security is selected for redemption, the
portion thereof selected for redemption; (ii) surrendered for exchange or,
if a portion of any Security is surrendered for exchange, the portion thereof
surrendered for exchange; or (iii) in certificated form for a period of 15
days prior to mailing a notice of redemption under Article 6 of the First
Supplemental Indenture.


7.                                       Persons
Deemed Owners


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


8.                                       Unclaimed
Money


If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company,
subject to applicable abandoned property laws. 




 79
 









After any such payment, Holders entitled to the money
must look only to the Company and not to the Trustee for payment.


9.                                       Amendment,
Waiver


Subject to certain exceptions, the First Supplemental Indenture
contains provisions permitting an amendment of the First Supplemental Indenture
or the Securities with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Securities and the waiver
of any Event of Default (other than with respect to nonpayment or in respect of
a provision that cannot be amended without the written consent of each Holder
affected) or noncompliance with any provision with the written consent of the
Holders of a majority in principal amount of the then outstanding Securities.


In addition, the First Supplemental Indenture permits an amendment of
the First Supplemental Indenture or the Securities without the consent of any
Holder under certain circumstances specified in the First Supplemental
Indenture.


10.                                 Defaults
and Remedies


Subject to the following paragraph, if an Event of Default specified in
the First Supplemental Indenture occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities by notice to the Company to be due and payable immediately.  In addition, certain specified Events of
Default will cause the Securities to become immediately due and payable without
further action by the Holders.


Holders may not enforce the First Supplemental Indenture or the
Securities except as provided in the First Supplemental Indenture.  The Trustee may refuse to enforce the First
Supplemental Indenture or the Securities unless it receives reasonable
indemnity or security.  Subject to
certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing Default or Event of Default (except a Default or Event of
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.


11.                                 Trustee
Dealings with the Company


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


12.                                 No
Recourse Against Others


An incorporator, director, officer, manager, employee, member, partner,
organizer or stockholder of the Company, solely by reason of this status, shall
not have any liability for any obligations of the Company under the Securities,
the First Supplemental Indenture or for any claim in respect of or by reason of
such obligations or their creation.  By
accepting a Security, each Holder waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Securities.



 80















13.                                 Authentication


This Security shall not be valid until an authorized signatory of the
Trustee manually authenticates this Security.


14.                                 Abbreviations


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


15.                                 CUSIP
Numbers


Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any
notice of redemption, and reliance may be placed only on the other
identification numbers placed thereon.


16.                                 Governing
Law


This Security and the First Supplemental Indenture
shall be governed by, and construed in accordance with, the laws of the State
of New York, without regard to any conflicts of law principles or provisions.


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


Veeco Instruments Inc. 

100 Sunnyside Boulevard, Suite B

Woodbury, New York 11797

Attention:  Chief Financial Officer

Facsimile:  (516) 677-0380



 81
 









 


	
  

  	
   

  	
  ASSIGNMENT
  FORM

  	
   

  	
   

  
	
   

  	
   

  	
  To assign this
  Security, fill in the form below:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  I or we assign
  and transfer this Security to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Insert
  assignee’s soc. sec. or tax I.D. No.)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  and irrevocably appoint

  	
   

  	
  agent to transfer this Security on the books of the 

  
	
  Company. The agent may substitute another to act for
  him.

  
	
   

  
	
   

  
	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  
	
   

  
	
  Signature

  
	
  Guarantee:

  	
   

  
	
  (Signature must
  be guaranteed)

  
												



 


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


The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program, pursuant to SEC
Rule 17Ad-15.


In
connection with any transfer or exchange of any of the Securities evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Securities and the last date, if any,
on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:


CHECK ONE BOX BELOW:


o
1                           acquired
for the undersigned’s own account, without transfer; or


o
2                           transferred
to the Company; or


o
3                           transferred
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”); or


o
4                           transferred
pursuant to and in compliance with Rule 144A under the Securities Act; or


o
5                           transferred
pursuant to another available exemption from the registration requirements of
the Securities Act.



 82
 









 


Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof; provided, however, that if box (5) is checked, the
Trustee or the Company may require, prior to registering any such transfer of
the Securities, in their sole discretion, such legal opinions, certifications
and other information as the Trustee or the Company may reasonably request to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act, such as the exemption provided by Rule 144 under such Act.


	
  

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  
	
  (Signature must
  be guaranteed)

  	
   

  	
   

  
				



 


The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program, pursuant to SEC
Rule 17Ad-15.


 


TO
BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.


The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a “qualified institutional buyer” within the meaning of Rule 144A under
the Securities Act of 1933, as amended, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.


	
  

  	
   

  
	
  Signature

  
	
   

  
	
  Dated:

  	
   

  	
   

  
				



 



 83
 









 


[TO BE ATTACHED TO GLOBAL SECURITIES]


SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY


The following increases
or decreases in this Global Security have been made:


	
  Date

  	
   

  	
  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

  increase

  	
   

  	
  Signature of
  authorized

  signatory of Trustee or

  Securities Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 



 84
 









 


FORM OF CONVERSION NOTICE


To:  Veeco Instruments Inc.


The undersigned registered Holder of this Security hereby exercises the
option to convert this Security, or portion hereof (which is $1,000 principal
amount or a multiple thereof) designated below in accordance with the terms of
the First Supplemental Indenture referred to in this Security, and directs that
cash, and the shares of Common Stock of Veeco Instruments Inc., if any,
issuable and deliverable upon such conversion, and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered Holder hereof unless a different name has been indicated below.  If cash, shares or any portion of this
Security not exchanged are to be issued in the name of a Person other than the
undersigned, the undersigned shall pay all transfer taxes payable with respect
thereto.


This notice shall be deemed to be an irrevocable exercise of the option
to convert this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to SEC Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fill in for registration of shares if to be
  delivered, and Securities if to be issued other than to and in the name of
  registered holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount to be exchanged (if less than all):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $                  ,000

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Social Security or Other Taxpayer Identification Number

  
	
  (City state and zip code)

  Please print name and address

  	
   

  	
   

  



 



 85
 









 


FORM OF FUNDAMENTAL CHANGE PURCHASE
NOTICE


To:  Veeco Instruments Inc.


The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from Veeco Instruments Inc. (the “Company”) as to the occurrence of a
Fundamental Change and requests and instructs the Company to repurchase this
Security, or the portion hereof (which is $1,000 principal amount or a multiple
thereof) designated below, in accordance with the terms of the First
Supplemental Indenture referred to in this Security and directs that the check
in payment for this Security or the portion thereof and any Securities
representing any unrepurchased principal amount hereof, be issued and delivered
to the registered Holder hereof unless a different name has been indicated
below.  If any portion of this Security
not repurchased is to be issued in the name of a Person other than the
undersigned, the undersigned shall pay all transfer taxes payable with respect
thereto.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to SEC Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fill in for registration of shares if to be
  delivered, and Securities if to be issued other than to and in the name of
  registered holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount to be exchanged (if less than all):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $                  ,000

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Social Security or Other Taxpayer Identification
  Number

  
	
  (City state and zip code)

  Please print name and address

  	
   

  	
   

  



 



 86
 









 


FORM OF PURCHASE NOTICE


To:  Veeco Instruments Inc.


The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from Veeco Instruments Inc. (the “Company”) as to the Holder’s option to
require the Company to repurchase this Security and requests and instructs the
Company to repurchase this Security, or the portion hereof (which is $1,000
principal amount or a multiple thereof) designated below, in accordance with
the terms of the First Supplemental Indenture referred to in this Security and
directs that the check in payment for this Security or the portion thereof and
any Securities representing any unrepurchased principal amount hereof, be
issued and delivered to the registered Holder hereof unless a different name has
been indicated below.  If any portion of
this Security not repurchased is to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to SEC Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fill in for registration of shares if to be
  delivered, and Securities if to be issued other than to and in the name of
  registered holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount to be exchanged (if less than all):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $                  ,000

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Social Security or Other Taxpayer Identification
  Number

  
	
  (City state and zip code)

  Please print name and address

  	
   

  	
   

  



 


 



 87