FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE BETWEEN ALPHARMA INC. AND U.S. BANK NATIONAL ASSOCIATION

DATED AS OF MARCH 20, 2007

2.125% CONVERTIBLE SENIOR NOTES DUE 2027

 

TABLE OF CONTENTS
		Page
Article I DEFINITIONS
Section 1.1	Definitions of Terms	1
Section 1.2	Terms Defined in the Base Indenture	8
Article II THE NOTES
Section 2.1	Designation of Notes and Establishment of Form	8
Section 2.2	Issue Price	8
Section 2.3	Ranking	8
Section 2.4	Amount	8
Section 2.5	Stated Maturity	8
Section 2.6	Form, Denomination and Currency	8
Section 2.7	Designation of Depositary	9
Section 2.8	Interest	9
Section 2.9	Place of Payment, Registration, Transfer and Exchange	10
Section 2.10	Redemption	11
Section 2.11	Repurchase at the Option of Holders	11
Section 2.12	Conversion Rights	16
Section 2.13	Conversion Consideration	19
Section 2.14	Conversion Procedures	20
Section 2.15	Conversion Rate Adjustments	22
Section 2.16	Consolidation or Merger of the Company	31
Section 2.17	Exchange in Lieu of Conversion	32
Section 2.18	Events of Default	33
Section 2.19	No Defeasance	35
Section 2.20	No Sinking Fund	35
Section 2.21	Supplemental Indentures	35
Section 2.22	Calculations	36
Section 2.23	Legal Holidays	36
Article III MISCELLANEOUS
Section 3.1	Ratification of Indenture	37
Section 3.2	Governing Law	37
Section 3.3	Severability	37
Section 3.4	Counterparts	37

 

 

 

 

FIRST SUPPLEMENTAL INDENTURE, dated as of March 20, 2007 (this " First Supplemental Indenture "), between ALPHARMA INC., a Delaware corporation (the " Company ") and U.S. BANK NATIONAL ASSOCIATION, as Trustee (the " Trustee "), supplementing the Indenture, dated as of March 20, 2007, between the Company and the Trustee (the " Base Indenture ," together with this First Supplemental Indenture, the " Indenture ").

WHEREAS, the Base Indenture provides for the issuance from time to time of the Company's debentures, notes, bonds and other evidences of indebtedness (" Debt Securities, " as defined in the Base Indenture) in one or more series;

WHEREAS, Section 901(6) of the Base Indenture provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental thereto to establish the form or terms of Debt Securities of any series as permitted by Sections 201 and 301 thereof;

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 2.125% Convertible Senior Notes due 2027 (the " Notes "), in an aggregate principal amount of $300,000,000;

WHEREAS, the Company proposes by this First Supplemental Indenture to supplement and amend in certain respects the Base Indenture insofar as it will apply only to the Notes (and not to any other series of Debt Securities) to provide for the form, terms and other provisions of the Notes as a separate series of Debt Securities to be issued under the Indenture;

WHEREAS, all acts and things necessary to duly authorize and reserve for issuance shares of Common Stock issuable upon the conversion of the Notes have been done and performed; and

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid, binding and legal obligations of the Company, and to constitute this First Supplemental Indenture a valid agreement according to its terms, have been done and performed, and the execution of this First Supplemental Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

In consideration of the premises provided for herein, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of all Holders of the Notes as follows:

ARTICLE I
DEFINITIONS

Section 1.1    Definitions of Terms .

" Aggregate Amount " has the meaning set forth in Section 2.15(f) hereof.

" Applicable Conversion Rate " means the Conversion Rate in effect on the applicable Trading Day.

" Base Indenture " has the meaning set forth in the recitals hereto.

" Beneficial Owner " means a person determined to be a "beneficial owner" in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any successor provisions, except that a person will be deemed to have beneficial ownership of all shares that person has the right to acquire irrespective of whether that right is exercisable immediately or only after the passage of time.

" Business Day " means any weekday that is not a day on which banking institutions in The City of New York are authorized or obligated to close.

" Capital Stock " means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person's equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.

" Cash " means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.

" Cash Percentage " has the meaning set forth in Section 2.13© hereof.

" Cash Percentage Notice " has the meaning set forth in Section 2.13© hereof.

" Close of Business " means 5:00 p.m. (New York City time).

" Closing Sale Price " of the Common Stock on any date means the per-share closing 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 average ask prices) on the NYSE, or if shares of Common Stock are not listed on the NYSE, then as reported by the NASDAQ Stock Market or the principal other national or regional securities exchange on which the shares of the Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NASDAQ Stock Market or another national or regional securities exchange, on the principal market on which shares of the Common Stock are then traded, of the Common Stock on such date; provided , however , that if the Company's Common Stock is not so traded, the "Closing Sale Price" will be the average of the midpoint of the last bid and ask prices for shares of the Company's Common Stock on such date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose, and in the absence of bid and ask prices from at least three such firms, the Company's Board of Directors will make a good faith determination of the Closing Sale Price.

The Closing Sale Price of any security other than the Common Stock shall be calculated in the same manner as the Closing Sale Price of the Common Stock as applicable to such security.

" Contingent Interest " means the interest amounts payable pursuant to Section 2.8(d) hereof.

" Contingent Interest Trading Price " of the Notes on any date of determination means the average of the secondary market bid quotations per Note obtained by the Conversion Agent for this purpose for $5,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company, provided that if at least three such bids cannot reasonably be obtained by the Conversion Agent, but two such bids can reasonably be obtained by the Conversion Agent, then the average of such two bids shall be used; provided , further , that if at least two such bids cannot reasonable be obtained by the Conversion Agent, but one such bid can reasonably be obtained, then such one bid shall be used. If the Conversion Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Notes from a nationally recognized securities dealer or, in the Company's reasonable judgment, the bid quotations are not indicative of the secondary market value of the Notes, then the Contingent Interest Trading Price on such date of determination of the Notes will equal (a) the Applicable Conversion Rate of the Notes multiplied by (b) the Closing Sale Price of the Common Stock.

" Conversion Date " means the date on which the Holder of the Note has complied with all requirements under this Indenture to convert such Note.

" Conversion Price " per share of Common Stock as of any day means the result obtained by dividing $1,000 by the Conversion Rate on such day.

" Conversion Rate " means 30.6725 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment pursuant to Section 2.15 hereof.

" Conversion Reference Period " means:

1. 1. 1. 1. the 20 consecutive Trading Days beginning on the Redemption Date, if we have called the notes delivered for conversion for redemption; or
         2. for Notes that are converted during the period beginning on the 25 ^th day prior to the Final Maturity Date, the 20 consecutive Trading Days beginning on the third Trading Day following the Final Maturity Date; or
         3. if neither (I) nor (ii) above applies, the 20 consecutive Trading Days beginning on the third Trading Day following the Conversion Date.

" Common Stock " means the Class A Common Stock of the Company, $0.20 par value, as it exists on the date of this Indenture and any shares of any class or classes of Capital Stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not subject to redemption by the Company; provided, however , that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion of Notes shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

"Current Market Price " of Common Stock on any day means the average of the Closing Sale Prices per share of Common Stock for each of the five consecutive Trading Days ending on the earlier of the day in question and the day before the Ex-Dividend Date with respect to the issuance or distribution requiring such computation.

" Daily Conversion Value " means, for each of the 20 consecutive Trading Days in a Conversion Reference Period, one-twentieth (1/20 ^th ) of the product of (I) the Applicable Conversion Rate for such day multiplied by (ii) the Volume Weighted Average Price per share of the Common Stock on such day.

" Daily Measurement Value " has the meaning set forth in Section 2.13(b) hereof.

" Daily Required Cash Amount " has the meaning set forth in Section 2.13(b) hereof.

" Daily Settlement Amount " has the meaning set forth in Section 2.13(b) hereof.

" Daily Share Amount " means, for each Trading Day of the Conversion Reference Period and for each $1,000 principal amount of Notes surrendered for conversion, a number of shares of Common Stock (but in no event less than zero) determined by the following formula:

(Volume Weighted Average Price per share of Common Stock for such Trading Day x Conversion Rate in effect on the Trading Day) - $1,000

Volume Weighted Average Price per share of Common Stock for such Trading Day x 20

" Debt " means, with respect to any Person, without duplication, (1) all indebtedness of such Person for borrowed money (other than non-recourse obligations) and (2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments.

" Disposition Event " has the meaning set forth in 2.16(a) hereof.

" Distributed Assets " has the meaning set forth in 2.15(d) hereof.

" DTC " means The Depository Trust Company, a New York corporation, and its successors.

" Exchange Act " means the U.S. Securities Exchange Act of 1934, as amended.

" Expiration Date " has the meaning set forth in Section 2.15(f) hereof.

" Expiration Time " has the meaning set forth in Section 2.15(f) hereof.

" Ex-Dividend Date " means, with respect to any issuance or distribution, the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance or distribution.

" Final Maturity Date " has the meaning set forth in Section 2.5 hereof.

" Financial Institution " has the meaning set forth in Section 2.17(a) hereof.

" First Supplemental Indenture " has the meaning set forth in the recitals hereto.

" Fundamental Change " means the occurrence of any of the following:

(1)   the direct or indirect sale, conveyance, transfer, lease or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any Person other than the Company or one of its Subsidiaries; or

(2)   the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person becomes the Beneficial Owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company's voting stock; provided that no such transaction will be a Fundamental Change if Persons that beneficially own the voting securities of the Company immediately prior to the transaction own, directly or indirectly, a majority of the Voting Stock of the surviving or transferee Person immediately after the transaction in substantially the same proportion as their ownership of the voting securities immediately prior to the transaction; or

(3)   the adoption of a plan relating to the liquidation or dissolution of the Company; or

(4)   a Termination of Trading.

Notwithstanding the foregoing, it will not constitute a Fundamental Change under clause (2) above if at least 90% of the consideration for the Common Stock in the transaction or transactions otherwise constituting the Fundamental Change consists of common stock traded or quoted on a United States national securities exchange, or which will be so traded or quoted when issued or exchanged in connection with the transaction or transactions, and as a result of such transaction or transactions the Notes become convertible solely into such Common Stock.

For purposes of defining "Fundamental Change," the term "Person" means any individual, partnership, corporation, limited liability company, joint stock company, business trust, trust, unincorporated association, joint venture or other entity, or a government or political subdivision or agency thereof, and the term "group" has the meanings given by Section 13(d) and 14(d) of the Exchange Act or any successor provisions and includes 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 any successor provision;

" Fundamental Change Purchase Date " has the meaning set forth in Section 2.11(d) hereof.

" Fundamental Change Purchase Notice " has the meaning set forth in Section 2.11(e) hereof.

" Fundamental Change Purchase Price " has the meaning set forth in Section 2.11(d) hereof.

" Indenture " has the meaning set forth in the recitals hereto.

" Interest Period " has the meaning set forth in Section 2.8(d) hereof.

" Issue Date " means the date on which the Notes are originally issued under this Indenture.

" Make-Whole Fundamental Change " has the meaning set forth in 2.15(h) hereof.

" Make-Whole Fundamental Change Effective Date " has the meaning set forth in 2.15(h) hereof.

" Make-Whole Shares " has the meaning set forth in 2.15(h) hereof.

" Market Disruption Event " means the occurrence or existence for more than one half-hour in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the NYSE or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

" Measurement Period " has the meaning set forth in Section 2.8(d) hereof.

" Note " has the meaning set forth in the recitals hereto.

" Note Interest Rate " has the meaning set forth in 2.8(a) hereof.

" NYSE " means The New York Stock Exchange.

" Purchased Shares " has the meaning set forth in Section 2.15(f) hereof.

" Record Date " means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

" Reference Period " has the meaning set forth in 2.15(d) hereof.

" Reference Property " has the meaning set forth in Section 2.16(b) hereof.

" Reference Property Value " has the meaning set forth in Section 2.16© hereof.

" Regular Record Date " means the last Business Day prior to the applicable Interest Payment Date; provided that in the event that the Notes are not held in book-entry-only form or are not represented by Global Securities, the Company may select different Regular Record Dates, which must each be at least 15 Business Days before the relevant Interest Payment Dates.

" Repurchase Date " means March 15, 2014, March 15, 2017 and March 15, 2022 or the next Business Day following such dates to the extent such dates are not Business Days.

" Repurchase Notice " has the meaning set forth in 2.11(b).

" Repurchase Price " means 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any, up to, but not including, the relevant Repurchase Date.

" Rights " has the meaning set forth in 2.15® hereof.

" Securities Ac t" means the U.S. Securities Act of 1933, as amended.

" Settlement Amount " has the meaning set forth in 2.13(a) hereof.

" Shareholders Rights Plan " has the meaning set forth in 2.15® hereof.

" Significant Subsidiary " has the meaning assigned to such term in Regulation S-X, promulgated by the U.S. Securities and Exchange Commission.

" Spin-Off " has the meaning set forth in 2.15(d) hereof.

" Stock Price " has the meaning set forth in 2.15(h) hereof.

" Termination of Trading " means such time as the Common Stock (or other common stock into which the notes are then convertible) is not listed for trading on a U.S. national securities exchange.

" Trading Day " means any day on which (I) there is no Market Disruption Event and (ii) the NYSE or, if the Common Stock is not listed on the NYSE, the principal national securities exchange on which the Common Stock is listed, admitted for trading or quoted, is open for trading or, if the Common Stock is not so listed, admitted for trading or quoted, any Business Day. A "Trading Day" only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the relevant exchange or trading system.

" Trading Price " means, on any date of determination, the average of the secondary bid quotations per note obtained by the Conversion Agent for $5,000,000 principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that, if at least three such bids cannot reasonably be obtained, but two such bids can reasonably be obtained, then the average of these two bids shall be used; provided , further , that, if at least two such bids cannot reasonably be obtained, but one such bid can reasonably be obtained, this one bid shall be used. If on any date of determination the Conversion Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the notes from an independent nationally recognized securities dealer or, in the Company's reasonable judgment, the bid quotations are not indicative of the secondary market value of the Notes, then the Trading Price of the Notes on such date of determination will be deemed to be less than 95% of the Closing Sale Price of the Common Stock on such date multiplied by the Applicable Conversion Rate.

" Trigger Event " has the meaning set forth in 2.15(g) hereof.

" Underwriter " means Banc of America Securities LLC, as the underwriter of the public offering of the Notes pursuant to the Underwriting Agreement.

" Underwriting Agreement " means the Underwriting Agreement dated March 15, 2007 between the Company and the Underwriter relating to the public offering of the Notes issued on the date hereof.

" Volume Weighted Average Price " per share of Common Stock on any Trading Day means such price as displayed on Bloomberg (or any successor service) page ALO <equity> VAP in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or, if such price is not available, Volume Weighted Average Price means the market value per share of Common Stock on such day as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company.

Section 1.2    Terms Defined in the Base Indenture . Capitalized terms used herein but not defined herein have the meanings assigned to such terms in Section 101 of the Base Indenture.

ARTICLE II
THE NOTES

Section 2.1    Designation of Notes and Establishment of Form . There shall be a series of Debt Securities designated "2.125% Convertible Senior Notes due 2027" of the Company (referred to herein as the "Notes"), and the form thereof shall be substantially as set forth in Annex A hereto, which is incorporated into and shall be deemed a part of this First Supplemental Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers of the Company executing such Notes, as evidenced by their execution of the Notes.

Section 2.2    Issue Price . The Notes shall be issued to the Underwriters pursuant to the Underwriting Agreement at the price set forth in the Underwriting Agreement.

Section 2.3    Ranking . The Notes shall constitute unsecured, unsubordinated obligations of the Company.

Section 2.4    Amount . The Trustee shall authenticate and deliver Notes for original issue in an aggregate principal amount of $300,000,000 upon a Company Request for the authentication and delivery of Notes, without any further action by the Company.

Section 2.5    Stated Maturity . The date on which the principal of the Notes is due and payable, unless earlier converted, accelerated, redeemed or repurchased pursuant to the Indenture, shall be March 15, 2027 (the " Final Maturity Date ").

Section 2.6    Form, Denomination and Currency . The Notes shall be Registered Securities and shall be initially be issued in global form as Global Securities (in the form of Annex A hereto). Each Note shall be in the denomination of $1,000 or any integral multiple thereof. All obligations of the Company in respect of principal, interest or any other amount owing upon the Notes shall be payable in United States dollars.

Section 2.7    Designation of Depositary . Initially, the Depositary for the Notes will be DTC. The Notes, in the form of Global Securities, will be registered in the name of the Depositary or its nominee, Cede & Co., and delivered by the Trustee to the Depositary or a custodian appointed by the Depositary for crediting to the accounts of its participants.

Section 2.8    Interest .

(a)   The Company shall pay interest on the Notes at a rate of 2.125% per annum (the " Note Interest Rate "), payable semi-annually in arrears on March 15 and September 15 of each year (each, an " Interest Payment Date ," as defined in the Base Indenture), or, as further set forth in Section 2.23 below, if any such day is not a Business Day, the immediately following Business Day, commencing September 15, 2007.

(b)   Interest on a Note will accrue and compound semi-annually at the Note Interest Rate from and including March 20, 2007 or the last Interest Payment Date in respect of which interest has been paid or duly provided for, as applicable, to but excluding the next succeeding Interest Payment Date, or the relevant Conversion Date, Repurchase Date, Fundamental Change Purchase Date or Redemption Date, or the Final Maturity Date, as the case may be.

(c)   Interest shall be paid on each Interest Payment Date to the Person in whose name a given Note is registered in the Security Register at the Close of Business on the applicable Regular Record Date.

(d)   The Company will pay Contingent Interest to Holders during the period commencing March 20, 2014 and ending on September 14, 2014 and for any six-month period thereafter from and including an Interest Payment Date up to, but excluding, the next Interest Payment Date (each an " Interest Period "), if the average Contingent Interest Trading Price per $1,000 principal amount of the Notes for the five Trading Day measurement period ending on the third Trading Day immediately preceding the first day of the applicable Interest Period (the " Measurement Period ") equals 130% or more of an equal principal amount of the Notes as of the last day of the Measurement Period. The amount of Contingent Interest payable per $1,000 principal amount of Notes in any Interest Period pursuant to this Section 2.8(d) shall equal 0.25% per annum of the average Contingent Interest Trading Price of $1,000 principal amount of Notes for the applicable Measurement Period. Contingent Interest, if any, will accrue from the first day of any relevant Interest Period.

(e)   The Company shall pay Contingent Interest owed pursuant to Section 2.8(d) for any Interest Period on the Interest Payment Date at the end of the applicable Interest Period, to Holders of Notes as of the Regular Record Date related to such Interest Payment Date.

(f)   Promptly following the first Business Day of an Interest Period for which Contingent Interest will be payable pursuant to Section 2.8(d), the Company shall notify the Holders of the right of such Holders to receive Contingent Interest by (I) disseminating a press release containing this information and by using the Company's reasonable efforts to post the information on the Company's website or otherwise publicly disclose the information or (ii) providing notice to Holders through the facilities of the Depositary.

(g)   All references to "interest" in the Indenture shall be deemed to include interest due to Holders of the Notes under both Section 2.8(a) and Section 2.8(d) unless the context otherwise requires.

(h)   Each Holder is deemed to have agreed (a) that for United States federal income tax purposes, the Notes will be treated as indebtedness subject to the United States Department of Treasury regulations governing contingent payment debt instruments, (b) that the Holders will report original issue discount and interest on the Notes in accordance with the Company's determination of both the "comparable yield" and the "projected payment schedule" and (c) to be bound by the Company's application of the United States Department of Treasury regulations that govern contingent payment debt instruments. For this purpose, the "comparable yield" for the Securities is 8.25% compounded semi-annually and the "projected payment schedule" may be obtained by contacting the Company at the address set forth immediately above the recitals in the Base Indenture. The Company shall file with the Trustee no later than the end of each calendar year, (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Notes as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the United States Internal Revenue Code of 1986, as amended. The Trustee has no obligation with respect to the foregoing clauses (I) and (ii), except to retain such information in its files and to release the same upon request to any Holder or beneficial owner of the Notes.

Section 2.9    Place of Payment, Registration, Transfer and Exchange . The Place of Payment for the Notes and the place or places where the Notes may be surrendered for registration of transfer, exchange, repurchase, redemption or conversion and where notices may be given to the Company in respect of the Notes is at the Corporate Trust Office of the Trustee and at the agency of the Trustee maintained for that purpose at the office of the Trustee; provided, however, that payment of interest may be made at the option of the Company (I) by check mailed to the registered address of such Holder (provided that a Holder of Notes with an aggregate principal amount in excess of $2,000,000 shall, at the written election (timely made and containing appropriate wire transfer information) of such Holder, be paid by wire transfer of immediately available funds), or (ii) by transfer to an account maintained by such Holder located in the United States; and provided further, however, that payments to the Depositary will be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.

Section 2.10    Redemption . The Notes will not be subject to redemption prior to March 20, 2014. On or after March 20, 2014, the Company shall have the right to redeem the Notes, in whole or in part, at any time, or from time to time, in accordance with the provisions of Article Eleven of the Base Indenture for a Cash Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest, if any, up to, but not including, the Redemption Date. In the case of a partial redemption, if the Trustee selects a portion of a Holder's Notes for redemption in accordance with Section 1103 of the Base Indenture, any partial conversion of such Holder's Notes in connection with such redemption pursuant to Section 2.12(a)(ii) below, will be deemed to be first from the portion of such Holder's Notes selected by the Trustee for redemption and second from the portion not selected for redemption.

Section 2.11    Repurchase at the Option of Holders .

(a)   Article Thirteen of the Base Indenture shall not apply to the Notes.

(b)   Any Holder of the Notes shall have the right to require the Company to repurchase its Notes, in whole or in part, on any Repurchase Date, in Cash, at the Repurchase Price. The repurchase of a Note under this Section 2.11(b) shall be made, at the option of the Holder, upon:

(i)   delivery to the Paying Agent, which shall initially be the Trustee, by the Holder of a written notice (or in the case of Global Securities, a notice delivered electronically or by other means in accordance with the Depositary's customary procedures) of repurchase (a "Repurchase Notice") during the period beginning at any time from the opening of business on the date that is 20 Business Days prior to the relevant Repurchase Date until the Close of Business on the last day prior to such Repurchase Date stating:

1. 1. 1. 3. 1. the certificate number of the Note which the Holder will deliver to be purchased, if Notes in definitive form have been issued, or notice compliant with the relevant Depositary procedures if the Notes are not in definitive form;
            2. the portion of the principal amount of the Note which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof, and
            3. that such Note shall be purchased pursuant to Section 2.11(b) and applicable provisions of the Notes and subject to the terms and conditions of Section 2.11 and of the Notes.

(ii)   delivery of such Note to the Paying Agent prior to, on or after the Repurchase Date (together with any necessary endorsements and in compliance with any applicable Depositary requirements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Repurchase Price therefor; provided, however , that such Repurchase Price shall be so paid pursuant to this Section 2.11(b) only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice, as determined by the Company.

Any purchase by the Company contemplated pursuant to the provisions of this Section 2.11(b) shall be consummated by the delivery of the Repurchase Price by the Holder on the third Business Day following the later of the Repurchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 2.11(b).

(c)   Not less than 20 Business Days prior to each Repurchase Date, the Company shall mail a written notice of Fundamental Change by first-class mail to the Trustee and to each Holder at its address shown in the Security Register (and to beneficial owners as required by applicable law). The notice shall include a form of Repurchase Notice to be completed by the Holder and shall state:

(i)   the Repurchase Date, the Repurchase Price and the Applicable Conversion Rate and any adjustments thereto;

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

(iii)   that Notes with respect to which a Repurchase Notice has been given by the Holder may be converted pursuant to Section 2.12 hereof only if the Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;

(iv)   that Notes must be surrendered to the Paying Agent to collect payment;

(v)   that the Repurchase Price for any Note as to which a Repurchase Notice has been given and not withdrawn will be paid on the third Business Day following the later of the Repurchase Date and the time of surrender of such Note as described in (iv);

(vi)   the procedures the Holder must follow to exercise its rights under Section 2.11(b) and a brief description of those rights;

(vii)   briefly, the conversion rights of the Notes;

(viii)   the procedures for withdrawing a Repurchase Notice;

(ix)   that, unless the Company defaults in its obligations under Section 2.11(k) in respect of Notes for which a Repurchase Notice has been given and not withdrawn, interest on such Notes will cease to accrue on the Repurchase Date; and

(x)   the CUSIP and ISIN number(s) of the Notes.

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

(d)   If there shall have occurred a Fundamental Change, each Holder shall have the right, at such Holder's option, to require the Company to purchase for Cash all or any portion of such Holder's Notes in integral multiples of $1,000 principal amount on a date selected by the Company (the " Fundamental Change Purchase Date "), which Fundamental Change Purchase Date shall be no later than thirty-five (35) Trading Days after the occurrence of such Fundamental Change, and no earlier than twenty (20) Trading Days, after the date that the Company mails the notice contemplated by Section 2.11(e) below, at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to, but excluding, the Fundamental Change Purchase Date (the " Fundamental Change Purchase Price "), subject to satisfaction by or on behalf of the Holder of the requirements set forth herein; provided that if the Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, interest accrued to the Interest Payment Date will be paid to Holders of the Notes as of the preceding Regular Record Date.

(e)   The repurchase of a Note under Section 2.11(d) shall be made, at the option of the Holder, upon:

(i)   delivery to the Paying Agent by the Holder of a written notice (or in the case of Global Securities, a notice delivered electronically or by other means in accordance with the Depositary's customary procedures) of repurchase (a "Fundamental Change Purchase Notice") at any time prior to the Close of Business on the Fundamental Change Purchase Date stating:

(A)   the certificate number of the Note which the Holder will deliver to be purchased, if Notes in definitive form have been issued, or notice compliant with the relevant Depositary procedures if the Notes are not in definitive form;

(B)   the portion of the principal amount of the Note which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and

(C)   that such Note shall be purchased pursuant to Section 2.11(d) and applicable provisions of the Notes and subject to the terms and conditions of Section 2.11 and of the Notes.

(ii)   delivery of such Note to the Paying Agent, which shall initially be the Trustee, prior to, on or after the Fundamental Change Purchase Date (together with any necessary endorsements and in compliance with any applicable Depositary requirements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor; provided, however , that such Fundamental Change Purchase Price shall be so paid pursuant to this Section 2.11(e) only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Purchase Notice, as determined by the Company.

Any purchase by the Company contemplated pursuant to the provisions of Section 2.11(d) and this Section 2.11(e) shall be consummated by the delivery of the consideration to be received by the Holder on or prior to the third Trading Day following the later of the Fundamental Change Purchase Date and the time of delivery of the Note to the Paying Agent in accordance with this Section 2.11(e).

(f)   As promptly as practicable following the date the Company publicly announces a Fundamental Change transaction, but in no event less than 15 days prior to the anticipated effective date of a Fundamental Change, the Company shall mail a written notice of Fundamental Change by first-class mail to the Trustee and to each Holder at their addresses shown in the Security Register (and to beneficial owners as required by applicable law). The notice shall include a form of Fundamental Change Purchase Notice to be completed by the Holder and shall state:

(i)   briefly, the events causing a Fundamental Change;

(ii)   the anticipated effective date of such Fundamental Change;

(iii)   the date by which the Fundamental Change Purchase Notice must be given;

(iv)   the Fundamental Change Purchase Price;

(v)   the Fundamental Change Purchase Date;

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

(vii)   the then-current Conversion Rate and any adjustments thereto;

(viii)   that Notes with respect to which a Fundamental Change Purchase Notice has been given by the Holder may be converted pursuant to Section 2.12 hereof only if the Fundamental Change Purchase Notice has been withdrawn in accordance with the terms of this Indenture;

(ix)   briefly, the procedures a Holder must follow to exercise rights under Section 2.11(e);

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

(xi)   that the Fundamental Change Purchase Price for any Note as to which a Fundamental Change Purchase Notice has been duly given and not withdrawn, together with any accrued interest payable with respect thereto, will be paid on or prior to the third Trading Day following the later of the Fundamental Change Purchase Date and the time of surrender of such Note;

(xii)   briefly, the conversion rights of the Notes;

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

(xiv)   that, unless the Company defaults in its obligations under Section 2.11(k) in respect of Notes for which a Fundamental Change Purchase Notice has been given and not withdrawn, interest on such Notes will cease to accrue on the Fundamental Change Purchase Date; and

(xv)   the CUSIP and ISIN number(s) of the Notes.

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

(g)   Notwithstanding the foregoing, there shall be no purchase of any Notes pursuant to Section 2.11(d) if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of the required Fundamental Change Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price). The Paying Agent will promptly return to the respective Holders thereof any Notes (x) with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Purchase Price) in which case, upon such return, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

(h)   Upon receipt by the Paying Agent of a Repurchase Notice or a Fundamental Change Purchase Notice, as the case may be, the Holder of the Note in respect of which such Repurchase Notice or Fundamental Change Purchase Notice was given shall (unless such notice is withdrawn as specified in Section 2.11(I)) thereafter be entitled to receive solely the Repurchase Price or Fundamental Change Purchase Price, with respect to such Note, as the case may be. Such Repurchase Price or Fundamental Change Purchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent in accordance with either Section 2.11(b) or Section 2.11(e), as the case may be. Notes in respect of which a Repurchase Notice or Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted pursuant to Section 2.12 hereof on or after the date of the delivery of such notice unless such notice has first been validly withdrawn as specified in the following Section 2.11(I).

(i)   Notwithstanding anything to the contrary in this Section 2.11, a Repurchase Notice or a Fundamental Change Purchase Notice, as the case may be, may be withdrawn by a Holder by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the procedures specified in the Repurchase Notice or Fundamental Change Purchase Notice at any time prior to the Close of Business on the Repurchase Date or the Fundamental Change Purchase Date specifying:

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

(ii)   the certificate number of the Note being withdrawn, if Notes in definitive form have been issued, or notice compliant with the relevant Depositary procedures, if the Notes are not in definitive form; and

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

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

(k)   Prior to 10:00 a.m. (New York City time) on or prior to the third Business Day following a Repurchase Date or a Fundamental Change Purchase Date, as the case may be, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust) an amount of money (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Repurchase Price or Fundamental Change Purchase Price, as the case may be, of all the Notes or portions thereof which are to be purchased as of the relevant Repurchase Date or Fundamental Change Purchase Date.

(l)   Any Note which is to be purchased only in part pursuant to this Section 2.11 shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.

(m)   available under applicable law, the Company shall (x) comply with Rule 13e-4 and Rule 14e-1 (or any successor provisions) under the Exchange Act, as applicable; (y) file a Schedule TO (or any successor schedule form or report) if required under the Exchange Act; and (z) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 2.11 to be exercised in the time and in the manner specified therein. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 2.11, the Company's compliance with such laws and regulations shall not in and of itself cause a breach of its obligations under Section 2.11.

Section 2.12    Conversion Rights .

(a)   A Holder of a Note may convert such Note into Cash, shares of Common Stock or a combination thereof, as described below, at any time on or prior to the Close of Business on the Business Day immediately preceding the Final Maturity Date; provided, however , that Holders may convert their Notes only during the periods and under the conditions specified in clauses (I) through (vi) below:

(i)   during any fiscal quarter commencing at any time after June 30, 2007, and only during such fiscal quarter, if the Closing Sale Price of the Common Stock for at least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last Trading Day of the preceding fiscal quarter exceeds 130% of the Conversion Price per share of Common Stock on the last day of such preceding fiscal quarter;

(ii)   at any time after the Company has issued a notice of redemption of the Notes pursuant to Article Eleven of the Base Indenture and Section 2.10 hereof until the Close of Business on the last Business Day preceding the Redemption Date;

(iii)   at any time after the Company gives notice to Holders of the Notes of any election by it to distribute to all or substantially all holders of Common Stock:

(A)   rights or warrants entitling such holders of the Common Stock to subscribe for or purchase, for a period expiring within 60 days after the Record Date for such distribution, Common Stock at less than the average of the Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on the date immediately preceding the first public announcement of the distribution, or

(B)   Cash, debt securities (or other evidence of indebtedness) or other assets (excluding distributions pursuant to Section 2.15(a) or Section 2.15(b) hereof), which distribution, together with all other distributions within the preceding twelve months, has a per share value exceeding 15% of the average of the Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on the date immediately preceding the first public announcement of the distribution,

in each case, until the earlier of the Close of Business on the Business Day prior to the Ex-Dividend Date or the Company's announcement that such distribution will not take place;

(iv)   if a Fundamental Change occurs or if the Company is a party to a consolidation, merger, binding share exchange or transfer or lease of all or substantially all of the assets of the Company, pursuant to which the Common Stock would be converted into Cash, securities or other assets, at any time from or after the date which is 35 trading days prior to the anticipated effective time of the transaction until 35 Trading Days after the actual date of such transaction or, if such transaction constitutes a Fundamental Change, until the Fundamental Change Purchase Date;

(v)   during the 10 Trading Days immediately following any five consecutive Trading Day period in which the Trading Price per $1,000 principal amount of the Notes for each Trading Day of such five consecutive Trading Day period is determined, after a request to conduct such measurement, to be less than 95% of the product of the Closing Sale Price per share of the Common Stock and the Conversion Rate in effect on each such Trading Day (the " Trading Price Condition "); or

(vi)    at any time on or after March 15, 2026 until the Close of Business on the Business Day immediately preceding the Final Maturity Date.

(b)   The Conversion Agent will determine on behalf of the Company at the beginning of each fiscal quarter commencing at any time after June 30, 2007 whether the Notes are convertible as a result of the price of the Common Stock pursuant to Section 2.12(a)(I) above and will notify the Company and the Trustee if the Notes are so convertible.

(c)   If the Company makes a distribution described in Section 2.12(a)(iii) above, the Company must notify Holders at least 20 Trading Days prior to the Ex-Dividend Date for such distribution. The notice required by this Section 2.12(c) may be combined with the notice required by Section 2.12(h) in respect of convertibility pursuant to Section 2.12(a)(iii).

(d)   The Company will notify Holders of the Notes and the Trustee as promptly as practicable following the date on which the Company publicly announces any transaction described in Section 2.12(a)(iv) above, but in no event less than 20 Trading Days prior to the anticipated effective date of such transaction. The notice required by this Section 2.12(d) is in addition to any notice required by Section 2.12(h).

(e)   The Conversion Agent shall, upon the written request of, and on behalf of, the Company, determine whether the Notes shall be convertible as a result of the occurrence of an event specified in Section 2.12(a)(v) above and, if the Notes shall be so convertible, the Conversion Agent shall promptly deliver to the Company and the Trustee (if the Trustee is not the Conversion Agent) written notice thereof.

(f)   The Company appoints the Trustee as the initial Conversion Agent. The Trustee may resign from its appointment as conversion agent at any time and the Company shall then appoint a new Conversion Agent. The Conversion Agent shall have no obligation to determine the Trading Price under Section 2.12(e) unless the Company has requested that the Conversion Agent make such a determination. The Company shall have no obligation to make such request unless so requested in writing by the Trustee or a Holder that provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes has been less than 95% of the product of the Closing Sale Price per share of the Common Stock and the Conversion Rate then in effect. If the Trustee or a Holder submits such a request, the Company shall instruct the Conversion Agent to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 95% of the product of the Closing Sale Price per share of the Common Stock and the Conversion Rate then in effect.

(g)   Notes with respect to which a Repurchase Notice or a Fundamental Change Purchase Notice has been given by the Holder may be converted pursuant to this Section 2.12 only if the Repurchase Notice or Fundamental Change Purchase Notice has been withdrawn in accordance with the provisions of Section 2.11.

(h) Whenever any event described in clauses (I) through (vi) of Section 2.12(a) shall occur such that the Notes become convertible as provided in this Section 2.12, the Company shall promptly inform the Trustee and (x) issue a press release and use its reasonable efforts to post such information on its website or otherwise publicly disclose the information or (y) provide notice to the Holders through the facilities of the Depositary or in accordance with Section 106 of the Base Indenture, which press release, website posting, public disclosure or written notice, as the case may be, shall include:

(i)   a description of such event;

(ii)   a description of the periods during which the Notes shall be convertible as provided in clauses (I) through (vi) of Section 2.12(a);

(iii)   a statement of whether an adjustment to the Conversion Rate shall take effect in respect of such event pursuant to Section 2.15 below; and

(iv)   the procedures Holders of the Notes must follow to convert their Notes in accordance with Section 2.14 below, including the name and address of the Conversion Agent.

Section 2.13    Conversion Consideration .

(a)   A Holder will receive, for each $1,000 principal amount of Notes sur