Exhibit 4.1

 

GENZYME CORPORATION

 

and

 

U.S. BANK NATIONAL ASSOCIATION

 

as Trustee

 

 

INDENTURE

 

Dated as of December 9, 2003

 

 

Up to $690,000,000 Principal Amount

 

1.25% CONVERTIBLE SENIOR NOTES DUE 2023

 

 

 

CROSS-REFERENCE TABLE

 

TIA Section			Indenture Section
310(a)(1)			7.10
	(a)(2)		7.10
	(a)(3)		N.A.
	(a)(4)		N.A.
	(a)(5)		N.A.
	(b)		7.08; 7.10; 11.02
	(c)		N.A.
311(a)			7.11
	(b)		7.11
	(c)		N.A.
312(a)			2.05
	(b)		11.03
	(c)		11.03
313(a)			7.06
	(b)(1)		N.A.
	(b)(2)		7.06
	(c)		7.06; 11.02
	(d)		7.06
314(a)			4.03
	(b)		N.A.
	(c)(1)		11.04
	(c)(2)		11.04
	(c)(3)		N.A.
	(d)		N.A.
	(e)		11.05
	(f)		N.A.
315(a)			7.01(B)
	(b)		7.05; 11.02
	(c)		7.01(A)
	(d)		7.01(C)
	(e)		6.11
316(a) (last sentence)			2.09
	(a)(1)(A)		6.05
	(a)(1)(B)		6.04
	(a)(2)		N.A.
	(b)		6.07
	(c)		N.A.
317(a)(1)			6.08
	(a)(2)		6.09
	(b)		2.04
318(a)			11.01

 

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TABLE OF CONTENTS

 

 

I.	DEFINITIONS AND INCORPORATION BY REFERENCE
	1.01 Definitions.
	1.02 Other Definitions.
	1.03 Incorporation by Reference of Trust Indenture Act.
	1.04 Rules of Construction.
II.	THE SECURITIES
	2.01 Form and Dating.
	2.02 Execution and Authentication.
	2.03 Registrar, Paying Agent and Conversion Agent.
	2.04 Paying Agent to Hold Money in Trust.
	2.05 Securityholder Lists.
	2.06 Transfer and Exchange.
	2.07 Replacement Securities.
	2.08 Outstanding Securities.
	2.09 Securities Held by the Company or an Affiliate.
	2.10 Temporary Securities.
	2.11 Cancellation.
	2.12 Defaulted Interest.
	2.13 CUSIP Numbers.
	2.14 Deposit of Moneys.
	2.15 Book-Entry Provisions for Global Securities.
	2.16 Special Transfer Provisions.
	2.17 Restrictive Legends.
	2.18 Ranking.
III.	REDEMPTION
	3.01 Right of Redemption.
	3.02 Notices to Trustee.
	3.03 Selection of Securities to Be Redeemed.
	3.04 Notice of Redemption.
	3.05 Effect of Notice of Redemption.
	3.06 Deposit of Redemption Price.
	3.07 Securities Redeemed in Part.
	3.08 Purchase of Securities at Option of the Holder.
	3.09 Repurchase at Option of Holder upon a Repurchase Event.
	3.10 Conversion Arrangement on Call for Redemption.

 

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IV.	COVENANTS
	4.01 Payment of Securities.
	4.02 Maintenance of Office or Agency.
	4.03 Reports.
	4.04 Compliance Certificate.
	4.05 Stay, Extension and Usury Laws.
	4.06 Corporate Existence.
	4.07 Notice of Default.
	4.08 Further Instruments and Acts.
V.	SUCCESSORS
	5.01 When Company May Merge, etc.
	5.02 Successor Substituted.
VI.	DEFAULTS AND REMEDIES
	6.01 Events of Default.
	6.02 Acceleration.
	6.03 Other Remedies.
	6.04 Waiver of Past Defaults.
	6.05 Control by Majority.
	6.06 Limitation on Suits.
	6.07 Rights of Holders to Receive Payment.
	6.08 Collection Suit by Trustee.
	6.09 Trustee May File Proofs of Claim.
	6.10 Priorities.
	6.11 Undertaking for Costs.
VII.	TRUSTEE
	7.01 Duties of Trustee.
	7.02 Rights of Trustee.
	7.03 Individual Rights of Trustee.
	7.04 Trustee’s Disclaimer.
	7.05 Notice of Defaults.
	7.06 Reports by Trustee to Holders.
	7.07 Compensation and Indemnity.
	7.08 Replacement of Trustee.
	7.09 Successor Trustee by Merger, etc.
	7.10 Eligibility; Disqualification.
	7.11 Preferential Collection of Claims Against Company.
VIII.	DISCHARGE OF INDENTURE
	8.01 Termination of the Obligations of the Company.
	8.02 Application of Trust Money.

 

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	8.03 Repayment to Company.
	8.04 Reinstatement.
IX.	AMENDMENTS
	9.01 Without Consent of Holders.
	9.02 With Consent of Holders.
	9.03 Compliance with Trust Indenture Act.
	9.04 Revocation and Effect of Consents.
	9.05 Notation on or Exchange of Securities.
	9.06 Trustee Protected.
X.	CONVERSION
	10.01 Conversion Privilege; Restrictive Legends.
	10.02 Conversion Procedure.
	10.03 Fractional Shares.
	10.04 Taxes on Conversion.
	10.05 Company to Provide Stock.
	10.06 Adjustment of Conversion Rate.
	10.07 No Adjustment.
	10.08 Other Adjustments.
	10.09 Adjustments for Tax Purposes.
	10.10 Notice of Adjustment.
	10.11 Notice of Certain Transactions.
	10.12 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege.
	10.13 Trustee’s Disclaimer.
	10.14 Rights Distributions Pursuant to Shareholders’ Rights Plans.
XI.	MISCELLANEOUS
	11.01 Trust Indenture Act Controls.
	11.02 Notices.
	11.03 Communication by Holders with Other Holders.
	11.04 Certificate and Opinion as to Conditions Precedent.
	11.05 Statements Required in Certificate or Opinion.
	11.06 Rules by Trustee and Agents.
	11.07 Legal Holidays.
	11.08 Duplicate Originals.
	11.09 Governing Law.
	11.10 No Adverse Interpretation of Other Agreements.
	11.11 Successors.
	11.12 Separability.
	11.13 Table of Contents, Headings, etc.
	11.14 Calculations in Respect of the Securities.

 

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Exhibit A	-	Form of Global Security
Exhibit B-1	-	Form of Private Placement Legend
Exhibit B-2	-	Form of Legend for Global Security
Exhibit C	-	Form of Notice of Transfer Pursuant to Registration Statement
Exhibit D	-	Form of Opinion of Counsel in Connection with Registration of Securities

 

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INDENTURE, dated as of December 9, 2003 between Genzyme Corporation, a Massachusetts corporation (the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”).

 

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 1.25% Convertible Senior Notes due 2023 (the “Securities”).

 

I.                                         DEFINITIONS AND INCORPORATION BY REFERENCE

 

1.01                           DEFINITIONS.

 

“Affiliate” means any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.  For this purpose, “control” shall mean the power to direct the management and policies of a person through the ownership of securities, by contract or otherwise.

 

“Bid Solicitation Agent” means a Company-appointed agent that performs the calculations pursuant to Article X and paragraph 10 of the Securities; provided, however, that the Bid Solicitation Agent shall not be an Affiliate of the Company.

 

“Board of Directors” means the Board of Directors of the Company or any committee thereof authorized to act for it hereunder.

 

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

 

“Capital Stock” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

 

“Clerk” and “Assistant Clerk” of the Company mean the clerk or assistant clerk, respectively, of the Company or such person holding an equivalent statutory office under the corporation law of the jurisdiction then governing the Company.

 

“Closing Sale Price” means the price of a share of Common Stock on the relevant date, determined (a) on the basis of the closing per share sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date on the U.S. principal national securities exchange on which the Common Stock is listed; or (b) if the Common Stock is not listed on a U.S. national securities exchange, as reported by the National Association of Securities Dealers Automated Quotation System; or (c) if not so quoted, as reported by National Quotation Bureau, Incorporated or a similar organization.  In the absence of a quotation, the Closing Sale Price shall be such price as the Company shall reasonably determine on the basis of such quotations as most accurately reflecting the price that a fully informed buyer, acting on his own accord, would pay

 

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to a fully informed seller, acting on his own accord in an arms-length transaction, for a share of such Common Stock.

 

“Common Stock” means the series of common stock of the Company, $0.01 par value per share, designated as Genzyme General Division Common Stock, or such other Capital Stock of the Company into which such series is reclassified or changed, including, but not limited to, by amendment to the articles of organization of the Company to rename the Common Stock.

 

“Company” means the party named as such above until a successor replaces it pursuant to the applicable provision hereof and thereafter means the successor.

 

“Company Request” or “Company Order” means a written request or order signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer, its Chief Financial Officer, any Executive Vice President or any Senior Vice President and by its Treasurer or an Assistant Treasurer or its Clerk or an Assistant Clerk, and delivered to the Trustee.

 

“Conversion Rate” means the number of shares of Common Stock issuable upon conversion of a Security per $1,000 principal amount, which Conversion Rate shall initially be 14.0366 shares of Common Stock per $1,000 principal amount, subject to adjustment as provided in Article X.

 

“Conversion Price” means, as of any date of determination, the dollar amount derived by dividing $1,000 principal amount by the Conversion Rate then in effect.

 

“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 11.02 or such other address as the Trustee may give notice of to the Company.

 

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

 

“Depositary” means The Depository Trust Company, its nominees and successors.

 

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

 

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

 

“Indebtedness” means, with respect to any person, the principal of, and premium, if any, and interest on and all other obligations in respect of (a) all indebtedness of such person for borrowed money (including all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all reimbursement obligations of such person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such person, (c) all capital lease obligations of such person, (d) all net obligations of such person under interest rate swap, currency exchange or similar agreements of such person, (e) guarantees by such person of indebtedness described in clauses (a) through (d) of another person, and (f) all renewals, extensions, deferrals, amendments and modifications of any indebtedness, obligation, guarantee or liability of the kind described in clauses (a) through (e).

 

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

 

“Initial Purchasers” means UBS Securities LLC, Credit Suisse First Boston LLC and Lehman Brothers Inc.

 

The term “interest” includes liquidated damages, unless the context or the terms of the Registration Rights Agreement otherwise requires.

 

“Issue Date” means December 9, 2003.

 

“liquidated damages” has the meaning ascribed to it in the Registration Rights Agreement.

 

“Maturity Date” means December 1, 2023.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, the Treasurer or the Clerk of the Company.

 

“Officer’s Certificate” means a certificate signed by an Officer of the Company, other than an Officer acting solely in his or her capacity as a Clerk of the Company.

 

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

 

“Option” means the Initial Purchasers’ option to acquire up to $90,000,000 of additional Securities (“Additional Securities”) as provided for in the Purchase Agreement.

 

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

 

“Purchase Agreement” means the Purchase Agreement dated December 4, 2003 between the Company and the Initial Purchasers.

 

“Purchase Notice” means a Purchase Notice in the form set forth in the Securities.

 

“QIB” means a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act.

 

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

 

“Redemption Price” means, with respect to a Security to be redeemed by the Company in accordance with Article III, one hundred percent (100%) of the outstanding principal amount of such Security to be redeemed.

 

“Registration Rights Agreement” means the Registration Rights Agreement dated as of the date hereof between the Company and the Initial Purchasers.

 

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

 

“Restricted Security” means a Security that constitutes a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any Security constitutes a Restricted Security.

 

“Rights Agreement” means that certain Third Amended and Restated Renewed Rights Agreement between the Company and American Stock Transfer & Trust Company, dated June 30, 2003, as the same may be amended, supplemented or superceded.

 

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

 

“SEC” means the Securities and Exchange Commission.

 

“Securities” means the 1.25% Convertible Senior Notes due 2023 issued by the Company pursuant to this Indenture.

 

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

 

“Security Agent” means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or co-Registrar or co-agent.

 

“Significant Subsidiary” with respect to any person means any subsidiary of such person that constitutes a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X under the Securities Act, as such regulation is in effect on the date of this Indenture.

 

“Subsidiary” means (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by the Company, by one or more subsidiaries of the Company or by the Company and one or more of its subsidiaries or (ii) any other Person (other than a corporation) in which the Company, one or more of its subsidiaries or the Company and one or more its subsidiaries, directly or indirectly, at the date of determination thereof, own at least a majority of the ownership interests in such Person that have voting power to elect members of such Person’s board of directors or other body performing similar functions.

 

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

 

“Trading Day” means a day during which trading in securities generally occurs on the principal national or regional securities exchange in the United States on which the Common

 

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Stock is then listed or, if the Common Stock is not listed on a national or regional securities exchange in the United States, on the National Association of Securities Dealers Automated Quotation System or, if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other market on which the Common Stock is then traded.

 

“Trading Price” means, on any date, the average of the secondary market bid quotations per $1,000 principal amount of Securities obtained by the Bid Solicitation Agent on behalf of the Trustee for five million dollars ($5,000,000) principal amount of Securities at approximately 4:00 p.m., New York City time, on such date, from three (3) independent, nationally recognized securities dealers selected by the Company; provided, that if the Bid Solicitation Agent on behalf of the Trustee can reasonably obtain only two (2) such bids, then the average of such two (2) bids shall instead be used; provided further, that if the Bid Solicitation Agent on behalf of the Trustee can reasonably obtain only one (1) such bid, then such bid shall instead be used; provided further, that if the Bid Solicitation Agent on behalf of the Trustee cannot reasonably obtain at least one (1) bid for five million dollars ($5,000,000) principal amount of Securities from a nationally recognized securities dealer, or if, in the Company’s reasonable judgment, the bid quotation or quotations so obtained by the Bid Solicitation Agent on behalf of the Trustee are not indicative of the secondary market value of the Securities, then, in each case, the Trading Price per $1,000 principal amount of Securities on the applicable date of determination shall be deemed to be equal to the product of (I) the Conversion Rate in effect on such date of determination and (II) the average of the Closing Sale Prices for the ten (10) consecutive Trading Days ending on, and including, such date of determination, which average shall be appropriately adjusted in the good faith determination of the Board of Directors (whose determination shall be conclusive and described in a Board Resolution) to account for the occurrence, during such ten (10) Trading Day period, of any event that requires an adjustment to the Conversion Rate pursuant to Section 10.06 or that is described in Section 10.12.

 

“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions hereof and thereafter means the successor.

 

“Voting Stock” of any Person means the total voting power of all classes of the Capital Stock of such Person entitled to vote generally in the election of directors of such Person.

 

1.02                           OTHER DEFINITIONS.

 

	Term		Defined in Section
	“Additional Securities”		1.01
	“Aggregate Amount”		10.06
	“Bankruptcy Law”		6.01
	“Business Day”		11.07
	“Change in Control”		3.09
	“Conversion Agent”		2.03
	“Conversion Date”		10.02
	“Conversion Shares”		10.06
	“current market price”		10.06

 

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	“Custodian”		6.01
	“Determination Date”		10.06
	“Distribution Date”		10.06
	“Event of Default”		6.01
	“Expiration Date”		10.06
	“Expiration Time”		10.06
	“Global Security”		2.01
	“Legal Holiday”		11.07
	“Market Price”		3.08
	“Notice of Default”		6.01
	“Option Purchase Date”		3.08
	“Option Purchase Notice”		3.08
	“Option Purchase Price”		3.08
	“Participants”		2.15
	“Paying Agent”		2.03
	“Physical Securities”		2.01
	“Private Placement Legend”		2.17
	“Purchased Shares”		10.06
	“Redemption”		3.01
	“Registrar”		2.03
	“Repurchase at Holder’s Option”		3.01
	“Repurchase Date”		3.09
	“Repurchase Event”		3.09
	“Repurchase Event Notice”		3.09
	“Repurchase Price”		3.09
	“Repurchase Right”		3.09
	“Repurchase Upon Repurchase Event”		3.01
	“Resale Restriction Termination Date”		2.17
	“Rights”		10.06

 

1.03                           INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.

 

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

 

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

 

“Commission” means the SEC;

“indenture securities” means the Securities;

“indenture security holder” means a Securityholder or a Holder;

“indenture to be qualified” means this Indenture;

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

“obligor” on the indenture securities means the Company or any successor.

 

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.

 

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1.04                           RULES OF CONSTRUCTION.

 

Unless the context otherwise requires:

 

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

 

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

 

(iii)                     “or” is not exclusive;

 

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

 

(v)                       provisions apply to successive events and transactions;

 

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

 

(vii)                 references to currency shall mean the lawful currency of the United States of America, unless the context requires otherwise.

 

II.                                     THE SECURITIES

 

2.01                           FORM AND DATING.

 

The Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of this Indenture.  The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage (provided, that any such notation, legend or endorsement required by usage is in a form reasonably acceptable to the Company).  The Company shall provide any such notations, legends or endorsements to the Trustee in writing.  Each Security shall be dated the date of its authentication.

 

All of the Securities are being initially offered and sold by the Initial Purchasers to QIBs in reliance on Rule 144A.  Securities offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of one or more Global Securities, substantially in the form set forth in Exhibit A (the “Global Security”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and bearing the legends set forth in Exhibits B-1 and B-2.  The aggregate principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided; provided, that in no event shall the aggregate principal amount of the Global Security or Securities exceed $600,000,000 (or $690,000,000 if the Initial Purchasers elect to purchase all of the Additional Securities pursuant to the Option).

 

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Securities issued in exchange for interests in a Global Security pursuant to Section 2.15 may be issued in the form of permanent certificated Securities in registered form in substantially the form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any legends required by Section 2.17.

 

2.02                           EXECUTION AND AUTHENTICATION.

 

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

 

A Security bearing the manual or facsimile signature of an individual who was at the time of the execution of the Security an Officer shall bind the Company, notwithstanding that such individual has ceased to hold such office(s) prior to the authentication and delivery of such Security or did not hold such office(s) at the time of authentication of such Security.

 

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

 

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.

 

A Security shall not be valid until authenticated by the manual signature of the Trustee.  The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

Upon a written order of the Company signed by one Officer of the Company, the Trustee shall authenticate Securities for original issue in the aggregate principal amount of 600,000,000 and such additional principal amount, if any, as shall be determined pursuant to the next sentence of this Section 2.02.  Upon receipt by the Trustee of an Officer’s Certificate stating that the Initial Purchasers have elected to purchase from the Company a specified principal amount of Additional Securities, not to exceed $90,000,000, pursuant to the Option, the Trustee shall authenticate and deliver such specified principal amount of Additional Securities to or upon the written order of the Company signed as provided in the immediately preceding sentence.  Such Officer’s Certificate must be received by the Trustee not later than the proposed date for delivering of such Additional Securities.  The aggregate principal amount of Securities outstanding at any time may not exceed $600,000,000 except as provided in this Section 2.02.

 

Upon a written order of the Company signed by an Officer of the Company, the Trustee shall authenticate Securities not bearing the Private Placement Legend to be issued to the transferee when sold pursuant to an effective registration statement under the Securities Act as set forth in Section 2.16(B).

 

The Trustee shall act as the initial authenticating agent.  Thereafter, the Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities.  An

 

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authenticating agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent.  An authenticating agent has the same rights as a Security Agent to deal with the Company and its Affiliates.

 

If a written order of the Company pursuant to this Section 2.02 has been, or simultaneously is, delivered, any instructions by the Company to the Trustee with respect to endorsement, delivery or redelivery of a Security issued in global form shall be in writing but need not comply with Section 11.04 hereof and need not be accompanied by an Opinion of Counsel.

 

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

 

2.03                           REGISTRAR, PAYING AGENT AND CONVERSION AGENT.

 

The Company shall maintain, or cause to be maintained, an office or agency in the Borough of Manhattan, The City of New York, where Securities may be presented for registration of transfer or for exchange (“Registrar”), an office or agency in the Borough of Manhattan, The City of New York, where Securities may be presented for payment (“Paying Agent”) and an office or agency in the Borough of Manhattan, The City of New York, where Securities may be presented for conversion (“Conversion Agent”).  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may appoint or change one or more co-Registrars, one or more additional paying agents and one or more additional conversion agents without notice and may act in any such capacity on its own behalf.  The term “Registrar” includes any co-Registrar; the term “Paying Agent” includes any additional paying agent; and the term “Conversion Agent” includes any additional conversion agent.

 

The Company shall enter into an appropriate agency agreement with any Security Agent not a party to this Indenture.  The agreement shall implement the provisions of this Indenture that relate to such Security Agent.  The Company shall notify the Trustee of the name and address of any Security Agent not a party to this Indenture.  If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such.

 

The Company initially appoints the Trustee as Paying Agent, Bid Solicitation Agent, Registrar and Conversion Agent.

 

2.04                           PAYING AGENT TO HOLD MONEY IN TRUST.

 

Each Paying Agent shall hold in trust for the benefit of the Securityholders or the Trustee all moneys held by the Paying Agent for the payment of the Securities, and shall notify the Trustee of any default by the Company in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent shall have no further liability for the money.  If the Company acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent.

 

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2.05                           SECURITYHOLDER LISTS.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee on or 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 date as the Trustee may reasonably require, of the names and addresses of Securityholders.

 

2.06                           TRANSFER AND EXCHANGE.

 

Subject to Sections 2.15 and 2.16 hereof, where Securities are presented to the Registrar with a request to register their transfer or to exchange them for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transaction are met.  To permit registrations of transfer and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.  The Company or the Trustee, as the case may be, shall not be required (A) to issue, authenticate, register the transfer of or exchange any Security (i) during a period beginning at the opening of business fifteen (15) days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.04 and ending at the close of business on the day of such mailing or (ii) for a period of fifteen (15) days before selecting, pursuant to Section 3.03, Securities to be redeemed; or (B) to register the transfer of or exchange any Security that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with this Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.  Every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an assignment form in the form included in Exhibit A, and in form reasonably satisfactory to the Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing.

 

No service charge shall be imposed for any transfer, exchange or conversion of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer, exchange or conversion of Securities, other than exchanges pursuant to Sections 2.10, 3.07, 3.08, 3.09, 9.05 or 10.02 not involving any transfer.

 

Each Holder of a Security agrees to indemnify the Company, the Registrar and the Trustee against any liability they may incur as a result of the transfer, exchange or assignment of such Holder’s Securities at such Holder’s request in violation of any provision of this Indenture and/or applicable United States federal or state securities law.

 

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

 

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2.07                           REPLACEMENT SECURITIES.

 

If the Holder of a Security claims that the Security has been mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security upon surrender to the Trustee of the mutilated Security, or upon delivery to the Trustee of evidence of the loss, destruction or theft of the Security satisfactory to the Trustee and the Company.  In the case of lost, destroyed or wrongfully taken Securities, if required by the Trustee or the Company, an indemnity bond must be provided by such Holder that is satisfactory to the Trustee and the Company to protect the Company, the Trustee and/or any Security Agent from any loss which any of them may suffer if a Security is replaced.  The Trustee may charge such Holder for its expenses in replacing a Security.

 

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

 

Every replacement Security is an additional obligation of the Company only as provided in Section 2.08.

 

2.08                           OUTSTANDING SECURITIES.

 

Securities outstanding at any time are all the Securities authenticated by the Trustee (or an authenticating agent duly appointed pursuant to Section 2.02) except for those converted, those cancelled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding.  Except to the extent provided in Section 2.09, a Security does not cease to be outstanding because the Company or one of its Subsidiaries or Affiliates holds the Security.

 

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

 

If the Paying Agent (other than the Company) holds on an Option Purchase Date, Redemption Date, Repurchase Date or Maturity Date, money sufficient to pay the Option Purchase Price, Redemption Price, Repurchase Price or principal amount, as the case may be, with respect to a Security, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option, Redemption, Repurchase Upon Repurchase Event or maturity, then on and after such date such Security shall be deemed to be no longer outstanding, interest on such Security shall cease to accrue, and such Security shall be deemed paid whether or not such Security is delivered to the Paying Agent.  Thereafter, all rights of the Holder of such Security shall terminate with respect to such Security, other than the right to receive the Option Purchase Price, Redemption Price, Repurchase Price or principal amount, as the case may be, plus, if applicable, such accrued and unpaid interest, in accordance with this Indenture.

 

If a Security is converted in accordance with Article X, then, from and after the time of such conversion on the Conversion Date, such Security shall cease to be outstanding, and interest (including liquidated damages attributable to the Security that was converted), if any, shall cease

 

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to accrue on such Security; provided, however, that nothing in this paragraph shall affect the provision in the Registration Rights Agreement for liquidated damages on shares of Common Stock issued upon conversion of such Security.

 

2.09                           SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.

 

In determining whether the Holders of the required aggregate principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or any of its Subsidiaries or Affiliates shall be considered as though not outstanding, except that, for the purposes of determining whether a Responsible Officer of the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities for which the Trustee has received evidence from the Registrar or the Company to be so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be considered to be outstanding for purposes of this Section 2.09 if the pledgee establishes, to the satisfaction of the Trustee, the pledgee’s right so to concur with respect to such Securities and that the pledgee is not, and is not acting at the direction or on behalf of, the Company, any other obligor on the Securities, an Affiliate of the Company or an affiliate of any such other obligor.  In the event of a dispute as to whether the pledgee has established the foregoing, the Trustee may rely on the advice of counsel or on an Officer’s Certificate.

 

2.10                           TEMPORARY SECURITIES.

 

Until definitive Securities are ready for delivery, the Company may prepare and 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 the Trustee shall authenticate definitive Securities in exchange for temporary Securities.

 

2.11                           CANCELLATION.

 

The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange, payment, redemption or conversion.  The Trustee shall promptly cancel all Securities surrendered for transfer, exchange, payment, conversion or cancellation in accordance with its customary procedures.  The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation or that any Securityholder has converted pursuant to Article X.

 

2.12                           DEFAULTED INTEREST.

 

If and to the extent the Company defaults in a payment of interest on the Securities to the Holder of record at the close of business on the relevant record date, such interest shall forthwith cease to be payable to such Holder by virtue of his having been the holder of record at the close of business on such record date.  The Company shall pay such defaulted interest (a) to the Holder in whose name the Securities are registered at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee, provided the Company shall mail to Holders at least fifteen (15) calendar days prior to such special record date a notice that states such special record date, the payment date and the amount of interest to be paid or (b) at

 

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any time 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 and applicable law, if, after notice given by the Company to the Trustee of the proposed payment, such manner of payment shall be deemed practicable by the Trustee.  To the extent not prohibited by applicable statute or case law, interest shall accrue on such defaulted interest at the rate provided in the Securities.

 

2.13                           CUSIP NUMBERS.

 

The Company in issuing the Securities may use one or more “CUSIP” numbers, and, if so, the Trustee shall use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; provided further, that reliance may be placed only on the other identification numbers printed on the Securities, and the effectiveness of any such notice shall not be affected by any defect in, or omission of, such CUSIP numbers.  The Company shall promptly notify the Trustee of any change in the CUSIP numbers.

 

2.14                           DEPOSIT OF MONEYS.

 

Prior to 11:00 A.M., New York City time, on each interest payment date, Maturity Date, Redemption Date, Option Purchase Date or Repurchase Date, the Company shall have deposited with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on such date, sufficient to make cash payments, if any, due on such interest payment date, Maturity Date, Redemption Date, Option Purchase Date or Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit, in the manner provided in this Indenture, all payment due to the Holders on such interest payment date, Maturity Date, Redemption Date, Option Purchase Date or Repurchase Date, as the case may be.  If, pursuant to Section 4.01, such payment may be made by check, then such deposit shall be in such manner as will permit such remittance to be made by check drawn upon a bank in the city in which the Paying Agent’s principal office, or the Corporate Trust Office of the Trustee, is located.

 

2.15                           BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.

 

(A)                              The Global Securities initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section 2.17.

 

Members of, or participants in, the Depositary (“Participants”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the

 

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Depositary or impair, as between the Depositary and Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

 

(B)                                Transfers of Global Securities shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees.  In addition, Physical Securities shall be transferred to all beneficial owners, as identified by the Depositary, in exchange for their beneficial interests in Global Securities only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as depositary for any Global Security (or the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depositary to issue Physical Securities.

 

(C)                                In connection with the transfer of a Global Security in its entirety to beneficial owners pursuant to Section 2.15(B), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Physical Securities of authorized denominations.

 

(D)                               Any Physical Security constituting a Restricted Security delivered in exchange for an interest in a Global Security pursuant to Section 2.15(B) shall, except as otherwise provided by Section 2.16, bear the Private Placement Legend.

 

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

 

2.16                           SPECIAL TRANSFER PROVISIONS.

 

(A)                              Restrictions on Transfer and Exchange of Global Securities.  Notwithstanding any other provisions of this Indenture, a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

 

(B)                                Private Placement Legend.  Upon the transfer, exchange or replacement of Securities not bearing the Private Placement Legend, the Registrar or co-Registrar shall deliver Securities that do not bear the Private Placement Legend.  Upon the transfer, exchange or replacement of Securities bearing the Private Placement Legend, the Registrar or co-Registrar shall deliver only Securities that bear the Private Placement Legend unless (i) the requested transfer is after the Resale Restriction Termination Date, (ii) there is delivered to the Trustee and the Company an opinion of counsel reasonably satisfactory to the Company and addressed to the Trustee and the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act or (iii) such Security has been sold pursuant to an effective registration statement under the Securities Act and the Holder selling such Securities has delivered to the Registrar or co-Registrar

 

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a notice in the form of Exhibit C hereto.  Upon the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Company shall deliver to the Trustee a notice of effectiveness, a Global Security or Global Securities, which do not bear the Private Placement Legend, an authentication order in accordance with Section 2.02 and an Opinion of Counsel in the form of Exhibit D hereto, and, if required by the Depositary, the Company shall deliver to the Depositary a letter of representations in a form reasonably acceptable to the Depositary.  Upon any sale, pursuant to such Shelf Registration Statement, of a beneficial interest in a Global Security that constitutes a Restricted Security and delivery of appropriate evidence thereof to the Trustee, and upon any sale or transfer of a beneficial interest in connection with which the Private Placement Legend will be removed in accordance with this Indenture, the Trustee shall increase the principal amount of the Global Security that does not constitute a Restricted Security by the principal amount of such sale or transfer and likewise reduce the principal amount of the Global Security that does constitute a Restricted Security.

 

(C)                                General.  By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in this Indenture.

 

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.15 or this Section 2.16.  The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

(D)                               Transfers of Securities Held by Affiliates.  Any certificate (i) evidencing a Security that has been transferred to an Affiliate within two (2) years after the Issue Date, as evidenced by a notation on the assignment form for such transfer or in the representation letter delivered in respect thereof or (ii) evidencing a Security that has been acquired from an Affiliate (other than by an Affiliate) in a transaction or a chain of transactions not involving any public offering, shall, until two (2) years after the last date on which the Company or any Affiliate was an owner of such Security (or such longer period of time as may be required under the Securities Act or applicable state securities laws), in each case, bear the Private Placement Legend, unless otherwise agreed by the Company (with written notice thereof to the Trustee).

 

2.17                           RESTRICTIVE LEGENDS.

 

Each Global Security and Physical Security that constitutes a Restricted Security shall bear the legend (the “Private Placement Legend”) as set forth in Exhibit B-1 on the face thereof until after the second anniversary of the later of (i) the Issue Date and (ii) the last date on which the Company or any Affiliate was the owner of such Security (or any predecessor security) (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed between the Company and the Holder thereof) (such date, the “Resale Restriction Termination Date”).

 

Each Global Security shall also bear the legend as set forth in Exhibit B-2.

 

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2.18                           RANKING.

 

The indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued under this Indenture from time to time constitutes and will constitute a senior unsecured general obligation of the Company, ranking equally with other existing and future senior unsecured Indebtedness of the Company and ranking senior to any existing or future Indebtedness of the Company that, by its terms, is made subordinate to senior Indebtedness of the Company.

 

III.                                 REDEMPTION

 

3.01                           RIGHT OF REDEMPTION.

 

Redemption of the Securities, as permitted by any provision of this Indenture, shall be made, with respect to a repurchase at the Company’s option, in accordance with paragraphs 6 and 7 of the Securities (a “Redemption”), with respect to a repurchase at the Holder’s option, in accordance with paragraph 8 of the Securities (a “Repurchase at Holder’s Option”), and with respect to any repurchase upon a Repurchase Event, in accordance with paragraph 9 of the Securities (a “Repurchase Upon Repurchase Event”), in each case in accordance with the applicable provisions of this Article III.

 

The Company will comply with all federal and state securities laws, and the applicable laws of any foreign jurisdiction, in connection with any solicitations of offers to buy Securities pursuant to this Article III.

 

The Company will not have the right to redeem any Securities prior to December 1, 2008.  On or after December 1, 2008, the Company will have the right, at its option, to redeem all or any part of the Securities at a price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

 

3.02                           NOTICES TO TRUSTEE.

 

If the Company elects to redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the Trustee at least fifteen (15) days prior to the mailing under Section 3.04 of the notice of redemption of the Securities selected for Redemption (unless a shorter notice period shall be satisfactory to the Trustee) of the Redemption Date and the aggregate principal amount of Securities to be redeemed.

 

3.03                           SELECTION OF SECURITIES TO BE REDEEMED.

 

If the Company has elected to redeem less than all the Securities pursuant to paragraph 6 of the Securities, the Trustee shall, within five (5) Business Days after receiving the notice specified in Section 3.02, select the Securities to be redeemed by lot, on a pro rata basis or in accordance with any other method the Trustee considers fair and appropriate.  The Trustee shall make such selection from Securities then outstanding and not already to be redeemed by virtue of having been previously called for Redemption.  The Trustee may select for Redemption portions of the principal amount of Securities that have denominations larger than $1,000

 

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principal amount.  Securities and portions of them the Trustee selects for Redemption shall be in amounts of $1,000 principal amount or integral multiples of $1,000 principal amount.  The Trustee shall promptly notify the Company in writing of the Securities selected for Redemption and the principal amount thereof to be redeemed.

 

The Registrar need not transfer or exchange any Securities selected for Redemption, except the unredeemed portion of the Securities redeemed in part.  The Registrar need not transfer or exchange any Securities for a period of fifteen (15) days before selecting Securities to be redeemed.

 

3.04                           NOTICE OF REDEMPTION.

 

At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each Holder whose Securities are to be redeemed, at the address of such Holder appearing in the security register.

 

The notice shall identify the Securities and the aggregate principal amount thereof to be redeemed pursuant to a Redemption and shall state:

 

(i)                           the Redemption Date;

 

(ii)                        the Redemption Price plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date;

 

(iii)                     the Conversion Rate and the Conversion Price;

 

(iv)                    the names and addresses of the Paying Agent and the Conversion Agent and, if different therefrom, the place or places where such Securities may be surrendered for conversion;

 

(v)                       that the right to convert the Securities called for Redemption will terminate at 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Redemption Date;

 

(vi)                    that Holders who want to convert Securities must satisfy the requirements of Article X;

 

(vii)                 that Securities called for Redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, payable as herein provided upon Redemption;

 

(viii)              that, unless the Company shall default in the payment of the Redemption Price, or accrued and unpaid interest (including liquidated damages), if any, payable as herein provided upon Redemption, interest (including liquidated damages) on Securities called for Redemption ceases to accrue on and after the Redemption Date, and all rights of the Holders of such Securities shall terminate on and after the Redemption Date, other than the right to receive, upon surrender of such Securities (together with all

 

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necessary endorsements) and in accordance with this Indenture, the Redemption Price and such accrued and unpaid interest;

 

(ix)                      the CUSIP number or numbers, as the case may be, of the Securities; and

 

(x)                         any other information, at the Company’s discretion.

 

The right, pursuant to Article X, to convert Securities called for Redemption shall terminate at 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Redemption Date.

 

At the Company’s request, upon reasonable prior notice, the Trustee shall give the notice of Redemption in the Company’s name and at the Company’s expense; provided that the form and content of such notice shall be prepared by the Company.

 

3.05                           EFFECT OF NOTICE OF REDEMPTION.

 

Once notice of Redemption is mailed, Securities called for Redemption become due and payable on the Redemption Date at the Redemption Price plus accrued and unpaid interest to, but excluding, the Redemption Date, and, on and after such Redemption Date (unless the Company shall default in the payment of the Redemption Price or such accrued and unpaid interest), such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive, upon surrender of such Securities and in accordance with the next sentence, the Redemption Price and such accrued and unpaid interest.  Upon surrender to the Paying Agent of a Security subject to Redemption, such Security shall be paid at the Redemption Price plus accrued and unpaid interest to, but excluding, the Redemption Date, unless the Redemption Date is an interest payment date, in which case such accrued and unpaid interest will instead be paid on such interest payment date to the Holder of such Security at the close of business on the record date for such interest payment.

 

If any Security shall not be paid upon surrender thereof for Redemption, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest from the Redemption Date at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X.

 

Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to a Redemption if there has occurred (prior to, on or after, as the case may be, the mailing of the notice of Redemption specified in Section 3.04) and is continuing an Event of Default (other than a default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption).  The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of an Event of Default (other than a default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption).

 

3.06                           DEPOSIT OF REDEMPTION PRICE.

 

Prior to 11:00 A.M., New York City time on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate

 

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and hold in trust in accordance with Section 2.04) money, in funds immediately available on the Redemption Date, sufficient to pay the Redemption Price, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date, of all Securities to be redeemed on the Redemption Date.  The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

3.07                           SECURITIES REDEEMED IN PART.

 

Any Security to be redeemed only in part shall be delivered pursuant to Section 3.05 (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 its attorney duly authorized in writing).  Upon receipt of such Security, together with any required endorsements or transfer instruments, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not being redeemed.

 

If any Security selected for partial Redemption is converted in part, the principal amount of such Security subject to Redemption shall be reduced by the principal amount of such Security that is converted.

 

3.08                           PURCHASE OF SECURITIES AT OPTION OF THE HOLDER.

 

(A)                              At the option of the Holder thereof, Securities shall be purchased by the Company pursuant to paragraph 8 of the Securities on December 1, 2008, December 1, 2013 and December 1, 2018 (each, an “Option Purchase Date”), at one hundred percent (100%) of the principal amount of the Securities (the “Option Purchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Purchase Date, upon:

 

(i)                                    delivery to the Paying Agent, by the Holder, of a Purchase Notice, in the form set forth in the Securities, or any other form of written notice substantially similar thereto, at any time from the opening of business on the date that is twenty (20) Business Days prior to the applicable Option Purchase Date until 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable Option Purchase Date, stating:

 

(I)                                     if the Holder’s Securities are certificated, the certificate number of the Securities which the Holder will deliver to be purchased;

 

(II)                                 the principal amount of Securities to be purchased, which must be $1,000 or an integral multiple thereof;

 

(III)                             that such principal amount of Securities shall be purchased as of the applicable Option Purchase Date pursuant to the terms and conditions specified in paragraph 8 of the Securities and in this Indenture; and

 

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(IV)                             whether, in the event the Company shall elect, pursuant to Section 3.08(B), to pay the Option Purchase Price, in whole or in part, in shares of Common Stock, and such portion of the Option Purchase Price shall ultimately be paid to such Holder entirely in cash because any of the conditions, as provided in this Section 3.08, to payment of the Option Purchase Price in shares of Common Stock is not satisfied prior to the applicable Option Purchase Date, such Holder elects (i) to withdraw such Purchase Notice as to some or all of the Securities to which such Purchase Notice relates (stating the principal amount and, if the Holder’s Securities are certificated, certificate numbers, if any, of the Securities to be so withdrawn, which amount must be $1,000 or an integral multiple thereof) or (ii) to receive cash in respect of the entire Option Purchase Price for the Securities (or portions thereof) to which such Purchase Notice relates; and

 

(ii)                                 delivery of such Securities (together with all necessary endorsements) to the Paying Agent after delivery of the Purchase Notice at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Option Purchase Price therefor plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Option Purchase Date; provided, however, that such Option Purchase Price and such accrued and unpaid interest shall be so paid pursuant to this Section 3.08 only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as determined by the Company.

 

Any purchase by the Company contemplated pursuant to the provisions of this Section 3.08 shall be consummated by the delivery of the consideration to be received by the Holder (together with accrued and unpaid interest, if any) promptly following the later of the applicable Option Purchase Date or the time of delivery of the Security, but, if any of such consideration consists of shares of Common Stock, in no event more than three (3) Business Days following the later of the applicable Option Purchase Date or the time of delivery of the Security.  In accordance with the preceding sentence, if all or a portion of the Option Purchase Price is to be paid in shares of Common Stock pursuant to and in accordance with this Section 3.08, the Company shall deliver, to each Holder entitled to receive shares of Common Stock through the Paying Agent, a certificate for the number of full shares of Common Stock issuable in full or partial payment of the Option Purchase Price as herein provided, together with cash for (i) any portion of the Option Purchase Price not to be paid in shares of Common Stock, (ii) accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option and (iii) any fractional interests as herein provided.  The person in whose name the certificate for the shares of Common Stock is registered shall be treated as a holder of record of Common Stock on the Business Day following the date of delivery of such certificate as described in the previous sentence.  Except as otherwise provided in this Section 3.08, no payment or adjustment will be made for dividends on the shares of Common Stock the record date for which occurred on or prior to the applicable Option Purchase Date.

 

If the Security is held in book-entry form through the Depositary, the Purchase Notice must comply with applicable procedures of the Depositary.

 

If a Holder, in such Holder’s Purchase Notice, fails to indicate such Holder’s choice with respect to the election set forth in Section 3.08(A)(i)(IV), such Holder shall be deemed to have

 

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elected to receive, in the circumstances set forth in such Section 3.08(A)(i)(IV), cash in respect of the entire Option Purchase Price for all Securities (or portions thereof) subject to such Purchase Notice.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Purchase Notice contemplated by this Section 3.08(A) shall have the right to withdraw such Purchase Notice by delivery, at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the applicable Option Purchase Date, or such later time as may be required by law, of a written notice of withdrawal to the Paying Agent, which notice shall contain the information specified in Section 3.08(D)(vii).  Securities as to which a Purchase Notice has been given may be converted pursuant to Article X only if such Purchase Notice has been withdrawn in accordance with the preceding sentence and the requirements set forth in paragraph 10 of the Securities are satisfied.

 

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

 

(B)                                The Option Purchase Price may be paid for, in whole or in part, at the election of the Company, in cash or shares of Common Stock or in any combination of cash and shares of Common Stock; provided, however, that:

 

(i)                   no portion of the Option Purchase Price shall be paid in shares of Common Stock unless the conditions set forth in Section 3.08(C) are satisfied;

 

(ii)                nothing in this Section 3.08 shall permit the Company to pay accrued and unpaid interest, if any, payable as herein provided in respect of Securities upon a Repurchase at Holder’s Option in shares of Common Stock; the Company shall pay such accrued and unpaid in interest, if any, in cash; and

 

(iii)             the Company shall not issue fractional shares of Common Stock in payment of the Option Purchase Price and shall instead pay cash for all fractional shares, which cash shall be in an amount equal to the Market Price of such fractional shares; for purposes of determining the existence of potential fractional interests, all Securities subject to such Repurchase at Holder’s Option held by a Holder shall be considered together without regard to the number of separate certificates representing such Securities.

 

Except as provided in this Section 3.08, once the Company has given the Option Purchase Notice to Holders, the Company shall not change its election set forth in such Option Purchase Notice pursuant Section 3.08(D)(x) with respect to the portion of the Option Purchase Price to be paid in cash or shares of Common Stock.

 

Except as otherwise provided in this Section 3.08, each Holder whose Securities are purchased shall receive the same percentage of cash or shares of Common Stock in payment of the Option Purchase Price for such Securities.

 

The portion of the Option Purchase Price to be paid in shares of Common Stock, if payment in shares of Common Stock is permitted pursuant to this Section 3.08, shall be paid

 

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by the issuance of a number of shares of Common Stock equal to a fraction whose numerator is such portion of the Option Purchase Price to be paid in shares of Common Stock and whose denominator is the Market Price per share of Common Stock as determined by the Company, except that (i) accrued and unpaid interest, if any, payable as herein provided in respect of Securities upon a Repurchase at Holder’s Option shall be paid in cash and (ii) fractional shares of Common Stock shall be paid in cash as provided in Section 3.08(B)(iii).

 

All shares of Common Stock delivered as full or partial payment of the Option Purchase Price pursuant to this Section 3.08 shall be newly issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim.

 

If a Holder is paid in shares of Common Stock as full or partial payment of the Option Purchase Price pursuant to this Section 3.08, the Company shall pay any documentary, stamp or similar issue or transfer tax due on such issue of Common Stock.  However, the Holder shall pay any such tax which is due because the Holder requests the Common Stock to be issued in a name other than the Holder’s name.  The Paying Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Paying Agent receives a sum sufficient to pay any tax which will be due because the shares of Common Stock are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any income tax withholding required by law or regulations.

 

“Market Price” means the average of the Closing Sale Prices for the ten (10) consecutive Trading Days ending on, and including, the third Business Day prior to the applicable Option Purchase Date (if the third Business Day prior to the applicable Option Purchase Date is not a Trading Day, then ending on, and including, the last Trading Day prior to such third Business Day), appropriately adjusted to take into account the occurrence, during such ten (10) Trading Day period, of any event described in Section 10.06, subject, however, to the provisions of Section 10.07.

 

(C)                                The Company shall not be entitled to pay any portion of the Option Purchase Price in shares of Common Stock pursuant to Section 3.08(B) unless all of the following conditions are satisfied:

 

(i)                   The Company shall have specified, in the Option Purchase Notice timely given to all Holders in accordance with Section 3.08(D), that the Company will pay all or a portion of the Option Purchase Price in shares of Common Stock and shall have specified in such Option Purchase Notice the percentages of the Option Purchase Price in respect of which the Company will pay in cash or shares of Common Stock;

 

(ii)                before an Option Purchase Notice is given to Holders pursuant to Section 3.08(D), the Company shall have delivered an Officer’s Certificate to the Trustee specifying (I) the manner of payment selected by the Company, (II) the information required by Section 3.08(D) to be included in the Option Purchase Notice and (III) if the Company elects to pay all or a portion of the Option Purchase Price in shares of Common Stock, that the conditions to such manner of payment set forth in this Section 3.08 have been, or will be, complied with;

 

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(iii)             the information necessary to calculate the Market Price is published in a daily newspaper of national circulation;

 

(iv)            the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price shall be registered under the Securities Act, unless such registration is not necessary to permit the Holders who receive such shares to publicly resell the same (for purposes of this Section 3.08(C)(iv), resales subject to the volume, manner of sale and notice restrictions of Rule 144 under the Securities Act are deemed not to be “public resales”);

 

(v)               the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price shall be duly qualified or registered under applicable state securities laws or shall be qualified for an available exemption from such qualification and registration;

 

(vi)            the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price shall be listed on a U.S. national securities exchange or qualified for quotation on The Nasdaq National Market;

 

(vii)         before the close of business on the Business Day immediately preceding the applicable Option Purchase Date (or such other time to which the Trustee and the Company may agree), the Trustee shall have received an Officer’s Certificate stating:

 

(I)                                     that the conditions in clauses (i), (iii), (iv), (v) and (vi) above have been satisfied; and

 

(II)                                 the number of shares of Common Stock to be issued for each $1,000 principal amount of Securities and the Closing Sale Price per share of Common Stock on each Trading Day in the period during which the Market Price is calculated pursuant to this Section 3.08;

 

(viii)                                                       before the close of business on the Business Day immediately preceding the applicable Option Purchase Date (or such other time to which the Trustee and the Company may agree), the Trustee shall have received an Opinion of Counsel stating that:

 

(I)                                     the shares of Common Stock to be issued by the Company in full or partial payment of the Option Purchase Price have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Option Purchase Price, will be validly issued, fully paid and non-assessable and, to the best of such counsel’s knowledge, free from preemptive rights;

 

(II)                                 the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price are registered under the Securities Act, unless such registration is not necessary to permit the Holders who receive such shares to publicly resell the same;

 

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(III)                             the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price are duly qualified or registered under applicable state securities laws or are qualified for an available exemption from such qualification and registration; and

 

(IV)                             the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price are qualified for listing on a U.S. national securities exchange or for quotation on The Nasdaq National Market; and

 

(ix)              upon determination of the actual number of shares of Common Stock to be delivered as provided in this Section 3.08 in full or partial payment of the Option Purchase Price, the Company shall have disseminated a press release through PR Newswire, or a comparable newswire service, containing this information or shall have published the information on the Company’s web site or through such other public medium as the Company may use at that time.

 

If, prior to the applicable Option Purchase Date (or, with respect to clauses (vii) and (viii) above, prior to such other time to which the Trustee and the Company shall have agreed in accordance with such clauses, as applicable), any of the foregoing conditions are not satisfied with respect to a Holder of Securities subject to the Repurchase at Holder’s Option, and the Company has elected, pursuant to this Section 3.08, to pay all or a portion of the Option Purchase Price in shares of Common Stock, the Company shall pay the entire Option Purchase Price of such Securities in cash in accordance with such Holder’s election (or deemed election) as provided in Section 3.08(A)(i)(IV).

 

(D)                               The Company shall give notice (“Option Purchase Notice”) on a date not less than twenty (20) Business Days prior to each Option Purchase Date to all Holders at their addresses shown in the register and to beneficial owners as required by applicable law.  Such notice shall state:

 

(i)                                    the Option Purchase Price plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Purchase Date and the Conversion Rate;

 

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

 

(iii)                              that Securities as to which a Purchase Notice has been given may be converted pursuant to Article X only if the applicable Purchase Notice has been withdrawn in accordance with the terms of this Indenture and the requirements set forth in paragraph 10 of the Securities are satisfied;

 

(iv)                             that Securities must be surrendered (together with any necessary endorsements) to the Paying Agent to collect payment of the Option Purchase Price plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Purchase Date;

 

(v)                                that the Option Purchase Price, plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Purchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid promptly following the

 

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later of the applicable Option Purchase Date or the time of delivery of the Security, but, if any portion of the Option Purchase Price consists of shares of Common stock, in no event more than three (3) Business Days following the later of the applicable Option Purchase Date or the time of delivery of the Security as described in (iv);

 

(vi)                             the procedures the Holder must follow to exercise rights under this Section 3.08 and a brief description of those rights;

 

(vii)                          that a Holder will be entitled to withdraw its election if the Company (if acting as its own Paying Agent), or the Paying Agent receives, at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the applicable Option Purchase Date, or such later time as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) statement that such Holder is withdrawing his election to have Securities repurchased, (III) the principal amount of Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof, (IV) if such Holder’s Securities are certificated, the certificate number of such Securities to be so withdrawn and (V) the principal amount, if any, of Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.08, which amount must be $1,000 or an integral multiple thereof;

 

(viii)                       that, unless the Company defaults in making payment of such Option Purchase Price or such accrued and unpaid interest (including any liquidated damages), interest (including any liquidated damages) on Securities surrendered for purchase will cease to accrue on and after the applicable Option Purchase Date and all rights of the Holders of such Securities shall terminate on and after the such Option Purchase Date, other than the right to receive, upon surrender of such Securities (together with all necessary endorsements) and in accordance with this Indenture, the Option Purchase Price and such accrued and unpaid interest (including any liquidated damages);

 

(ix)                               the CUSIP number of the Securities;

 

(x)                                  whether the Company will pay the Option Purchase Price in cash or shares of Common Stock or in a combination thereof, in each case specifying the percentages of the Option Purchase Price in respect of which the Company will pay in cash or shares of Common Stock;

 

(xi)                               if applicable, that each Holder will receive shares of Common Stock, the Market Price (determined as of a specified date prior to the applicable Option Purchase Date) of which shares will be equal to a specified portion of the Option Purchase Price of the Securities held by such Holder (except any cash amount to be paid in lieu of fractional shares);

 

(xii)                            if applicable, the method of calculating the Market Price of the shares of Common Stock to be delivered as payment, in whole or in part, of the Option Purchase Price; and

 

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(xiii)                         if applicable, that because the Market Price of shares of Common Stock will be determined prior to the applicable Option Purchase Date, Holders of the Securities will bear the market risk that the Common Stock will decline in value between the date such Market Price is determined and the applicable Option Purchase Date.

 

At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such notice shall be prepared by the Company.

 

There shall be no purchase of any Securities pursuant to this Section 3.08 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Option Purchase Price or accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option).  The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of an Event of Default (other than a default in the payment of the Option Purchase Price or such accrued and unpaid interest) in which case, upon such return, the Purchase Notice with respect thereto shall be deemed to have been withdrawn.

 

Notwithstanding anything herein to the contrary, if the option granted to Securityholders to require the repurchase of the Securities on an Option Purchase Date is determined to constitute a tender offer, the Company will comply with all applicable tender offer rules under the Exchange Act, including Rules 13e-4 and 14e-1, and file a Schedule TO or any other schedules required under the Exchange Act.

 

3.09                           REPURCHASE AT OPTION OF HOLDER UPON A REPURCHASE EVENT.

 

Upon any Repurchase Event (as defined below), each Holder of Securities shall have the right (the “Repurchase Right”), at the Holder’s option, to require the Company to repurchase all of such Holder’s Securities, or a portion thereof which is $1,000 in principal amount or any integral multiple thereof, on a date selected by the Company (the “Repurchase Date”) no later than thirty (30) days after the date the Repurchase Event Notice (as defined below) is mailed in accordance with the immediately succeeding paragraph, at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date.

 

Within thirty (30) days after the occurrence of a Repurchase Event, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses shown in the register of the Registrar, and to beneficial owners as required by applicable law, a notice (the “Repurchase Event Notice”) of the occurrence of such Repurchase Event and the Repurchase Right arising as a result thereof.  The Company shall deliver a copy of the Repurchase Event Notice to the Trustee and shall cause a copy to be published at the expense of the Company in THE NEW YORK TIMES or THE WALL STREET JOURNAL or another newspaper of national circulation.

 

Each Repurchase Event Notice shall state:

 

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(i)                           the events causing the Repurchase Event;

 

(ii)                        the date of such Repurchase Event;

 

(iii)                     the Repurchase Date;

 

(iv)                    the date by which the Repurchase Right must be exercised;

 

(v)                       the Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date;

 

(vi)                    the names and addresses of the Paying Agent and the Conversion Agent;

 

(vii)                 a description of the procedure which a Holder must follow to exercise the Repurchase Right;

 

(viii)              that, in order to exercise the Repurchase Right, the Securities must be surrendered for payment of the Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Repurchase Event;

 

(ix)                      that the Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid promptly following the later of the Repurchase Date or the time of delivery of the Security as described in (viii);

 

(x)                          that, on and after the Repurchase Date (unless the Company defaults in the payment of such Repurchase Price or such accrued and unpaid interest (including any liquidated damages)), interest (including any liquidated damages) on Securities subject to Repurchase Upon Repurchase Event will cease to accrue and all rights of the Holders of such Securities shall terminate, other than the right to receive, upon surrender of such Securities, the Repurchase Price and such accrued and unpaid interest;

 

(xi)                      that a Holder will be entitled to withdraw its election if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Repurchase Date, or such later time as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Securities repurchased, (III) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof, (IV) if such Holder’s Securities are certificated, the certificate number of such Securities to be so withdrawn, and (V) the principal amount, if any, of the Securities of such Holder that remains subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.09, which amount must be $1,000 or an integral multiple thereof;

 

(xii)                   the Conversion Rate and any adjustments to the Conversion Rate that will result from the Repurchase Event;

 

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(xiii)                that Securities with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article X, if otherwise convertible in accordance with Article X, only if such Purchase Notice has been withdrawn in accordance with this Section 3.09 at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the Repurchase Date, or such later time as may be required by law;

 

(xiv)               the place or places where such Securities may be surrendered for conversion; and

 

(xv)                  the CUSIP number or numbers, as the case may be, of the Securities.

 

No failure of the Company to give the foregoing notice shall limit any Holder’s right to exercise a Repurchase Right.

 

To exercise a Repurchase Right, a Holder shall deliver to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Repurchase Event Notice, (i) no later than 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Repurchase Date, a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, and stating (A) if the Holder’s Securities are certificated, the certificate number of the Security which the Holder will deliver to be repurchased, (B) the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof, and (C) that such Securities are being tendered for repurchase pursuant to the terms and conditions specified in paragraph 9 of the Securities and in this Indenture; and (ii) at any time after the delivery of such Purchase Notice, such Securities with respect to which the Repurchase Right is being exercised, duly endorsed for transfer to the Company.  Upon such delivery of such Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Purchase Notice contemplated by this Section 3.09 shall have the right to withdraw such Purchase Notice by delivery, at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the Repurchase Date, or such later time as may be required by law, of a written notice of withdrawal to the Paying Agent, which notice shall set forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Securities repurchased, (III) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof, (IV) if such Holder’s Securities are certificated, the certificate number of such Securities to be so withdrawn, and (V) the principal amount, if any, of the Securities of such Holder that remains subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.09, which amount must be $1,000 or an integral multiple thereof.  Securities as to which a Purchase Notice has been given may be converted pursuant to Article X only if such Purchase Notice has been withdrawn in accordance with the preceding sentence and the requirements set forth in paragraph 10 of the Securities are satisfied.

 

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In the event a Repurchase Right shall be exercised in accordance with the terms hereof, the Company shall pay, or cause to be paid, the Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date, with respect to each Security as to which the Repurchase Right shall have been exercised to the Holder thereof promptly following the later of the Repurchase Date and the time such Security is surrendered to the Paying Agent, subject to the provisions of the immediately preceding paragraph.

 

Prior to 11:00 A.M., New York City time on a Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on the Repurchase Date, sufficient to pay the Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date, of all of the Securities which are to be repurchased on that date.  The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

Both the Repurchase Event Notice and the Purchase Notice having been duly given as specified in this Section 3.09, the Securities to be so repurchased shall, on the Repurchase Date, become due and payable at the Repurchase Price (plus accrued and unpaid interest, if any, to, but excluding, the Repurchase Date) applicable thereto, and, on and after such date (unless there shall be a default in the payment of the Repurchase Price or such accrued and unpaid interest), such Securities shall cease to bear interest (including any liquidated damages), and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance with this Section 3.09, the Repurchase Price and such accrued and unpaid interest.

 

If any Security shall not be paid upon surrender thereof for Repurchase Upon Repurchase Event, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest from the Repurchase Date at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X.

 

Any Security which is to be submitted for Repurchase Upon Repurchase Event only in part shall be delivered pursuant to this Section 3.09 (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 its 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 without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not submitted for Repurchase Upon Repurchase Event.

 

Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 3.09 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Repurchase Price or accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Repurchase Event).  The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of an Event of Default (other than a default in the payment of the Repurchase Price or such accrued and unpaid interest) in which case, upon such

 

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return, the Purchase Notice with respect to the Redemption Upon Repurchase Event shall be deemed to have been withdrawn.

 

Notwithstanding anything herein to the contrary, if the option granted to Securityholders to require the repurchase of the Securities upon the occurrence of a Repurchase Event is determined to constitute a tender offer, the Company will comply with all applicable tender offer rules under the Exchange Act, including Rules 13e-4 and 14e-1, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

 

As used in this Section 3.09 and in the Securities:

 

A “Repurchase Event” shall be deemed to have occurred upon the occurrence of a “Change in Control”

 

A “Change in Control” shall be deemed to have occurred at such time as:

 

(i)                                    any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of the Capital Stock of the Company entitled to vote generally in the election of directors, other than an acquisition by the Company, any of its Subsidiaries or any of the Company’s employee benefit plans; or

 

(ii)                                 at any time the following persons cease for any reason to constitute a majority of the Company’s Board of Directors:

 

(1)                                  individuals who on the Issue Date constituted the Company’s Board of Directors; and

 

(2)                                  any new directors whose election to the Company’s Board of Directors or whose nomination for election by the Company’s shareholders was approved by at least a majority of the members of the Board of Directors, or of the nominating committee thereof, then still in office who were either directors of the Company on the Issue Date or whose election or nomination for election was previously so approved; or

 

(iii)                                the Company consolidates with, or merges with or into, another person or any person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the persons that “beneficially owned,” directly or indirectly, the shares of the Voting Stock of the Company immediately prior to such transaction, “beneficially own,” directly or indirectly, immediately after such transaction, shares of the surviving or continuing corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the continuing or surviving corporation in substantially the same proportion as such ownership immediately prior to the transaction; or

 

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(iv)                    the sale, lease, transfer or other conveyance or disposition of all or substantially all of the property and assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act; or

 

(v)                       the Company is liquidated or dissolved or the holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company;

 

provided, however, that a Change in Control will not be deemed to have occurred if either:

 

(1)                                  the Closing Sale Price for each of any five (5) Trading Days (whether or not consecutive) during the ten (10) consecutive Trading Days immediately preceding the Change in Control is equal to at least one hundred and five percent (105%) of the Conversion Price in effect on such Trading Day; or

 

(2)                                  in the case of a merger or consolidation, at least ninety percent (90%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock and any associated rights traded on a U.S. national securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control), and, as a result of such transaction or transactions, the Securities become convertible into such common stock and associated rights.

 

3.10                           CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.

 

In connection with a Redemption of Securities, the Company may arrange, in lieu of Redemption, for the purchase and conversion of any Securities called for Redemption by an agreement with one or more investment bankers or other purchasers to purchase all or a portion of such Securities by paying to the Paying Agent in trust for the Holders whose Securities are to be so purchased, on or before the close of business on the Redemption Date, an amount that, together with any amounts deposited with the Paying Agent by the Company for Redemption of such Securities, is not less than the Redemption Price, together with accrued and unpaid interest, if any, to, but excluding, the Redemption Date, of such Securities.  Notwithstanding anything to the contrary contained in this Article III, the obligation of the Company to pay the Redemption Price of such Securities, including all accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers, but no such agreement shall relieve the Company of its obligation to pay such Redemption Price or such accrued and unpaid interest, if any.  If such an agreement is entered into, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article X) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the Redemption Date, subject to payment of the above amount as aforesaid.  The Paying Agent shall hold and pay to the Holders whose

 

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Securities are selected for Redemption any such amount paid to it for purchase and conversion in the same manner as it would moneys deposited with it by the Company for the Redemption of Securities.  Without the prior written consent of the Trustee and the Paying Agent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, rights, immunities, responsibilities or obligations of the Trustee or Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Trustee and Paying Agent from, and hold them harmless against, any and all loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and expenses (including counsel fees and expenses) incurred by the Trustee or Paying Agent in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of their powers, duties, responsibilities or obligations under this Indenture except to the extent arising from their bad faith, willful misconduct or negligence.

 

IV.                                 COVENANTS

 

4.01                           PAYMENT OF SECURITIES.

 

The Company shall pay all amounts due with respect to the Securities on the dates and in the manner provided in the Securities.  All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting as Paying Agent, the Company has segregated and holds in trust in accordance with Section 2.04) on that date money sufficient to pay the amount then due with respect to the Securities.

 

The Company shall pay interest on any overdue amount (including, to the extent permitted by applicable law, overdue interest) at the rate borne by the Securities.

 

Except as otherwise provided in this Indenture, the Company shall pay interest on the Securities to the Holder in whose name the Securities are registered at the close of business on the record date next preceding the corresponding interest payment date, as provided herein.

 

The Company shall pay all amounts due with respect to the Securities in money of the United States that at the time of payment is legal tender for payment of public and private debts or, if permitted under this Indenture, in shares of Common Stock in accordance with this Indenture.  With respect to Securities that are in global form, the Company shall make payments on such Securities by wire transfer of immediately available funds to the account specified by the Holders thereof.  With respect to a Security that is held, other than in global form, by a Holder of more than $5.0 million aggregate principal amount of Securities, the Company shall make payments on such Security by wire transfer of immediately available funds to the account specified by such Holder or, if no such account is specified, by mailing a check to such Holder’s registered address.  With respect to a Security that is held, other than in global form, by a Holder of not more than $5.0 million aggregate principal amount of Securities, the Company shall make payments on such Security by mailing a check to such Holder’s registered address.  Notwithstanding the foregoing, so long as the Securities are in global form and registered in the name of the Depositary or its nominee, all payments with respect to the Securities shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.

 

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4.02                           MAINTENANCE OF OFFICE OR AGENCY.

 

The Company will maintain, or cause to be maintained, in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer or exchange or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of 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 at the Corporate Trust Office of the Trustee.

 

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

 

The Company hereby designates the Corporate Trust Office of the Trustee as an agency of the Company in accordance with Section 2.03.

 

4.03                           REPORTS.

 

(A)                              The Company will promptly provide to the Trustee and shall, upon request, provide to any Holder or beneficial owner of Securities or prospective purchaser of Securities that so requests, the information required to be delivered pursuant to Rule 144A(d)(4) until such time as the Securities and the underlying Common Stock have been registered by the Company for resale under the Securities Act pursuant to the Registration Rights Agreement.  In addition, the Company will furnish such Rule 144A(d)(4) information if, at any time while the Securities or the Common Stock issuable upon conversion of the Securities are “restricted securities” within the meaning of the Securities Act, the Company is not subject to the informational requirements of the Exchange Act.

 

(B)                                The Company shall, in accordance with TIA § 314(a), deliver to the Trustee, within thirty (30) calendar days after the Company files such annual reports, information, documents and other reports with the SEC, copies of its annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the SEC.  In the event the Company is at any time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and to each Holder, within thirty (30) calendar days after the Company would have been required to file such reports with the SEC, annual and quarterly consolidated financial statements substantially equivalent to financial statements that would have

 

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been included in reports filed with the SEC if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, including, with respect to annual information only, a report thereon by the Company’s certified independent public accountants as such would be required in such reports filed with the SEC and, in each case, together with a management’s discussion and analysis of financial condition and results of operations which would be so required. The Company also shall comply with the other provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof 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 Officer’s Certificates).

 

4.04                           COMPLIANCE CERTIFICATE.

 

The Company shall deliver to the Trustee, within one hundred and twenty (120) days after the end of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2003), an Officer’s Certificate stating whether or not, to the signer’s actual knowledge, there has occurred any Default or Event of Default by the Company in performing any of its obligations under this Indenture or the Securities.  If such Officer does know of any such Default or Event of Default, the certificate shall describe the Default or Event of Default and its status.

 

4.05                           STAY, EXTENSION AND USURY LAWS.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (in each case, to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

4.06                           CORPORATE EXISTENCE.

 

Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents.

 

4.07                           NOTICE OF DEFAULT.

 

In the event the Company becomes aware of the occurrence of any Default or Event of Default, the Company will give prompt written notice of such Default or Event of Default to the Trustee and any remedial action proposed to be taken.

 

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4.08                           FURTHER INSTRUMENTS AND ACTS.

 

If reasonably requested by the Trustee and not otherwise provided for herein, the Company shall execute and deliver such further instruments and do such further acts as may be necessary and proper to carry out more effectively the purposes of this Indenture.

 

V.                                     SUCCESSORS

 

5.01                           WHEN COMPANY MAY MERGE, ETC.

 

The Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to, another person, whether in a single transaction or series of related transactions, unless (i) such other person is a corporation organized under the laws of the United States, any State thereof or the District of Columbia; (ii) such person assumes by supplemental indenture all the obligations of the Company, under the Securities and this Indenture; and (iii) immediately after giving effect to the transaction, no Default or Event of Default shall exist.

 

The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel, which may rely upon (i) a certificate of the appropriate official of the jurisdiction in which such person, if a corporation, is organized certifying that such person is a corporation organized in such jurisdiction and (ii) such Officer’s Certificate as to the absence of Defaults and Events of Default, and stating that the proposed transaction and such supplemental indenture will, upon consummation of the proposed transaction, comply with Article V and, to the extent applicable, Article X and that all conditions precedent herein provided for relating to such transaction have been satisfied.

 

5.02                           SUCCESSOR SUBSTITUTED.

 

Upon any consolidation, merger or sale, conveyance, transfer, lease, or other disposition of all or substantially all of the assets of the Company, the successor person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer, lease, or other disposition is made shall succeed to, and, except in the case of a lease, be substituted for, and may exercise every right and power of, and shall assume every duty and obligation of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein.  When the successor assumes all obligations of the Company hereunder, except in the case of a lease, all obligations of the predecessor shall terminate.

 

VI.                                 DEFAULTS AND REMEDIES

 

6.01                           EVENTS OF DEFAULT.

 

An “Event of Default” occurs if:

 

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(i)                           the Company fails to pay the principal of any Security when the same becomes due and payable, whether at maturity, upon Redemption, on an Option Purchase Date with respect to a Repurchase at Holder’s Option, on a Repurchase Date with respect to a Repurchase Upon Repurchase Event or otherwise;

 

(ii)                        the Company fails to pay an installment of interest or liquidated damages on the Securities when due, if such failure continues for thirty (30) days after the date when due;

 

(iii)                     the Company fails to comply with any other term, covenant or agreement set forth in the Securities or this Indenture and such failure continues for the period, and after the notice, specified below;

 

(iv)                    the acceleration of any Indebtedness of the Company or any Subsidiary for money borrowed in the aggregate principal amount then outstanding of fifty million dollars ($50,000,000) or more so that such Indebtedness becomes due and payable prior to the date on which it would otherwise become due and payable, and such acceleration is not rescinded within sixty (60) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of not less than twenty five percent (25%) in the aggregate principal amount of the Securities then outstanding, each in accordance with this Indenture;

 

(v)                       the Company or any of its Significant Subsidiaries, pursuant to, or within the meaning of, any Bankruptcy Law:

 

(A)                              commences a voluntary case,

 

(B)                                consents to the entry of an order for relief against it in an involuntary case,

 

(C)                                consents to the appointment of a Custodian of it or for all or substantially all of its property, or

 

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

 

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

 

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

 

(B)                                appoints a Custodian of the Company or any of its Significant Subsidiaries for all or substantially all of the property of the Company or any such Significant Subsidiary, as the case may be, or

 

(C)                                orders the winding up or liquidation of the Company or any of its Significant Subsidiaries,

 

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and, in the case of each of subclauses (A), (B) or (C) of this Section 6.01(vi), the order or decree remains unstayed and in effect for ninety (90) consecutive days.

 

The term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors.  The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

 

A Default under clause (iii) is not an Event of Default until (I) the Trustee notifies the Company or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee of the Default and (II) the Default is not cured within sixty (60) days after receipt of the notice.  The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default”.  If the Holders of at least twenty five percent (25%) in aggregate principal amount of the outstanding Securities request the Trustee to give such notice on their behalf, the Trustee shall do so.  When a Default is cured, it ceases to exist for every purpose under this Indenture and is deemed not to be continuing, but no waiver of a Default shall extend to any subsequent or other Default or Event of Default or impair any consequent right.

 

6.02                           ACCELERATION.

 

If an Event of Default (other than an Event of Default specified in Section 6.01(v) or (vi) with respect to the Company) as to which the Trustee has received notice pursuant to the provisions of this Indenture occurs and is continuing, the Trustee by notice to the Company or the Holders of at least twenty five percent (25%) in principal amount of the Securities then outstanding by notice to the Company and the Trustee may declare the Securities to be due and payable.  Upon such declaration, the principal of and any accrued and unpaid interest on all Securities shall be due and payable immediately.  If an Event of Default specified in Section 6.01(v) or (vi) with respect to the Company (excluding, for purposes of this sentence, an Event of Default specified in Section 6.01(v) or (vi) solely with respect to a Significant Subsidiary of the Company) occurs, the principal of and accrued and unpaid interest on all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.  The Holders of a majority in aggregate principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and its consequences if (i) the rescission would not conflict with any order or decree; (ii) all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration; and (iii) either (A) all amounts due to the Trustee under Section 7.07 have been paid or (B) the Company has given reasonable assurances to the Trustee that all amounts due to the Trustee under Section 7.07 shall be paid.

 

6.03                           OTHER REMEDIES.

 

Notwithstanding any other provision of this Indenture, if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of amounts due with respect to the Securities or to enforce the performance of any provision of the Securities or this Indenture.

 

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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 Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.  All remedies are cumulative.

 

6.04                           WAIVER OF PAST DEFAULTS.

 

Subject to Sections 6.07 and 9.02, the Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may waive any past Default or Event of Default and its consequences, other than (A) a Default or Event of Default in the payment of the principal of, or interest or liquidated damages on, any Security, or in the payment of the Redemption Price, the Option Purchase Price or the Repurchase Price (or accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase at Holder’s Option or Repurchase Upon Repurchase Event), (B) a Default or Event of Default arising from a failure by the Company to deliver shares of Common Stock upon conversion of any Securities or (C) any Default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 9.02, cannot be modified or amended without the consent of the Holder of each Security affected.  When a Default or an Event of Default is waived, it is cured, ceases to exist for every purpose of this Indenture and is deemed not to be continuing, but no waiver of a Default or Event of Default shall extend to any subsequent or other Default or Event of Default or impair any consequent right.  This Section 6.04 shall be in lieu of TIA § 316(a)(1)(B), and TIA § 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the TIA.

 

6.05                           CONTROL BY MAJORITY.

 

The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or is unduly prejudicial to the rights of other Securityholders or if the Securityholders have not offered to the Trustee indemnity reasonably satisfactory to it; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.  This Section 6.05 shall be in lieu of TIA § 316(a)(1)(A), and TIA § 316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by the TIA.

 

6.06                           LIMITATION ON SUITS.

 

Except as provided in Section 6.07, a Securityholder may not institute any proceeding under this Indenture or pursue a remedy with respect to this Indenture or the Securities unless:

 

(i)                           the Holder gives to the Trustee written notice of a continuing Event of Default;

 

(ii)                        the Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding make a written request to the Trustee to pursue the remedy;

 

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(iii)                     such Holder or Holders offer and, if requested, provide to the Trustee reasonable indemnity against any loss, liability or expense;

 

(iv)                    the Trustee does not comply with the request within sixty (60) days after receipt of notice, the request and the offer of indemnity; and

 

(v)                       during such sixty (60) day period, the Holders of a majority in aggregate principal amount of the Securities then outstanding do not give the Trustee a direction inconsistent with the request.

 

No provision of this Indenture shall be deemed to grant a Securityholder the right to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder.

 

6.07                           RIGHTS OF HOLDERS TO RECEIVE PAYMENT.

 

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of all amounts due with respect to the Securities, 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 the Holder.

 

Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for the enforcement of the right to convert the Security in accordance with this Indenture shall not be impaired or affected without the consent of the Holder.

 

6.08                           COLLECTION SUIT BY TRUSTEE.

 

If an Event of Default specified in Section 6.01(i) or (ii) 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 due with respect to the Securities, including any unpaid and accrued interest.

 

6.09                           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, any predecessor Trustee and the Securityholders allowed in any judicial proceedings relative to the Company or its creditors or properties.

 

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

 

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

 

6.10                           PRIORITIES.

 

If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:

 

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

 

Second:                              to Securityholders for all amounts due and unpaid on the Securities, without preference or priority of any kind, according to the amounts due and payable on the Securities; and

 

Third:                                         to the Company.

 

The Trustee, upon prior written notice to the Company may fix a record date and payment date for any payment by it to Securityholders pursuant to this Section 6.10.

 

6.11                           UNDERTAKING FOR COSTS.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit other than the Trustee of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than ten percent (10%) in aggregate principal amount of the outstanding Securities.

 

VII.                             TRUSTEE

 

7.01                           DUTIES OF TRUSTEE.

 

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

 

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

 

(i)                           the Trustee need perform only those duties that are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

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(ii)                        in the absence of bad faith, willful misconduct or negligence on its part, the Trustee may conclusively rely, as to the truth of the statements (including the calculations referred to in Section 11.14) and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other content 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:

 

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

 

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

 

(iii)                  no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any 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 for believing that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it.

 

This Section 7.01(C) shall not limit the effect of Section 7.01(B).

 

(D)                               Every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Section 7.01.

 

(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.  Money held in trust by the Trustee shall be segregated from other funds as directed by the Company and to the extent required by law and shall be invested by the Trustee pursuant to the written directions of the Company reasonably satisfactory to the Trustee.

 

7.02                           RIGHTS OF TRUSTEE.

 

(A)                              Subject to Section 7.01, the Trustee may conclusively rely on any document 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; if, however, the Trustee shall determine to make such further inquiry or investigation, it shall be entitled during normal business hours to examine the relevant books, records and premises of the Company, personally or by agent or attorney upon reasonable prior notice.

 

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(B)                                Before the Trustee acts or refrains from acting, it may require an Officer’s 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 such Officer’s Certificate or Opinion of Counsel.

 

(C)                                Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution.

 

(D)                               The Trustee may consult with counsel (such counsel to be reasonably selected by the Trustee with due care) and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

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

 

(F)                                 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 discretion, rights or powers conferred upon it by this Indenture.

 

(G)                               Except with respect to Section 6.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article IV.  In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 6.01(i) and (ii) or (ii) any Default or Event of Default of which a Responsible Officer of the Trustee shall have received written notification or obtained actual knowledge.  Delivery of reports, information and documents to the Trustee under Article IV (other than Sections 4.04 and 4.07) is for informational purposes only and the Trustee’s receipt of the foregoing 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 Officer’s Certificates).

 

(H)                              The Trustee shall be under no obligation to exercise any of the rights or powers vested by this Indenture at the request or direction of any of the Holders pursuant to this Indenture unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

 

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

 

(J)                                  The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

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(K)                              The Trustee shall not be required to give any bond or surety in respect of the execution of its trusts and powers or in respect of this Indenture.

 

7.03                           INDIVIDUAL RIGHTS OF TRUSTEE.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee.  Any Security Agent may do the same with like rights.  The Trustee, however, must comply with Sections 7.10 and 7.11.

 

7.04                           TRUSTEE’S DISCLAIMER.

 

The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities; it shall not be accountable for the Company’s use of the proceeds from the Securities; and it shall not be responsible for any statement in the Securities other than its certificate of authentication.

 

7.05                           NOTICE OF DEFAULTS.

 

If a Default or Event of Default occurs and is continuing as to which the Trustee has received notice pursuant to the provisions of this Indenture, the Trustee shall mail to each Securityholder a notice of the Default or Event of Default within thirty (30) days after it occurs unless such Default or Event of Default has been cured or waived.  Except in the case of a Default or Event of Default in payment of any amounts due with respect to any Security, the Trustee may withhold the notice if, and so long as it in good faith determines that, withholding the notice is in the best interests of Securityholders.

 

7.06                           REPORTS BY TRUSTEE TO HOLDERS.

 

Within sixty (60) days after each May 15 beginning with May 15, 2004, the Trustee shall mail to each Securityholder if required by TIA § 313(a) a brief report dated as of such May 15 that complies with TIA § 313(c).  In such event, the Trustee also shall comply with TIA § 313(b).

 

A copy of each report at the time of its mailing to Securityholders shall be mailed to the Company and filed by the Trustee with the SEC and each stock exchange, if any, on which the Securities are listed.  The Company shall promptly notify the Trustee when the Securities are listed on any stock exchange.

 

7.07                           COMPENSATION AND INDEMNITY.

 

The Company shall pay to the Trustee from time to time such compensation for its services as shall be agreed upon in writing.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it.  Such expenses shall include the reasonable compensation and out-of-pocket expenses of the Trustee’s agents and counsel.

 

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All rights, protections and benefits of the Trustee shall extend to the Trustee acting as Conversion Agent, Paying Agent, Registrar or other Security Agent with respect hereto.

 

The Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including the reasonable fees and expenses of counsel and taxes other than those based upon the income of the Trustee) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers and duties hereunder.  The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnification.  The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the Trustee’s negligence, bad faith or willful misconduct.

 

To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay amounts due on particular Securities.

 

The indemnity obligations of the Company with respect to the Trustee provided for in this Section 7.07 shall survive any resignation or removal of the Trustee.

 

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(v) or (vi) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.

 

7.08                           REPLACEMENT OF TRUSTEE.

 

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

 

The Trustee may resign by so notifying the Company in writing thirty (30) Business Days prior to such resignation.  The Holders of a majority in aggregate principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and the Company in writing and may appoint a successor Trustee with the Company’s consent.  The Company may remove the Trustee if:

 

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

 

(ii)                        the Trustee is adjudged a bankrupt or an insolvent;

 

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

 

(iv)                    the Trustee becomes incapable of acting.

 

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

 

If a successor Trustee does not take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

If the Trustee fails to comply with Section 7.10, the Company or any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of 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 Indenture.  The successor Trustee shall mail a notice of its succession to Securityholders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.

 

7.09                           SUCCESSOR TRUSTEE BY MERGER, ETC.

 

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee, if such successor corporation is otherwise eligible hereunder.

 

7.10                           ELIGIBILITY; DISQUALIFICATION.

 

There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.  The Trustee shall comply with TIA § 310(b).  Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA § 310(b).

 

7.11                           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.

 

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VIII.                         DISCHARGE OF INDENTURE

 

8.01                           TERMINATION OF THE OBLIGATIONS OF THE COMPANY.

 

This Indenture shall cease to be of further effect if (a) either (i) all outstanding Securities (other than Securities replaced pursuant to Section 2.07 hereof) have been delivered to the Trustee for cancellation or (ii) all outstanding Securities have become due and payable at their scheduled maturity or upon Repurchase at Holder’s Option, Redemption or Repurchase Upon Repurchase Event or upon acceleration pursuant to Section 6.02, and in either case the Company irrevocably deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying Agent is not the Company or any of its Affiliates) cash sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.07 hereof) on the Maturity Date or an Option Purchase Date, Redemption Date or Repurchase Date or, in the case of a discharge upon acceleration, the date of such deposit, as the case may be; (b) the Company pays to the Trustee all other sums payable hereunder by the Company; (c) such deposit will not result in a breach or violation of, or constitute a default under any agreement or instrument (other than this Indenture) to which the Company is a party or by which it is bound; and (d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.15, 2.16, 2.17, 3.05, 3.08, 3.09, 4.01, 4.02, 4.05, 7.07 and 7.08 and Articles VIII and X shall survive any discharge of this Indenture until such time as the Securities have been paid in full and there are no Securities outstanding.  Thereafter, the obligations of Section 7.07 shall survive.

 

8.02                           APPLICATION OF TRUST MONEY.

 

The Trustee shall hold in trust money deposited with it pursuant to Section 8.01.  It shall apply the deposited money through the Paying Agent and in accordance with this Indenture to the payment of the principal of and any unpaid and accrued interest on the Securities.

 

8.03                           REPAYMENT TO COMPANY.

 

The Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company upon the request of the Company, any excess money held by them at any time.  The Trustee or the Paying Agent, as the case may be, shall provide written notice to the Company of any money that has been held by it and has remained unclaimed for the payment of the principal of or any accrued and unpaid interest on the Securities for a period of two (2) years. The Trustee and the Paying Agent shall pay to the Company, upon the written request of the Company, any such money held by them; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may, at the expense and request of the Company, cause to be published once in a newspaper of general circulation in the City of New York or cause to be mailed to each Holder, notice stating that such money remains and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company.  After payment to the Company, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another

 

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person and all liability of the Trustee and the Paying Agent shall, subject to applicable law, cease.

 

8.04                           REINSTATEMENT.

 

If the Trustee or Paying Agent is unable to apply any money in accordance with Sections 8.01 and 8.02 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Sections 8.01 and 8.02 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Sections 8.01 and 8.02; provided, however, that if the Company has made any payment of amounts due with respect to any Securities because of 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.

 

IX.                                AMENDMENTS

 

9.01                           WITHOUT CONSENT OF HOLDERS.

 

The Company, with the consent of the Trustee, may amend or supplement this Indenture or the Securities without notice to or the consent of any Securityholder:

 

(i)                           to comply with Sections 5.01 and 10.12;

 

(ii)                        to make any changes or modifications to this Indenture necessary in connection with the registration of the Securities under the Securities Act pursuant to the Registration Rights Agreement or the qualification of this Indenture under the TIA;

 

(iii)                     to secure the obligations of the Company in respect of the Securities;

 

(iv)                    to add to the covenants of the Company described in this Indenture for the benefit of Securityholders or to surrender any right or power conferred upon the Company;

 

(v)                       to make provisions with respect to adjustments to the Conversion Rate as required by this Indenture or to increase the Conversion Rate in accordance with this Indenture;

 

(vi)            to add additional Events of Default with respect to the Securities; and

 

(vii)         to cure any ambiguity or correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising hereunder that the Company and the Trustee deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; provided, however, that no amendment or supplement

 

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to this Indenture made pursuant to this Section 9.01(vii) may adversely affect the interests of Holders in any material respect.

 

9.02                           WITH CONSENT OF HOLDERS.

 

The Company may amend or supplement this Indenture or the Securities without notice to any Securityholder but with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities.  Subject to Sections 6.07 and 6.04, the Holders of a majority in aggregate principal amount of the outstanding Securities may waive compliance by the Company with any provision of this Indenture or the Securities without notice to any other Securityholder.  However, without the consent of each Holder of each outstanding Security affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:

 

(a)                                  change the stated maturity of the principal of, or the payment date of any installment of interest on, any Security;

 

(b)                                 reduce the principal amount of, or interest or liquidated damages on, any Security;

 

(c)                                  change the place or currency of payment of principal of, or interest or liquidated damages on, any Security;

 

(d)                                 impair the right to institute suit for the enforcement of any payment on, or with respect to, any Security;

 

(e)                                  modify the provisions with respect to the right of Holders pursuant to Article III to require the Company to purchase Securities on an Option Purchase Date or to repurchase Securities upon the occurrence of a Repurchase Event in a manner adverse to Holders;

 

(f)                                    modify the provisions of Section 2.18 in a manner adverse to Holders;

 

(g)                                 adversely affect the right of Holders to convert Securities other than as provided in or under Article X;

 

(h)                                 reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification to or amendment of any provision of this Indenture;

 

(i)                                     reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a waiver of compliance with any provision of this Indenture or a waiver of any Default or Event of Default; or

 

(j)                                     modify the provisions of this Indenture with respect to modification and waiver (including waiver of a Default or an Event of Default), except to increase the percentage required for modification or waiver or to provide for consent of each affected Holder.

 

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Promptly after an amendment, supplement or waiver under Section 9.01 or this Section 9.02 becomes effective, the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such amendment, supplement or waiver.  Any failure of the Company to mail such notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.

 

It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.  The Company may establish, by delivery of an Officer’s Certificate to the Trustee, a record date for determining Securityholders of record entitled to give any consent or waiver; provided that (i) such record date shall not be more than fifteen (15) days prior to the date of the commencement of solicitation for such consent or waiver; and (ii) at least fifteen (15) days prior to such record date, the Company shall mail, or cause to be mailed, by first-class mail a notice of such record date to each Holder or shall disseminate a press release through PR Newswire, or a comparable newswire service, disclosing such record date.

 

Nothing in this Section 9.02 shall impair the Company’s rights under Section 9.01(i) to amend this Indenture or the Securities without the consent of any Securityholder to provide for the assumption of the Company’s obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition in accordance with, and to the extent required under, Article V.

 

9.03                           COMPLIANCE WITH TRUST INDENTURE ACT.

 

Every amendment, waiver or supplement to this Indenture or the Securities shall comply with the TIA as then in effect.

 

9.04                           REVOCATION AND EFFECT OF CONSENTS.

 

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security.  However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective; provided, however, that if a record date has been established, in accordance with Section 9.02, for the purpose of determining Securityholders entitled to consent, such notice of revocation must be signed by the Securityholder of record as of the close of business on such record date or his or her duly appointed proxy.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Securityholder.

 

After an amendment, supplement or waiver becomes effective with respect to the Securities, it shall bind every Securityholder unless it makes a change that requires, pursuant to Section 9.02, the consent of each Securityholder affected.  In that case, the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and, provided that notice of such amendment, supplement or waiver is reflected on a Security that evidences

 

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the same debt as the consenting Holder’s Security, every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

 

9.05                           NOTATION ON OR EXCHANGE OF SECURITIES.

 

If an amendment, supplement or waiver 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 as directed and prepared by the Company about the changed terms and return it to the Holder.  Alternatively, if the Company so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.  Subject to the provisions of Section 9.04, Holders and subsequent Holders of the Securities shall be bound by such amendment, supplement or waiver notwithstanding any failure of the Trustee to make such notation on the Securities or any failure of the Company to issue new Securities that reflect the changed terms.

 

9.06                           TRUSTEE PROTECTED.

 

The Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to this Article IX; provided, however, that the Trustee need not sign any amendment, supplement or waiver authorized pursuant to this Article IX that adversely affects the Trustee’s rights, duties, liabilities or immunities.  The Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel (as to legal matters) and an Officer’s Certificate (as to factual matters) that any supplemental indenture, amendment or waiver is permitted or authorized pursuant to this Indenture.

 

X.                                    CONVERSION

 

10.01                     CONVERSION PRIVILEGE; RESTRICTIVE LEGENDS.

 

Subject to the provisions of Sections 3.04, 3.07, 3.08 and 3.09, a Holder may convert a Security into shares of Common Stock under the circumstances set forth in, and pursuant to, paragraph 10 of the Securities upon the satisfaction of the applicable conditions set forth in paragraph 10 of the Securities.  The initial Conversion Rate is 14.0366 shares of Common Stock per $1,000 principal amount.  The Conversion Rate is subject to adjustment in accordance with Sections 10.06 through 10.12.

 

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

 

Any shares of Common Stock issued upon conversion of a Security shall bear the Private Placement Legend until after the second anniversary of the later of the Issue Date and the last date on which the Company or any Affiliate was the owner of such shares or the Security (or any predecessor security) from which such shares were converted (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state

 

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securities laws in the Opinion of Counsel for the Company, unless otherwise agreed by the Company and the Holder thereof).

 

10.02                     CONVERSION PROCEDURE.

 

To convert a Security, a Holder must satisfy the requirements of paragraph 10 of the Securities.  As soon as practicable following the date (the “Conversion Date”) on which the Holder satisfies all those requirements, the Company shall deliver to the Holder through the Conversion Agent a certificate for the number of full shares of Common Stock issuable upon the conversion, as provided in paragraph 10 of the Securities, and a check for the amount of cash payable in lieu of any fractional share.  Immediately prior to the close of business on the Conversion Date, the person in whose name such certificate is to be registered shall be treated as a shareholder of record of the Company (and the Company shall cause such conversion to be effective as of such time on the books of the transfer agent for the Common Stock), the Security to be converted shall be deemed to have been converted and all rights of the Holder of such Security shall terminate, other than the right to receive the shares of Common Stock and cash deliverable as provided in the preceding sentence.  A Holder of Securities is not entitled to any rights of a holder of Common Stock until such Holder has converted its Securities into shares of Common Stock, or is deemed to be a shareholder of record of the Company, as provided in this paragraph, and then only to the extent such Securities are deemed to have been so converted or such Holder is so deemed to be a shareholder of record.  Upon delivery of the cash, if any, and shares of Common Stock issuable upon conversion of the Securities, the Company shall have discharged in full its obligations with respect to such Securites so converted.

 

Except as provided in this Article X, no payment or adjustment will be made for accrued interest on, or liquidated damages with respect to, a converted Security or for dividends on any Common Stock issued on or prior to conversion.  If a Holder surrenders a Security for conversion after the close of business on the record date for the payment of an installment of interest and prior to the related interest payment date, then, notwithstanding such conversion, the interest payable with respect to such Security on such interest payment date shall be paid on such interest payment date to the Holder of such Security at the close of business on such record date; provided, however, that such Security, when surrendered for conversion, must be accompanied by payment to the Conversion Agent on behalf of the Company of an amount equal to the interest payable on such interest payment date on the portion so converted; provided further, however, that such payment to the Conversion Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion (i) shall not be required if such Security is called for Redemption pursuant to Section 3.04 and paragraphs 6 and 7 of the Securities and (ii) shall not be required with respect to any unpaid interest that is overdue and shall have accrued prior to the interest payment date immediately preceding the Conversion Date.

 

If a Holder converts more than one Security at the same time, the number of full shares issuable upon the conversion shall be based on the total principal amount of the Securities converted.

 

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Upon surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal amount to the unconverted portion of the Security surrendered.

 

If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.

 

10.03                     FRACTIONAL SHARES.

 

The Company will not issue fractional shares of Common Stock upon conversion of Securities and instead will deliver a check in an amount equal to the value of such fraction computed on the basis of the Closing Sale Price on the Trading Day immediately before the Conversion Date.

 

10.04                     TAXES ON CONVERSION.

 

If a Holder converts its Security, the Company shall pay any documentary, stamp or similar issue or transfer tax or duty due on the issue, if any, of shares of Common Stock upon the conversion.  However, the Holder shall pay any such tax or duty which is due because such shares are issued in a name other than such Holder’s name.  The Conversion Agent may refuse to deliver a certificate representing the shares of Common Stock to be issued in a name other than such Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax or duty which will be due because such shares are to be issued in a name other than such Holder’s name.  Nothing herein shall preclude any tax withholding required by law or regulation.

 

10.05                     COMPANY TO PROVIDE STOCK.

 

The Company shall reserve out of its authorized but unissued Common Stock or Common Stock held in its treasury enough shares of Common Stock to permit the conversion of all of the Securities into shares of Common Stock.

 

All shares of Common Stock which may be issued upon conversion of the Securities shall be validly issued, fully paid and non-assessable and shall be free of preemptive rights and free of any lien or adverse claim created by the Company.

 

The Company shall comply with all securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities and shall list such shares on each national securities exchange or automated quotation system on which the Common Stock is listed.

 

10.06                     ADJUSTMENT OF CONVERSION RATE.

 

The Conversion Rate shall be subject to adjustment from time to time as follows:

 

(a)                                  In case the Company shall (1) pay a dividend in shares of Common Stock to all holders of Common Stock, (2) make a distribution in shares of Common Stock to all holders of Common Stock, (3) subdivide the outstanding shares of Common Stock

 

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into a greater number of shares of Common Stock or (4) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Rate in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto.  Any adjustment made pursuant to this Section 10.06(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.

 

(b)                                 In case the Company shall, except pursuant to a shareholders’ rights plan of the Company, issue rights or warrants to all holders of Common Stock entitling them, for a period commencing on the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than sixty (60) days after such record date, to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock), at a price per share (or having a conversion, exchange or exercise price per share) less than the current market price (as determined pursuant to Section 10.06(g)) of Common Stock on such record date, the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock so offered for subscription or purchase, and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price.  Such adjustments shall become effective immediately after such record date.

 

(c)                                  In case the Company shall dividend or distribute to all holders of Common Stock shares of Capital Stock of the Company (other than Common Stock), evidences of Indebtedness or other assets (other than any dividends or distributions paid exclusively in cash), or shall dividend or distribute to all holders of Common Stock rights or warrants to subscribe for securities (other than those referred to in Section10.06(b)), then in each such case the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date for the determination of shareholders entitled to such distribution by a fraction of which the numerator shall be the current market price of Common Stock (as determined pursuant to Section 10.06(g)) on such date and the denominator shall be such current market price less the fair market value (as determined in good faith by the Board of Directors whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the shares of Capital Stock, evidences of Indebtedness and other assets to be distributed or of such rights or warrants applicable to one share of Common Stock, such increase to become effective immediately prior to the opening of business on the day following such record date; provided, however, that if such denominator is equal to or less than zero, then, in lieu of the foregoing adjustment to the Conversion Rate, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of its Securities, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such

 

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conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets, rights and/or warrants that such Holder would have received had such Holder converted each Security on such record date.  Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in Section 10.06(b)) (“Rights”) pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 10.06(c), make proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such conversion (the “Conversion Shares”), a number of Rights to be determined as follows:  (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the “Distribution Date”), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of shares of Conversion Shares would be entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.  Any distribution of rights or warrants pursuant to a shareholders’ rights plan complying with the requirements set forth in the preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 10.06(c).

 

(d)                                 In case the Company shall, by dividend or otherwise, at any time make a distribution of cash (excluding any cash that is distributed as part of a distribution requiring a Conversion Rate adjustment pursuant to subsection (e) below) to all holders of Common Stock, the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date for the determination of holders of Common Stock entitled to such distribution by a fraction (A) whose numerator shall be the current market price per share of Common Stock (as determined pursuant to Section 10.06(g)) on such record date and (B) whose denominator shall be an amount equal to (a) such current market price per share of Common Stock less (b) the lesser of (i) the amount of the distribution per share of Common Stock and (ii) such current market price per share of Common Stock; provided, however, that the Conversion Rate shall not be adjusted pursuant to this Section 10.06(d) to the extent, and only to the extent, such adjustment would cause the Conversion Price to be less than one cent ($0.01); provided further that, if the denominator of such fraction shall be zero, the Conversion Rate shall be instead adjusted so that the Conversion Price is equal to one cent ($0.01).  An adjustment to the Conversion Rate pursuant to this Section 10.06(d) shall become effective immediately prior to the opening of business on the day immediately following such record date.

 

(e)                                  In case the Company or any Subsidiary shall distribute cash or other consideration in respect of a tender offer or exchange offer (other than an odd-lot offer) made by the Company or any Subsidiary for all or any portion of the Common Stock

 

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where the sum of the aggregate amount of such cash distributed and the aggregate fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution), as of the Expiration Date (as defined below), of such other consideration distributed (such sum, the “Aggregate Amount”) expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock, the “Purchased Shares”) exceeds the current market price per share of Common Stock (as determined pursuant to Section 10.06(g)) on the last date (such last date, the “Expiration Date”) on which tenders or exchanges could have been made pursuant to such tender offer or exchange offer (as the same may be amended through the Expiration Date), then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior to the close of business on the Expiration Date by a fraction (A) whose numerator is equal to the sum of (I) the Aggregate Amount and (II) the product of (a) the current market price per share of Common Stock (as determined pursuant to Section 10.06(g)) on the Expiration Date and (b) an amount equal to (i) the number of shares of Common Stock outstanding as of the last time (the “Expiration Time”) at which tenders or exchanges could have been made pursuant to such tender offer or exchange offer less (ii) the Purchased Shares and (B) whose denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of the Expiration Time (including all Purchased Shares) and (II) the current market price per share of Common Stock on the Expiration Date.

 

An adjustment, if any, to the Conversion Rate pursuant to this Section 10.06(e) shall become effective immediately prior to the opening of business on the Business Day following the Expiration Date.  In the event that the Company or a Subsidiary is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender offer or exchange offer had not been made.  If the application of this Section 10.06(e) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 10.06(e).

 

(f)                                    In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company, from time to time and to the extent permitted by law, may increase the Conversion Rate by any amount for a period of at least twenty (20) days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such increase would be in the best interests of the Company, provided that the then effective Conversion Price is not less than the par value of a share of Common Stock.  Such Conversion Rate increase shall be irrevocable during such period.  The Company shall give notice to the Trustee and cause notice of such increase to be mailed to each Holder of Securities at such Holder’s address as the same appears on the registry books of the Registrar, at least fifteen (15) days prior to the date on which such increase commences.

 

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(g)                                 For the purpose of any computation under subsections (a), (b), (c) and (d) above of this Section 10.06, the current market price per share of Common Stock on the date fixed for determination of the shareholders entitled to receive the issuance or distribution requiring such computation (the “Determination Date”) shall be deemed to be the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding the Determination Date, and, for the purpose of any computation under Section 10.06(e) the current market price per share of Common Stock on the Expiration Date for the tender offer or exchange offer requiring such computation shall be deemed to be the average of the Closing Sale Price for the ten (10) consecutive Trading Days immediately preceding the Expiration Date; provided, however, that (i) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Rate pursuant to subsection (a), (b), (c), (d) or (e) above occurs on or after the tenth (10th) Trading Day prior to the Determination Date or Expiration Date, whichever is applicable, and prior to the “ex” date for the issuance or distribution requiring such computation, the Closing Sale Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Rate is so required to be adjusted as a result of such other event, (ii) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Rate pursuant to subsection (a), (b), (c), (d) or (e) above occurs on or after the “ex” date for the issuance or distribution requiring such computation and on or prior to the Determination Date or the Expiration Date, whichever is applicable, the Closing Sale Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event, and (iii) if the “ex” date for the event requiring such computation is on or prior to the Determination Date or Expiration Date, whichever is applicable, after taking into account any adjustment required pursuant to clause (i) or (ii) of this proviso, the Closing Sale Price for each Trading Day on and after such “ex” date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for the purposes of this Section 10.06, whose determination shall be conclusive and described in a Resolution of the Board of Directors) of the evidences of Indebtedness, shares of Capital Stock or other securities or assets or cash being distributed (in the event requiring such computation) applicable to one share of Common Stock as of the close of business on the day before such “ex” date.

 

For purposes of this subsection, the term “ex” date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades the regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender offer or exchange offer means the first date on which the Common Stock trades the regular way on such

 

56

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exchange or in such market after the expiration time of such tender offer or exchange offer (as it may be amended or extended).

 

For purposes of Paragraph 10(iv)(A) of the Securities, the current market price per share of Common Stock on the declaration date of the distribution described in such Paragraph 10(iv)(A) shall be deemed to be the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding such declaration date, appropriately adjusted in the good faith determination of the Board of Directors (whose determination shall be conclusive and described in a Board Resolution) to account for the occurrence, during such ten (10) Trading Day period, of any event that requires an adjustment to the Conversion Rate pursuant to this Section 10.06 or that is described in Section 10.12.

 

10.07                     NO ADJUSTMENT.

 

No adjustment in the Conversion Rate shall be required until cumulative adjustments amount to one percent (1%) or more of the Conversion Price as last adjusted; provided, however, that any adjustments which by reason of this Section 10.07 are not required to be made shall be carried forward and taken into account in any subsequent adjustment.  All calculations under this Article X shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.

 

If any rights, options or warrants issued by the Company as described in Section 10.06 are only exercisable upon the occurrence of certain triggering events, then the Conversion Rate will not be adjusted as provided in Section 10.06 until the earliest of such triggering event occurs.  Upon the expiration or termination of any rights, options or warrants without the exercise of such rights, options or warrants, the Conversion Rate then in effect shall be adjusted immediately to the Conversion Rate which would have been in effect at the time of such expiration or termination had such rights, options or warrants, to the extent outstanding immediately prior to such expiration or termination, never been issued.

 

If any dividend or distribution is declared and the Conversion Rate is adjusted pursuant to Section 10.06 on account of such dividend or distribution, but such dividend or distribution is thereafter not paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect had such dividend or distribution not been declared.

 

No adjustment to the Conversion Rate need be made for a transaction referred to in this Article X if Securityholders are to participate in the transaction without conversion on a basis and with notice that the Board of Directors determines in good faith to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in the transaction.

 

Except as otherwise provided in this Indenture, no adjustment to the Conversion Rate shall be required for the issuance of Common Stock or the right to purchase Common Stock or any convertible or exchangeable securities.

 

No adjustment to the Conversion Rate will be made as a result of the distribution of separate certificates representing the rights under the Rights Agreement or any similar

 

57

 

shareholders’ rights plan of the Company then in effect or the exercise of rights in accordance with any such plan.

 

No adjustment to the Conversion Rate as provided herein shall be made to, and only to, the extent such adjustment would reduce the then effective Conversion Price below the par value per share of Common Stock at the time such adjustment is to be made.

 

10.08                     OTHER ADJUSTMENTS.

 

In the event that, as a result of an adjustment made pursuant to Section 10.06 hereof, the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock other than shares of Common Stock, thereafter the Conversion Rate of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in this Article X.

 

10.09                     ADJUSTMENTS FOR TAX PURPOSES.

 

The Company may make such increases in the Conversion Rate, in addition to those required by Section 10.06 hereof, as it determines to be advisable in order that any stock dividend, subdivision of shares, distribution or rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Company or to its shareholders will not be taxable to the recipients thereof.

 

10.10                     NOTICE OF ADJUSTMENT.

 

Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders at the addresses appearing on the Registrar’s books a notice of the adjustment and file with the Trustee an Officer’s Certificate briefly stating the facts requiring the adjustment and the manner of computing it.  The certificate shall be conclusive evidence of the correctness of such adjustment.

 

10.11                     NOTICE OF CERTAIN TRANSACTIONS.

 

In the event that:

 

(1)                                  the Company takes any action which would require an adjustment in the Conversion Rate;

 

(2)                                  the Company takes any action that would require a supplemental indenture pursuant to Section 10.12; or

 

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

 

the Company shall mail to Holders at the addresses appearing on the Registrar’s books and the Trustee a notice stating the proposed record or effective date, as the case may be, of any transaction referred to in clause (1), (2)  or (3) of this Section 10.11.  The Company shall mail such notice at least fifteen (15) days before such date; however, failure to mail such notice or any

 

58

 

defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 10.11.

 

10.12                     EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS, BINDING SHARE EXCHANGES OR SALES ON CONVERSION PRIVILEGE.

 

If any of the following shall occur, namely: (i) any reclassification or change in the Common Stock issuable upon conversion of Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation, merger or binding share exchange to which the Company is a party and pursuant to which the Common Stock is converted or exchanged for cash, securities or other property or (iii) any transfer, sale or conveyance of all or substantially all of the property and assets of the Company, then the Company or such successor or purchasing corporation, as the case may be, shall, as a condition precedent to such reclassification, change, consolidation, merger, binding share exchange, transfer, sale or conveyance, execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee providing that the Holder of each Security then outstanding shall have the right to convert such Security into the kind and amount of shares of stock and other securities, property and/or assets (including cash) receivable upon such reclassification, change, consolidation, merger, binding share exchange, transfer, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Security immediately prior to such reclassification, change, consolidation, merger, binding share exchange, transfer, sale or conveyance, assuming that such Holder would not have exercised any rights of election that such Holder would have had as a holder of Common Stock to select a particular type of consideration.  Such supplemental indenture shall provide for adjustments of the Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Rate provided for in this Article X.  The foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise have, pursuant to Section 10.06(c) or Section 10.14 hereof, to receive Rights upon conversion of a Security.  If, in the case of any such consolidation, merger, binding share exchange, transfer, sale or conveyance, the stock or other securities, property and/or assets (including cash) receivable thereupon by a holder of Common Stock includes shares of stock or other securities, property and/or assets of a corporation other than the successor or purchasing corporation, as the case may be, in such consolidation, merger, binding share exchange, transfer, sale or conveyance, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.  The provision of this Section 10.12 shall similarly apply to successive consolidations, mergers, binding share exchanges, transfer, sales or conveyances.

 

In the event the Company shall execute a supplemental indenture pursuant to this Section 10.12, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of the Securities upon the conversion of their Securities after any such reclassification, change, consolidation, merger, binding share exchange, transfer sale or conveyance and any adjustment to be made with respect thereto.

 

59

 

10.13                     TRUSTEE’S DISCLAIMER.

 

The Trustee has no duty to determine when an adjustment under this Article X should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of the correctness of any such adjustment, and shall be protected in relying upon, the Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 10.10 hereof.  The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the failure by the Company to comply with any provisions of this Article X.

 

The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 10.12, but may accept as conclusive evidence of the correctness thereof, and shall be protected in relying upon, the Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 10.12 hereof.

 

10.14                     RIGHTS DISTRIBUTIONS PURSUANT TO SHAREHOLDERS’ RIGHTS PLANS.

 

The Company shall provide Holders, upon conversion of their Securities, in addition to shares of Common Stock issuable (and cash, if any, payable) upon such conversion, the rights described in the Rights Agreement and/or any similar shareholders’ rights plan in effect at the time of such conversion (whether or not the rights have been separated from the Common Stock prior to the time of conversion), subject to the limitations set forth in such shareholders’ rights plan, and, in the event that the Company implements other similar shareholders’ rights plans after the date hereof or amends, supplements or supercedes the Rights Agreement, the Company shall not deprive the Holders from receiving such rights in a manner that is substantially consistent with the manner in which the existing or new stockholders of the Company shall be entitled to receive such rights.  Any distribution of rights or warrants pursuant to a shareholders’ rights plan (whether or not the rights or warrants have been separated from the Common Stock) complying with the requirements set forth in the preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to Section 10.06(c).

 

XI.                                MISCELLANEOUS

 

11.01                     TRUST INDENTURE ACT CONTROLS.

 

If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision of the TIA shall control.

 

11.02                     NOTICES.

 

Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered:

 

(a)                                  by hand (in which case it will be effective upon delivery);

 

60

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(b)                                 by facsimile (in which case it will be effective upon receipt of confirmation of good transmission thereof); or

 

(c)                                  by overnight delivery by a nationally recognized courier service (in which case it will be effective on the Business Day immediately after being deposited with such courier service),

 

in each case to the other party’s address or fax number, as applicable, stated in this Section 11.02.  The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

 

Any notice or communication to a Securityholder shall be mailed by first-class mail to its address shown on the register kept by the Registrar.  Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders.

 

If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Security Agent at the same time.

 

All notices or communications shall be in writing.

 

The Company’s address is:

 

Genzyme Corporation
500 Kendall Street
Cambridge, MA 02142
Attention: Chief Financial Officer
Facsimile: (617) 642-2435

 

The Trustee’s address is:

 

U.S. Bank National Association
One Federal Street, Third Floor
Boston, MA 02110
Attn: Gerald Wheeler, Vice President
Facsimile: (617) 603-6665

 

61

 

11.03                     COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.

 

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

 

11.04                     CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.

 

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

 

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

 

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

 

Each signer of an Officer’s Certificate or an Opinion of Counsel may (if so stated) rely, effectively, upon an Opinion of Counsel as to legal matters and an Officer’s Certificate or certificates of public officials as to factual matters if such signer reasonably and in good faith believes in the accuracy of the document relied upon.

 

11.05                     STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.

 

Each Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

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

 

(ii)                        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;

 

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

 

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

 

11.06                     RULES BY TRUSTEE AND AGENTS.

 

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

 

62

 

11.07                     LEGAL HOLIDAYS.

 

A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required to be open in the City of New York, in the State of New York or in the City of Boston, Massachusetts.  If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on that payment for the intervening period.

 

A “Business Day” is a day other than a Legal Holiday.

 

11.08                     DUPLICATE ORIGINALS.

 

The parties may sign any number of copies of this Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.  Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.

 

11.09                     GOVERNING LAW.

 

This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.

 

11.10                     NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

 

This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any of its Subsidiaries.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

11.11                     SUCCESSORS.

 

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

 

11.12                     SEPARABILITY.

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim therefor against any party hereto.

 

11.13                     TABLE OF CONTENTS, HEADINGS, ETC.

 

The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.

 

63

 

11.14                     CALCULATIONS IN RESPECT OF THE SECURITIES.

 

The Company and its agents (including, without limitation, the Bid Solicitation Agent) shall make all calculations under this Indenture and the Securities in good faith.  In the absence of manifest error, such calculations shall be final and binding on all Holders.  The Company shall provide a copy of such calculations to the Trustee as required hereunder.

 

[The Remainder of This Page Left Blank; Signature Page Follows]

 

64

 

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

 

	GENZYME CORPORATION
	By:	/s/ Michael Wyzga
		Name:			Michael Wyzga
		Title:			Chief Financial and Accounting Officer; Executive Vice President, Finance
	U.S. BANK NATIONAL ASSOCIATION
	By:	/s/ Gerald R. Wheeler
		Name:		Gerald R. Wheeler
		Title:		Vice President

 

 

EXHIBIT A

 

[Face of Security]

 

GENZYME CORPORATION

 

Certificate No.              

 

[INSERT PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND
AS REQUIRED]

 

1.25% Convertible Senior Note due 2023
CUSIP No.                 

 

Genzyme Corporation, a Massachusetts corporation (the “Company”), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                           Dollars ($            ) on December 1, 2023 and to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or duly provided for.

 

Interest Payment Dates: June 1 and December 1, with the first payment to be made on June 1, 2004.

 

Record Dates: May 15 and November 15.

 

The provisions on the back of this certificate are incorporated as if set forth on the face hereof.

 

IN WITNESS WHEREOF, Genzyme Corporation has caused this instrument to be duly signed.

 

			GENZYME CORPORATION
			By:
				Name:
				Title:
Dated:

 

A-1

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities referred to
in the within-mentioned Indenture.

 

U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
			Authorized Signatory
Dated:

 

A-2

 

[REVERSE OF SECURITY]

GENZYME CORPORATION

1.25% Convertible Senior Note due 2023

 

1.                                       Interest.  Genzyme Corporation, a Massachusetts corporation (the “Company”), promises to pay interest on the principal amount of this Security at the rate per annum shown above.  The Company will pay interest semi-annually on June 1 and December 1 of each year, with the first payment to be made on June 1, 2004.  Interest on the Securities will accrue on the principal amount from, and including, the most recent date to which interest has been paid or provided for or, if no interest has been paid, from, and including, December 9, 2003, in each case to, but excluding, the next interest payment date or Maturity Date, as the case may be.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.

 

2.                                       Maturity.  The Securities will mature on December 1, 2023.

 

3.                                       Method of Payment.  The Company will pay interest on the Securities (except defaulted interest) to the persons who are registered Holders of Securities at the close of business on the record date set forth on the face of this Security immediately preceding the applicable interest payment date.  Holders must surrender Securities to a Paying Agent to collect the principal, Redemption Price, Option Purchase Price or Repurchase Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase at Holder’s Option or Repurchase Upon Repurchase Event, as the case may be.  The Company will pay all amounts due with respect to the Securities in money of the United States that at the time of payment is legal tender for payment of public and private debts or, if permitted under the Indenture, in shares of Common Stock in accordance with the Indenture.  With respect to Securities that are in global form, the Company will make payments on such Securities by wire transfer of immediately available funds to the account specified by the Holders thereof.  With respect to a Security that is held, other than in global form, by a Holder of more than $5.0 million aggregate principal amount of Securities, the Company will make payments on such Security by wire transfer of immediately available funds to the account specified by such Holder or, if no such account is specified, by mailing a check to such Holder’s registered address.  With respect to a Security that is held, other than in global form, by a Holder of not more than $5.0 million aggregate principal amount of Securities, the Company will make payments on such Security by mailing a check to such Holder’s registered address.

 

4.                                       Paying Agent, Registrar, Conversion Agent.  Initially, U.S. Bank National Association (the “Trustee”) will act as Paying Agent, Registrar, Bid Solicitation Agent and Conversion Agent.  The Company may change any Paying Agent, Registrar, Bid Solicitation Agent or Conversion Agent without notice.

 

5.                                       Indenture.  The Company issued the Securities under an Indenture dated as of December 9, 2003 (the “Indenture”) between the Company and the Trustee.  The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (the “Act”).  The Securities are subject to all such terms, and

 

A-3

 

Securityholders are referred to the Indenture and the Act for a statement of such terms.  The Securities are general unsecured senior obligations of the Company limited to $600,000,000 aggregate principal amount ($690,000,000 if the Initial Purchasers have elected to exercise in full the Option to purchase up to an additional $90,000,000 aggregate principal amount of the Securities), except as otherwise provided in the Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen Securities).  Terms used herein which are defined in the Indenture have the meanings assigned to them in the Indenture.

 

6.                                       Optional Redemption.  The Securities will be redeemable prior to maturity at the option of the Company, in whole or in part, at any time on or after December 1, 2008 (the date of any such time, the “Redemption Date”), on any date not less than 30 nor more than 60 days after the mailing of a redemption notice to each holder of Securities to be redeemed, at a redemption price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities to be redeemed plus any accrued and unpaid interest to, but excluding, the Redemption Date; provided, that if such Redemption Date is also an interest payment date, such accrued and unpaid interest with respect to a Security called for Redemption will be paid on such interest payment date to the Holder of record of such Security at the close of business on the relevant record date; provided further, that the Company will make at least ten (10) semi-annual interest payments with respect to the Securities prior to redeeming any Securities under this paragraph 6.

 

If the Paying Agent (other than the Company) holds on the Redemption Date money sufficient to pay the Redemption Price, and accrued and unpaid interest, if any, to, but excluding, the Redemption Date, payable on the Redemption Date with respect to a Security, then (unless the Company defaults in the payment of the Redemption Price or such accrued and unpaid interest) on and after the Redemption Date such Security shall be deemed to be no longer outstanding, interest on such Security shall cease to accrue, and such Security shall be deemed paid whether or not such Security is delivered to the Paying Agent.  Thereafter, all rights of the Holder of such Security shall terminate with respect to such Security, other than the right to receive the Redemption Price plus such accrued and unpaid interest.

 

7.                                       Notice of Redemption.  Notice of Redemption will be mailed at least thirty (30) days but not more than sixty (60) days before the Redemption Date to each Holder of Securities to be redeemed at its registered address.  Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

 

8.                                       Purchase by the Company at the Option of the Holder.  Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, the Securities held by such Holder on December 1, 2008, December 1, 2013 and December 1, 2018 (each, an “Option Purchase Date”) at an Option Purchase Price equal to one hundred percent (100%) of the principal amount of Securities to be purchased, plus accrued and unpaid interest, if any, to, but excluding, applicable Option Purchase Date, upon delivery of a Purchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is twenty (20) Business Days prior to the applicable Option Purchase Date until 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable Option Purchase Date and upon delivery of the Securities to the Paying Agent by the Holder as set forth in the Indenture.  Subject to certain conditions and exceptions

 

A-4

 

set forth in the Indenture, the Option Purchase Price may be paid for, in whole or in part, at the election of the Company, in cash or shares of Common Stock or in any combination of cash and shares of Common Stock.

 

Holders have the right to withdraw any Purchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the applicable Option Purchase Date, or such later time as may be required by law.

 

If the Paying Agent (other than the Company) holds on the applicable Option Purchase Date money and/or Common Stock, if applicable and as provided in the Indenture, sufficient to pay the Option Purchase Price, and accrued and unpaid interest, if any, to, but excluding, such Option Purchase Date, payable in respect of a Security on such Option Purchase Date, then on and after such Option Purchase Date such Security shall be deemed to be no longer outstanding and interest on it shall cease to accrue, and such Security shall be deemed paid whether or not such Security is delivered to the Paying Agent.  Thereafter, all other rights of the Holder(s) of such Security shall terminate with respect to such Security, other than the right to receive the Option Purchase Price plus such accrued and unpaid interest.

 

9.                                       Repurchase at Option of Holder Upon a Repurchase Event.  Subject to the terms and conditions of the Indenture, in the event of a Repurchase Event, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities including any portion thereof which is $1,000 in principal amount or any integral multiple thereof on a date selected by the Company (the “Repurchase Date”) no later than thirty (30) days after the date on which notice of such Repurchase Event is mailed in accordance with the immediately succeeding paragraph, at a price payable in cash equal to one hundred percent (100%) of the outstanding principal amount of such Security, plus accrued and unpaid interest to, but excluding, the Repurchase Date.

 

Within thirty (30) days after the occurrence of the Repurchase Event, the Company is obligated to give notice of the occurrence of such Repurchase Event to each Holder.  Such notice shall include, among other things, the date by which Holder must notify the Company of such Holder’s intention to exercise the Repurchase Right and of the procedure which such Holder must follow to exercise such right.  To exercise the Repurchase Right, a Holder of Securities must, in accordance with the provisions of the Indenture, (i) deliver, no later than 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Repurchase Date, written notice to the Paying Agent of the Holder’s exercise of such right; and (ii) deliver, at any time after the delivery of such written notice, the Securities with respect to which the Holder is exercising its Repurchase Right, duly endorsed for transfer to the Company.

 

A “Repurchase Event” shall be deemed to have occurred upon the occurrence of a “Change in Control.”

 

A “Change in Control” shall be deemed to have occurred at such time as:

 

(i)                   any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial

 

A-5

---

 

owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of the Capital Stock of the Company entitled to vote generally in the election of directors, other than an acquisition by the Company, any of its Subsidiaries or any of the Company’s employee benefit plans; or

 

(ii)                at any time the following persons cease for any reason to constitute a majority of the Company’s Board of Directors:

 

(1)                                  individuals who on the Issue Date constituted the Company’s Board of Directors; and

 

(2)                                  any new directors whose election to the Company’s Board of Directors or whose nomination for election by the Company’s shareholders was approved by at least a majority of the members of the Board of Directors, or of the nominating committee thereof, then still in office who were either directors of the Company on the Issue Date or whose election or nomination for election was previously so approved; or

 

(iii)             the Company consolidates with, or merges with or into, another person or any person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the persons that “beneficially owned,” directly or indirectly, the shares of the Voting Stock of the Company immediately prior to such transaction, “beneficially own,” directly or indirectly, immediately after such transaction, shares of the surviving or continuing corporation’s Voting Stock representing at least a majority of the total voting power of all outstanding classes of the Voting Stock of the continuing or surviving corporation in substantially the same proportion as such ownership immediately prior to the transaction; or

 

(iv)            the sale, lease, transfer or other conveyance or disposition of all or substantially all of the property and assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act; or

 

(v)               the Company is liquidated or dissolved or the holders of the Capital Stock of the Company approve any plan or proposal for the liquidation or dissolution of the Company;

 

provided, however, that a Change in Control will not be deemed to have occurred if either:

 

(1)                                  the Closing Sale Price for each of any five (5) Trading Days (whether or not consecutive) during the ten (10) consecutive Trading Days immediately preceding the Change in Control is equal to at least one hundred and five percent (105%) of the Conversion Price in effect on such Trading Day; or

 

A-6

 

(2)                                  in the case of a merger or consolidation, at least ninety percent (90%) of the consideration (other than cash payments for fractional shares or pursuant to statutory appraisal rights) in the merger or consolidation constituting the Change in Control consists of common stock and any associated rights traded on a U.S. national securities exchange or quoted on The Nasdaq National Market (or which will be so traded or quoted when issued or exchanged in connection with such Change in Control), and, as a result of such transaction or transactions, the Securities become convertible into such common stock and associated rights.

 

If the Paying Agent (other than the Company) holds on the Repurchase Date money sufficient to pay the Repurchase Price with respect to a Security, plus accrued and unpaid interest, if any, payable as provided in the Indenture upon Repurchase Upon Repurchase Event, then (unless the Company defaults in the payment of the Repurchase Price or such accrued and unpaid interest) on and after such date such Security shall be deemed to be no longer outstanding, interest on such Security shall cease to accrue, and such Security shall be deemed paid whether or not such Security is delivered to the Paying Agent.  Thereafter, all rights of the Holder of such Security shall terminate with respect to such Security, other than the right to receive the Repurchase Price, plus such accrued and unpaid interest, in accordance with the Indenture.

 

10.                                 Conversion.

 

The Securities shall be convertible as follows:

 

(i)                   Conversion Based on Closing Sale Price of Common Stock.  Subject to earlier Redemption, Repurchase at Holder’s Option or Repurchase Upon Repurchase Event, Holders may surrender Securities in integral multiples of $1,000 principal amount for conversion into shares of the Company’s Common Stock on any Business Day, if the Closing Sale Price of the Company’s Common Stock for at least twenty (20) consecutive Trading Days in a period of thirty (30) consecutive Trading Days ending on the Trading Day immediately preceding such Business Day exceeds one hundred and twenty percent (120%) of the Conversion Price in effect on such thirtieth (30^th) Trading Day.

 

(ii)                Conversion Upon Satisfaction of Trading Price Condition.  Subject to earlier Redemption, Repurchase at Holder’s Option or Repurchase Upon Repurchase Event, Securities in integral multiples of $1,000 principal amount may be surrendered for conversion into shares of Common Stock any time during the five (5) consecutive Trading Day period after any ten (10) consecutive Trading Day period (the “Note Measurement Period”), if the Trading Price per $1,000 principal amount of the Securities on each Trading Day during the Note Measurement Period was less than ninety five percent (95%) of the Conversion Value (as defined below) on such Trading Day; provided, however, no Security shall be convertible into shares of Common Stock pursuant to this paragraph after December 1, 2018 if the Closing Sale Price on the Trading Day immediately preceding the day on which the Security is surrendered for conversion pursuant to this paragraph is greater than 100% of the Conversion Price then in effect but equal to or less than 120% of the Conversion Price then in effect.  In

 

A-7

 

connection with any conversion, the Bid Solicitation Agent shall not have any obligation to determine the Trading Price unless the Company has requested such determination, and the Company shall have no obligation to make such request unless a Holder of at least $10,000,000 aggregate principal amount of Securities provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of the Securities would be less than ninety five percent (95%) of the Conversion Value.  Upon receipt of such evidence, the Company shall instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of the Securities beginning with the next Trading Day, and on each successive Trading Day until the Trading Price per $1,000 principal amount of the Securities is equal to or greater than ninety five percent (95%) of the Conversion Value.  For purposes of this paragraph, the “Conversion Value,” on a given Trading Day, means the product of Closing Sale Price on such Trading Day and the Conversion Rate in effect on such Trading Day.

 

(iii)             Conversion Based on Redemption.  A Security, or portion of a Security, which has been called for Redemption pursuant to paragraph 6 may be surrendered in integral multiples of $1,000 principal amount for conversion into shares of Common Stock; provided, however, that such Security or portion thereof may be surrendered for conversion pursuant to this paragraph only until 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the Redemption Date.

 

(iv)            Conversion Upon Certain Distributions.  If:

 

(A)            other than pursuant to a stockholder rights plan, the Company distributes to all holders of Common Stock rights or warrants entitling them to purchase shares of Common Stock at a purchase price per share of Common Stock that is less than the “current market price” (as defined in Section 10.06(g) of the Indenture) per share of Common Stock on the declaration date of such distribution; or

 

(B)              the Company distributes to all holders of Common Stock cash or other assets, debt securities or rights to purchase the Company’s securities, which distribution has a value per share of Common Stock (as determined in good faith by the Board of Directors whose determination shall be conclusive and described in a Board Resolution) exceeding fifteen percent (15%) of the Closing Sale Price on the Trading Day immediately preceding the date of declaration for such distribution,

 

then, in each case, the Company shall notify, in writing, Holders of such distribution at least twenty (20) days prior to the “ex” date for such distribution, after which time Holders shall have the right to surrender their Securities for conversion into shares of Common Stock at any time until the earlier of the close of business on the Business Day immediately preceding such “ex” date or the date of announcement by the Company that such distribution shall not take place.  For purposes of this paragraph, the term “ex” date means the first date on which the Common Stock trades the regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such distribution.

 

A-8

 

(v)               Conversion Upon Occurrence of Certain Corporate Transactions.  If the Company is a party to a consolidation, merger or binding share exchange pursuant to which the Common Stock would be converted or exchanged into cash, securities or other property, or a transfer, sale or conveyance of all or substantially all of the property or business of the Company, the Securities may be surrendered in integral multiples of $1,000 principal amount for conversion into shares of Common Stock at any time from and after the date which is fifteen (15) days prior to the date announced by the Company as the anticipated effective date of such transaction until the date that is fifteen (15) days after the actual effective date of such transaction, and, at the effective date of such transaction, the right to convert a Security into shares of Common Stock will be deemed to have changed into a right to convert it into the kind and amount of cash, securities or other property which the Holder thereof would have received if such Holder had converted such Holder’s Security immediately prior to the transaction, assuming that such Holder would not have exercised any rights of election that such Holder would have had as a holder of Common Stock to select a particular type of consideration.

 

The initial Conversion Rate is 14.0366 shares of Common Stock per $1,000 principal amount of Securities, or an effective initial Conversion Price of approximately $71.24 per share, subject to adjustment in the event of certain circumstances as specified in the Indenture.  The Company will deliver a check in lieu of any fractional share.  On conversion, no payment or adjustment for any unpaid and accrued interest on, or liquidated damages with respect to, the Securities will be made.  If a Holder surrenders a Security for conversion after the close of business on the record date for the payment of an installment of interest and prior to the related interest payment date, such Security, when surrendered for conversion, must be accompanied by payment to the Conversion Agent on behalf of the Company of an amount equal to the interest thereon which the registered Holder at the close of business on such record date is to receive on the portion of such Security that is converted, unless such Security has been called for Redemption as described in the Indenture and except to the extent of any unpaid interest that is overdue and shall have accrued prior to the interest payment date immediately preceding the Conversion Date.

 

To convert a Security, a Holder must (1) complete and sign the Conversion Notice, with appropriate signature guarantee, on the back of the Security, (2) deliver the Security and completed Conversion Notice to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent, (4) pay the amount of interest, if any, the Holder must pay as provided in the last sentence of the immediately preceding paragraph and (5) pay any transfer or similar tax if required pursuant to the Indenture.  A Holder may convert a portion of a Security if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount.  A Security as to which a Purchase Notice has been duly delivered electing that such Security be repurchased by the Company pursuant to Section 3.08 or Section 3.09 of the Indenture, as the case may be, may be converted pursuant to Article X of the Indenture and this paragraph 10 only if such Purchase Notice has been withdrawn in accordance with the Indenture prior to 5:00 p.m., New York City time, on the third (3rd) Business Day prior to the applicable Option Purchase Date or the Repurchase Date, as the case may be (or such later time as may be required by law).

 

A-9

 

Any shares of Common Stock issued upon conversion of a Security shall bear the Private Placement Legend until after the second anniversary of the later of the Issue Date and the last date on which the Company or any Affiliate was the owner of such shares or the Security (or any predecessor security) from which such shares were converted (or such shorter period of time as permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed by the Company and the Holder thereof).

 

11.                                 Denominations, Transfer, Exchange.  The Securities are in registered form without coupons in denominations of $1,000 principal amount and integral multiples of $1,000 principal amount.  The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture.  The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents.  No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.  The Registrar need not exchange or register the transfer of any Security selected for Redemption, in whole or in part, except the unredeemed portion of Securities to be redeemed in part.  Also, it need not exchange or register the transfer of any Securities for a period of fifteen (15) days before the mailing of a notice of Redemption and in certain other circumstances provided in the Indenture.

 

12.                                 Persons Deemed Owners.  The registered Holder of a Security may be treated as the owner of such Security for all purposes.

 

13.                                 Merger or Consolidation.  The Company shall not consolidate with, or merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to, another person, whether in a single or series of related transactions, unless (i) such other person is a corporation organized under the laws of the United States, any State thereof or the District of Columbia; (ii) such person assumes by supplemental indenture all the obligations of the Company, under the Securities and the Indenture; and (iii) immediately after giving effect to the transaction, no Default or Event of Default shall exist.

 

14.                                 Amendments, Supplements and Waivers.  Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding, and any existing Default or Event of Default may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding.  In accordance with the terms of the Indenture, without notice to or the consent of any Securityholder, the Indenture or the Securities may be amended or supplemented to (i) comply with Sections 5.01 and 10.12 of the Indenture; (ii) make any changes or modifications to the Indenture necessary in connection with the registration of the Securities under the Securities Act pursuant to the Registration Rights Agreement or the qualification of the Indenture under the TIA; (iii) secure the obligations of the Company in respect of the Securities; (iv) add to covenants of the Company described in the Indenture for the benefit of Securityholders; (v) surrender any right or power conferred upon the Company; (vi) make provisions with respect to adjustments to the Conversion Rate as required by the Indenture or increase the Conversion Rate in accordance with the Indenture; (vii) to add additional Events of Default with respect to the Securities; and (viii) to cure any ambiguity or

 

A-10

 

correct or supplement any provision in the Indenture that may be defective or inconsistent with any other provision therein, or to make any other provisions with respect to matters or questions arising thereunder that the Company and the Trustee deem necessary or desirable and which shall not be inconsistent with the provisions of the Indenture, provided that such amendment or supplement does not adversely affect the interests of Holders in any material respect.

 

15.                                 Defaults and Remedies.  Subject to the provisions of the Indenture, an Event of Default includes the occurrence of any of the following: (i) default in payment of principal, whether at maturity, upon Redemption, on an Option Purchase Date with respect to a Repurchase at Holder’s Option, on a Repurchase Date with respect to a Repurchase Upon Repurchase Event or otherwise; (ii) default for thirty (30) days in payment of interest or liquidated damages; (iii) failure by the Company for sixty (60) days after notice is given, as specified in the Indenture, to it to comply with any other term, covenant or agreement set forth in the Securities or the Indenture; (iv) the acceleration of certain Indebtedness of the Company or any of its Subsidiaries; and (v) certain events of bankruptcy or insolvency involving the Company or its Significant Subsidiaries.  If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding may declare all the Securities to be due and payable immediately, except as provided in the Indenture.  If an Event of Default specified in Section 6.01(v) or (vi) of the Indenture with respect to the Company occurs, the principal of and accrued interest on all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.  Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture.  The Trustee may require from the Holders indemnity reasonably satisfactory to the Trustee before it enforces the Indenture or the Securities.  Subject to certain limitations, Holders of a majority in principal amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Securityholders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment) if, and so long as it in good faith determines that, withholding the notice is in the best interests of Securityholders.  The Company must furnish an annual compliance certificate to the Trustee.

 

16.                                 Registration Rights.  The Holders are entitled to registration rights as set forth in the Registration Rights Agreement.  The Holders shall be entitled to receive liquidated damages in certain circumstances, all as set forth in the Registration Rights Agreement.

 

17.                                 Trustee Dealings with the Company.  The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.

 

18.                                 No Recourse Against Others.  No past, present or future director, officer, employee or shareholder, as such, of the Company shall have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.  Each Securityholder by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for the issue of the Securities.

 

A-11

 

19.                                 Authentication.  This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

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

 

THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE.  REQUESTS MAY BE MADE TO:

 

Genzyme Corporation
500 Kendall Street
Cambridge, MA 02142

 

A-12

 

[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
(please print or type name and address)
the within Security and all rights thereunder, and hereby irrevocably constitutes and appoints
Attorney to transfer the Security on the books of the Company with full power of substitution in the premises.
Dated:
					NOTICE:  The signature on this assignment must correspond with the name as it appears upon the face of the within Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.
Signature Guarantee:
In connection with any transfer of this Security occurring prior to the date which is the earlier of (i) the date of the declaration by the Commission of the effectiveness of a registration statement under the Securities Act of 1933, as amended, covering resales of this Security (which effectiveness shall not have been suspended or terminated at the date of the transfer) and (ii) the Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:

 

A-13

 

[Check One]

 

(1)	o	to the Company or any Subsidiary thereof; or
(2)	o	pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
(3)	o	pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended; or
(4)	o	pursuant to the exemption from registration under the Securities Act of 1933, as amended, other than under Rule 144A or Rule 144;
(5)	o	pursuant to an effective registration statement under the Securities Act of 1933, as amended.

 

and unless the box below is checked, the undersigned confirms that such Security is not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act of 1933, as amended (an “Affiliate”):

 

o              The transferee is an Affiliate of the Company.  (If the Security is transferred to an Affiliate, the restrictive legend must remain on the Security for at least two (2) years following the date of the transfer.)

 

Unless one of the items 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 item (3) or (4) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications and other information as the Trustee or the Company have reasonably requested 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 of 1933, as amended.

 

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

 

Dated:				Signed:
						(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:

 

A-14

 

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

 

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act 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 and acknowledges that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:
			NOTICE:	To be executed by an executive officer

 

A-15

 

CONVERSION NOTICE

 

To convert this Security into Common Stock of the, check the box: o
To convert only part of this Security, state the principal amount to be converted (must be in multiples of $1,000):
$
If you want the stock certificate made out in another person’s name, fill in the form below:
(Insert other person’s soc. sec. or tax I.D. no.)
(Print or type other person’s name, address and zip code)
Date:			Signature(s):
						(Sign exactly as your name(s) appear(s) on the other side of this Security)
Signature(s) guaranteed by:
				(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

 

A-16

 

PURCHASE NOTICE

 

Certificate No. of Security:

Check the appropriate box:

o

I elect to have the following principal amount of this Security purchased by the Company pursuant to Section 3.08 of the Indenture:

$

(in an integral multiple of $1,000)

If you checked the above box, then check the appropriate boxes below:

1.

Check the box below corresponding to the date on which you elect to have the principal amount of this Security specified above purchased by the Company:

o

December 1, 2008

o

December 1, 2013

o

December 1, 2018

2.

In the event the Company elects to pay the Option Purchase Price, in whole or in part, in shares of Common Stock, but the Option Purchase Price is ultimately to be paid entirely in cash because any of the conditions to payment of the Option Purchase Price in shares of Common Stock is not satisfied before the Option Purchase Date, you elect:

o

to withdraw this Purchase Notice as to the following principal amount of this Security:

$

(in an integral multiple of $1,000)

or

o

to receive cash in respect of the Option Purchase Price for that portion of the principal amount of this Security which I have elected above to be purchased by the Company pursuant to Section 3.08 of the Indenture.

o

I elect to have the following principal amount of this Security purchased by the Company pursuant to Section 3.09 of the Indenture:

$

(in an integral multiple of $1,000)

Date:

Signature(s):

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

Signature(s) guaranteed by:

(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

 

A-17

 

SCHEDULE A

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(a)

 

The following exchanges of a part of this Global Security for an interest in another Global Security or for Securities in certificated form, have been made:

 

Date of Exchange		Amount of decrease in Principal amount of this Global Security		Amount of increase in Principal amount of this Global Security		Principal amount of this Global Security following such decrease (or increase)		Signature or authorized signatory of Trustee or Note Custodian

 

 

(a) This is included in Global Securities only.

 

A-18

 

EXHIBIT B-1

 

FORM OF PRIVATE PLACEMENT LEGEND

 

THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

(1)                                  REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

 

(2)                                  AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND

 

(3)                                  AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY

 

(A)                               TO THE COMPANY OR ANY SUBSIDIARY THEREOF,

 

(B)                                 PURSUANT TO A REGISTRATION STATEMENT WHICH IS EFFECTIVE UNDER THE SECURITIES ACT,

 

(C)                                 TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

 

(D)                                PURSUANT TO THE SAFE HARBOR FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE.  PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.  NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

B-1-1

 

EXHIBIT B-2

 

FORM OF LEGEND FOR GLOBAL SECURITY

 

Any Global Security authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Security) in substantially the following form:

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), 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 CEDE & CO. 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 SECTION 2.16 OF THE INDENTURE.

 

B-2-1

 

EXHIBIT C

 

Form of Notice of Transfer Pursuant to Registration Statement

 

Genzyme Corporation
One Kendall Square
Cambridge, MA 02139
Attention: General Counsel

 

U.S. Bank National Association
One Federal Street, Third Floor
Boston, MA 02110
Attn: Gerald Wheeler, Vice President

 

Re:                               Genzyme Corporation (the “Company”) 1.25% Convertible Senior Notes due 2023 (the “Securities”)

 

Ladies and Gentlemen:

 

Please be advised that                       has transferred $                  aggregate principal amount of the Securities or               shares of the Common Stock, designated as Genzyme General Stock, $0.01 par value per share, of the Company issuable on conversion of the Securities (“Stock”) pursuant to an effective Shelf Registration Statement on Form S-3 (File No. 333-             ).

 

We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933 as amended, have been satisfied with respect to the transfer described above and that the above-named beneficial owner of the Securities or Stock is named as a “Selling Security Holder” in the Prospectus dated                , or in amendments or supplements thereto, and that the aggregate principal amount of the Securities, or number of shares of Stock transferred are [a portion of] the Securities or Stock listed in such Prospectus, as amended or supplemented, opposite such owner’s name.

 

 

	Very truly yours,
	(Name)

 

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EXHIBIT D

 

Form of Opinion of Counsel in Connection with Registration of Securities

 

U.S. Bank National Association
One Federal Street, Third Floor
Boston, MA 02110
Attn: Gerald Wheeler, Vice President

 

Re:                               Genzyme Corporation (the “Company”) 1.25% Convertible Senior Notes due 2023 (the “Securities”)

 

Ladies and Gentlemen:

 

Reference is made to the Securities issued pursuant to a certain Indenture dated as of December 9, 2003 by and between the Company and U.S. Bank National Association, as trustee (the “Trustee”).  The Company issued $600,000,000 principal amount of Securities on December 9, 2003 [and an additional $                on                     [IF THE INITIAL PURCHASERS’ OPTION IS EXERCISED]] in transactions exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”).  The Company has filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-3 (File No. 333-              ) (the “Registration Statement”) relating to the registration under the Securities Act of the resale of $               principal amount of the Securities and the shares of Common Stock of the Company (the “Shares”) issuable upon conversion of such Securities.  The Registration Statement was declared effective by order of the SEC dated                  .

 

We have acted as counsel for the Company in connection with the issuance of the Securities and the preparation and filing of the Registration Statement and are familiar with the Securities, the Indenture, the Registration Statement, the above-mentioned SEC order and such other documents as are necessary to render this opinion.

 

Based on the foregoing, it is our opinion that (1) the Registration Statement has become effective under the Securities Act and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, (2) assuming that the Securities covered by the Registration Statement and the Shares issuable upon conversion of such Securities are sold by the Holder or Holders identified in the Registration Statement in a manner specified in the Registration Statement, such sale or sales of the Securities and Shares issuable upon conversion of the Securities will have been duly registered under the Securities Act and (3) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.

 

Yours truly,

 

 

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