-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AGeCz90J5TWuNmtNToS64DsrAcwSFgbMpbEEesCQ52njYxLMFTvqvxHm9xLmBw73 a1CFEG7AGz3iP/wZJqGKvw== 0001047469-03-026474.txt : 20030806 0001047469-03-026474.hdr.sgml : 20030806 20030806150716 ACCESSION NUMBER: 0001047469-03-026474 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20030729 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030806 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BAUSCH & LOMB INC CENTRAL INDEX KEY: 0000010427 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 160345235 STATE OF INCORPORATION: NY FISCAL YEAR END: 1226 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-04105 FILM NUMBER: 03826093 BUSINESS ADDRESS: STREET 1: BAUSCH & LOMB INCORPORATED STREET 2: ONE BAUSCH & LOMB PLACE CITY: ROCHESTER STATE: NY ZIP: 14604-2701 BUSINESS PHONE: 5853386000 MAIL ADDRESS: STREET 1: ONE BAUSCH & LOMB PLACE STREET 2: P O BOX 54 CITY: ROCHESTER STATE: NY ZIP: 14604-2701 8-K 1 a2116158z8-k.txt 8-K SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ---------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 ---------- Date of Report (Date of earliest event reported): July 29, 2003 BAUSCH & LOMB INCORPORATED (Exact name of registrant as specified in its charter) New York 1-4105 16-0345235 (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) One Bausch & Lomb Place, Rochester, NY 14604-2701 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (585) 338-6000 ITEM 5. OTHER EVENTS On July 29, 2003, Bausch & Lomb Incorporated entered into an Underwriting Agreement with Citigroup Global Markets Inc. and Fleet Securities, Inc., pursuant to which the underwriters will purchase $50,000,000 principal amount of 5.90% Senior Notes due 2008 (the "Notes"), to be issued pursuant to an Indenture, dated as of September 1, 1991, between Bausch & Lomb and Citibank, N.A., as trustee, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2, dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002 and Supplemental Indenture No. 4, dated August 1, 2003, providing for the issuance of the Notes. The Underwriting Agreement and Supplemental Indenture No. 4 are filed as exhibits to this report. On July 31, 2003, Bausch & Lomb filed with the Securities and Exchange Commission a Prospectus Supplement, dated July 29, 2003, supplementing its Prospectus, dated July 11, 2002, which form a portion of Bausch & Lomb's registration statement on Form S-3 (No. 333-90468) covering certain securities, including debt securities. The opinion of Bausch & Lomb's general counsel on the validity of the issuance of the Notes is filed as an exhibit to this report. On July 29, 2003, Bausch & Lomb Incorporated entered into a Purchase Agreement with Citigroup Global Markets Inc., Goldman Sachs & Co., Morgan Stanley & Co. Incorporated, Fleet Securities, Inc., McDonald Investments Inc., HSBC Securities (USA) Inc. and U.S. Bancorp Piper Jaffray Inc. pursuant to which the Initial Purchasers will purchase $140,000,000 principal amount of Floating Rate Convertible Senior Notes due 2023 and pursuant to which the Company granted to the Initial Purchasers an option to purchase up to $20,000,000 additional original principal amount of such notes (the "Convertible Notes"), to be issued pursuant to an Indenture, dated as of September 1, 1991, between Bausch & Lomb and Citibank, N.A. as trustee, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2, dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002 and Supplemental Indenture No. 4, dated August 1, 2003, and Supplemental Indenture No. 5 dated August 4, 2003, providing for the issuance of the Convertible Notes. The Purchase Agreement, Supplemental Indenture No. 5 and a Registration Rights Agreement entered into in connection with the transaction are filed as exhibits to this report. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (a) Financial statements of businesses acquired - Not Applicable (b) Pro forma financial information - Not Applicable (c) Exhibits. In connection with these transactions, the Registrant is filing the following exhibits: 1.1 Underwriting Agreement, dated July 29, 2003, between Bausch & Lomb Incorporated and Citigroup Global Markets Inc. and Fleet Securities, Inc. (filed herewith). - 3 - 1.2 Purchase Agreement, dated July 29, 2003, between Bausch & Lomb Incorporated, Citigroup Global Markets Inc., Goldman Sachs & Co., Morgan Stanley & Co. Incorporated, Fleet Securities, Inc., McDonald Investments Inc., HSBC Securities (USA) Inc. and U.S. Bancorp Piper Jaffray Inc. (filed herewith). 4.1 Supplemental Indenture No. 4, dated August 1, 2003, between Bausch & Lomb Incorporated and Citibank N.A., including form of Global Note (filed herewith). 4.2 Supplemental Indenture No. 5, dated August 4, 2003, between Bausch & Lomb Incorporated and Citibank N.A., including form of Global Note (filed herewith). 4.3 Registration Rights Agreement, dated August 4, 2003, between Bausch & Lomb Incorporated and Citigroup Global Markets Inc., Goldman Sachs & Co., Morgan Stanley & Co. Incorporated, Fleet Securities, Inc., McDonald Investments Inc., HSBC Securities (USA) Inc. and U.S. Bancorp Piper Jaffray Inc. (filed herewith). 5.1 Opinion of General Counsel to Bausch & Lomb as to the validity of the issuance of the Notes (filed herewith). 23.1 Consent of General Counsel (contained in Exhibit 5.1). Exhibits 1.1, 4.1 and 5.1 are incorporated by reference into Bausch & Lomb's Registration Statement on Form S-3 No. 333-90468. - 4 - SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. BAUSCH & LOMB INCORPORATED Dated: August 6, 2003 /s/ Alan H. Resnick --------------------------------------- Alan H. Resnick Vice President and Treasurer EXHIBIT INDEX
Exhibit Location - ------------------------------------------------------- ------------------- 1.1 Underwriting Agreement, dated July 29, 2003 between Bausch & Lomb Incorporated, Citigroup Global Markets Inc. and Fleet Securities Inc. Filed herewith 1.2 Purchase Agreement, dated July 29, 2003, between Bausch & Lomb Incorporated and Citigroup Global Markets Inc., Goldman Sachs & Co., Morgan Stanley & Co. Incorporated, Fleet Securities, Inc., McDonald Investments Inc., HSBC Securities (USA) Inc. and U.S. Bancorp Piper Jaffray Inc. Filed herewith 4.1 Supplemental Indenture No. 4, dated August 1, 2003, between Bausch & Lomb Incorporated and Citibank N.A., as trustee including form of Global Note Filed herewith. 4.2 Supplemental Indenture No. 5, dated August 4, 2003, between Bausch & Lomb Incorporated and Citibank N.A., as trustee including form of Global Note Filed herewith. 4.3 Registration Rights Agreement, dated August 4, 2003 between Bausch & Lomb Incorporated and Citigroup Global Markets Inc., Goldman Sachs & Co., Morgan Stanley & Co. Incorporated, Fleet Securities, Inc., McDonald Investments Inc., HSBC Securities (USA) Inc. and U.S. Bancorp Piper Jaffray Inc. Filed herewith 5.1 Opinion of General Counsel to Bausch & Lomb as to the validity of the issuance of the Notes Filed herewith. 23.1 Consent of General Counsel Contained in Exhibit 5.1.
EX-1.1 3 a2116158zex-1_1.txt EXHIBIT 1.1 EXHIBIT 1.1 BAUSCH & LOMB INCORPORATED $50,000,000 5.90% Senior Notes Due August 1, 2008 Underwriting Agreement New York, New York July 29, 2003 Citigroup Global Markets Inc. As Representative of the several Underwriters named in Schedule I c/o Citigroup Global Markets Inc. 388 Greenwich Street New York, New York 10013 Ladies and Gentlemen: Bausch & Lomb Incorporated (the "Company"), a corporation organized under the laws of the State of New York , proposes to issue and sell to the several underwriters named in Schedule I hereto (the "Underwriters"), for whom you are acting as representative (the "Representative"), $50,000,000 principal amount of its 5.90% Senior Notes Due August 1, 2008 (the "Securities"), to be issued pursuant to the indenture, dated as of September 1, 1991, between the Company and Citibank, N.A., as trustee (the "Trustee"), as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2 dated July 29, 1998, Supplemental Indenture No. 3 dated November 21, 2002, and proposed to be amended by Supplemental Indenture No. 4 to be dated the Closing Date (as defined herein) (collectively, the "Indenture") providing for the issuance of debt securities, among other things. Any reference herein to the Registration Statement, a Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of such Preliminary Prospectus or the Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement, or the issue date of any Preliminary Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 17 hereof. 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. (a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission a registration statement (file number 333-90468) on Form S-3, including a related preliminary prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including a related preliminary prospectus, each of which has previously been furnished to you. The Company will next file with the Commission a final prospectus in accordance with Rule 424(b). The Company has included in such registration statement, as amended at the Effective Date, all information required by the Act and the rules thereunder to be included in such registration statement and the Prospectus. As filed, such amendment and form of final prospectus, or such final prospectus, shall contain such required information, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (b) On the Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Prospectus, including any supplements thereto, will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder. On the Effective Date and at the Closing Date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. On the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder. On the date of any filing pursuant to Rule 424(b), the Prospectus did not, and on the Closing Date, the Prospectus, including any supplement thereto, will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement, or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto). The statistical and market-related data included in the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate. (c) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further documents so filed and incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when such documents are filed with the Commission, will conform in all 2 material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and when read together with the other information in the Registration Statement and the Prospectus, as the case may be, at the time issued did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest financial statements of the Company included or incorporated by reference in the Prospectus, any material loss or interference with its business that is material to the business of the Company and its subsidiaries taken as a whole from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) and, since the respective dates as of which information is given in the Prospectus, there has not been any material change in the capital stock or any material increase in the consolidated short-term or long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not in the ordinary course of business (a "Material Adverse Change"), otherwise than as set forth or contemplated in the Prospectus (exclusive of any amendment or supplement thereto after the date hereof). (e) The Company (i) is a corporation duly organized, validly existing and subsisting under the laws of the State of New York, (ii) has the requisite corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus, (iii) is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not have a material adverse effect on the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (f) Each subsidiary of the Company is a corporation, partnership, limited liability company or business trust duly incorporated or organized, validly existing and in good standing (to the extent the jurisdiction of its incorporation recognizes such concept) under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus, except where the failure to be so organized or to have such power and authority would not result in a Material Adverse Effect; each such subsidiary is duly qualified as a foreign corporation or organization to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not result in a Material Adverse Effect. 3 (g) The Company has outstanding equity capitalization as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to employee benefit plans or agreements or pursuant to the exercise of convertible securities or options), and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. Except as otherwise disclosed in the Prospectus, all of the issued and outstanding shares of capital stock or other ownership interests of each subsidiary of the Company which constitutes a "significant subsidiary" as defined in Item 1-02(w) of Regulation S-X (each a "Significant Subsidiary") are owned by the Company directly or through subsidiaries (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law), free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as described in the Prospectus and except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial to the Company and its subsidiaries taken as a whole. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The Securities have been duly authorized, and, when delivered pursuant to this Underwriting Agreement, will have been duly executed, issued and delivered and (assuming the due authentication thereof by the Trustee) will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles and will be entitled to the benefits provided by the Indenture. (j) The Indenture has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). (k) The Indenture conforms, and the Securities will conform, in all material respects, to the descriptions thereof contained in the Prospectus. (l) The issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and the consummation of the transactions herein and therein contemplated, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, the conflict, breach or violation of 4 which would have a Material Adverse Effect, or affect the validity of the Securities or the legal authority of the Company to comply with the terms of the Securities, the Indenture or this Agreement, (ii) result in any violation of the provisions of the organizational documents of the Company or any of its Significant Subsidiaries or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, the violation of which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture or this Agreement. (m) No consent, approval, authorization, order, registration, filing or qualification of or with any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company is required for the issuance and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except for (i) such consents, approvals, authorizations, orders, registrations, filings or qualifications which shall have been obtained or made prior to the Closing Date, (ii) as may be required by the securities or blue sky laws of the various states, the Securities Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the United States in which the Securities are offered or (iii) such consents, approvals, authorizations, orders, registrations, filings and/or qualifications which, if not obtained, would not have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the, the Indenture or this Agreement. (n) Other than as set forth in the Prospectus (i) there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which if determined adversely to the Company or such subsidiary, would individually or in the aggregate, have a Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated under this Agreement or the Indenture or the performance by the Company of its obligations hereunder or thereunder and (ii) to the Company's knowledge no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (o) PricewaterhouseCoopers LLP, who have certified the financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Prospectus, are independent public accountants with respect to the Company as required by the Securities Act and the rules and regulations of the Commission thereunder. (p) The consolidated financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference into the Prospectus, present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles in the United States, applied on a consistent basis throughout the periods involved (except as otherwise 5 noted therein); the selected financial data set forth under the caption "Selected Financial Information" in the Prospectus fairly present, on the basis stated in the Prospectus, the information included therein. (q) In the ordinary course of its business, the Company periodically reviews the effect of applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws") on the business, operations and properties of the Company and its subsidiaries. In the course of that review, the Company uses reasonable business efforts to identify any processes or sites which are reasonably likely to require any capital or operating expenditures for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval; and to evaluate associated costs and liabilities with respect to such actions, any related constraints on operating activities, and any potential liabilities to third parties. On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in the Prospectus. (r) Other than as set forth in the Prospectus: (i) the Company and its subsidiaries take commercially reasonable steps to determine that they own or have the right to use all patents, trademarks, service marks, trade names, copyrights, trade secrets and confidential information ("Intellectual Property") used in the business of the Company and its subsidiaries as described in the Prospectus and have taken all commercially reasonable steps to secure assignments of such Intellectual Property from their respective employees and contractors, except where the failure to own, have the right to use or take such steps to secure assignments of such Intellectual Property would not reasonably be expected to have a Material Adverse Effect; (ii) to the Company's knowledge, none of the technology employed by the Company or its subsidiaries has been obtained or is being used by the Company or its subsidiaries in violation of any contractual or fiduciary obligation binding on the Company, its subsidiaries, or any of their respective directors or executive officers or any of their respective employees or consultants, except for such violations that would not reasonably be expected to have a Material Adverse Effect; and (iii) the Company and its subsidiaries have taken and will maintain reasonable measures to prevent the unauthorized dissemination or publication of their own confidential information, except where the failure to take or maintain such measures would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Prospectus, to the Company's knowledge, neither the Company nor any of its subsidiaries has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties. Except as set forth in the Prospectus, the Company and its subsidiaries have not received any written charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation of the Intellectual Property of any third party (including any claim that the Company or any of its subsidiaries must license or refrain from using any intellectual property rights of any third party) which, if the subject of any decision, ruling or finding adverse to the ability of the Company to use such rights, the Company would, individually or in the aggregate, have a Material Adverse Effect. 6 (s) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"). (t) The Company has not taken, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. (u) Any certificate signed by any officer of the Company and delivered pursuant to this Agreement to the Representative or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter. 2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby agrees to sell to the Underwriters, and the Underwriters, upon the basis of the representations and warranties of the Company herein contained, but subject to the conditions hereinafter stated, agree severally and not jointly to purchase from the Company, the aggregate principal amount of Securities set forth opposite their respective names on Schedule I hereto, at a purchase price of 98.983% of the principal amount of the Securities plus accrued interest, if any, from August 1, 2003, to the Closing Date. 3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities shall be made at 10:00 AM, New York City time, on August 1, 2003, or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate; provided, however, that such date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Securities shall be made to the Representative for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct. 4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters propose to offer the Securities for sale to the public in a bona fide public offering as set forth in the Prospectus. 5. AGREEMENTS. The Company agrees with the several Underwriters that: (a) The Registration Statement is, and at the Closing Date will be, effective. Prior to the termination of the offering of the Securities, whether upon the Closing Date or upon the termination of this Agreement, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) 7 Registration Statement unless the Company has furnished to the Representative a copy for review by the Representative prior to filing and will not file any such proposed amendment or supplement to which the Representative reasonably objects unless the Company is advised by its counsel that such amendment or supplement is required to be filed in order for the Company to be in compliance with applicable laws and regulations or this Agreement. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto, to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (1) when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representative of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any supplemented Prospectus to the Underwriters in such quantities as the Underwriters may reasonably request. (c) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or 8 dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering. (e) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject . (f) The Company will not from the date hereof through the Closing Date, without the prior written consent of Citigroup Global Markets Inc., offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company), directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company other than the Securities. (g) The Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. 6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Registration Statement is, and as of the Closing Date will be, effective; and the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused Robert B. Stiles, Senior Vice President and General Counsel for the Company, to have furnished to the Representative his opinion, dated the Closing Date and addressed to the Representative, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation subsisting under the laws of the State of New York, with power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; 9 (ii) the Company is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not have a Material Adverse Effect; (iii) each Significant Subsidiary is a corporation, partnership, limited liability company or business trust duly incorporated or organized, validly existing and in good standing (to the extent the jurisdiction of its incorporation recognizes such concept) under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; each Significant Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Prospectus all of the issued and outstanding capital stock or other ownership interests of each Significant Subsidiary of the Company has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law and/or shares of those subsidiaries for which the Company does not own all of the outstanding capital stock as described on an exhibit to the opinion) are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as described in the Prospectus and except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial to the Company and its subsidiaries taken as a whole; (iv) the Agreement has been duly authorized, executed and delivered by the Company; (v) the Securities have been duly authorized, executed and delivered and (assuming the due authentication thereof by the Trustee) constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles and will be entitled to the benefits provided by the Indenture; (vi) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability 10 relating to or affecting the enforcement of creditors' rights and to general equity principles; and the Indenture has been qualified under the Trust Indenture Act; (vii) the Indenture and the Securities conform in all material respects to the descriptions thereof contained in the Prospectus; (viii) the issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and the consummation of the transactions herein and therein contemplated, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the terms of the Securities, the Indenture or this Agreement, (ii) result in any violation of the provisions of the organizational documents of the Company or any of its Significant Subsidiaries or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture or this Agreement; (ix) no consent, approval, authorization, order, registration, filing or qualification of or with any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company is required for the issuance and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except for (i) such consents, approvals, authorizations, orders, registrations, filings or qualifications which shall have been obtained or made prior to the Closing Date, (ii) as may be required by the securities or blue sky laws of the various states, the Securities Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the United States in which the Securities are offered or (iii) such consents, approvals, authorizations, orders, registrations, filings and/or qualifications which, if not obtained, would not have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the, the Indenture or this Agreement; (x) the Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" or an entity 11 "controlled" by an "investment company" as such terms are defined in the Investment Company Act; (xi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; (xii) the documents incorporated by reference in the Registration Statement and the Prospectus, other than the financial statements and the other financial information contained or incorporated by reference therein or omitted therefrom, or the information in the Form T-1 forming a part of the Registration Statement, as to which such counsel need express no opinion, when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and (xiii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus, other than the financial statements and the other financial information contained or incorporated by reference therein or omitted therefrom, or the information in the Form T-1 forming a part of the Registration Statement, as to which such counsel need express no opinion, comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder. In addition to giving the opinions set forth above, such General Counsel shall state that he has no reason to believe (A) that any of the documents incorporated by reference in the Registration Statement and the Prospectus, other than the financial statements and the other financial information contained or incorporated by reference therein or omitted therefrom, or the information in the Form T-1 forming a part of the Registration Statement, as to which such counsel need express no opinion, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such documents were so filed, not misleading, or (B) that on the Effective Date or on the Closing Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date or on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements 12 therein, in the light of the circumstances under which they were made, not misleading, in each case, other than the financial statements and the other financial information contained or incorporated by reference therein or omitted therefrom, or the information in the Form T-1 forming a part of the Registration Statement, as to which such counsel need express no opinion. In rendering such opinion, such counsel may rely: (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the federal laws of the United States, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent such counsel deems proper, on the certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. (c) The Representative shall have received from Mayer, Brown, Rowe & Maw, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not in the ordinary course of business, otherwise than as set forth or contemplated in the Prospectus (exclusive of any amendment or supplement thereto). 13 (e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative and PricewaterhouseCoopers LLP, of the type described in AICPA Statement on Auditing Standards No. 72. (f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (g) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Mayer, Brown, Rowe & Maw, counsel for the Underwriters, at 190 South LaSalle Street, Chicago, Illinois 60603, on the Closing Date. 7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representative on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in any 14 Preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and (ii) under the heading "Underwriting," (A) the sentences related to concessions and reallowances and (B) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus or the Prospectus. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel 15 chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the 16 meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). 9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. 10. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended or limited or minimum prices shall have been established on such Exchange or Market, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Prospectus (exclusive of any supplement thereto). 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and 17 effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement. 12. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup Global Markets Inc. at 388 Greenwich Street, New York, New York, 10013 Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to Bausch & Lomb Incorporated, attention Treasurer (fax no.: (585) 338-0810), and confirmed to it at Bausch & Lomb Incorporated, One Bausch & Lomb Place, Rochester, NY 14604, attention of the Legal Department. 13. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder. 14. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. 15. COUNTERPARTS. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. 16. HEADINGS. The section headings used herein are for convenience only and shall not affect the construction hereof. 17. DEFINITIONS. The terms which follow, when used in this Agreement, shall have the meanings indicated. "Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. "Commission" shall mean the Securities and Exchange Commission. "Effective Date" shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or become effective. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. 18 "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Preliminary Prospectus" shall mean any preliminary prospectus referred to in paragraph 1(a) above and any preliminary prospectus included in the Registration Statement at the Effective Date. "Prospectus" shall mean the prospectus relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities included in the Registration Statement at the Effective Date. "Registration Statement" shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be. "Rule 424" and "Rule 462" refer to such rules under the Act. "Rule 462(b) Registration Statement" shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder. 19 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, BAUSCH & LOMB INCORPORATED By: ------------------------------------- Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. CITIGROUP GLOBAL MARKETS INC. By: ------------------------------------- Name: Title: For itself and as representative of the other several Underwriters named in Schedule I to the foregoing Agreement. 20 SCHEDULE I
PRINCIPAL AMOUNT OF SECURITIES TO UNDERWRITERS BE PURCHASED - ------------ ------------- Citigroup Global Markets Inc.................................... $ 40,000,000 Fleet Securities, Inc........................................... 10,000,000 Total.................................................... $ 50,000,000 =============
I-1 EX-1.2 4 a2116158zex-1_2.txt EXHIBIT 1.2 EXHIBIT 1.2 BAUSCH & LOMB INCORPORATED $140,000,000 Floating Rate Convertible Senior Notes Due 2023* Purchase Agreement July 29, 2003 Citigroup Global Markets Inc. As Representative of the Initial Purchasers 388 Greenwich Street New York, New York 10013 Ladies and Gentlemen: Bausch & Lomb Incorporated, a corporation organized under the laws of New York (the "Company"), proposes to issue and sell to the several parties named in Schedule I hereto (the "Initial Purchasers"), for whom you (the "Representative") are acting as representative, $140,000,000 original principal amount of its Floating Rate Convertible Senior Notes Due 2023 (the "Firm Securities"). The Company also proposes to grant to the Initial Purchasers an option to purchase up to $20,000,000 additional original principal amount of such Notes (the "Option Securities" and, together with the Firm Securities, the "Securities"). The Securities are convertible into shares of Common Stock, par value $0.40 per share (the "Common Stock"), of the Company at the conversion price set forth herein. The Securities are to be issued under an indenture, dated as of September 1, 1991, between the Company and Citibank, N.A., as trustee (the "Trustee"), as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2 dated July 29, 1998, Supplemental Indenture No. 3 dated November 21, 2002, Supplemental Indenture No. 4 dated August 1, 2003, and proposed to be amended by Supplemental Indenture No. 5 to be dated the Closing Date (as defined herein) (as so supplemented, the "Indenture"). The Securities will have the benefit of a registration rights agreement (the "Registration Rights Agreement"), to be dated as of the Closing Date, between the Company and the Initial Purchasers, pursuant to which the Company will agree to register the resale of the Securities under the Act subject to the terms and conditions therein specified. To the extent there are no additional parties listed on Schedule I other than you, the term Representative as used herein shall mean you as the Initial Purchasers, and the terms Representative and Initial Purchasers shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate. Certain terms used herein are defined in Section 18 hereof. The sale of the Securities to the Initial Purchasers will be made without registration of the Securities or the Common Stock issuable upon conversion thereof under the Act in reliance upon exemptions from the registration requirements of the Act. - ---------- * Plus an option to purchase up to $20,000,000 additional original principal amount from the Company. In connection with the sale of the Securities, the Company has prepared a preliminary offering memorandum, dated July 29, 2003 (as amended or supplemented at the date thereof, including any and all exhibits thereto and any information incorporated by reference therein, the "Preliminary Memorandum"), and a final offering memorandum, dated July 29, 2003 (as amended or supplemented at the Execution Time, including any and all exhibits thereto and any information incorporated by reference therein, the "Final Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum sets forth certain information concerning the Company, the Securities and the Common Stock issuable upon conversion thereof. The Company hereby confirms that it has authorized the use of the Preliminary Memorandum and the Final Memorandum, and any amendment or supplement thereto, in connection with the offer and sale of the Securities by the Initial Purchasers. Unless stated to the contrary, any references herein to the terms "amend", "amendment" or "supplement" with respect to the Final Memorandum shall be deemed to refer to and include any information filed under the Exchange Act subsequent to the Execution Time that is incorporated by reference therein. 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to each Initial Purchaser as set forth below in this Section 1: (a) The Preliminary Memorandum, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Execution Time, on the Closing Date and on any settlement date, the Final Memorandum did not and will not (and any amendment or supplement thereto, at the date thereof, at the Closing Date and on any settlement date, will not) contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that the Company makes no representation or warranty as to the information contained in or omitted from the Preliminary Memorandum or the Final Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through the Representative specifically for inclusion therein. (b) None of the Company, its Affiliates, or any person acting on its or their behalf has, directly or indirectly, made offers or sales of any security, or solicited offers to buy, any security under circumstances that would require the registration of the Securities or the Common Stock issuable upon conversion thereof under the Act. (c) None of the Company, its Affiliates, or any person authorized to act on its or their behalf has: (i) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities, or (ii) engaged in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities or the Common Stock issuable upon conversion thereof; and each of the Company, its Affiliates and each person acting on its or their behalf has complied with the offering restrictions requirement of Regulation S. (d) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the Act. 2 (e) The Company has been advised by the NASD's PORTAL Market that the Securities have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. (f) No registration under the Act of the Securities is required for the offer and sale of the Securities to or by the Initial Purchasers in the manner contemplated herein and in the Final Memorandum. (g) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum will not be, an "investment company" as defined in the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Company's securities. (h) The Company is subject to and in full compliance with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. (i) Other than in connection with the contemporaneous sale of $50,000,000 of the Company's 5.90% Senior Notes due 2008 or the Company's proposed repurchase (the "Repurchase") of up to 1,000,000 shares of its Common Stock with a portion of the proceeds of the offering of the Securities, the Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except as contemplated in this Agreement). (j) The Company has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. (k) The Company (i) is a corporation duly organized, validly existing and subsisting under the laws of the State of New York, (ii) has the requisite corporate power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum, (iii) is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not have a material adverse effect on the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (l) Each subsidiary of the Company is a corporation, partnership, limited liability company or business trust duly incorporated or organized, validly existing and in good standing (to the extent the jurisdiction of its incorporation recognizes such concept) under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum, except where the failure to be so organized or to have such power and authority would not result in a Material Adverse Effect; each such subsidiary is duly qualified as a foreign corporation or organization to transact business and is in good standing (with respect to the jurisdictions which 3 recognize such concept) in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not result in a Material Adverse Effect. (m) Except as otherwise disclosed in the Final Memorandum, all of the issued and outstanding shares of capital stock or other ownership interests of each subsidiary of the Company which constitutes a "significant subsidiary" as defined in Item 1-02(w) of Regulation S-X (each a "Significant Subsidiary") are owned by the Company directly or through subsidiaries (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law), free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as described in the Final Memorandum and except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial to the Company and its subsidiaries taken as a whole. (n) The Company has outstanding equity capitalization as set forth in the Final Memorandum (except for subsequent issuances, if any, pursuant to employee benefit plans or agreements or pursuant to the exercise of convertible securities or options); the capital stock of the Company conforms to the description thereof contained in the Final Memorandum; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding. (o) The statements in the Final Memorandum under the headings "Certain U.S. Federal Income Tax Considerations," "Description of the Notes" and "Description of Common Stock" fairly summarize the matters therein described. (p) This Agreement has been duly authorized, executed and delivered by the Company. (q) The Indenture has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles. (r) The Securities have been duly authorized, and, when delivered pursuant to this Underwriting Agreement, will have been duly executed, issued and delivered and (assuming the due authentication thereof by the Trustee) will constitute valid and legally binding 4 obligations of the Company, enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles, will be entitled to the benefits provided by the Indenture and will be convertible into Common Stock in accordance with their terms; (s) The Registration Rights Agreement has been duly authorized by the Company and, when executed and delivered by the Company, will constitute the legal, valid, binding and enforceable instrument of the Company (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity). (t) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such (i) as may be required under the blue sky laws of any jurisdiction in which the Securities are offered and sold and, in the case of the Registration Rights Agreement, such as will be obtained under the Act and the Trust Indenture Act, and (ii) such consents, approvals, authorizations, orders, registrations, filings and/or qualifications which, if not obtained, would not have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture, the Registration Rights Agreement or this Agreement. (u) The issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, the Registration Rights Agreement, this Agreement and the consummation of the transactions herein and therein contemplated, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, the conflict, breach or violation of which would have a Material Adverse Effect, or affect the validity of the Securities or the legal authority of the Company to comply with the terms of the Securities, the Indenture or this Agreement, (ii) result in any violation of the provisions of the organizational documents of the Company or any of its Significant Subsidiaries or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, the violation of which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture, the Registration Rights Agreement or this Agreement. (v) The consolidated financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Final Memorandum present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity 5 with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); the summary financial data set forth under the caption "Summary Financial Information" in the Final Memorandum fairly present, on the basis stated in the Final Memorandum, the information included therein; (w) Other than as set forth in the Final Memorandum, (i) there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which if determined adversely to the Company or such subsidiary, would individually or in the aggregate, have a Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated under this Agreement, the Registration Rights Agreement or the Indenture or the performance by the Company of its obligations hereunder or thereunder and (ii) to the Company's knowledge no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (x) PricewaterhouseCoopers LLP, who have certified the financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Final Memorandum, are independent public accountants with respect to the Company as required by the Securities Act and the rules and regulations of the Commission thereunder. (y) There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Securities or upon the issuance of Common Stock upon the conversion thereof. (z) In the ordinary course of its business, the Company periodically reviews the effect of applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws") on the business, operations and properties of the Company and its subsidiaries. In the course of that review, the Company uses reasonable business efforts to identify any processes or sites which are reasonably likely to require any capital or operating expenditures for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval; and to evaluate associated costs and liabilities with respect to such actions, any related constraints on operating activities, and any potential liabilities to third parties. On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in the Final Memorandum. (aa) Other than as set forth in the Final Memorandum: (i) the Company and its subsidiaries take commercially reasonable steps to determine that they own or have the right to use all patents, trademarks, service marks, trade names, copyrights, trade secrets and confidential information ("Intellectual Property") used in the business of the Company and its subsidiaries as described in the Final Memorandum and have taken all commercially reasonable steps to secure assignments of such Intellectual Property from their respective employees and contractors, except where the failure to own, have the right to use or take such steps to secure assignments of such Intellectual Property would not reasonably be expected to have a Material Adverse Effect; (ii) to the Company's knowledge, none of the technology employed by the Company or its 6 subsidiaries has been obtained or is being used by the Company or its subsidiaries in violation of any contractual or fiduciary obligation binding on the Company, its subsidiaries, or any of their respective directors or executive officers or any of their respective employees or consultants, except for such violations that would not reasonably be expected to have a Material Adverse Effect; and (iii) the Company and its subsidiaries have taken and will maintain reasonable measures to prevent the unauthorized dissemination or publication of their own confidential information, except where the failure to take or maintain such measures would not reasonably be expected to have a Material Adverse Effect. Except as set forth in the Final Memorandum, to the Company's knowledge, neither the Company nor any of its subsidiaries has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties. Except as set forth in the Final Memorandum, the Company and its subsidiaries have not received any written charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation of the Intellectual Property of any third party (including any claim that the Company or any of its subsidiaries must license or refrain from using any intellectual property rights of any third party) which, if the subject of any decision, ruling or finding adverse to the ability of the Company to use such rights, the Company would, individually or in the aggregate, have a Material Adverse Effect. (bb) There is and has been no failure on the part of the Company or any of the Company's directors or officers, in their capacities as such, to comply with any provision of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the "Sarbanes Oxley Act"), including Section 402 related to loans and Sections 302 and 906 related to certifications. (cc) Prior to the date hereof, the Company has furnished to the Representative letters addressed to the Representative, each substantially in the form of Exhibit A hereto, duly executed by each officer and director of the Company identified by the Representative. Any certificate signed by any officer of the Company and delivered to the Representative or counsel for the Initial Purchasers in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Initial Purchaser. 2. PURCHASE AND SALE. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally and not jointly, to purchase from the Company, at a purchase price of 97.50% of the original principal amount thereof, plus accrued interest, if any, from August 4, 2003 to the Closing Date, the original principal amount of Firm Securities set forth opposite such Initial Purchaser's name in Schedule I hereto. The initial purchasers have agreed to reimburse the Company for $175,000 of its expenses in connection with the offering of the Securities. (b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Initial Purchasers to purchase, severally and not jointly, the Option Securities at the same purchase price as the Initial Purchasers shall pay for the Firm Securities, plus accrued interest, if any, from August 4, 2003 to the settlement date for the Option Securities. The option may be 7 exercised in whole or in part at any time (but not more than once) on or before the 13th day after the date of the Final Memorandum upon written or telegraphic notice by the Representative to the Company setting forth the original principal amount of Option Securities as to which the several Initial Purchasers are exercising the option and the settlement date. Delivery of the Option Securities, and payment therefor, shall be made as provided in Section 3 hereof. The original principal amount of Option Securities to be purchased by each Initial Purchaser shall be the same percentage of the total original principal amount of Option Securities to be purchased by the several Initial Purchasers as such Initial Purchaser is purchasing of the Firm Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional Securities. 3. DELIVERY AND PAYMENT. (a) Delivery of and payment for the Firm Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day prior to the Closing Date) shall be made at 10:00 A.M., New York City time, on August 4, 2003, or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Securities shall be made to the Representative for the respective accounts of the several Initial Purchasers against payment by the several Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct. (b) If the option provided for in Section 2(b) hereof is exercised after the third Business Day prior to the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representative on the date specified by the Representative (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Initial Purchasers, against payment by the several Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representative on the settlement date for the Option Securities, and the obligation of the Initial Purchasers to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof. 4. OFFERING BY INITIAL PURCHASERS. (a) Each Initial Purchaser acknowledges that the Securities and the Common Stock issuable upon conversion thereof have not been and will not be registered under the Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act. (b) Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the Company that: 8 (i) it has not offered or sold, and will not offer or sell, any Securities within the United States or to, or for the account or benefit of, U.S. persons (x) as part of their distribution at any time or (y) otherwise until one year after the later of the commencement of the offering and the date of closing of the offering except: (A) to those it reasonably believes to be "qualified institutional buyers" (as defined in Rule 144A under the Act) or (B) in accordance with Rule 903 of Regulation S; (ii) neither it nor any person acting on its behalf has made or will make offers or sales of the Securities in the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D) in the United States; (iii) in connection with each sale pursuant to Section 4(b)(i)(A), it has taken or will take reasonable steps to ensure that the purchaser of such Securities is aware that such sale is being made in reliance on Rule 144A; (iv) any information provided by the Initial Purchasers to publishers of publicly available databases about the terms of the Securities shall include a statement that the Securities have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S; (v) it will not engage in hedging transactions with regard to the Securities prior to the expiration of the distribution compliance period as (defined in Regulation S), unless in compliance with the Act; (vi) neither it, nor any of its Affiliates nor any person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities; (vii) it has not entered and will not enter into any contractual arrangement with any distributor (within the meaning of Regulation S) with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company; (viii) it and they have complied and will comply with the offering restrictions requirement of Regulation S; (ix) at or prior to the confirmation of sale of Securities (other than a sale of Securities pursuant to Section 4(b)(i)(A) of this Agreement), it shall have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the distribution compliance period (within the meaning of Regulation S) a confirmation or notice to substantially the following effect: 9 "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Act") and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time, or (ii) otherwise until one year after the later of the commencement of the offering and the date of closing of the offering, except in either case in accordance with Regulation S or Rule 144A under the Act. Additional restrictions on the offer and sale of the Securities and the Common Stock issuable upon conversion thereof are described in the offering memorandum for the Securities. Terms used in this paragraph have the meanings given to them by Regulation S." (x) it acknowledges that additional restrictions on the offer and sale of the Securities and the Common Stock issuable upon conversion thereof are described in the Final Memorandum; (xi) it has not offered or sold and, prior to the date six months after the date of issuance of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (xii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; (xiii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of any Securities, in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (xiv) it is an "accredited investor" (as defined in Rule 501(a) of Regulation D). 5. AGREEMENTS. The Company agrees with each Initial Purchaser that: (a) The Company will furnish to each Initial Purchaser and to counsel for the Initial Purchasers, without charge, during the period referred to in paragraph (c) below, as many copies of the Final Memorandum and any amendments and supplements thereto as they may reasonably request. (b) The Company will not amend or supplement the Final Memorandum, other than by filing documents under the Exchange Act that are incorporated by reference therein, without the prior written consent of the Representative; PROVIDED, HOWEVER, that, prior to 10 the completion of the distribution of the Securities by the Initial Purchasers (as determined by the Initial Purchasers), the Company will not file any document under the Exchange Act that is incorporated by reference in the Final Memorandum unless, prior to such proposed filing, the Company has furnished the Representative with a copy of such document for their review and the Representative have not reasonably objected to the filing of such document. The Company will promptly advise the Representative when any document filed under the Exchange Act that is incorporated by reference in the Final Memorandum shall have been filed with the Commission. (c) If at any time prior to the completion of the sale of the Securities by the Initial Purchasers (as determined by the Representative), any event occurs as a result of which the Final Memorandum, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly (i) notify the Representative of any such event; (ii) subject to the requirements of paragraph (b) of this Section 5, prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Final Memorandum to the several Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as they may reasonably request. (d) The Company will arrange, if necessary, for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; PROVIDED that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. The Company will promptly advise the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (e) The Company will not, and will not permit any of its Affiliates to, resell any Securities or Shares of Common Stock issued upon conversion thereof that have been acquired by any of them. (f) None of the Company, its Affiliates, or any person acting on its or their behalf (other than the Initial Purchasers) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities or Common Stock issuable upon conversion thereof under the Act. (g) Other than in connection with sales of Securities pursuant to the registration statement required to be filed by the Company under the Registration Rights Agreement, none of the Company, its Affiliates, or any person acting on its or their behalf other than the Initial Purchasers will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities in the United States. 11 (h) So long as any of the Securities or the Common Stock issuable upon the conversion thereof are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, the Company will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders, from time to time of such restricted securities. (i) Other than in connection with sales of Securities pursuant to the registration statement required to be filed by the Company under the Registration Rights Agreement, none of the Company, its Affiliates, or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts with respect to the Securities, and each of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given to them by Regulation S. (j) Other than in connection with sales of Securities pursuant to the registration statement required to be filed by the Company under the Registration Rights Agreement, any information provided by the Company to publishers of publicly available databases about the terms of the Securities shall include a statement that the Securities have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S. (k) The Company will cooperate with the Representative and use its best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company. (l) The Company will reserve and keep available at all times, free of pre-emptive rights, the full number of Shares of Common Stock issuable upon conversion of the Securities. (m) The Company will not for a period of 90 days following the Execution Time, without the prior written consent of Citigroup, directly or indirectly, offer, sell, contract to sell, pledge, otherwise dispose of, enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company or any Affiliate of the Company of, file (or participate in the filing of) a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, shares of capital stock of the Company (other than the Securities), or publicly announce an intention to effect any such transaction; PROVIDED, HOWEVER, that the Company may file a registration statement with respect to, and issue and sell Common Stock or securities convertible into or exchangeable for Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company described in the Final Memorandum and in 12 effect at the Execution Time, and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and described in the Final Memorandum. (n) Other than in connection with the Repurchase, the Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. The Company agrees that the Repurchase will be conducted in compliance with Rule 10b-18 and Regulation M under the Exchange Act, to the extent applicable. (o) Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price. (p) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Indenture and the Registration Rights Agreement, the issuance of the Securities, the fees of the Trustee and the issuance of the Common Stock upon conversion of the Securities; (ii) the preparation, printing or reproduction of the Preliminary Memorandum and the Final Memorandum and each amendment or supplement to either of them; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Memorandum and the Final Memorandum, and all amendments or supplements to either of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities; (v) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vi) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(d) (including filing fees and the reasonable fees and expenses of counsel for the Initial Purchasers relating to such registration and qualification); (viii) admitting the Securities for trading in the PORTAL Market; (ix) the transportation and other expenses incurred by or on behalf of Company representative in connection with presentations to prospective purchasers of the Securities; (x) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder. (q) The Company will, for a period of twelve months following the Execution Time, furnish to the Representative (i) all reports or other communications (financial or other) generally made available to stockholders, and deliver such reports and communications to the Representative as soon as they are available, unless such documents are furnished to or filed with the Commission or any securities exchange on which any class of securities of the Company is listed and generally made available to the public and (ii) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to stockholders). 13 (r) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Company's directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act. 6. CONDITIONS TO THE OBLIGATIONS OF THE INITIAL PURCHASERS. The obligations of the Initial Purchasers to purchase the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties of the Company contained herein at the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Company shall have requested and caused Robert B. Stiles, Senior Vice President and General Counsel of the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation subsisting under the laws of the State of New York, with power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum; (ii) the Company is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not have a Material Adverse Effect; (iii) each Significant Subsidiary is a corporation, partnership, limited liability company or business trust duly incorporated or organized, validly existing and in good standing (to the extent the jurisdiction of its incorporation recognizes such concept) under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum; each Significant Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing (with respect to the jurisdictions which recognize such concept) in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Final Memorandum all of the issued and outstanding capital stock or other ownership interests of each Significant Subsidiary of the Company has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law and/or shares of those subsidiaries for which the Company does not own all of the 14 outstanding capital stock as described on an exhibit to the opinion) are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as described in the Final Memorandum and except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that are immaterial to the Company and its subsidiaries taken as a whole; (iv) the Company's authorized equity capitalization is as set forth in the Final Memorandum and the capital stock of the Company conforms to the description thereof contained in the Final Memorandum and the Securities conform to the description thereof contained in the Final Memorandum; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and, when issued upon conversion of the Securities against payment of the conversion price, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving such shares of Common Stock for issuance upon conversion of the Securities; the holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and the Indenture is in a form which will permit it to be qualified under the Trust Indenture Act; (vii) the Securities have been duly authorized, executed and delivered and (assuming the due authentication thereof by the Trustee) constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles, will be entitled to the benefits provided by the Indenture and will be convertible into Common Stock in accordance with their terms; 15 (viii) the Registration Rights Agreement has been duly authorized, executed and delivered and constitutes the legal, valid, binding and enforceable instrument of the Company except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; (ix) the statements set forth under the headings "Description of the Notes" and "Description of Common Stock" in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Securities, the Indenture, the Common Stock and the Registration Rights Agreement, provide a fair summary of such provisions; (x) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property that is not adequately disclosed in the Final Memorandum, except in each case for such proceedings that, if the subject of an unfavorable decision, ruling or finding would not singly or in the aggregate, have a Material Adverse Effect; (xi) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, in the Indenture or in the Registration Rights Agreement, except such as may be required under the blue sky or securities laws of any jurisdiction in which the Securities are offered or sold (as to which such counsel need express no opinion beyond that set forth in paragraph (xiii) below) and such other approvals (specified in such opinion) as have been obtained; (xii) the issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, the Registration Rights Agreement and this Agreement and the consummation of the transactions herein and therein contemplated, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the terms of the Securities, the Indenture, the Registration Rights Agreement or this Agreement, (ii) result in any violation of the provisions of the organizational documents of the Company or any of its Significant Subsidiaries or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its 16 subsidiaries or any of their properties which would have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture, the Registration Rights Agreement or this Agreement; (xiii) assuming the accuracy of the representations and warranties and compliance with the agreements contained herein (without regard to the representation found in Section 1(f)), no registration under the Act of the Securities or the Common Stock issuable upon conversion thereof, and no qualification of an indenture under the Trust Indenture Act, are required for the sale and delivery of the Securities by the Company to the Initial Purchasers or the offer and sale by the Initial Purchasers of the Securities in the manner contemplated herein and in the Final Memorandum; and (xiv) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Memorandum, will not be an "investment company" as defined in the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Company's securities. In addition to giving the opinions set forth above, such counsel shall state that he has no reason to believe that at the Execution Time or on the Closing Date the Final Memorandum contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no belief). In rendering such opinion, such counsel may rely: (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the federal laws of the United States, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent such counsel deems proper, on the certificates of responsible officers of the Company and public officials. References to the Final Memorandum in this paragraph (a) include any supplements thereto at the Closing Date. (b) The Company shall have requested and caused Nixon Peabody LLP, to furnish to the Representative their opinion, dated the Closing Date and addressed to the Representative, to the effect that and the statements in the Final Memorandum under the heading "Certain U.S. Federal Income Tax Considerations" fairly summarize the matters therein described. In rendering such opinion, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on the certificates of responsible officers of the Company and public officials. References to the Final Memorandum in this paragraph (b) include any supplements thereto at the Closing Date. 17 (c) The Representative shall have received from Mayer, Brown, Roe & Maw LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representative a certificate of the Company, signed by (x) the Chairman of the Board and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included or incorporated by reference in the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not in the ordinary course of business, other than as set forth or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). (e) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representative, at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Representative and PricewaterhouseCoopers LLP, of the type described in AICPA Statement on Auditing Standards No. 72. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). [ 18 (g) The Securities shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD and the Securities shall be eligible for clearance and settlement through The Depository Trust Company. (h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) Prior to the Execution Time, the Company shall have furnished to the Representative a letter addressed to the Representative substantially in the form of Exhibit A hereto from each officer and director of the Company previously identified by the Representative. (j) The Company shall have caused the shares of Common Stock initially issuable upon conversion of the Securities to be approved for listing, subject to issuance, on the New York Stock Exchange (k) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Initial Purchasers, at Mayer, Brown, Rowe & Maw LLP, 190 South LaSalle Street, Chicago, Illinois 60603, on the Closing Date. 7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Initial Purchasers, the Company will reimburse the Initial Purchasers severally through Citigroup on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each Initial Purchaser and each person who controls any Initial Purchaser within the meaning 19 of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Memorandum, the Final Memorandum, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchaser through the Representative specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have. (b) Each Initial Purchaser severally, and not jointly, agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Initial Purchaser, but only with reference to written information relating to such Initial Purchaser furnished to the Company by or on behalf of such Initial Purchaser through the Representative specifically for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto. This indemnity agreement will be in addition to any liability that any Initial Purchaser may otherwise have. The Company acknowledges that the statements set forth in the fourth sentence of the 10th paragraph and the 11th and 12th paragraphs under the heading "Plan of Distribution" in the Preliminary Memorandum and the Final Memorandum constitute the only information furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set 20 forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Initial Purchasers severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively "Losses") to which the Company and one or more of the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Initial Purchasers on the other from the offering of the Securities; PROVIDED, HOWEVER, that in no case shall any Initial Purchaser be responsible for any amount in excess of the purchase discount or commission applicable to the Securities purchased by such Initial Purchaser hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Initial Purchasers severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions. Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Initial Purchasers on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the 21 provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Initial Purchaser within the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an Initial Purchaser shall have the same rights to contribution as such Initial Purchaser, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). 9. DEFAULT BY AN INITIAL PURCHASER. If any one or more Initial Purchasers shall fail to purchase and pay for any of the Securities agreed to be purchased by such Initial Purchaser hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Initial Purchasers shall be obligated severally to take up and pay for (in the respective proportions which the original principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate original principal amount of Securities set forth opposite the names of all the remaining Initial Purchasers) the Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate original principal amount of Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate original principal amount of Securities set forth in Schedule I hereto, the remaining Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Initial Purchasers do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Initial Purchaser or the Company. In the event of a default by any Initial Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representative shall determine in order that the required changes in the Final Memorandum or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Company or any nondefaulting Initial Purchaser for damages occasioned by its default hereunder. 22 10. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Representative, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange or the Nasdaq National Market shall have been suspended or limited or minimum prices shall have been established on such exchange or Market; (ii) a banking moratorium shall have been declared either by U.S. federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representative, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Initial Purchasers or the Company or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement. 12. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to the Citigroup General Counsel (fax no.: (212) 816-7912) and confirmed to Citigroup at 388 Greenwich Street, New York, New York 10013, Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to Bausch & Lomb Incorporated, attention Treasurer (fax no.: (585) 338-0810), and confirmed to it at Bausch & Lomb Incorporated, One Bausch & Lomb Place, Rochester, NY 14604, attention of the Legal Department. 13. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof and their respective successors, and, except as expressly set forth in Section 5(h) hereof, no other person will have any right or obligation hereunder. 14. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement. 15. WAIVER OF TAX CONFIDENTIALITY. Notwithstanding anything herein to the contrary, purchasers of the Securities (and each employee, representative or other agent of the Company) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any transaction contemplated herein and all materials of any 23 kind (including opinions or other tax analyses) that are provided to the purchasers of the Securities relating to such U.S. tax treatment and U.S tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws. 16. COUNTERPARTS. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. 17. HEADINGS. The section headings used herein are for convenience only and shall not affect the construction hereof. 18. DEFINITIONS. The terms that follow, when used in this Agreement, shall have the meanings indicated. "Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "Affiliate" shall have the meaning specified in Rule 501(b) of Regulation D. "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York. "Citigroup" shall mean Citigroup Global Markets Inc. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Commission" shall mean the Securities and Exchange Commission. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Investment Company Act" shall mean the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder. "NASD" shall mean the National Association of Securities Dealers, Inc. "PORTAL" shall mean the Private Offerings, Resales and Trading through Automated Linkages system of the NASD. "Regulation D" shall mean Regulation D under the Act. "Regulation S" shall mean Regulation S under the Act. 24 "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder. 25 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers. Very truly yours, BAUSCH & LOMB INCORPORATED By: ---------------------- Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. CITIGROUP GLOBAL MARKETS INC. By: ----------------------------- Name: Title: For itself and the other several Initial Purchasers named in Schedule I to the foregoing Agreement. 26 SCHEDULE I
Original Principal Amount of Firm Securities to be Initial Purchasers Purchased ------------------ -------------------------- Citigroup Global Markets Inc........................................ $ 56,000,000 Goldman, Sachs & Co. ............................................... 28,000,000 Morgan Stanley & Co. Incorporated................................... 28,000,000 Fleet Securities, Inc. ............................................. 8,400,000 McDonald Investments Inc. .......................................... 8,400,000 HSBC Securities (USA) Inc. ......................................... 5,600,000 U.S. Bancorp Piper Jaffray Inc. .................................... 5,600,000 Total............................................. $ 140,000,000 -------------
A-27 EXHIBIT A [Letterhead of officer, director or major stockholder of the Company] July ___, 2003 Citigroup Global Markets Inc. As Representative of the Initial Purchasers 388 Greenwich Street New York, New York 10013 Ladies and Gentlemen: This letter is being delivered to you in connection with a proposed Purchase Agreement (the "Purchase Agreement") between Bausch & Lomb Incorporated, a New York corporation (the "Company") and you as representative of a group of Initial Purchasers named therein, relating to an offering of Floating Rate Convertible Senior Notes Due 2023, which will be convertible into common stock, $0.40 par value (the "Common Stock"), of the Company. In order to induce you and the other Initial Purchasers to enter into the Purchase Agreement, the undersigned will not, without the prior written consent of Citigroup Global Markets Inc., directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of, enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned of, file (or participate in the filing of) a registration statement with the U.S. Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Purchase Agreement, other than shares of Common Stock disposed of as bona fide gifts approved by Citigroup Global Markets Inc. If for any reason the Purchase Agreement shall be terminated prior to the Closing Date (as defined in the Purchase Agreement), the agreement set forth above shall likewise be terminated. Very truly yours, By: ------------------------------ Name: Title: A-1 EX-4.1 5 a2116158zex-4_1.txt EXHIBIT 4.1 EXHIBIT 4.1 SUPPLEMENTAL INDENTURE No. 4, dated August 1, 2003 (this "Supplemental Indenture"), between BAUSCH & LOMB INCORPORATED, a corporation duly organized and existing under the laws of the State of New York (herein referred to as the "Company", which term includes any successor Person under the Indenture hereinafter referred to) having its principal office at One Bausch & Lomb Place, Rochester, New York 14604 and CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, as trustee (hereinafter referred to as the "Trustee", which term includes any successor trustee under the Indenture), RECITALS OF THE COMPANY The Company and the Trustee have entered into an Indenture, dated September 1, 1991, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2 dated July 29, 1998 and Supplemental Indenture No. 3, dated November 21, 2002 (collectively, the "Indenture") providing for the issuance of debt securities, among other things. For its lawful corporate purposes, the Company desires to create and authorize a series of 5.90% Senior Notes due 2008 in an aggregate principal amount of Fifty Million Dollars ($50,000,000) and to provide the terms and conditions upon which the Notes (as defined herein) are to be executed, registered, authenticated, issued and delivered. The Company has duly authorized the execution and delivery of this Supplemental Indenture as provided in Article Two and Section 901 of the Indenture. The 5.90% Senior Notes due 2008 and the certificates of authentication to be borne by the Notes are to be substantially in the form of the Note, attached as Exhibit A hereto. All acts and things necessary to make the 5.90% Senior Notes due 2008, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as set forth in the Indenture as supplemented by this Supplemental Indenture, the valid, binding and legal obligations of the Company, have been done. NOW, THEREFORE, WITNESSETH: In order to declare the terms and conditions upon which the Notes are executed, registered, authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of such Notes by the holders thereof, it is mutually agreed, for the equal and proportionate benefit of the respective holders from time to time of the Notes, as follows: 1. SUPPLEMENTAL INDENTURE. This Supplemental Indenture supplements the Indenture as set forth herein. Except as expressly supplemented by this Supplemental Indenture, the Indenture is in all respects ratified and confirmed and all the terms, provisions and conditions thereof shall be and remain in full force and effect. All capitalized terms not otherwise defined in this Supplemental Indenture shall have the meaning assigned thereto in the Indenture. 2. CREATION AND AUTHORIZATION OF NOTES. There is hereby created and authorized under the Indenture a series of debt securities in the form of fixed rate promissory notes entitled the "5.90% Senior Notes due 2008." The series of 5.90% Senior Notes due 2008 authorized and to be issued under this Supplemental Indenture is limited to $50,000,000 aggregate principal amount, in substantially the form attached hereto as Exhibit A with such changes as may be agreed to by the Company and the Trustee (the "Notes"). The execution of the Notes by the Company and the authentication of the Notes by the Trustee shall be definitive evidence of the approval of any such changes. The Notes shall be issued initially as a Global Security as provided in the Indenture. Notes may be authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes as provided therein and in Sections 3.04, 3.05 or 3.06 of the Indenture. 3. MISCELLANEOUS. (a) The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. (b) This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. (c) This Supplemental Indenture and each Note shall be governed by and construed in accordance with the laws of the State of New York as provided in Section 112 of the Indenture. IN WITNESS WHEREOF, Bausch & Lomb Incorporated has caused this Supplemental Indenture to be signed and delivered and its corporate seal to be affixed hereunto and the same to be attested, and Trustee has caused this Supplemental Indenture to be signed and delivered and its corporate seal to be fixed hereunto and the same to be attested, all as of the day and year first written above. BAUSCH & LOMB INCORPORATED By: ----------------------------------- Name: Alan H. Resnick Title: Vice President and Treasurer [CORPORATE SEAL] ATTEST: By: ------------------------------ Name: Jean F. Geisel Title: Secretary CITIBANK, N.A., AS TRUSTEE By: ----------------------------------- Name: Title: By: ----------------------------------- Name: Title: [CORPORATE SEAL] ATTEST: ------------------------------ Name: Title: [FACE OF NOTE] EXHIBIT A THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OR TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES. CUSIP NO.: PRINCIPAL AMOUNT: $50,000,000 REGISTERED NO. BAUSCH & LOMB INCORPORATED 5.90% SENIOR NOTE DUE 2008 INTEREST RATE PER ANNUM: From and MATURITY DATE: August 1, 2008. ISSUE PRICE: 99.983% (as a including August 1, 2003 to the percentage of principal amount) Maturity Date, 5.90%. INTEREST PAYMENT DATES: REDEMPTION BY THE COMPANY: The Notes February 1 and August 1 of each are subject to redemption by the year, commencing February 1, 2004. Company prior to maturity as described on the reverse of this Note. DEPOSITARY: The Depository Trust Company
Bausch & Lomb Incorporated, a corporation duly organized and existing under the laws of the State of New York (herein called the "Company", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of U.S. $50,000,000 on the Maturity Date, and to pay interest on said principal sum at the rate per annum (computed on the basis of a 360-day year of twelve 30-day months) shown above, semi-annually on each Interest Payment Date as set forth above from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly made available for payment to but excluding the applicable Interest Payment Date or Maturity Date, as the case may be. The interest payable, and punctually paid or duly provided for, on any Interest Payment Date will be paid to the Person in whose name this Security is registered at the close of business on the fifteenth calendar day next preceding such Interest Payment Date (each such date a "Record Date"). Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City of New York, in such coin or currency of the United States of America as at that time of payment is a legal tender for payment of public and private debts. So long as this instrument is registered in the name of Cede & Co., payments of interest hereon shall be made in immediately available funds; otherwise payment of interest may be made at the option of the Company by check or draft mailed to the address of the person entitled thereto at such address as shall appear on the Security register. Additional provisions of this Security are contained on the reverse hereof, and such provisions shall for all purposes have the same effect as though fully set forth at this place. This Security shall not be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by an authorized officer of the Trustee or its duly authorized agent under the Indenture referred to herein below. IN WITNESS WHEREOF, BAUSCH & LOMB INCORPORATED has caused this instrument to be signed by its duly authorized officer, and has caused a facsimile of its corporate seal to be affixed hereto or imprinted hereon. Dated: August 1, 2003 BAUSCH & LOMB INCORPORATED By: --------------------------- Name: Alan H. Resnick Title: Vice President and Treasurer TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated 5.90% Senior Notes due 2008 as described in the within-mentioned Indenture. CITIBANK, N.A. as Trustee By: ------------------------ Authorized Officer (REVERSE OF NOTE) BAUSCH & LOMB INCORPORATED 5.90% SENIOR NOTE DUE 2008 This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of September 1, 1991, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2 dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002 and Supplemental Indenture No. 4, dated August 1, 2003 (collectively, the "Indenture"), between the Company and Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $50,000,000. All or a portion of the Securities may be redeemed at our option at any time or from time to time upon not less than 30 days' notice by mail. The Redemption Price for the Securities to be redeemed on any Redemption Date will be equal to the greater of the following amounts: - 100% of the principal amount of the Securities being redeemed on the Redemption Date; or - the sum of the present values of the remaining scheduled payments of principal and interest on the Securities being redeemed on that Redemption Date (not including any portion of any payments of interest accrued to the Redemption Date), discounted to the Redemption Date on a semiannual basis at the Treasury Rate (as defined below), plus 50 basis points, as determined by the Reference Treasury Dealer (as defined below), plus, in each case, accrued and unpaid interest on the Securities to the Redemption Date. Notwithstanding the foregoing, installments of interest on Securities that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the record date immediately preceding the Interest Payment Date. The Redemption Price will be calculated on the basis of a 360-day year consisting of twelve 30-day months. The Company will mail notice of any redemption at least 30 days, but not more than 60 days, before the Redemption Date to each Holder of the Securities to be redeemed. Once notice of redemption is mailed, the Securities call for redemption will become due and payable on the Redemption Date and at the applicable Redemption Price, plus accrued and unpaid interest to the Redemption Date. "Treasury Rate" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue, expressed as a percentage of its principal amount, equal to the Comparable Treasury Price for such Redemption Date. "Comparable Treasury Issue" means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities. "Comparable Treasury Price" means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such Quotations, or (C) if only one Reference Treasury Dealer Quotation is received, such Quotation. "Reference Treasury Dealer" means (A) Salomon Smith Barney Inc. or its affiliates which are the Primary Treasury Dealer, and its successors; provided, however, that if Salomon Smith Barney Inc. shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company will substitute therefor another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected by the trustee after consultation with the Company. "Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such Redemption Date. On and after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption, unless the Company defaults in the payment of the Redemption Price and accrued interest. On or before the Redemption Date, the Company will deposit with a Paying Agent (or the Trustee) money sufficient to pay the Redemption Price of and accrued interest on the Securities to be redeemed on that date. If less than all of the Securities are to be redeemed, the Securities to be redeemed shall be selected by lot by the Depository Trust Company, in the case of Securities represented by a Global Security, or by the Trustee by a method the Trustee deems to be fair and appropriate, in the case of Securities that are not represented by a Global Security. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. This Security is a Global Security and, as provided in Section 305 of the Indenture shall only be exchangeable pursuant to such Section 305 or Sections 304, 906 and 1107 of the Indenture for Securities registered in the name of, and no transfer of this Security may be registered to, any Person other than the Depositary for such Security or its nominee unless: (1) such Depositary (A) notifies the Company that it is unwilling or unable to continue as Depositary for the Security or (B) ceases to be a clearing agency registered under the Exchange Act; (2) the Company executes and delivers to the Trustee a Company Order that this Security shall be so exchangeable and the transfer thereof so registerable; or (3) there shall have occurred and be continuing an Event of Default with respect to the Securities evidenced by this Security. Upon the occurrence in respect of this Security of any series of any one or more of the conditions specified in clauses (1), (2) or (3) of the preceding sentence or such other conditions as may be specified as contemplated by Section 301 of the Indenture, this Security may be exchanged for Securities registered in the names of, and the transfer of this Security may be registered to, such Persons, (including Persons other than the Depositary with respect to such series and its nominees) as such Depositary shall direct. Notwithstanding any other provisions of the Indenture, any Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, this Security shall also be a Global Security and shall bear the legend specified in Section 205 except for any Security authenticated and delivered in exchange for, or upon registration of transfer of, this Security pursuant to the preceding sentence. 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. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. The Securities of this series are not subject to a sinking fund and are not redeemable at the option of the Holders. The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth therein. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Security shall be governed by and construed in accordance with the laws of the State of New York. EX-4.2 6 a2116158zex-4_2.txt EXHIBIT 4.2 EXHIBIT 4.2 BAUSCH & LOMB INCORPORATED -------------------------------- Fifth Supplemental Indenture Dated as of August 4, 2003 -------------------------------- Citibank, N.A., Trustee Floating Rate Convertible Senior Notes due 2023 ARTICLE 1 FLOATING RATE CONVERTIBLE SENIOR NOTES DUE 2023......................................1 Section 1.01 Establishment.............................................................1 Section 1.02 Definitions...............................................................2 Section 1.03 Payment of Principal and Interest.........................................8 Section 1.04 Denominations............................................................12 Section 1.05 Global Securities........................................................12 Section 1.06 Redemption at the Option of the Company..................................12 Section 1.07 Purchase at the Option of the Holder Upon a Fundamental Change...................................................................13 Section 1.08 Purchase of Senior Convertible Notes at the Option of the Holder...................................................................14 Section 1.09 Further Conditions and Procedures for Purchase Upon a Fundamental Change and Purchase at the Option of the Holder..............15 Section 1.10 Conversion of Senior Convertible Notes...................................20 Section 1.11 Additional Events of Default; Withholding Notice; Rescission.............30 Section 1.12 Amendment; Supplement; and Waiver........................................31 Section 1.13 Register of Securities; Paying Agent; Conversion Agent...................32 Section 1.14 Calculations in Respect of the Senior Convertible Notes..................33 Section 1.15 Tax Treatment............................................................33 Section 1.16 Transfer and Exchange....................................................33 ARTICLE 2 MISCELLANEOUS PROVISIONS............................................................38 Section 2.01 Recitals by the Company..................................................38 Section 2.02 Ratification and Incorporation of Original Indenture.....................39 Section 2.03 Executed in Counterparts.................................................39 Section 2.04 Governing Law............................................................39 Exhibit A Form of Floating Rate Convertible Senior Note Exhibit B Certificate of Authentication of Floating Rate Convertible Senior Note Exhibit C Projected Payment Schedule
(1) This Table of Contents does not constitute part of the Indenture or have any bearing upon the interpretation of any of its terms and provisions. THIS FIFTH SUPPLEMENTAL INDENTURE is made as of the 4th day of August 2003, by and between BAUSCH & LOMB INCORPORATED, a corporation duly organized and existing under the laws of the State of New York (herein referred to as the "Company", which term includes any successor Person under the Indenture hereinafter referred to) having its principal office at One Bausch & Lomb Place, Rochester, New York 14604 and CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, as trustee (hereinafter referred to as the "Trustee", which term includes any successor trustee under the Indenture). W I T N E S S E T H: WHEREAS, the Company and the Trustee have heretofore entered into an Indenture, dated as of September 1, 1991, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2, dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002, and Supplemental Indenture No. 4 dated August 1, 2003 (the "Original Indenture"), with the Trustee; WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as may be amended and supplemented to the date hereof, including by this Fifth Supplemental Indenture, is herein called the "Indenture"; WHEREAS, under the Indenture, a new series of Securities may at any time be established in accordance with the provisions of the Indenture and the terms of such series may be described by a supplemental indenture executed by the Company and the Trustee; WHEREAS, the Company hereby proposes to create under the Indenture a new series of Securities; WHEREAS, additional Securities of other series hereafter established, except as may be limited in the Indenture as at the time supplemented and modified, may be issued from time to time pursuant to the Indenture as at the time supplemented and modified; and WHEREAS, all conditions necessary to authorize the execution and delivery of this Fifth Supplemental Indenture and to make it a valid and binding obligation of the Company have been done or performed. NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE 1 FLOATING RATE CONVERTIBLE SENIOR NOTES DUE 2023 SECTION 1.01 ESTABLISHMENT. There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Company's Floating Rate Convertible Senior Notes due 2023 (the "Senior Convertible Notes"). There are to be authenticated and delivered $140,000,000 (or up to $160,000,000 if and to the extent the Initial Purchasers exercise their option to purchase up to an additional $20,000,000) principal amount of the Senior Convertible Notes, and no further Senior Convertible Notes shall be authenticated and delivered except as provided by Section 304, 305, 306, 906 or 1106 of the Original Indenture, the last paragraph of Section 301 thereof, Section 1.09(f) hereof and Section 1.10(c)(iv) hereof. The Senior Convertible Notes shall be issued in fully registered form without coupons. The Senior Convertible Notes shall be in substantially the form set out in Exhibit A hereto, and the form of the Trustee's Certificate of Authentication for the Senior Convertible Notes shall be in substantially the form set forth in Exhibit B hereto. Each Senior Convertible Note shall be dated the date of authentication thereof and shall bear interest from the date of original issuance thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Senior Convertible Notes issued on the date hereof will be: (i) offered and sold by the Company pursuant to the Purchase Agreement, and (ii) resold initially only to (A) QIBs in reliance on Rule 144A (such resold Senior Convertible Notes to be referred to herein as the "Rule 144A Securities"), and (B) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S (such resold Senior Convertible Notes to be referred to herein as the "Regulation S Securities" and, together with the Rule 144A Securities, the "Transfer Restricted Securities"). Such Transfer Restricted Securities may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S. SECTION 1.02 DEFINITIONS. The following defined terms used herein shall, unless the context otherwise requires, have the meanings specified below for purposes of the Senior Convertible Notes. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture. "Accreted Principal Amount" has the meaning provided in Section 1.03(c). "Applicable Procedures" means, with respect to any transfer or transaction involving a Regulation S Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Global Security, to the extent applicable to such transaction and as in effect from time to time. "Business Day" means, with respect to any security (including the Senior Convertible Notes), any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or a day on which the Corporate Trust Office of the Trustee is closed. "Calculation Agent" means Citibank, N.A. and any successor Calculation Agent hereunder. "Cash Settlement Averaging Period" means the 10 Trading Day period beginning on the Trading Day immediately following the final day of the Conversion Retraction Period. 2 "Cash Settlement Notice Period" means any time on or before the date which is two Business Days immediately following the Conversion Agent's receipt of a Holder's notice of conversion. "Change of Control" will be deemed to have occurred when: (i) any "person" or "group" within the meaning of Section 13(d) and 14(d) of the Exchange Act other than the Company, its subsidiaries or its or their employee benefit plans, is or becomes the direct or indirect ultimate "beneficial owner," as defined in Rule 13d-3 and 13d-5 under the Exchange Act, of the Company's common equity representing more than 50% of the combined voting power of the Company's then outstanding common equity entitled to vote generally in the election of directors; (ii) consummation of any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be reclassified into or exchanged into cash, securities or other property or any sale, assignment, conveyance, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its subsidiaries, taken as a whole, to any person other than the Company or one or more of its subsidiaries; provided, however, that a transaction where the Holders of the Company's common equity immediately prior to such transaction have directly or indirectly, more than 50% of the combined voting power of all classes of common equity then outstanding of the continuing or surviving corporation or transferee entitled to vote generally in the election of directors immediately after such event, in substantially the same respective proportions as immediately prior to such transaction, shall not be a Change of Control; or (iii) any time the Continuing Members of the Company's Board of Directors do not constitute a majority of the Company's Board of Directors (or any successor corporation thereto) where a Continuing Member is, as of any date of determination, any member of the Company's Board of Directors who: (i) was a member of the Board of Directors as of the date of this Fifth Supplemental Indenture, or (ii) was nominated for election or elected to the Board of Directors with the approval of a majority of the Continuing Members who were members of the Board of Directors at the time of such nomination or election. A Change of Control will not be deemed to have occurred in respect of clauses (i) and (ii) above, however, if either: (i) the Closing Sale Price of the Common Stock for any five Trading Days within the 10 consecutive Trading Days ending immediately after the later of the Change of Control or the public announcement of a Change of Control (in the case of a Change of Control under clauses (i) and (iii) above), equals or exceeds 110% of the accreted Conversion Price of the Senior Convertible Notes in effect on the date of the Change of Control or the public announcement thereof, or (ii) at least 90% of the consideration, excluding cash payments for fractional shares, in the transaction or transactions constituting the Change of Control consists of 3 shares of capital stock traded on the New York Stock Exchange or quoted on the Nasdaq National Market or which will be so traded or quoted when issued or exchanged in connection with a Change of Control (these securities being referred to as "publicly traded securities") and as a result of this transaction or transactions the Senior Convertible Notes become convertible into such publicly traded securities, excluding cash payments for fractional shares. For purposes of this Fifth Supplemental Indenture the term capital stock of any Person means any and all shares (including ordinary shares or American Depositary Shares), interests, participations, or other equivalents, however designated, of corporate stock or other equity participations, including partnership interests, whether general or limited, of such Person and any rights (other than debt securities convertible or exchangeable into an equity interest), warrants or options to acquire an equity interest in such Person. "Clearstream" means Clearstream Banking, societe anonyme, Luxembourg. "Closing Sale Price" of the Common Stock on any Trading Day means the last reported per share sale price (or if the last sale price is not reported, the average of the high and low sale prices) on such date as reported on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, such other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported by the Nasdaq National Market. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq National Market on the relevant date, the "Closing Sale Price" will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Common Stock is not so quoted, the "Closing Sale Price" will be the average of the mid-point of the last bid and asked prices for the Common Stock on the relevant date quoted by each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. "Common Stock" means the common stock, $0.40 par value, of the Company. "Company Purchase Notice" has the meaning provided in Section 1.09(a) hereof. "Company Purchase Notice Date" has the meaning provided in Section 1.09(a) hereof. "Contingent Interest" has the meaning provided in Section 1.03(e). "Conversion Agent" means the Trustee or such other office or agency designated by the Company where Senior Convertible Notes may be presented for conversion. "Conversion Date" has the meaning provided in Section 1.10(c)(i) hereof. "Conversion Price" means $1,000 divided by the Conversion Rate, initially $16.2760 per share of Common Stock. "Conversion Rate" has the meaning provided in Section 1.10(b) hereof. 4 "Conversion Retraction Period" means the two Business Day period beginning on the Business Day immediately following the final day of the Cash Settlement Notice Period. "Current Market Price" per share of Common Stock on any day means the average of the daily Closing Sale Price per share for the ten consecutive Trading Days ending not later than the earlier of: the day in question (including upon the occurrence of a Fundamental Change), and the day before the "ex date" with respect to the distribution requiring such computation. As used herein, the term "ex date," when used with respect to any distribution, shall mean the first date on which the Common Stock trades regular way on the exchange or in the market in which the security trades without the right to receive such distribution. "Definitive Securities" has the meaning provided in Section 1.05(a). "Depository" means DTC, ClearStream or Euroclear, as applicable. "Determination Date" means the second London Business Day immediately preceding the applicable Interest Reset Date. "DTC" means The Depository Trust Company, a limited-purpose trust company organized under the New York Banking Law. "Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear System. "Exchange Act" means the Securities and Exchange Act of 1934, as amended. "Expiration Time" has the meaning provided in Section 1.10(g)(vi) hereof. "Fundamental Change" will be deemed to have occurred at any time after the Original Issue Date upon a Change of Control or a Termination of Trading. "Fundamental Change Purchase Date" has the meaning provided in Section 1.07(a) hereof. "Fundamental Change Purchase Notice" has the meaning provided in Section 1.07(b)(i) hereof. "Fundamental Change Purchase Price" has the meaning provided in Section 1.07(a) hereof. "Initial Purchasers" means the several initial purchasers party to the Purchase Agreement. "Interest Payment Date" means each February 1 and August 1 of each year, commencing February 1, 2004. "interest period" means any six-month period from February 1 to July 31 and August 1 to January 31, as appropriate, commencing with the six-month period beginning August 1, 2003. "Interest Reset Date" has the meaning provided in Section 1.03(a). 5 "Liquidated Damages" has the meaning provided in paragraph 16 of the reverse of the form of Senior Convertible Notes. "LIBOR Business Day" means any day other than Saturday or Sunday or a day on which banking institutions or trust companies in the City of New York are required or authorized to close and that is also a London Business Day." "London Business Day" means any day on which dealings in deposits in U.S. dollars are transacted in the London Interbank market. "Option Exercise Date" has the meaning provided in Section 1.03(h) hereof. "Original Issue Date" means August 4, 2003. "Original Principal Amount" shall mean $140,000,000 (or up to $160,000,000 if and to the extent the Initial Purchasers exercise their option to purchase up to an additional $20,000,000) principal amount of the Senior Convertible Notes. "Purchase Agreement" means the Purchase Agreement, dated July 29, 2003, among the Company and Citigroup Global Markets Inc., as the representatives of the Initial Purchasers. "Purchase Price" means an amount equal to the principal amount of the Senior Convertible Notes to be purchased plus any accrued and unpaid interest to but excluding the Repurchase Date. "Purchased Shares" has the meaning provided in Section 1.10(g)(vi). "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "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 shareholders 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). "Redemption Date" has the meaning provided in Section 1.06(a) hereof. "Redemption Price" has the meaning provided in Section 1.06(a) hereof. "Registration Agreement" means the Registration Rights Agreement dated August 4, 2003, among the Company and the Initial Purchasers. "Regular Record Date" means, with respect to each Interest Payment Date, the close of business on January 15 and July 15 immediately preceding such Interest Payment Date (whether or not a Business Day). "Regulation S" means Regulation S under the Securities Act. 6 "Repurchase Date" has the meaning provided in Section 1.08(a) hereof. "Repurchase Notice" has the meaning provided in Section 1.08(b)(i) hereof. "Restated Principal Amount" has the meaning provided in Section 1.03(h) hereof. "Restricted Period" with respect to any securities means the period of one year beginning on and including the later of: (i) the day on which such securities are first offered to persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S, and (ii) the Original Issue Date with respect to such securities. "Restricted Securities Legend" means the legend set forth in Section 1.16(e)(i) herein. "Rule 144A" means Rule 144A under the Securities Act. "Securities Act" means the Securities Act of 1933, as amended. "Senior Convertible Notes" has the meaning provided in Section 1.01 hereof. "Shelf Registration Statement has the meaning provided in paragraph 16 of the reverse of the Senior Convertible Notes. "Six Month LIBOR" has the meaning provided in Section 1.03(a) hereof. "Spin-off Market Price" per share of the capital stock of, or similar equity interest in, a subsidiary of the Company on any day means the average of the daily Closing Sale Price for the 10 consecutive Trading Days commencing on and including the fifth Trading Day after the "ex date" with respect to the issuance or distribution requiring such computation. As used herein, the term "ex date," when used with respect to any issuance or distribution, shall mean the first date on which such capital stock trades regular way on the exchange or in the market in which the security trades without the right to receive such issuance or distribution. "Stated Maturity" means August 1, 2023. "Tax Event" means that the Company shall have received an opinion from independent tax counsel experienced in such matters to the effect that as a result of: (a) any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein; or (b) any amendment to, or change in, an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or regulatory authority, in each case which amendment or change is enacted, promulgated, issued or announced or which interpretation is issued or announced or which action is taken, on or after the date of this Fifth Supplemental Indenture, there is more than an insubstantial risk that accruals of Accreted Principal Amount payable on the Senior Convertible Notes either: (1) would not be deductible on a current accrual basis; or (2) would not be deductible under any other method, in either case in whole or in part, by the Company (by reason of deferral, disallowance, or otherwise) for U.S. federal income tax purposes. 7 If any legislative proposal were ever enacted and made applicable to the Senior Convertible Notes in a manner that would limit the Company's ability to either: (1) deduct the interest, including the accruals of Accreted Principal Amount, payable on the Senior Convertible Notes on a current accrual basis; or (2) deduct the interest, including the accruals of Accreted Principal Amount, payable on the notes under any other method for U.S. federal income tax purposes, such enactment would result in a Tax Event. "Tax Event Date" has the meaning provided in Section 1.03(h) hereof. "Termination of Trading" shall be deemed to have occurred if the Common Stock (or other capital stock into which the Senior Convertible Notes are then convertible) is neither listed for trading on the New York Stock Exchange nor approved for trading on the Nasdaq National Market. "Trading Day" means (a) if the applicable security is listed on the New York Stock Exchange or other U.S. national securities exchange or admitted for quotation on the Nasdaq National Market, a day on which the New York Stock Exchange or other U.S. national securities exchange or the Nasdaq National Market, as applicable, is open for trading, or (b) if the applicable security is not so listed, admitted for trading or quoted, any Business Day. "Trading Price" means, on any date, the average of the secondary market bid quotations for the Senior Convertible Notes obtained by the Trustee for $5,000,000 Original Principal Amount of Senior Convertible Notes at approximately 3:30 p.m., New York City time, on such 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 Trustee, but two bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, one bid shall be used; and provided further that if the Trustee cannot reasonably obtain at least one bid for $5,000,000 Original Principal Amount of Senior Convertible 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 Senior Convertible Notes, then the Trading Price per $1,000 Original Principal Amount of Senior Convertible Notes shall be deemed to be less than 97% of the product of: (a) the number of shares of Common Stock issuable upon conversion of $1,000 Original Principal Amount of Senior Convertible Notes and (b) the Closing Sale Price on such date. "Trustee" has the meaning provided in the preamble hereof. "Yield Reset Date" means each February 1 and August 1 of each year, commencing August 1, 2010. SECTION 1.03 PAYMENT OF PRINCIPAL AND INTEREST. (a) The Accreted Principal Amount of the Senior Convertible Notes shall be due at Stated Maturity. The Senior Convertible Notes will bear cash interest on the Original Principal Amount at the annual rate of Six Month LIBOR plus 0.50% reset semi-annually on each Interest 8 Payment Date (such day being an "Interest Reset Date"); provided that such rate will never be less than 0%, from the Original Issue Date, or from the most recent date to which interest has been paid or provided for, until August 1, 2010. During such period, the Company will pay cash interest semi-annually in arrears on each Interest Payment Date to Holders of record at the close of business on each Regular Record Date immediately preceding such Interest Payment Date. The interest rate in effect for the Senior Convertible Notes on any day will be (a) if that day is an Interest Reset Date, the interest determined as of the Determination Date immediately preceding such Interest Reset Date, or (b) if that day is not an Interest Reset Date, the interest rate determined as of the Determination Date immediately preceding the most recent Interest Reset Date. Each payment of cash interest on the Senior Convertible Notes will include interest (including Contingent Interest, if any) and Liquidated Damages, if any, accrued through the day immediately preceding the most recent Interest Payment Date (or the Repurchase Date, Redemption Date, Fundamental Change Purchase Date or, in certain circumstances, the Conversion Date, as the case may be). Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day. LIBOR will be determined by the Calculation Agent as of the applicable determination date in accordance with the following provisions ("Six-Month LIBOR"): (i) the rate for six-month deposits in US dollars commencing on the related Interest Reset Date, that appears on the Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the interest Determination Date; or (ii) if no rate appears on the particular interest Determination Date on the Moneyline Telerate Page 3750, the rate calculated by the Calculation Agent as the arithmetic mean of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in US dollars for the period of six months, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that interest Determination Date and in a principal amount that is representative for a single transaction in US dollars in that market at that time; or (iii) if fewer than two offered quotations referred to in clause (ii) are provided as requested, the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., New York time, on the particular interest Determination Date by three major banks in The City of New York selected by the Calculation Agent for loans in US dollars to leading European banks for a period of six months and in a principal amount that is representative for a single transaction in US dollars in that market at that time; or (iv) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (iii), six-month LIBOR determined on the preceding interest Determination Date. (v) "Moneyline Telerate Page 3750" means the display on Moneyline Telerate (or any successor service) on such page (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for US dollars. 9 (b) If the Stated Maturity date of the Senior Convertible Notes falls on a day that is not a LIBOR Business Day, the related payment of principal and interest will be made on the next LIBOR Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and after such Stated Maturity date to the next LIBOR Business Day. If any Interest Reset Date or Interest Payment Date (other than at the date of Stated Maturity) would otherwise be a day that is not a LIBOR Business Day, that Interest Reset Date and Interest Payment Date will be postponed to the next date that is a LIBOR Business Day, except that if such LIBOR Business Day is in the next calendar month, such Interest Reset Date and Interest Payment Date (other than at the date of Stated Maturity) shall be the immediately preceding LIBOR Business Day. (c) Until August 1, 2010, the accreted principal amount (the "Accreted Principal Amount") of a Senior Convertible Note will be equal to the Original Principal Amount of $1,000. Beginning August 1, 2010, the Senior Convertible Note shall not bear interest, except as specified in this paragraph. From such date, the Original Principal Amount shall commence increasing daily by the annual rate of Six Month LIBOR plus 0.50% reset on each Interest Reset Date; provided that such rate will never be less than 0%, to produce the Accreted Principal Amount. The Accreted Principal Amount will compound semi-annually, not daily. On Stated Maturity, the Holder of this Senior Convertible Note will receive the fully Accreted Principal Amount of this Senior Convertible Note on such date, unless the Senior Convertible Note has been earlier redeemed, repurchased or converted. Unless cash interest is payable as provided in Section 1.03(a) or (h) hereof, the accrued yield shall be added to the Accreted Principal Amount per Senior Convertible Note as of the day preceding the most recent Yield Reset Date. The yield will be calculated using the actual number of days elapsed between the Yield Reset Dates divided by 360. (d) If the Accreted Principal Amount hereof or any portion of such Accreted Principal Amount is not paid when due (whether upon acceleration pursuant to Section 502 of the Original Indenture, upon the date set for payment of the Redemption Price, upon the date set for payment of the Purchase Price or Fundamental Change Purchase Price or upon the Stated Maturity of the Senior Convertible Notes) or if installments of cash interest due hereon as provided in Section 1.03(a) or (h) are not paid when due in accordance with this Section, then in each such case, the overdue amount shall, to the extent permitted by law, bear interest at Six Month LIBOR plus 0.50% reset on each Interest Reset Date (provided that such rate will never be less than 0%) as such rate is in effect following the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on demand. The accrual of such interest on overdue amounts shall be in lieu of, and not in addition to, any subsequent increase in the Accreted Principal Amount. (e) The Company will pay contingent interest ("Contingent Interest") to the Holders of the Senior Convertible Notes in respect of any six-month interest period from February 1 to July 31 and from August 1 to January 31, commencing on or after August 1, 2010 for which the average Trading Price of a Senior Convertible Note for the applicable five Trading Day reference period equals or exceeds 120% of the sum of the Accreted Principal Amount and accrued interest, if any, for a Senior Convertible Note as of the day immediately preceding the first day of the applicable six-month interest period. The "five Trading Day reference period" means the five Trading Days ending on the third Trading Day immediately preceding the relevant Interest 10 Reset Date. For any six-month interest period in respect of which the Contingent Interest is payable, the Contingent Interest payable on each $1,000 principal amount of Notes shall be equal to 0.30% of the average Trading Price of a Senior Convertible Note for the applicable five Trading Day reference period. No Contingent Interest shall be payable on Senior Convertible Notes redeemed on August 1, 2010 (or, if August 1, 2010 is not a Business Day, on the next following Business Day). Upon determination that Holders will be entitled to receive Contingent Interest in respect of a six-month interest period, the Company shall notify the Holders. In connection with providing such notice, the Company will issue a press release containing information regarding the Contingent Interest determination or publish such information on the Company's then existing website or through such other public medium as the Company may use at that time. (f) Interest, including Contingent Interest, if any, on any Senior Convertible Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Senior Convertible Note is registered at the close of business on the Regular Record Date for such interest or Contingent Interest, if any, at the office or agency of the Company maintained for such purpose. Each installment of interest or Contingent Interest, if any, on any Senior Convertible Note shall be paid in same-day funds by transfer to an account maintained by the payee located inside the United States. (g) The amount of interest, including Contingent Interest, if any, payable for any period shall be computed on the basis of the actual number of days elapsed over a 360-day year. The amount of interest, including Contingent Interest, if any, payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month. In the event that any Interest Payment Date on a Senior Convertible Note is not a Business Day, then a payment of the interest, including Contingent Interest, if any, payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date of the payment was originally payable. (h) From and after the date (the "Tax Event Date") of the occurrence of a Tax Event after August 1, 2010, the Company shall have the option to elect by notice to the Trustee, in lieu of having Accreted Principal Amount increase, to have interest accrue and be paid in cash at the annual rate equal to Six Month LIBOR plus 0.50%, reset on each Interest Reset Date; provided that such rate shall never be less than 0%, on a Restated Principal Amount per $1,000 Original Principal Amount (the "Restated Principal Amount") equal to the accrued Accreted Principal Amount through the Tax Event Date or the date the Company exercises the option provided for in this section, whichever is later (the "Option Exercise Date"). Such interest shall be payable semi-annually on February 1 and August 1 of each year to Holders of record at the close of business on January 15 and July 15 immediately preceding such Interest Payment Date. Interest will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from the Option Exercise Date. The Trustee shall notify Holders of Senior Convertible Notes within 15 days after the Option Exercise Date that the Company has exercised the option provided for in this Section. 11 SECTION 1.04 DENOMINATIONS. The Senior Convertible Notes shall be issued in denominations of $1,000 and any integral multiple thereof. SECTION 1.05 GLOBAL SECURITIES. (a) The Senior Convertible Notes shall initially be issued in the form of one or more Global Securities registered in the name of the Depositary (which initially shall be The Depository Trust Company) or its nominee. Except under the limited circumstances described below, Senior Convertible Notes represented by such Global Security or Global Securities shall not be exchangeable for, and shall not otherwise be issuable as, Senior Convertible Notes in definitive form ("Definitive Securities"). The Global Securities described in this Article 1 may not be transferred except 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 to a successor Depositary or its nominee. (b) A Global Security shall be exchangeable for Senior Convertible Notes registered in the names of Persons other than the Depositary or its nominee only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Security and no successor Depositary shall have been appointed by the Company within 90 days of receipt by the Company of such notification, or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered to act as such Depositary and no successor Depositary shall have been appointed by the Company within 90 days after it becomes aware of such cessation, or (ii) the Company in its sole discretion determines that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Senior Convertible Notes registered in such names as the Depositary shall direct. (c) Transfers, exchanges and forms of the Senior Convertible Notes are further subject to the provisions of Section 1.16. SECTION 1.06 REDEMPTION AT THE OPTION OF THE COMPANY. (a) The Senior Convertible Notes are redeemable as a whole, or from time to time in part, on any date (a "Redemption Date") at the option of the Company at 100% of the Accreted Principal Amount of the Senior Convertible Notes, plus any accrued and unpaid interest and Liquidated Damages to the Redemption Date (the "Redemption Price"), provided that the Senior Convertible Notes are not redeemable prior to August 1, 2010. If this Senior Convertible Note has been converted to a semi-annual cash interest paying note following the occurrence of a Tax Event and an Option Exercise Date, the Redemption Price will be equal to the Restated Principal Amount plus accrued and unpaid interest (including Contingent Interest, if any) and Liquidated Damages, if any, from the date of such conversion to but not including the Redemption Date; but in no event will this Senior Convertible Note be redeemable before August 1, 2010. (b) The Company shall notify each Holder and the Trustee of the redemption pursuant to Section 1104 of the Original Indenture. (c) If any Senior Convertible Notes selected for partial redemption are thereafter surrendered for conversion in part before termination of the conversion right with respect to the portion of the Senior Convertible Notes so selected, the converted portion of such Senior Convertible Notes shall be deemed (so far as may be), solely for purposes of determining the 12 aggregate principal amount of Senior Convertible Notes to be redeemed by the Company, to be the portion selected for redemption. Senior Convertible Notes which have been converted during a selection of Senior Convertible Notes to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection. Nothing in this Section 1.06(c) shall affect the right of any Holder to convert any Senior Convertible Notes before the termination of the conversion right with respect thereto. If the Company decides to redeem fewer than all of the outstanding Senior Convertible Notes then the Trustee will select the Senior Convertible Notes to be redeemed (in principal amount of $1,000 or integral multiples thereof) by lot, or on a pro rata basis or by another method the Trustee considers fair and appropriate. (d) In addition to those matters set forth in Section 1104 of the Indenture, a notice of redemption sent to the Holders of Senior Convertible Notes shall state: (i) the name of the Paying Agent and Conversion Agent; (ii) the then current Conversion Rate; (iii) that the Senior Convertible Notes called for redemption may be converted at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date; and (iv) that Holders who wish to convert Senior Convertible Notes must comply with the procedures in Section 1.10 hereof and paragraph 7 of the reverse of the Senior Convertible Notes. (e) The Senior Convertible Notes shall not have a sinking fund. SECTION 1.07 PURCHASE AT THE OPTION OF THE HOLDER UPON A FUNDAMENTAL CHANGE. (a) Each Holder shall have the right, at such Holder's option, to require the Company to purchase any or all of such Holder's Senior Convertible Notes for cash in integral multiples of $1,000 Original Principal Amount held by such Holder by delivery to the Paying Agent (as hereinafter provided) of a Fundamental Change Purchase Notice no later than 60 Business Days after the occurrence of a Fundamental Change of the Company (a "Fundamental Change Purchase Date") for a Fundamental Change purchase price (the "Fundamental Change Purchase Price") equal to 100% of the Accreted Principal Amount of such Senior Convertible Notes plus accrued and unpaid interest, including Contingent Interest, if any, and Liquidated Damages, if any, to but not including the Fundamental Change Purchase Price Date, which Fundamental Change Purchase Price shall be paid in cash. No Senior Convertible Notes may be purchased at the option of the Holders due to a Fundamental Change if there has occurred and is continuing an Event of Default (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price of such Senior Convertible Notes). (b) EXERCISE OF FUNDAMENTAL CHANGE OPTION. For a Senior Convertible Note to be so purchased at the option of the Holder pursuant to this Section 1.07, the Paying Agent must receive, no later than 60 Business Days after the occurrence of a Fundamental Change: (i) a written notice of purchase (a "Fundamental Change Purchase Notice") substantially in the form entitled "Form of Fundamental Change Purchase Notice" on the 13 reverse of the Senior Convertible Note duly completed, on or before the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with applicable law. The Fundamental Change Purchase Notice shall state: (1) if certificated, the certificate numbers of the Senior Convertible Notes which the Holder shall deliver to be purchased; (2) the portion of the principal amount of the Senior Convertible Notes which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and (3) that such Senior Convertible Notes shall be purchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Senior Convertible Notes and in the Indenture; (ii) delivery or book-entry transfer of such Senior Convertible Notes prior to, on or after the Fundamental Change Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent, such delivery or transfer 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 1.07 only if the Senior Convertible Notes so delivered or transferred to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Purchase Notice. SECTION 1.08 PURCHASE OF SENIOR CONVERTIBLE NOTES AT THE OPTION OF THE HOLDER. (a) On each of August 1, 2010, August 1, 2013 and August 1, 2018 (each, a "Repurchase Date"), each Holder shall have the right, at such Holder's option, to require the Company to purchase any or all of such Holder's Senior Convertible Notes. The Company shall purchase such Senior Convertible Notes at a price equal to 100% of the Accreted Principal Amount of the Senior Convertible Notes to be purchased plus any accrued and unpaid interest, including Contingent Interest, if any, and Liquidated Damages, if any, on the principal amount to be purchased to but excluding the Repurchase Date. If prior to a Repurchase Date this Senior Convertible Note has been converted to a semi-annual coupon note following the occurrence of a Tax Event, the Purchase Price will be equal to the Restated Principal Amount plus accrued and unpaid cash interest, including Contingent Interest, if any, and Liquidated Damages, if any, from the date of conversion to the Repurchase Date but not including the Repurchase Date. (b) EXERCISE OF REPURCHASE OPTION. For a Senior Convertible Note to be so purchased at the option of the Holder, the Paying Agent must receive: (i) a written notice of purchase (a "Repurchase Notice") substantially in the form entitled "Form of Repurchase Notice" on the reverse of the Senior Convertible Note duly completed, at any time from the opening of business on the date that is 20 Business Days prior to a Repurchase Date until the close of business on the third Business Day prior to such Repurchase Date. The Repurchase Notice shall state: 14 (1) if certificated, the certificate numbers of the Senior Convertible Notes which the Holder shall deliver to be purchased; (2) the portion of the principal amount of the Senior Convertible Notes which the Holder shall deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and (3) that such Senior Convertible Notes shall be purchased as of the Repurchase Date pursuant to the terms and conditions specified in the Senior Convertible Notes and in the Indenture. (ii) delivery or book-entry transfer of such Senior Convertible Notes to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent, such delivery or transfer being a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 1.08 only if the Senior Convertible Notes so delivered or transferred to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice. SECTION 1.09 FURTHER CONDITIONS AND PROCEDURES FOR PURCHASE UPON A FUNDAMENTAL CHANGE AND PURCHASE AT THE OPTION OF THE HOLDER. (a) NOTICE OF REPURCHASE DATE OR FUNDAMENTAL CHANGE. The Company shall send notices (each, a "Company Purchase Notice") to the Holders (and to beneficial owners as required by applicable law) at their addresses shown in the Senior Convertible Note register maintained by the Security Registrar, and shall deliver a copy of each such notice to the Trustee and Paying Agent, not less than 20 Business Days prior to each Repurchase Date, or on or before the 20th day after the occurrence of the Fundamental Change, as the case may be (each such date of delivery, a "Company Purchase Notice Date"). Any such notice delivered to the Trustee and the Paying Agent with respect to a Fundamental Change shall be accompanied by an Officers' Certificate certifying that a Fundamental Change has occurred and as to the date of the occurrence thereof, on which Certificate the Trustee and the Paying Agent may conclusively rely. Each Company Purchase Notice shall include a Form of Repurchase Notice or Fundamental Change Purchase Notice to be completed by a Holder and shall state: (i) the applicable Purchase Price or Fundamental Change Purchase Price, excluding accrued and unpaid interest, the applicable Conversion Rate at the time of such notice (and any applicable adjustments to the Conversion Rate) and, to the extent known at the time of such notice, the amount of interest that will be payable with respect to the Senior Convertible Notes on the applicable Repurchase Date or Fundamental Change Purchase Date; (ii) if the notice relates to a Fundamental Change, the events causing the Fundamental Change and the date of the Fundamental Change; (iii) the Repurchase Date or Fundamental Change Purchase Date; (iv) the last date on which a Holder may exercise its purchase right; 15 (v) the name and address of the Paying Agent and the Conversion Agent; (vi) that Senior Convertible Notes must be surrendered to the Paying Agent to collect payment of the Purchase Price or Fundamental Change Purchase Price; (vii) that Senior Convertible Notes as to which a Repurchase Notice or Fundamental Change Purchase Notice has been given by the Holder to the Company may be converted only if the applicable Repurchase Notice or Fundamental Change Purchase Notice has been withdrawn by the Holder in accordance with the terms of this Fifth Supplemental Indenture; provided that the Senior Convertible Notes are otherwise convertible in accordance with paragraph 7 of the reverse of the Senior Convertible Notes; (viii) that the Purchase Price or Fundamental Change Purchase Price for any Senior Convertible Notes as to which a Repurchase Notice or a Fundamental Change Purchase Notice, as applicable, has been given and not withdrawn shall be paid by the Paying Agent promptly following the later of the Repurchase Date or Fundamental Change Purchase Date, as applicable, or the time of book-entry transfer or delivery of such Senior Convertible Notes; (ix) the procedures the Holder must follow under Sections 1.07 or 1.08, as applicable, and this Section 1.09; (x) briefly, the conversion rights of the Senior Convertible Notes and whether, at the time of such notice, the Convertible Senior Notes are eligible for conversion; (xi) that, unless the Company defaults in making payment of such Purchase Price or Fundamental Change Purchase Price on Senior Convertible Notes covered by any Repurchase Notice or Fundamental Change Purchase Notice, as applicable, interest will cease to accrue on and after the Repurchase Date or Fundamental Change Purchase Date, as applicable; (xii) the CUSIP and, if applicable, the ISIN number of the Senior Convertible Notes; and (xiii) the procedures for withdrawing a Repurchase Notice or Fundamental Change Purchase Notice. Simultaneously with providing such Company Purchase Notice, the Company will publish a notice containing the information in such Company Purchase Notice in a newspaper of general circulation in The City of New York or publish such information on its then existing web site or through such other public medium as it may use at the time. At the Company's request, made at least five Business Days prior to the date upon which such notice is to be mailed, and at the Company's expense, the Paying Agent shall give the Company Purchase Notice in the Company's name; provided, however, that, in all cases, the text of the Company Purchase Notice shall be prepared by the Company. 16 (b) EFFECT OF REPURCHASE NOTICE OR FUNDAMENTAL CHANGE PURCHASE NOTICE. Upon receipt by the Paying Agent on behalf of the Company from the Holder of the Fundamental Change Purchase Notice or the Repurchase Notice specified in Section 1.07(b)(i) or Section 1.08(b)(i), as applicable, the Holder of the Senior Convertible Notes in respect of which such Fundamental Change Purchase Notice or the Repurchase Notice, as the case may be, was given shall (unless such Fundamental Change Purchase Notice or the Repurchase Notice is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive solely the Fundamental Change Purchase Price or the Purchase Price with respect to such Senior Convertible Notes. Such Fundamental Change Purchase Price or Purchase Price shall be paid by the Paying Agent to such Holder promptly following the later of (x) the Fundamental Change Purchase Date or the Repurchase Date, as the case may be, with respect to such Senior Convertible Notes (provided the conditions in Section 1.07(b) or Section 1.08(b), as applicable, have been satisfied), and (y) the time of delivery or book-entry transfer of such Senior Convertible Notes to the Paying Agent by the Holder thereof in the manner required by Section 1.07(b)(ii) or Section 1.08(b)(ii), as applicable. Senior Convertible Notes in respect of which a Fundamental Change Purchase Notice or Repurchase Notice, as the case may be, has been given by the Holder thereof may not be converted for shares of Common Stock on or after the date of the delivery of such Fundamental Change Purchase Notice or Repurchase Notice, as the case may be, unless such Fundamental Change Purchase Notice or Repurchase Notice, as the case may be, has first been validly withdrawn or deemed to have been validly withdrawn as specified in Section 1.09(c); provided that the Senior Convertible Notes are otherwise convertible in accordance with paragraph 7 of the reverse of the Senior Convertible Notes. On or before 10:00 a.m. (New York City time) on the Fundamental Change Purchase Date or the Repurchase Date, as the case may be, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust) the Purchase Price consideration sufficient to pay the aggregate Fundamental Change Purchase Price or the aggregate Purchase Price, as the case may be, of the Senior Convertible Notes to be purchased pursuant to Section 1.07 or Section 1.08, as applicable. Payment by the Paying Agent of such Fundamental Change Purchase Price or Purchase Price for such Senior Convertible Notes shall be made promptly following the later of the Fundamental Change Purchase Date or the Repurchase Date, as the case may be, or the time of book-entry transfer or delivery of such Senior Convertible Notes. If the Paying Agent holds money sufficient to pay the Fundamental Change Purchase Price or Purchase Price, as the case may be, of such Senior Convertible Notes on the Business Day following the Fundamental Change Purchase Date or the Repurchase Date, as the case may be, then, on and after such date, such Senior Convertible Notes shall cease to be outstanding and interest on such Senior Convertible Notes shall cease to accrue, whether or not book-entry transfer of such Senior Convertible Notes is made or such Senior Convertible Notes are delivered to the Paying Agent, and all other rights of the Holder shall terminate (other than the right to receive the Fundamental Change Purchase Price or the Purchase Price, as the case may be, upon delivery or transfer of the Senior Convertible Notes). Nothing herein shall preclude the Company withholding any tax required by law. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of the Fundamental Change Purchase Price or the Purchase 17 Price, as the case may be, and shall notify the Trustee of any default by the Company in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to deliver all money held by it pursuant to this Section 1.09 to the Trustee and to account for any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall have no further liability for the money delivered to the Trustee. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Senior Convertible Notes for purchase shall be determined by the Company, whose determination shall be final and binding, absent manifest error. (c) WITHDRAWAL OF A REPURCHASE NOTICE OR FUNDAMENTAL CHANGE PURCHASE NOTICE. A Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to 5:00 p.m. New York City time on the Repurchase Date or the Fundamental Change Purchase Date, as the case may be, to which it relates specifying: (i) if certificated, the certificate number of the Senior Convertible Notes in respect of which such notice of withdrawal is being submitted; (ii) the principal amount of the Senior Convertible Notes with respect to which such notice of withdrawal is being submitted; and (iii) the principal amount, if any, of such Senior Convertible Notes which remains subject to the Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, and which has been or shall be transferred or delivered for purchase by the Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or Fundamental Change Purchase Notice or written notice of withdrawal thereof. (d) Notwithstanding the requirements of Sections 1.07 or 1.08 and this Section 1.09, if the Senior Convertible Notes are represented by Global Securities in book-entry form the appropriate procedures of the Depositary must be complied with for any purchase upon a Fundamental Change or Repurchase Option. (e) EFFECT OF EVENT OF DEFAULT. There shall be no purchase of any Senior Convertible Notes pursuant to Section 1.07 or Section 1.08 if an Event of Default has occurred and is continuing (other than a default that is cured by the payment of the Purchase Price or Fundamental Change Purchase Price, as the case may be). The Paying Agent shall promptly return to the respective Holders thereof any Senior Convertible Notes: (x) with respect to which a Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, has been withdrawn in compliance with this Fifth Supplemental Indenture, or (y) held by it during the continuance of an Event of Default (other than a default that is cured by the payment of the Purchase Price or Fundamental Change Purchase Price, as the case may be) in which case, upon such return, the Repurchase Notice or Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn. 18 (f) SENIOR CONVERTIBLE NOTES PURCHASED IN PART. Any Senior Convertible Notes that are to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee or the Authenticating Agent, if any, shall authenticate and deliver to the Holder of such Senior Convertible Notes, without service charge, a new Senior Convertible Note or Senior Convertible 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 Senior Convertible Notes so surrendered which is not purchased. (g) COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF SENIOR CONVERTIBLE NOTES. In connection with any offer to purchase Senior Convertible Notes under Sections 1.07 or 1.08 hereof, the Company shall, to the extent applicable, (i) comply with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the Exchange Act, if applicable, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, if applicable and (iii) otherwise comply with all applicable federal and state securities laws so as to permit the rights and obligations under Sections 1.07, 1.08 or this Section 1.09 to be exercised in the manner specified in Sections 1.07, 1.08 or this Section 1.09; provided, however, that the Company shall not take any action in violation of any applicable federal or state securities laws. (h) REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent shall return to the Company any cash or property that remains unclaimed as provided in Section 1003 of the Original Indenture, together with any unclaimed interest, held by them for the payment of a Purchase Price or Fundamental Change Purchase Price, as the case may be; provided, however, that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 1.09(b), as applicable, exceeds the aggregate Purchase Price or Fundamental Change Purchase Price, as the case may be, of the Senior Convertible Notes or portions thereof which the Company is obligated to purchase as of the Repurchase Date or Fundamental Change Purchase Date, as the case may be, then promptly on and after the Business Day following the Repurchase Date or Fundamental Change Purchase Date, as the case may be, the Trustee or the Paying Agent, as the case may be, shall return any such excess to the Company together with any excess interest held by them for payment to Holders. (i) In any case where a Repurchase Date or a Fundamental Change Purchase Date shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of the Indenture or the Senior Convertible Notes) payment of interest and the Purchase Price or the Fundamental Change Purchase Price, as the case may be, need not be made at such Place of Payment on such date (provided that all other conditions therefor have been complied with), but may be made on the next succeeding Business Day at such Place of Payment (provided that such conditions have been complied with) with the same force and effect as if made on the Repurchase Date or the Fundamental Change Purchase Date, as the case may be (and without any interest or payment in respect of any such delay). 19 SECTION 1.10 CONVERSION OF SENIOR CONVERTIBLE NOTES. (a) RIGHT TO CONVERT. A Holder may convert its Senior Convertible Notes for Common Stock at any time during the periods specified in paragraph 7 of the reverse of the Senior Convertible Notes. In lieu of delivery of shares of Common Stock, the Company shall have the option to satisfy its conversion obligations in cash as provided herein; provided, however, that the Company shall not have such option at Stated Maturity or following a notice of redemption pursuant to Section 1.06 hereof. (b) THE CONVERSION RATE. The initial Conversion Rate is 16.2760 shares of Common Stock issuable upon conversion of $1,000 principal amount of a Senior Convertible Note (the "Conversion Rate"), subject to adjustment as herein set forth. A Holder may convert a portion of the principal amount of Senior Convertible Notes if the portion is $1,000 or an integral multiple thereof. If the Company elects to satisfy its conversion obligations in cash, the Holder will receive cash (subject to adjustment as herein set forth) equal to the product of (x) the product of (A) the Original Principal Amount of the Senior Convertible Notes to be converted divided by 1,000 and (B) the Conversion Rate, and (y) the average Closing Sale Price of the Common Stock during the Cash Settlement Averaging Period. (c) CONVERSION PROCEDURES. To convert Senior Convertible Notes, the requirements set forth in this Section 1.10(c) and in paragraph 7 of the reverse of the Senior Convertible Notes must be satisfied. (i) To convert the Senior Convertible Notes, a Holder must (1) complete and manually sign the irrevocable conversion notice on the back of the Senior Convertible Notes (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent at the office maintained by the Conversion Agent for such purpose, (2) with respect to Senior Convertible Notes in certificated form, surrender the Senior Convertible Notes to the Conversion Agent or with respect to Senior Convertible Notes represented by Global Securities, cause the book-entry transfer thereof to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if required. The date on which the Holder satisfies all such requirements is the conversion date (the "Conversion Date"). As soon as practicable, but in no event later than the fifth Business Day following the Conversion Date, the Company shall deliver to the Holder, through the Conversion Agent, a certificate (or credit the book-entry transfer of such shares of Common Stock) for the number of full shares of Common Stock issuable upon the conversion and cash in lieu of any fractional share determined pursuant to Section 1.10(d). (ii) Holders of Senior Convertible Notes at the close of business on a Regular Record Date will receive payment of interest payable on the corresponding Interest Payment Date notwithstanding the conversion of such Senior Convertible Notes at any time after the close of business on such Regular Record Date. Senior Convertible Notes surrendered for conversion by a Holder during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest that 20 the Holder is to receive on the Senior Convertible Notes; provided, however, that no such payment need be made with respect to Senior Convertible Notes in respect of which a Redemption Date or Fundamental Change Purchase Date has been set that falls within this period or on such Interest Payment Date or to the extent any overdue interest exists at the time of such conversion. Except as described above, no payment or adjustment will be made for accrued interest on converted Senior Convertible Notes. Upon conversion of Senior Convertible Notes, a Holder will not receive any cash payment of interest (unless such conversion occurs between a Regular Record Date and the Interest Payment Date to which it relates) and the Company will not adjust the Conversion Rate to account for accrued and unpaid interest. (iii) The Person in whose name the certificate for such shares of Common Stock is registered shall be treated as a stockholder of record on and after the Conversion Date; provided, however, that no surrender of Senior Convertible Notes on any date when the stock transfer books of the Company shall be closed shall be effective to constitute the Person or Persons entitled to receive the shares of Common Stock upon such conversion as the record Holder or Holders of such shares of Common Stock on such date, but such surrender shall be effective to constitute the Person or Persons entitled to receive such shares of Common Stock as the record Holder or Holders thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open; such conversion shall be at the Conversion Rate in effect on the date that such Senior Convertible Notes shall have been surrendered for conversion, as if the stock transfer books of the Company had not been closed. Upon conversion of Senior Convertible Notes, such Person shall no longer be a Holder of such Senior Convertible Notes. (iv) No payment or adjustment shall be made for dividends on or other distributions with respect to any Common Stock except as provided in Section 1.10(g). If a Holder converts more than one Senior Convertible Note at the same time, the number of shares of Common Stock issuable upon the conversion shall be based on the total principal amount of the Senior Convertible Notes converted. Upon surrender of a Senior Convertible Note that is converted in part, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder, a new Senior Convertible Note in an authorized denomination equal in principal amount to the unconverted portion of the Senior Convertible Note surrendered. If the last day on which Senior Convertible Notes may be converted is not a Business Day in a place where a Conversion Agent is located, the Senior Convertible Notes may be surrendered to that Conversion Agent on the next succeeding day that is a Business Day. A Holder of Senior Convertible Notes is not entitled to any rights of a Holder of Common Stock until such Holder has converted its Senior Convertible Notes to Common Stock, and only to the extent such Senior Convertible Notes are deemed to have been converted into Common Stock pursuant to this Section 1.10. (v) In the event the Company exercises its option pursuant to Section 1.03(h) to have, in lieu of having the Accreted Principal Amount increase, interest accrue on the Senior Convertible Note following a Tax Event, the Holder will be entitled on conversion to receive the same number of shares of Common Stock such Holder would have 21 received if the Company had not exercised such option. Increases in the Accreted Principal Amount and cash interest (including Contingent Interest, if any, and interest payable upon the occurrence of a Tax Event, if any) will not be paid on Senior Convertible Notes that are converted, except accrued cash interest will be payable upon conversion of Senior Convertible Notes made concurrently with or after acceleration of Senior Convertible Notes following the Event of Default. (vi) If a Holder of Senior Convertible Notes has already delivered a Fundamental Change Purchase Notice or Repurchase Notice with respect to a Senior Convertible Note, then the Holder may not surrender such Senior Convertible Note for conversion until the Holder has withdrawn the applicable Fundamental Change Purchase Notice or Repurchase Notice in accordance with the provisions hereof. (vii) On conversion of a Senior Convertible Note, increases in the Accreted Principal Amount or cash interest (or interest if the Company has exercised its option provided for in Section 1.03(h) hereof) attributable to the period from the Original Issue Date (or, if the Company has exercised the option provided for in Section 1.03(h) hereof, the later of (x) the date of such exercise and (y) the date on which interest was last paid) through the Conversion Date shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Senior Convertible Note being converted pursuant to the terms of the Senior Convertible Notes, and the fair market value of such shares of Common Stock (together with any such cash payment in lieu of fractional shares) shall be treated as issued, to the extent thereof, first in exchange for increases in the Accreted Principal Amount or cash interest (or interest, if the Company has exercised its option provided for in Section 1.03(h) hereof) accrued through the Conversion Date, and the balance, if any, of such fair market value of such Common Stock (and any such cash payment) shall be treated as issued in exchange for the Original Principal Amount of the Senior Convertible Note being converted pursuant to the provisions of the Senior Convertible Notes. (viii) If the Company elects to exercise its option to satisfy its conversion obligation in cash, it shall notify the Conversion Agent of such election during the Cash Settlement Notice Period. Upon such timely notice, Holders may retract their conversion notice at any time during the Conversion Retraction Period (notwithstanding anything contained herein to the contrary). Unless a conversion notice has been retracted pursuant to the preceding sentence, settlement in cash through the Conversion Agent shall occur on the Business Day immediately following the Cash Settlement Averaging Period. (d) CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. The Company shall not issue a fractional share of Common Stock upon conversion of Senior Convertible Notes. Instead the Company shall deliver cash for the current market value of the fractional share. The current market value of a fractional share shall be determined to the nearest 1/10,000th of a share by multiplying the Last Reported Sale Price of a full share of Common Stock on the Trading Day immediately preceding the Conversion Date by the fractional amount and rounding the product to the nearest whole cent. 22 (e) TAXES ON CONVERSION. If a Holder converts Senior Convertible Notes, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of Common Stock upon the conversion. However, the Holder shall pay any such tax which is due because the Holder requests the shares to be issued in a name other than the Holder's name. The Conversion Agent may refuse to deliver the certificates representing the Common Stock being issued in a name other than the Holder's name until the Conversion Agent receives a sum sufficient to pay any tax which shall be due because the shares are to be issued in a name other than the Holder's name. Nothing herein shall preclude the Company's withholding any tax required by law. (f) COVENANTS OF THE COMPANY. The Company shall, prior to issuance of any Senior Convertible Notes hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Common Stock a sufficient number of shares of Common Stock to permit the conversion of the Senior Convertible Notes. All shares of Common Stock delivered upon conversion of the Senior Convertible Notes shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim. The Company shall endeavor promptly to comply with all federal and state securities laws regulating the order and delivery of shares of Common Stock upon the conversion of Senior Convertible Notes, if any, and shall cause to have listed or quoted all such shares of Common Stock on the New York Stock Exchange, or, if not listed thereon, on each United States national securities exchange or over-the-counter or other domestic market on which the Common Stock is then listed or quoted. (g) ADJUSTMENTS TO CONVERSION RATE. The Conversion Rate shall be adjusted from time to time by the Company as follows: (i) In case the Company shall pay or make a dividend or other distribution on the Common Stock in Common Stock, the Conversion Rate, as in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution, shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this Section 1.10(g)(i), the number of shares of Common Stock at any time outstanding shall not include shares held in treasury by the Company but shall include any shares issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. (ii) In case the Company shall issue rights, options or warrants (other than pursuant to any dividend reinvestment or share purchase plans) to all Holders of its Common Stock (not being available on an equivalent basis to Holders of the Senior Convertible Notes upon conversion of such Senior Convertible Notes) entitling them, for a period expiring within 60 days after the record date for the determination of 23 stockholders entitled to receive such rights, options or warrants, to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price per share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan or share purchase plan), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase at such below Current Market Price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this Section 1.10(g)(ii), the number of shares of Common Stock at any time outstanding shall not include shares held in treasury by the Company but shall include any shares issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. (iii) In case outstanding shares of Common Stock shall be subdivided or split into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or split becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision, split or combination becomes effective. (iv) In case the Company shall, by dividend or otherwise, distribute to all Holders of its Common Stock evidences of its indebtedness, shares of capital stock, securities, cash or other property (but excluding any rights, options or warrants referred to in Section 1.10(g)(ii) of this Section, any dividend or distribution paid exclusively in cash and any dividend or distribution referred to in Section 1.10(g)(i)), the Conversion Rate shall be adjusted by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on such date of the portion of the evidences of indebtedness, shares of capital stock, securities, cash or other property so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such adjustment to become 24 effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution; provided, however, that in the event that the Company makes a distribution to all Holders of its Common Stock consisting of capital stock of, or similar equity interests in, a subsidiary of the Company, the Conversion Rate shall be adjusted by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the Spin-off Market Price per share of the Common Stock on the date fixed for such determination less the Spin-off Market Price per share or similar equity interest of the subsidiary of the Company on such date and the denominator shall be the Spin-off Market Price per share of the Common Stock, such adjustment to become effective 10 trading days after the effective date of such distribution of capital stock of, or similar equity interest in, a subsidiary or other business unit of the Company. In any case in which this Section 1.10(g)(iv) is applicable, Sections 1.10(g)(i) and (ii) shall not be applicable. (v) In case the Company shall, (I) by dividend or otherwise, distribute to all Holders of its Common Stock cash (excluding (i) any cash that is distributed in an event to which Section 1.10(h)(iv) applies or (ii) cash that is distributed as part of a distribution referred to in Section 1.10(g)(iv)) in an aggregate amount that, combined together with (II) the aggregate amount of any other distributions to all Holders of its Common Stock made exclusively in cash within the quarterly fiscal period containing the date of payment of such distribution and in respect of which no adjustment pursuant to this Section 1.10(g)(v) or Section 1.10(g)(vi) has been made and (III) the aggregate of any cash plus the fair market value of any securities or other property, as of the expiration of the applicable tender or exchange offer referred to below (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any tender or exchange offer (other than consideration payable in respect of any odd-lot tender offer) by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the quarterly fiscal period containing the date of payment of the distribution described in clause (I) above and in respect of which no adjustment pursuant to this Section 1.10(g)(v) or Section 1.10(g)(vi) has been made, exceeds the product of $0.13 (appropriately adjusted from time to time for any stock dividends on or subdivisions or combinations of Common Stock) multiplied by the number of shares of Common Stock outstanding on such date, then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the Current Market Price per share of the Common Stock on the date fixed for such determination plus $0.13 (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock) less an amount equal to the quotient of (x) the combined amount distributed or payable in the transactions described in clauses (I), (II) and (III) above and (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the Current Market Price per share of the Common Stock on such date for determination. 25 (vi) In case (I) a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock (other than consideration payable in respect of any odd-lot tender offer) shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (II) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer (other than consideration payable in respect of any odd-lot tender offer) by the Company or any subsidiary of the Company for all or any portion of the Common Stock expiring within the quarterly fiscal period containing the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to Section 1.10(g)(v) or this Section 1.10(g)(vi) has been made and (III) the aggregate amount of any distributions to all Holders of the Company's Common Stock made exclusively in cash within the quarterly fiscal period containing the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to Section 1.10(g)(v) or this Section 1.10(g)(vi) has been made, exceeds the Current Market Price per share of Common Stock on the Trading Day next succeeding the last time (the "Expiration Time") tenders could have been made pursuant to such tender or exchange offer (as it may be amended), then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate immediately prior to the close of business as of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (1) the Current Market Price per share of the Common Stock as of the Expiration Time and (2) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less (B) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the transactions described in clauses (I), (II) and (III) above (assuming in the case of clause (I) the acceptance, up to any maximum specified in the terms of the tender or exchange offer, of Purchased Shares), and (ii) the denominator of which shall be equal to the product of (A) the Current Market Price per share of the Common Stock as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares"). (vii) All adjustments to the Conversion Rate, shall be calculated to the nearest 1/10,000th of a share of Common Stock (or if there is not a nearest 1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent therein; provided, however, that any adjustments which by reason of this subparagraph are not required to be made because they would have required an increase 26 or decrease of less than one percent shall be carried forward and taken into account in any subsequent adjustment. (viii) Notwithstanding the foregoing provisions of Section 1.10(g)(ii) or (iv), no adjustment shall be made thereunder, nor shall an adjustment be made to the ability of a Holder of a Note to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder's Senior Convertible Notes. (ix) No adjustment pursuant to the Conversion Rate or a Holder's ability to convert pursuant to this Section 1.10(g) shall be made in connection with the issuance of rights, the distribution of separate certificates representing rights or the exercise, redemption, termination or invalidation of rights pursuant to any stockholder rights plan implemented by the Company which provides that, upon conversion of the Senior Convertible Notes, the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights issued under such stockholder rights plan (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion). (h) MISCELLANEOUS PROVISIONS RELATING TO CONVERSION. (i) WHEN NO ADJUSTMENT REQUIRED. No adjustment to the Conversion Rate need be made: (1) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan; (2) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries; (3) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in (2) above and outstanding as of the date the Senior Convertible Notes were first issued; (4) for a change in the par value of the Common Stock; or (5) for accrued and unpaid interest. To the extent the Senior Convertible Notes become convertible into cash, assets or property (other than capital stock of the Company or securities to which Section 1.10(h)(iv) applies), no adjustment shall be made thereafter as to the cash, assets or property. Interest shall not accrue on such cash, assets or property. 27 (ii) NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders a notice of the adjustment. The Company shall file with the Trustee and the Conversion Agent such notice. The certificate shall, absent manifest error, be conclusive evidence that the adjustment is correct. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate except to exhibit the same to any Holder desiring inspection thereof. (iii) VOLUNTARY INCREASE. The Company may make such increases in the Conversion Rate, in addition to those required by Section 1.10(g), as the Board of Directors considers to be advisable to avoid or diminish any income tax to Holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company may from time to time increase the Conversion Rate by any amount for any period of time if the period is at least 20 days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is so increased, the Company shall mail to Holders and file with the Trustee and the Conversion Agent a notice of such increase. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such notice except to exhibit the same to any Holder desiring inspection thereof. The Company shall mail the notice at least 15 days before the date the increased Conversion Rate takes affect. The notice shall state the increased Conversion Rate and the period it shall be in effect. (iv) EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER, BINDING SHARE EXCHANGE OR SALE. If any of the following events occur, namely (a) any reclassification or change of outstanding shares of Common Stock (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), (b) any consolidation, merger or binding share exchange of the Company with another corporation as a result of which Holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock or (c) any sale or conveyance of all or substantially all of the assets of the Company to any other corporation as a result of which Holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then the Conversion Rate will not be adjusted. If any of the events described in the preceding sentence occur, the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture or otherwise amend the terms of the Senior Convertible Notes, to provide that each Senior Convertible Note shall be convertible into the kind and amount of shares of stock, other securities or property or assets (including cash) that the Holder of the Senior Convertible Note would have received upon such reclassification, change, consolidation, merger, binding share exchange, sale or conveyance if such Holder had converted such Senior Convertible Note into the number of shares of Common Stock issuable upon conversion of such Senior Convertible Note immediately prior to such reclassification, change, consolidation, merger, combination, binding share exchange, sale or conveyance. Such supplemental 28 indenture or other amendment to the Senior Convertible Notes shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 1.10(h)(iv). The Company shall cause notice of the execution of such supplemental indenture or amendment of the Senior Convertible Notes to be mailed to each Holder, at its address appearing on the Senior Convertible Note register, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, binding share exchanges, sales and conveyances. If this Section 1.10(h)(iv) applies to any event or occurrence, Section 1.10(g) shall not apply. (v) RESPONSIBILITY OF TRUSTEE. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist which may require any adjustment of the Conversion Rate and shall be protected in relying upon an Officers' Certificate with respect to the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Senior Convertible Notes and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Senior Convertible Notes for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Section 1.10. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 1.10(h)(iv) relating either to the kind or amount of shares of stock or securities or other property or assets (including cash) receivable by Holders upon the conversion of their Senior Convertible Notes after any event referred to in such Section 1.10(h)(iv) or to any adjustment to be made with respect thereto, but, subject to the provisions of Article Six of the Indenture, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers' Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by the paragraph 7 of the reverse of the Senior Convertible Notes has occurred which makes the Senior Convertible Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent an Officers' Certificate stating that such event has occurred, on which Certificate the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such Officers' Certificate to the Trustee and the Conversion Agent immediately after the occurrence of any such event. In no event shall the Trustee or the Conversion Agent be liable for any indirect, special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, 29 lost profits, even if the Trustee or the Conversion Agent have been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall the Trustee or the Conversion Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Indenture. (vi) SUCCESSIVE ADJUSTMENTS. After an adjustment to the Conversion Rate under Section 1.10(g), any subsequent event requiring an adjustment under Section 1.10(g) shall cause an adjustment to the Conversion Rate as so adjusted. (vii) GENERAL CONSIDERATIONS. Whenever successive adjustments to the Conversion Rate are called for pursuant to Sections 1.10(g) or 1.10(h), such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent of 1.10(g) or 1.10(h) and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. (i) On conversion of a Senior Convertible Note, a Holder shall receive no payment for that portion of accrued and unpaid interest on the converted Senior Convertible Note attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from the Original Issue Date) through the Conversion Date with respect to the converted Senior Convertible Note. SECTION 1.11 ADDITIONAL EVENTS OF DEFAULT; WITHHOLDING NOTICE; RESCISSION. (a) In addition to those matters set forth in Section 501 of the Original Indenture, an "Event of Default" with respect to the Senior Convertible Notes shall also mean any of the following events: (i) default in the Company's obligation to repurchase Senior Convertible Notes upon the Company's exercise of its repurchase option pursuant to Section 1.06, upon the occurrence of a Fundamental Change pursuant to Section 1.07 or upon the exercise by a Holder of its option to require the Company to repurchase such Holder's Senior Convertible Notes pursuant to Section 1.08; or (ii) default in the Company's obligation to convert the Senior Convertible Notes upon exercise of a Holder's conversion rights pursuant to Section 1.10 hereof; or (iii) default by the Company in its obligation to provide notice of a Fundamental Change. (b) The Trustee may withhold from the Holders notice of any continuing default or Event of Default (except a default or Event of Default in the payment of principal of, interest or Liquidated Damages, if any, on the Senior Convertible Notes) if it determines in good faith that withholding notice is in the Holders' interest. 30 (c) The Holders of a majority in aggregate principal amount of the Senior Convertible Notes then outstanding by notice to the Trustee may rescind any acceleration of the Senior Convertible Notes and its consequences if all existing Events of Default (other than the nonpayment of principal of, interest, Contingent Interest and Liquidated Damages, if any, on the Senior Convertible Notes that has become due solely by virtue of such acceleration) have been cured or waived and if the rescission would not conflict with any judgment or decree of any court of competent jurisdiction. No such rescission will affect any subsequent default or Event of Default or impair any right consequent thereto. SECTION 1.12 AMENDMENT; SUPPLEMENT; AND WAIVER. In addition to those matters set forth in Section 902 of the Original Indenture, with respect to the Senior Convertible Notes, no amendment or supplemental indenture shall without the consent of the Holder of each Senior Convertible Note affected thereby: (a) reduce the percentage of the Original Principal Amount of Senior Convertible Notes whose Holders must consent to an amendment, supplement or waiver; (b) reduce the principal of, or premium on, or change the fixed Stated Maturity of any Senior Convertible Note or, except as permitted pursuant to clause (s), (v), (y) or (z) of the immediately following paragraph, alter the provisions with respect to the redemption or repurchase of the Senior Convertible Notes; (c) reduce the rate of or change the time for payment of interest, including Contingent Interest, defaulted interest, or Liquidated Damages, on any Senior Convertible Notes; (d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on the Senior Convertible Notes (except a rescission of acceleration of the Senior Convertible Notes by the Holders of at least a majority in aggregate Accreted Principal Amount of the Senior Convertible Notes and a waiver of the payment default that resulted from such acceleration); (e) make the principal of, or premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on, any Senior Convertible Note payable in money other than as provided for in the Indenture and in the Senior Convertible Notes; (f) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Senior Convertible Notes to receive payments of principal of, premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on the Senior Convertible Notes; (g) waive a redemption or repurchase payment with respect to any Senior Convertible Note; (h) except as permitted by the Indenture, increase the Conversion Price or modify the provisions of the Indenture relating to conversion of the Senior Convertible Notes in a manner adverse to the Holders; 31 (i) make any change to the abilities of Holders of Senior Convertible Notes to enforce their rights under the Indenture or the foregoing provisions of this Section 1.12 or this provision; (j) reduce the Redemption Price, Purchase Price or Fundamental Change Purchase Price of the Senior Convertible Notes; or (k) make any change that adversely affects the right to convert the Senior Convertible Notes. Notwithstanding the foregoing, without the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or the Senior Convertible Notes to: (s) cure any ambiguity, defect or inconsistency or make any other changes in the provisions of the Indenture which they may deem necessary or desirable, provided such amendment does not materially and adversely affect the Senior Convertible Notes; (t) provide for uncertificated Senior Convertible Notes in addition to or in place of certificated Senior Convertible Notes; (u) provide for the assumption of the Company's obligations to Holders of Senior Convertible Notes in the circumstances required under the Indenture; (v) provide for exchange rights of Holders of Senior Convertible Notes in certain events; (w) reduce the Conversion Price; (x) evidence and provide for the acceptance of the appointment under the Indenture of a successor Trustee; (y) make any change that would provide any additional rights or benefits to the Holders of Senior Convertible Notes or that does not adversely affect the legal rights under the Indenture of any such Holder; or (z) comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act of 1939. In addition, with respect to the Senior Convertible Notes, to the extent set forth in Section 513 of the Original Indenture, the Holders of at least a majority in aggregate principal amount of the Outstanding Senior Convertible Notes may waive an existing default other than: (a) any default by the Company in any payment of the Redemption Price, Purchase Price or Fundamental Change Purchase Price with respect to any Senior Convertible Notes, or (b) any default which constitutes a failure to convert any Senior Convertible Note in accordance with its terms and the Indenture. SECTION 1.13 REGISTER OF SECURITIES; PAYING AGENT; CONVERSION AGENT. Initially, the Trustee shall act as Paying Agent, Conversion Agent and Security Registrar with respect to the Senior Convertible Notes with the Place of Payment for the Senior Convertible Notes initially being the Corporate Trust Office. The Company may appoint and change any Paying Agent, 32 Conversion Agent, Security Registrar or co-registrar or approve a change in the office through which any Paying Agent acts without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Security Registrar or co-registrar. SECTION 1.14 CALCULATIONS IN RESPECT OF THE SENIOR CONVERTIBLE NOTES. The Trustee will act as Calculation Agent and will be responsible for making all calculations called for under the Senior Convertible Notes other than calculations of interest. These calculations include, but are not limited to, determination of the Trading Price, Current Market Price, Closing Sale Price, interest rate on the Senior Convertible Notes and Conversion Rate of the Senior Convertible Notes. The Trustee will make these calculations in good faith and, absent manifest error, these calculations will be final and binding on the Holders. The Trustee will forward its calculations to any Holder upon the request of such Holder. SECTION 1.15 TAX TREATMENT. The Company hereby agrees, and by purchasing a beneficial ownership interest in the Senior Convertible Notes each Holder, and any person (including an entity) that acquires a direct or indirect beneficial interest in the Senior Convertible Notes, will be deemed to have agreed (i) for United States Federal income tax purposes to treat the Senior Convertible Notes as indebtedness of the Company that is subject to Treas. Reg. Sec. 1.1275-4 (the "Contingent Payment Regulations"), (ii) for all tax purposes to treat the Senior Convertible Notes as indebtedness of the Company (iii) for purposes of the Contingent Payment Regulations to treat the fair market value of any Common Stock beneficially received by a beneficial Holder upon any conversion of the Senior Convertible Notes (or cash in lieu of Common Stock) as a contingent payment, and (iv) to be bound by the Company's projected payment schedule with respect to the Senior Convertible Notes. The provisions of this Indenture shall be interpreted to further this intention and agreement of the parties. The comparable yield and the schedule of projected payments are not determined for any purpose other than for the determination of interest accruals and adjustment thereof in respect of the Senior Convertible Notes for United States Federal income tax purposes. The comparable yield and the schedule of projected payments do not constitute a projection or representation regarding the future stock price or the amounts payable on the Senior Convertible Notes. For purposes of the foregoing, the Company's determination of the "comparable yield" is 8.28% per annum, compounded semiannually. A Holder of Senior Convertible Notes may obtain the Yield to Maturity, Issue Date, Comparable Yield and Projected Payment Schedule (which Schedule is attached hereto as Exhibit C) by submitting a written request to Bausch & Lomb Incorporated, One Bausch & Lomb Place Rochester, New York 14604, Attention: Chief Financial Officer. SECTION 1.16 TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive Securities are presented to the Registrar with a request: (i) to register the transfer of such Definitive Securities; or (ii) to exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such 33 transaction are met; provided, however, that the Definitive Securities surrendered for transfer or exchange: (A) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and (B) are accompanied by the following additional information and documents, as applicable, if such Definitive Securities are Transfer Restricted Securities: (x) if such Definitive Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in the form set forth on the reverse side of the Transfer Restricted Security); or (y) if such Definitive Securities are being transferred to the Company, a certification to that effect (in the form set forth on the reverse side of the Transfer Restricted Security); or (C) if such Definitive Securities are being transferred pursuant to an exemption from registration in accordance with Rule 144 under the Securities Act or in reliance upon another exemption from the registration requirements of the Securities Act, (i) a certification to that effect (in the form set forth on the reverse side of the Transfer Restricted Security) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 1.16(e)(i). In case of redemption, the Registrar will not be required to register the transfer or exchange of any Senior Convertible Notes: (i) during a period of 15 days before any selection of Senior Convertible Notes for redemption; (ii) if the Senior Convertible Notes have been called for redemption in whole or in part, except the unredeemed portion of any Senior Convertible Notes being redeemed in part; or (iii) in respect of which a Fundamental Change Purchase Notice or Repurchase Notice has been given and not withdrawn, except the portion of the Senior Convertible Note not purchased of any Senior Convertible Note being purchased in part. (b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be exchanged for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, together with: (i) certification (in the form set forth on the reverse side of the Transfer Restricted Security) that such Definitive Security is being transferred (A) to a QIB in accordance with Rule 144A or (B) outside the United States in an offshore transaction within the meaning of Regulation S and in compliance with Rule 904 under the Securities Act; and 34 (ii) written instructions directing the Trustee to make, or to direct the securities custodian to make, an adjustment on its books and records with respect to such Global Security to reflect an increase in the aggregate principal amount of the securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such increase, then the Trustee shall cancel such Definitive Security and cause, or direct the securities custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the securities custodian, the aggregate principal amount of securities represented by the Global Security to be increased by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Definitive Security so canceled. If no Global Securities are then outstanding and the Global Security has not been previously exchanged for certificated securities pursuant to Section 1.05(b), the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers' Certificate, a new Global Security in the appropriate principal amount. (c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. (i) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depositary, in accordance with this Supplemental Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Security shall deliver a written order given in accordance with the Depositary's procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Security or another Global Security and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Security and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Security being transferred. Transfers by an owner of a beneficial interest in a Rule 144A Global Security to a transferee who takes delivery of such interest through a Regulation S Global Security, whether before or after the expiration of the Restricted Period, shall be made only upon receipt by the Trustee of a certification (in the form set forth on the reverse side of the Transfer Restricted Security) from the transferor to the effect that such transfer is being made in accordance with Regulation S or (if available) Rule 144 under the Securities Act and that, if such transfer is being made prior to the expiration of the Restricted Period, the interest transferred shall be held immediately thereafter through Euroclear or Clearstream. (ii) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of Global Security from which such interest is being transferred. 35 (iii) Notwithstanding any other provisions of this Fifth Supplemental Indenture (other than the provisions set forth in Section 1.05), a Global Security may not be transferred as a whole except 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. (iv) In the event that a Global Security is exchanged for Definitive Securities pursuant to Section 1.05(b) prior to the effectiveness of a Shelf Registration Statement with respect to such securities, such securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 1.16 (including the certification requirements set forth on the reverse of the Transfer Restricted Security intended to ensure that such transfers comply with Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company. (d) RESTRICTIONS ON TRANSFER OF REGULATION S GLOBAL SECURITY. (i) Prior to the expiration of the Restricted Period, interests in a Regulation S Global Security may only be held through Euroclear or Clearstream. During the Restricted Period, beneficial ownership interests in a Regulation S Global Security may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures and only (A) to the Company, (B) so long as such security is eligible for resale pursuant to Rule 144A, to a person whom the selling Holder reasonably believes is a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, (C) in an offshore transaction in accordance with Regulation S, (D) pursuant to an exemption from registration under the Securities Act provided by Rule 144 (if applicable) under the Securities Act, or (E) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States. Prior to the expiration of the Restricted Period, transfers by an owner of a beneficial interest in a Regulation S Global Security to a transferee who takes delivery of such interest through a Rule 144A Global Security shall be made only in accordance with the Applicable Procedures and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse of the Transfer Restricted Security to the effect that such transfer is being made to (i) a person whom the transferor reasonably believes is a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A. Such written certification shall no longer be required after the expiration of the Restricted Period. (ii) Upon the expiration of the Restricted Period, beneficial ownership interests in a Regulation S Global Security shall be transferable in accordance with applicable law and the other terms of the Indenture. 36 (e) LEGENDS FOR SECURITIES. (i) Except as permitted by the following paragraphs (ii), (iii), or (iv), each security certificate evidencing the Global Securities and the Definitive Securities (and all securities issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only): THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF BAUSCH & LOMB INCORPORATED THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY APPLICABLE PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF BAUSCH & LOMB INCORPORATED AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO BAUSCH & LOMB INCORPORATED, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF BAUSCH & LOMB INCORPORATED THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON EXCHANGE OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT. 37 Each security evidencing a Global Security offered and sold to QIBs pursuant to Rule 144A shall bear a legend in substantially the following form: EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. Each Definitive Security shall bear the following additional legend: IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS. (ii) Upon any sale or transfer of a Transfer Restricted Security that is a Definitive Security, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Security for a Definitive Security that does not bear the legends set forth above and rescind any restriction on the transfer of such Transfer Restricted Security if the Holder certifies in writing to the Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Transfer Restricted Security). (iii) After a transfer of any Transfer Restricted Securities during the period of the effectiveness of a Shelf Registration Statement with respect to such Transfer Restricted Securities, as the case may be, all requirements pertaining to the Restricted Securities Legend on such Transfer Restricted Securities shall cease to apply and the requirements that any such Transfer Restricted Securities be issued in global form shall continue to apply. (iv) Upon a sale or transfer after the expiration of the Restricted Period of any Transfer Restricted Security acquired pursuant to Regulation S, all requirements that such Transfer Restricted Security bear the Restricted Securities Legend shall cease to apply and the requirements requiring any such Transfer Restricted Security be issued in global form shall continue to apply. ARTICLE 2 MISCELLANEOUS PROVISIONS SECTION 2.01 RECITALS BY THE COMPANY. The recitals in this Fifth Supplemental Indenture are made by the Company only and not by the Trustee, and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Senior Convertible Notes and of this Fifth Supplemental Indenture as fully and with like effect as if set forth herein in full. 38 SECTION 2.02 RATIFICATION AND INCORPORATION OF ORIGINAL INDENTURE. As supplemented hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this Fifth Supplemental Indenture shall be read, taken and construed as one and the same instrument. SECTION 2.03 EXECUTED IN COUNTERPARTS. This Fifth Supplemental Indenture may be executed in several counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. SECTION 2.04 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND THE SENIOR CONVERTIBLE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF. 39 IN WITNESS WHEREOF, each party hereto has caused this instrument to be signed in its name and behalf by its duly authorized officers, all as of the day and year first above written. BAUSCH & LOMB INCORPORATED By: ------------------------------------------- Name: Title: Attest: - -------------------------- Name: Title: CITIBANK, N.A., as Trustee By: ------------------------------------------- Name: Title: Attest: - -------------------------- Name: Title: S-1 EXHIBIT A FORM OF FLOATING RATE SENIOR CONVERTIBLE NOTE DUE 2023 FOR PURPOSES OF SECTIONS 1272,1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL ACCRUE ORIGINAL ISSUE DISCOUNT AT THE ISSUER'S "COMPARABLE YIELD" FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. PURSUANT TO SECTION 1.15 OF THE INDENTURE, THE COMPANY AGREES, AND BY PURCHASING A BENEFICIAL OWNERSHIP INTEREST IN THE SENIOR CONVERTIBLE NOTES EACH HOLDER, AND ANY PERSON (INCLUDING AN ENTITY) THAT ACQUIRES A DIRECT OR INDIRECT BENEFICIAL INTEREST IN THE SENIOR CONVERTIBLE NOTES, WILL BE DEEMED TO HAVE AGREED (I) FOR UNITED STATES FEDERAL INCOME TAX PURPOSES TO TREAT THE SENIOR CONVERTIBLE NOTES AS INDEBTEDNESS OF THE COMPANY THAT IS SUBJECT TO TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS"), (II) FOR ALL TAX PURPOSES TO TREAT THE SENIOR CONVERTIBLE NOTES AS INDEBTEDNESS OF THE COMPANY, (III) FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF ANY COMMON STOCK BENEFICIALLY RECEIVED BY A BENEFICIAL HOLDER UPON ANY CONVERSION OF THE SENIOR CONVERTIBLE NOTES (OR CASH IN LIEU OF COMMON STOCK) AS A CONTINGENT PAYMENT, AND (IV) TO BE BOUND BY THE COMPANY'S PROJECTED PAYMENT SCHEDULE WITH RESPECT TO THE SENIOR CONVERTIBLE NOTES. THE PROVISIONS OF THIS INDENTURE SHALL BE INTERPRETED TO FURTHER THIS INTENTION AND AGREEMENT OF THE PARTIES. THE COMPARABLE YIELD AND THE SCHEDULE OF PROJECTED PAYMENTS ARE NOT DETERMINED FOR ANY PURPOSE OTHER THAN FOR THE DETERMINATION OF INTEREST ACCRUALS AND ADJUSTMENT THEREOF IN RESPECT OF THE SENIOR CONVERTIBLE NOTES FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE COMPARABLE YIELD AND THE SCHEDULE OF PROJECTED PAYMENTS DO NOT CONSTITUTE A PROJECTION OR REPRESENTATION REGARDING THE FUTURE STOCK PRICE OR THE AMOUNTS PAYABLE ON THE SENIOR CONVERTIBLE NOTES. FOR PURPOSES OF THE FOREGOING, THE COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" IS 8.28% PER ANNUM, COMPOUNDED SEMIANNUALLY. A HOLDER OF SENIOR CONVERTIBLE NOTES MAY OBTAIN THE YIELD TO MATURITY, ISSUE DATE, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE (WHICH SCHEDULE IS ATTACHED AS EXHIBIT C TO THE INDENTURE) BY SUBMITTING A WRITTEN REQUEST TO: BAUSCH & LOMB INCORPORATED, ONE BAUSCH & LOMB PLACE, ROCHESTER, NEW YORK 14604, ATTENTION: CHIEF FINANCIAL OFFICER. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN A-1 THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OR TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER 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. THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, A-2 ENGAGE IN ANY HEDGING TRANSACT10N WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT. A-3 BAUSCH & LOMB INCORPORATED FLOATING RATE SENIOR CONVERTIBLE NOTE DUE 2023 No. 1 CUSIP: _____________ Issue Date: August ___, 2003 Original Principal Amount: $______ Issue Price: $_________ (for each $1,000 Original Principal Amount) BAUSCH & LOMB INCORPORATED, a New York corporation (the "Company"), promises to pay to CEDE & CO. or registered assigns, on August 1, 2023, the Accreted Principal Amount of this Senior Convertible Note on such date. This Senior Convertible Note is issued with an Original Principal Amount of _______________________DOLLARS ($_________). This Senior Convertible Note shall not bear interest except as specified on the other side of this Senior Convertible Note. The Accreted Principal Amount of this Senior Convertible Note will accrue as specified on the other side of this Senior Convertible Note. This Senior Convertible Note may be called for redemption at the option of the Company as specified on the other side of this Senior Convertible Note. This Senior Convertible Note may be subject to repurchase by the Company at the option of the Holder as specified on the other side of this Senior Convertible Note. This Senior Convertible Note is convertible as specified on the other side of this Senior Convertible Note. Additional provisions of this Senior Convertible Note are set forth on the other side of this Senior Convertible Note. IN WITNESS WHEREOF, the Company has caused this Senior Convertible Note to be duly executed. Dated: BAUSCH & LOMB INCORPORATED By: ------------------------------------------- Name: Title: TRUSTEE'S CERTIFICATE OF AUTHENTICATION CITIBANK, N.A. as Trustee, certifies that this is one of the Senior Convertible Notes referred to in the within-mentioned Indenture. A-4 By: -------------------------------------- Authorized Officer Dated: A-5 (BACK OF SECURITY) BAUSCH & LOMB INCORPORATED FLOATING RATE CONVERTIBLE NOTE DUE 2023 1. Interest and Contingent Interest. (a) The Senior Convertible Notes will bear cash interest on the Original Principal Amount at the annual rate of Six Month LIBOR plus 0.50%, reset semi-annually on each Interest Payment Date (such day being an "Interest Reset Date"); provided that such rate will never be less than 0%, from the Original Issue Date, or from the most recent date to which interest has been paid or provided for, until August 1, 2010. During such period, the Company will pay cash interest semi-annually in arrears on each Interest Payment Date to Holders of record at the close of business on each Regular Record Date immediately preceding such Interest Payment Date. The interest rate in effect for the Senior Convertible Notes on any day will be (a) if that day is an Interest Reset Date, the interest determined as of the Determination Date immediately preceding such Interest Reset Date or (b) if that day is not an Interest Reset Date, the interest rate determined as of the Determination Date immediately preceding the most recent Interest Reset Date. Each payment of cash interest on the Senior Convertible Notes will include interest (including Contingent Interest, if any) and Liquidated Damages, if any, accrued through the day immediately preceding the most recent Interest Payment Date (or the Repurchase Date, Redemption Date, Fundamental Change Date or, in certain circumstances, the Conversion Date, as the case may be). Any payment required to be made on any day that is not a Business Day will be made on the next succeeding Business Day. LIBOR will be determined by the Calculation Agent as of the applicable determination date in accordance with the following provisions ("Six-Month LIBOR"): (i) the rate for six-month deposits in US dollars commencing on the related Interest Reset Date, that appears on the Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the interest Determination Date; or (ii) if no rate appears on the particular interest Determination Date on the Moneyline Telerate Page 3750, the rate calculated by the Calculation Agent as the arithmetic mean of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in US dollars for the period of six months, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that interest Determination Date and in a principal amount that is representative for a single transaction in US dollars in that market at that time; or (iii) if fewer than two offered quotations referred to in clause (ii) are provided as requested, the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., New York time, on the particular interest Determination Date by three major banks in The City of New York selected by the Calculation Agent for loans in US A-1 dollars to leading European banks for a period of six months and in a principal amount that is representative for a single transaction in US dollars in that market at that time; or (iv) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (iii), six-month LIBOR determined on the preceding interest Determination Date. "Moneyline Telerate Page 3750" means the display on Moneyline Telerate (or any successor service) on such page (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for US dollars. If the Stated Maturity date of the Senior Convertible Notes falls on a day that is not a LIBOR Business Day, the related payment of principal and interest will be made on the next LIBOR Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and after such Stated Maturity date to the next LIBOR Business Day. If any Interest Reset Date or Interest Payment Date (other than at the date of Stated Maturity) would otherwise be a day that is not a LIBOR Business Day, that Interest Reset Date and Interest Payment Date will be postponed to the next date that is a LIBOR Business Day, except that if such LIBOR Business Day is in the next calendar month, such Interest Reset Date and Interest Payment Date (other than at the date of Stated Maturity) shall be the immediately preceding LIBOR Business Day. (b) Until August 1, 2010, the Accreted Principal Amount of a Senior Convertible Note will be equal to the Original Principal Amount of $1,000. Beginning August 1, 2010, the Senior Convertible Note shall not bear interest, except as specified in this paragraph of the Indenture. From such date, the Original Principal Amount shall commence increasing daily by the annual rate of Six Month LIBOR plus 0.50% reset on each Interest Reset Date; provided that such rate will never be less than 0%, to produce the Accreted Principal Amount. The Accreted Principal Amount will compound semi-annually, not daily. On the Stated Maturity, the Holder of this Senior Convertible Note will receive the fully Accreted Principal Amount of this Senior Convertible Note on such date, unless the Senior Convertible Note has been earlier redeemed, repurchased or converted. Unless cash interest is payable as provided in Section 1.03(a) or (h) hereof, the accrued yield shall be added to the Accreted Principal Amount per Senior Convertible Note as of the day preceding the most recent Yield Reset Date. The yield will be calculated using the actual number of days elapsed between the Yield Reset Dates divided by 360. (c) If the Accreted Principal Amount hereof or any portion of such Accreted Principal Amount is not paid when due (whether upon acceleration pursuant to Section 502 of the Indenture, upon the date set for payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment of the Purchase Price or Fundamental Change Purchase Price pursuant to paragraph 6 hereof or upon the Stated Maturity of this Senior Convertible Note) or if installments of cash interest due hereon are not paid when due in accordance with this paragraph, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at Six Month LIBOR plus 0.50% reset on each Interest Reset Date (provided that such rate will never be less than 0%) as such rate is in effect following the date such overdue amount was due, compounded quarterly, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on demand. The accrual of such interest on A-2 overdue amounts shall be in lieu of, and not in addition to, any subsequent increase in the Accreted Principal Amount. (d) The Company will pay Contingent Interest to the Holders of the Senior Convertible Notes in respect of any six-month interest period from February 1 to July 31 and August 1 to January 31, commencing on or after August 1, 2010 for which the average Trading Price of a Senior Convertible Note for the applicable five Trading Day reference period equals or exceeds 120% of the sum of the Accreted Principal Amount and accrued interest, if any, for a Senior Convertible Note as of the day immediately preceding the first day of the applicable six-month interest period. The "five Trading Day reference period" means the five Trading Days ending on the third Trading Day immediately preceding the relevant six-month interest period. For any six-month interest period in respect of which Contingent Interest is payable, the Contingent Interest payable on each $1,000 principal amount of Notes shall be equal to 0.30% of the average Trading Price of a Senior Convertible Note for the applicable five Trading Day reference period. No Contingent Interest shall be payable on Senior Convertible Notes redeemed pursuant to this paragraph 6 on August 1, 2010 (or, if August 1, 2010 is not a Business Day, on the next following Business Day). Upon determination that Holders will be entitled to receive Contingent Interest in respect of a six-month interest period, the Company shall notify the Holders. In connection with providing such notice, the Company will issue a press release containing information regarding the Contingent Interest determination or publish such information on the Company's then existing website or through such other public medium as the Company may use at that time. (e) Interest, including Contingent Interest, if any, on any Senior Convertible Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Senior Convertible Note is registered at the close of business on the Regular Record Date for such interest or Contingent Interest, if any, at the office or agency of the Company maintained for such purpose. Each installment of interest or Contingent Interest, if any, on any Senior Convertible Note shall be paid in same-day funds by transfer to an account maintained by the payee located inside the United States. (f) The amount of interest, including Contingent Interest, if any, payable for any period shall be computed on the basis of the actual number of days elapsed over a 360-day year. The amount of interest, including Contingent Interest, if any, payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in any partial month. In the event that any Interest Payment Date on a Senior Convertible Note is not a Business Day, then a payment of the interest, including Contingent Interest, if any, payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. 2. Method of Payment. Subject to the terms and conditions of the Indenture, the Company will make payments in respect of Accreted Principal Amount, Redemption Prices, Purchase Prices, Fundamental Change Purchase Prices and on Stated Maturity to Holders who surrender Senior Convertible A-3 Notes to a Paying Agent to collect such payments in respect of the Senior Convertible Notes. In addition, the Company will pay cash interest beginning November 1, 2003 until August 1, 2010, as more fully described in paragraph 1 hereof. The Company will pay any cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money. 3. Paying Agent, Conversion Agent and Registrar. Initially, Citibank, N.A. (the "Trustee") will act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent and Registrar or co-registrar without notice, other than notice to the Trustee except that the Company will maintain at least one Paying Agent in the State of New York, City of New York, Borough of Manhattan, which shall initially be an office or agency of the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar. 4. Indenture. The Company issued the Senior Convertible Notes pursuant to an Indenture dated as of September 1, 1991, as subsequently supplemented including by the Fifth Supplemental Indenture thereto dated August 4, 2003 (the "Indenture"), between the Company and the Trustee. The terms of the Senior Convertible Notes include those stated in the Indenture and those made part of the Indenture by reference to the Senior Convertible Notes themselves and the Trust Indenture Act of 1939, as in effect from time to time (the "TIA"). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Senior Convertible Notes are subject to all such terms, and Senior Convertible Note Holders are referred to the Indenture and the TIA for a statement of those terms. In the event of any inconsistency between the terms hereof and the terms of the Indenture, the terms of the Indenture shall prevail. The Senior Convertible Notes are unsecured and unsubordinated obligations of the Company limited to $140,000,000 aggregate Original Principal Amount (plus up to $20,000,000 aggregate Original Principal Amount that may be sold by the Company to the Initial Purchasers pursuant to the option granted to the Initial Purchasers pursuant to the Purchase Agreement) (subject to the applicable provisions of the Indenture). The Indenture does not limit other indebtedness of the Company, secured or unsecured. 5. Redemption at the Option of the Company. No sinking fund is provided for the Senior Convertible Notes. The Senior Convertible Notes are redeemable as a whole, or from time to time in part, at any time at the option of the Company in accordance with the Indenture at 100% of the Accreted Principal Amount of the Senior Convertible Notes, plus any accrued and unpaid interest and Liquidated Damages to the Redemption Date, provided that the Senior Convertible Notes are not redeemable prior to August 1, 2010. If less than all of the outstanding Senior Convertible Notes are to be redeemed, the Trustee will select the Senior Convertible Notes to be redeemed in Original Principal Amounts A-4 of $1,000 or integral multiples of $1,000 Original Principal Amount. In this case, the Trustee may select the Senior Convertible Notes by lot, pro rata or by any other method the Trustee considers fair and appropriate. If a portion of a Holder's Senior Convertible Notes is selected for partial redemption and the Holder converts a portion of the Senior Convertible Notes, the converted portion will be deemed to be the portion selected for redemption. If this Senior Convertible Note has been converted to a semi-annual cash interest paying note following the occurrence of a Tax Event, the Redemption Price will be equal to the Restated Principal Amount plus accrued and unpaid interest (including Contingent Interest, if any) and Liquidated Damages, if any, from the date of such conversion to but not including the Redemption Date; but in no event will this Senior Convertible Note be redeemable before August 1, 2010. No Contingent Interest shall be payable on Senior Convertible Notes redeemed pursuant to this paragraph 5 on August 1, 2010 (or if August 1, 2010 is not a Business Day, on the following Business Day). 6. 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 Senior Convertible Notes held by such Holder on August 1 of 2010, 2013 and 2018 at a Purchase Price equal to 100% of the Accreted Principal Amount of such Senior Convertible Notes on the applicable Repurchase Date plus accrued and unpaid interest, including Contingent Interest, if any, and Liquidated Damages, if any, to but not including the Repurchase Date, upon delivery of a Repurchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is 20 Business Days prior to such Repurchase Date until the close of business on the third Business Day prior to such Repurchase Date and upon delivery of the Senior Convertible Notes to the Paying Agent by the Holder as set forth in the Indenture. If prior to a Repurchase Date this Senior Convertible Note has been converted to a semi-annual cash interest paying note following the occurrence of a Tax Event, the Purchase Price will be equal to the Restated Principal Amount plus accrued and unpaid cash interest, including Contingent Interest, if any, and Liquidated Damages, if any, from the date of conversion to the Repurchase Date but not including the Repurchase Date as provided in the Indenture. At the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase in cash all or a portion of the Senior Convertible Notes in integral multiples of $1,000 Original Principal Amount held by such Holder no later than 60 Business Days after the occurrence of a Fundamental Change of the Company for a Fundamental Change Purchase Price equal to 100% of the Accreted Principal Amount of such Senior Convertible Notes plus accrued and unpaid interest, including Contingent Interest, if any, and Liquidated Damages, if any, to but not including the Fundamental Change Purchase Price Date, which Fundamental Change Purchase Price shall be paid in cash. A-5 Holders have the right to withdraw any Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture. Payment of the Purchase Price for a Senior Convertible Note for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of such Senior Convertible Note, together with any necessary endorsements, to the Paying Agent at its office in the Borough of Manhattan, The City of New York, or any other office or the Paying Agent, at any time after delivery of the Repurchase Notice. If cash sufficient to pay the Purchase Price or Fundamental Change Purchase Price, as the case may be, of all Senior Convertible Notes or portions thereof to be purchased as of the Repurchase Date or the Fundamental Change Purchase Price Date, as the case may be, is deposited with the Paying Agent on the Business Day immediately following to the Repurchase Date or on the Fundamental Change Purchase Price Date, as the case may be, such Senior Convertible Notes (or portions thereof) will cease to be outstanding, the Accreted Principal Amount shall cease to increase, and cash interest, including Contingent Interest, if any, and Liquidated Damages, if any, shall cease to accrue on such Senior Convertible Notes (or portions thereof) on such Repurchase Date or Fundamental Change Purchase Price Date, as the case may be, and the Holder thereof shall have no other rights as such (other than the right to receive the Purchase Price or Fundamental Change Purchase Price, as the case may be, if any, upon surrender of such Senior Convertible Notes). This will be the case whether or not book-entry transfer of the Senior Convertible Note has been made or the Senior Convertible Note has been delivered to the Paying Agent. 7. Conversion. CONVERSION BASED ON COMMON STOCK PRICE. Subject to the provisions of this paragraph 7 and notwithstanding the fact that any other condition to conversion described below has not been satisfied, Holders may convert the Senior Convertible Notes into Common Stock on a Conversion Date at any time starting with the first day of any calendar quarter commencing after September 30, 2003 if the Closing Sale Price of the Common Stock for at least 20 Trading Days in a period of 30 consecutive Trading Days ending on the last Trading Day of such preceding calendar quarter is greater than the conversion trigger price per share. The "conversion trigger price" for any calendar quarter shall be 120% of the accreted Conversion Price per share (as defined below) of Common Stock on the last Trading Day of such preceding calendar quarter. If the foregoing condition is satisfied, then the Senior Convertible Notes will be convertible at any time of the option of the Holder, through their maturity. The "ACCRETED CONVERSION PRICE" per share of Common Stock as of any day equals the quotient of: - the Accreted Principal Amount on that day, divided by - the number of shares of Common Stock issuable upon conversion of $1,000 Original Principal Amount of Senior Convertible Notes on that day, subject to any adjustments to the Conversion Rate through that day. A-6 Beginning August 1, 2010, the accreted principal amount of a Senior Convertible Note will be equal to the Original Principal Amount of $ 1,000 increased daily by the annual rate of Six Month LIBOR plus 0.50%, reset on each Interest Reset Date. CONVERSION BASED ON TRADING PRICE OF SENIOR CONVERTIBLE NOTES. Subject to the provisions of this paragraph 7 and notwithstanding the fact that any other condition to conversion described below has not been satisfied, Holders may convert the Senior Convertible Notes, prior to August 1, 2020, into Common Stock during each of the five Business Day periods after any ten consecutive Trading Day period in which the Trading Price per $1,000 Original Principal Amount of the Senior Convertible Notes was less than 97% of the product of (i) the Closing Sale Price over the same ten day Trading Day period, and (ii) the number of shares of Common Stock issuable upon conversion of $1,000 Original Principal Amount of the Senior Convertible Notes. Upon conversion, the Company has the right to deliver cash or Common Stock. The "Trading Price" means, on any date, the average of the secondary market bid quotations for the Senior Convertible Notes obtained by the Trustee for $5,000,000 Original Principal Amount of Senior Convertible Notes at approximately 3:30 p.m., New York City time, on such 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 Trustee, but two bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, one bid shall be used; and provided further that if the Trustee cannot reasonably obtain at least one bid for $5,000,000 Original Principal Amount of Senior Convertible 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 Senior Convertible Notes, then the Trading Price per $1,000 Original Principal Amount of Senior Convertible Notes shall be deemed to be less than 97% of the product of: (a) the number of shares of Common Stock issuable upon conversion of $1,000 Original Principal Amount of Senior Convertible Notes, and (b) the Closing Sale Price on such date. The Trustee (or other conversion agent appointed by the Company) shall have no obligation to determine the Trading Price unless the Company has requested such a determination; and the Company shall have no obligation to make such request unless a Holder provides it with reasonable evidence that the Trading Price per $1,000 Original Principal Amount of Senior Convertible Notes would be less than 97% of the product of the Closing Sale Price of Common Stock over the same ten Trading Day period and the number of shares of Common Stock issuable upon conversion of $1,000 Original Principal Amount of Senior Convertible Notes. If such evidence is provided, the Company shall instruct the Trustee (or other conversion agent) to determine the Trading Price of the Senior Convertible Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 Original Principal Amount of Senior Convertible Notes is greater than 97% of the product of the Closing Sale Price and the number of shares issuable upon conversion of $ 1,000 Original Principal Amount of the Senior Convertible Notes. CONVERSION UPON REDEMPTION. Subject to the provisions of this paragraph 7 and notwithstanding the fact that any other condition described herein to conversion has not been satisfied, a Holder may convert into Common Stock a Senior Convertible Note or portion of a Senior Convertible Note which has been called for redemption pursuant to paragraph 5 hereof, A-7 provided such Senior Convertible Notes are surrendered for conversion prior to the close of business on the Business Day immediately preceding the Redemption Date. CONVERSION UPON OCCURRENCE OF CERTAIN CORPORATE TRANSACTIONS. (a) Subject to the provisions of this paragraph 7 and notwithstanding the fact that any other condition described herein to conversion has not been satisfied, in the event the Company is a party to a consolidation, merger or binding share exchange or a transfer of all or substantially all of the Company's assets pursuant to which the Common Stock would be converted into cash, securities or other property as set forth in of the Indenture, the Senior Convertible Notes may be surrendered for conversion at any time from and after the date which is 15 days prior to the date announced by the Company as the anticipated effective time until 15 days after the actual effective date of such transaction, and at the effective time of such transaction the right to convert a Senior Convertible Note into Common Stock will be deemed to have changed into a right to convert it into the kind and amount of cash, securities or other assets of the Company or another person which the Holder would have received if the Holder had converted its Senior Convertible Note into Common Stock immediately prior to the transaction. If such transaction also constitutes a Fundamental Change, a Holder will be able to require the Company to purchase all or a portion of such Holder's Senior Convertible Notes pursuant to Paragraph 6 and of the Indenture. (a) Subject to the provisions of this paragraph 7 and notwithstanding the fact that any other condition to conversion has not been satisfied, in the event that the Company declares a dividend or distribution described in Section 1.10(g)(ii) of the Indenture, or a dividend or a distribution described in Section 1.10(g)(iv) of the Indenture where, the fair market value, per share, of such dividend or distribution per share of Common Stock, as determined in the Indenture, exceeds 10% of the Closing Sale Price of the Common Stock on the Business Day immediately preceding the date of declaration for such dividend or distribution or a Fundamental Change occurs other than pursuant to a transaction described in clause (a) hereof, the Senior Convertible Notes may be surrendered for conversion beginning on the date the Company gives notice to the Holders of such right, which shall not be less than 20 days prior to the Ex-Dividend Date for such dividend or distribution or which shall be within 20 days after the occurrence of such Fundamental Change, as the case may be, and Senior Convertible Notes may be surrendered for conversion at any time thereafter until the earlier of the close of business on the Business Day prior to the Ex-Dividend Date or until the Company announces that such dividend or distribution will not take place, with respect to a dividend or distribution, or within 30 days of such Fundamental Change Purchase Notice, in the case of such a Fundamental Change. No adjustment to the Conversion Rate or the ability of the Holders to convert this Senior Convertible Note will be made if the Company provides, as permitted in the Indenture, for Holders to participate in the transaction without conversion or in other cases specified in the Indenture. A Senior Convertible Note in respect of which a Holder has delivered a Repurchase Notice or Fundamental Change Purchase Notice exercising the option of such Holder to require the Company to purchase such Senior Convertible Note may be converted only if such notice of exercise is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is 16.2760 shares of Common Stock per $1,000 Original Principal Amount of each Senior Convertible Note, subject to adjustment for certain events A-8 described in the Indenture. The Company will deliver cash or a check in lieu of any fractional share of Common Stock. The ability to surrender Senior Convertible Notes for conversion will expire at the close of business on July 31, 2023. In the event the Company exercises its option pursuant to Section 1.03(h) of the Indenture to have, in lieu of having the Accreted Principal Amount increase, interest accrue on the Senior Convertible Note following a Tax Event, the Holder will be entitled on conversion to receive the same number of shares of Common Stock such Holder would have received if the Company had not exercised such option. Increases in the Accreted Principal Amount and cash interest (including Contingent Interest, if any, and interest payable upon the occurrence of a Tax Event, if any) will not be paid on Senior Convertible Notes that are converted, except accrued cash interest will be payable upon conversion of Senior Convertible Notes made concurrently with or after acceleration of Senior Convertible Notes following an Event of Default. Senior Convertible Notes surrendered for conversion during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date shall be entitled to receive such interest payable on such Senior Convertible Notes on the corresponding Interest Payment Date and, except Senior Convertible Notes to be redeemed within this period, Senior Convertible Notes surrendered for conversion during such periods must be accompanied by payment of an amount equal to the interest, including Contingent Interest, with respect thereto that the registered Holder is to receive. To exercise its conversion right, a Holder must (1) complete and manually sign the conversion notice (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Senior Convertible Note to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (4) pay any transfer or similar taxes, if required. A Holder may convert a portion of a Senior Convertible Note if the Original Principal Amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the Common Stock except as provided in the Indenture. On conversion of a Senior Convertible Note, increases in the Accreted Principal Amount or cash interest (or interest if the Company has exercised its option provided for in paragraph 9 hereof) attributable to the period from the Issue Date (or, if the Company has exercised the option referred to in paragraph 9 hereof, the later of (x) the date of such exercise and (y) the date on which interest was last paid) through the Conversion Date shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Senior Convertible Note being converted pursuant to the terms hereof, and the fair market value of such shares of Common Stock (together with any such cash payment in lieu of fractional shares) shall be treated as issued, to the extent thereof, first in exchange for increases in the Accreted Principal Amount or cash interest (or interest, if the Company has exercised its option provided for in paragraph 9 hereof) accrued through the Conversion Date, and the balance, if any, of such fair market value of such Common Stock (and any such cash A-9 payment) shall be treated as issued in exchange for the Issue Price of the Senior Convertible Note being converted pursuant to the provisions hereof. The Conversion Rate will be adjusted for dividends or distributions on Common Stock payable in Common Stock or other Capital Stock of the Company; subdivisions, combinations or certain reclassifications of Common Stock; distributions to all Holders of Common Stock of certain rights to purchase Common Stock for a period expiring within 60 days of the record date for such distribution at less than the current market price of the Common Stock at the time of the announcement of the distribution, distributions to such Holders of assets or debt securities of the Company or certain rights to purchase securities of the Company (including cash dividends or distributions) and payments in respect of a tender offer or exchange offer for Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceed the current market price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer. However, no adjustment need be made if Senior Convertible Note Holders may participate in the transaction or in certain other cases. The Company from time to time may voluntarily increase the Conversion Rate. If the Company is a party to a consolidation, merger or binding share exchange or a transfer of all or substantially all of its assets, or upon certain distributions described in the Indenture, the right to convert a Senior Convertible Note into Common Stock may be changed into a right to convert it into securities, cash or other assets of the Company or another person. The Conversion Rate will not be adjusted for increases in the Accreted Principal Amount or accrued cash interest, Contingent Interest or Liquidated Damages, if any. If a Holder elects to convert all or a portion of a Senior Convertible Note into shares of Common Stock as set forth above, the Company may choose to satisfy all or any portion of its conversion obligations in cash as set forth in the Indenture. 8. Conversion Arrangement on Call for Redemption. Any Senior Convertible Notes called for redemption, unless surrendered for conversion before the close of business on the Redemption Date, may be deemed to be purchased from the Holders of such Senior Convertible Notes at an amount not less than the Redemption Price, by one or more investment bankers or other purchasers who may agree with the Company to purchase such Senior Convertible Notes from the Holders, to convert them into Common Stock of the Company and to make payment for such Senior Convertible Notes to the Trustee in trust for such Holders. 9. Tax Event. From and after the date (the "Tax Event Date") of the occurrence of a Tax Event after August 1, 2010, the Company shall have the option to elect, by notice to the Trustee, in lieu of having Accreted Principal Amount increase, to have interest accrue and be paid in cash at the annual rate equal to Six Month LIBOR plus 0.50% reset on each Interest Reset Date; provided that such rate shall never be less than 0%, on a Restated Principal Amount per $1,000 Original Principal Amount (the "Restated Principal Amount") equal to the accrued Accreted Principal A-10 Amount through the Tax Event Date or the date the Company exercises the option provided for in this paragraph 9, whichever is later (the "Option Exercise Date"). Such interest shall be payable semi-annually on February 1 and August 1 of each year to Holders of record at the close of business on January 15 and July 15 immediately preceding such interest payment date. Interest will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from the Option Exercise Date. The Trustee shall notify Holders of Senior Convertible Notes within 15 days after the Option Exercise Date that the Company has exercised the option provided for in this paragraph. 10. Defaulted Interest. Except as otherwise specified with respect to the Senior Convertible Notes, any defaulted interest on any Senior Convertible Note shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date or accrual date, as the case may be, by virtue of having been such Holder, and such defaulted interest may be paid by the Company as provided for in the Indenture. 11. Denominations; Transfer; Exchange. The Senior Convertible Notes are in fully registered form, without coupons, in denominations of $1,000 of Original Principal Amount and integral multiples of $1,000. A Holder may transfer or exchange Senior Convertible Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Senior Convertible Notes selected for redemption (except, in the case of a Senior Convertible Note to be redeemed in part, the portion of the Senior Convertible Note not to be redeemed) or any Senior Convertible Notes in respect of which a Repurchase Notice or Designated Event notice has been given and not withdrawn (except, in the case of a Senior Convertible Note to be purchased in part, the portion of the Senior Convertible Note not to be purchased) or any Senior Convertible Notes for a period of 15 days before the mailing of a notice of redemption of Senior Convertible Notes to be redeemed. 12. Persons Deemed Owners. The registered Holder of this Senior Convertible Note may be treated as the owner of this Senior Convertible Note for all purposes. 13. Unclaimed Money or Securities. The Trustee and the Paying Agent shall return to the Company, upon written request any money or securities held by them for the payment of any amount with respect to the Senior Convertible Notes that remains unclaimed for two years, subject to applicable unclaimed property laws. After return to the Company Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. A-11 14. Amendment; Waiver. Subject to certain exceptions, the Indenture or the Senior Convertible Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Senior Convertible Notes, and any existing default may be waived with the consent of the Holders of a majority in aggregate Accreted Principal Amount of the then outstanding Senior Convertible Notes. Without the consent of any Holder, the Indenture or the Senior Convertible Notes may be amended to: (s) cure any ambiguity or correct or supplement any defective or inconsistent provision contained in the Indenture, or make any other changes in the provisions of the Indenture which the Company and the Trustee may deem necessary or desirable provided such amendment does not materially and adversely affect the legal rights under the Indenture of the Holders of Senior Convertible Notes; (t) provide for uncertificated Senior Convertible Notes in addition to or in place of certificated Senior Convertible Notes; (u) provide for the assumption of the Company's obligations to Holders of Senior Convertible Notes in circumstances required under the Indenture; (v) provide for exchange rights of Holders of Senior Convertible Notes in certain circumstances; (w) reduce the Conversion Price; (x) evidence and provide for the acceptance of the appointment under the Indenture of a successor Trustee; (y) make any change that would provide any additional rights or benefits to the Holders of Senior Convertible Notes or that does not adversely affect the legal rights under the Indenture of any such Holder; or (z) comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the TIA. Without the consent of each Holder affected, an amendment or waiver may not (with respect to any Senior Convertible Notes held by a non-consenting Holder): (a) reduce the percentage of Original Principal Amount of Senior Convertible Notes whose Holders must consent to an amendment, supplement or waiver; (b) reduce the principal of, or premium on, or change the Stated Maturity of any Senior Convertible Note or, except as permitted pursuant to clause (s), (v), (y) or (z) of the immediately preceding paragraph, alter the provisions with respect to the redemption or repurchase of the Senior Convertible Notes; (c) reduce the rate of or change the time for payment of interest, including Contingent Interest, defaulted interest, or Liquidated Damages, on any Senior Convertible Notes; (d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on the Senior Convertible Notes (except a rescission of acceleration of the Senior Convertible Notes by the Holders of at least a majority in aggregate Accreted Principal Amount of the Senior Convertible Notes and a waiver of the payment default that resulted from such acceleration); (e) make the principal of, or premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on, any Senior Convertible Note payable in money other than as provided for in the Indenture and in the Senior Convertible Notes; (f) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Senior Convertible Notes to receive payments of principal of, premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if any, on the Senior Convertible Notes; (g) waive a redemption or repurchase payment with respect to any Senior Convertible Note; (h) except as permitted by the Indenture, increase the Conversion Price or modify the provisions of the Indenture relating to conversion of the Senior Convertible Notes in a manner adverse to the Holders; (i) make any change to the abilities of A-12 Holders of Senior Convertible Notes to enforce their rights under the Indenture or the foregoing provisions of this paragraph 14 or this provision; (j) reduce the Redemption Price, Purchase Price or Fundamental Change Purchase Price of the Senior Convertible Notes; or (k) make any change that adversely affects the right to convert the Senior Convertible Notes. 15. Defaults and Remedies. An Event of Default is: (a) default for 30 days or more in payment of any installment of interest (including contingent interest, if any) or Liquidated Damages, if any, on the Senior Convertible Notes; (b) default in payment of the principal of, or premium, if any, on the Senior Convertible Notes, when due at maturity, upon repurchase, upon acceleration or otherwise; (c) default in the Company's obligation to repurchase Senior Convertible Notes upon the Company's exercise of its repurchase option pursuant to Section 1.06 of the Indenture, upon the occurrence of a Fundamental Change pursuant to Section 1.07 of the Indenture or upon the exercise by a Holder of its option to require the Company to repurchase such Holder's Senior Convertible Notes pursuant to Section 1.08 of the Indenture; (d) default by the Company in its obligation to provide notice of a Fundamental Change.; (e) default in the Company's obligation to convert the Senior Convertible Notes upon exercise of a Holder's conversion rights pursuant to Section 1.10 of the Indenture; (f) default by the Company for 60 days or more after notice as provided in the Indenture in the observance or performance of any other covenants in the Indenture; (g) default by the Company under any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness of the Company for money borrowed which and shall result in more than $20,000,000 in principal amount of such indebtedness becoming declared due and payable, and such acceleration shall not have been rescinded, annulled or discharged within 30 days after notice is given as specified in the Indenture; or (h) certain events involving bankruptcy, insolvency or reorganization of the Company or any Material Subsidiary. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate Accreted Principal Amount of the then outstanding Senior Convertible Notes may declare the unpaid principal of, premium, if any, and accrued and unpaid interest (including Contingent Interest, if any) and Liquidated Damages, if any, on all Senior Convertible Notes then outstanding to be due and payable immediately, except that in the case of an Event of Default arising from certain events of bankruptcy, insolvency, or reorganization with respect to the Company or any of its Material Subsidiaries, all outstanding Senior Convertible Notes become due and payable without further action or notice. Holders of Senior Convertible Notes may not enforce the Indenture or the Senior Convertible Notes except as provided in the Indenture. The Trustee may require an indemnity satisfactory to it before it enforces the Indenture or the Senior Convertible Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Senior Convertible Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal, premium, if any, or interest (including Contingent Interest, if any) or Liquidated Damages, if applicable) if it determines that withholding notice is in their interests. The Company must furnish annual compliance certificates to the Trustee. A-13 16. Registration Rights Agreement. The Holder of this Senior Convertible Note is entitled to the benefits of a Registration Rights Agreement, dated August 4, 2003, between the Company and the Initial Purchasers (the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement the Company has agreed for the benefit of the Holders of the Senior Convertible Notes and the Common Stock issued and issuable upon conversion of the Senior Convertible Notes, that (i) the Company will, at its cost, within 90 days after the Issue Date, file a shelf registration statement (the "Shelf Registration Statement") with the Securities and Exchange Commission (the "Commission") with respect to resales of the Senior Convertible Notes and the Common Stock issuable upon conversion thereof, (ii) the Company will use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission under the Securities Act within 180 days after the Issue Date and (iii) the Company will use its reasonable best efforts to keep such Shelf Registration Statement continuously effective under the Securities Act until the earliest of (a) the second anniversary of the Issue Date or, if later, the second anniversary of the last date on which any Senior Convertible Notes are issued upon exercise of the Initial Purchasers' over-allotment option or, if later, the second anniversary of the last date on which any unregistered Common Stock is issued or issuable upon conversion of the Senior Convertible Notes, (b) the date on which the Senior Convertible Notes or the Common Stock issuable upon conversion thereof may be sold by persons who are not "affiliates" (as defined in Rule 144) of the Company pursuant to paragraph (k) of Rule 144 (or any successor provision) promulgated by the Commission under the Securities Act, (c) the date as of which the Senior Convertible Notes or the Common Stock issuable upon conversion thereof have been transferred pursuant to Rule 144 under the Securities Act (or any similar provision then in force) and (d) the date as of which all the Senior Convertible Notes or the Common Stock issuable upon conversion thereof have been sold pursuant to such Shelf Registration Statement. If the Shelf Registration Statement (i) is not filed with the Commission on or prior to 90 days, or (ii) has not been declared effective by the Commission within 180 days, after the Issue Date or (iii) is filed and declared effective but shall thereafter cease to be effective (without being succeeded immediately by a replacement shelf registration statement filed and declared effective) or cease to be usable (including, without limitation, as a result of a Suspension Period as defined below) for the offer and sale of Transfer Restricted Securities (as defined below) for a period of time (including any Suspension Period) which shall exceed 60 days in the aggregate in any 12-month period during the period beginning on the Issue Date and ending on or prior to the second anniversary of the Issue Date or, if later, the second anniversary of the last date on which any Senior Convertible Notes are issued upon exercise of the Initial Purchasers' overallotment option or, if later, the second anniversary of the last date on which any unregistered Common Stock is issued or issuable upon conversion of the Senior Convertible Notes (each such event referred to in clauses (i), (ii) and (iii) being referred to herein as a "Registration Default"), the Company will pay liquidated damages ("Liquidated Damages") to each Holder of Transfer Restricted Securities which has complied with its obligations under the Registration Rights Agreement. The amount of Liquidated Damages payable during any period in which a Registration Default shall have occurred and be continuing is that amount which is equal to one-quarter of one percent (25 basis points) per annum per $ 1,000 Original Principal Amount of Senior Convertible Notes constituting Transfer Restricted Securities for the first 90 days during which a Registration Default has occurred and is continuing and one-half of one percent (50 A-14 basis points) per annum per $1,000 Original Principal Amount of Senior Convertible Notes constituting Transfer Restricted Securities for any additional days during which such Registration Default has occurred and is continuing. The Company will pay all accrued Liquidated Damages by wire transfer of immediately available funds or by federal funds check on each Damages Payment Date (as defined in the Registration Rights Agreement), and Liquidated Damages will be calculated on the basis of a 360-day year consisting of twelve 30-day months. Following the cure of a Registration Default, Liquidated Damages will cease to accrue with respect to such Registration Default. "Transfer Restricted Securities" means each Senior Convertible Note and each share of Common Stock issued on conversion thereof until the date on which such Senior Convertible Note or share, as the case may be, (i) has been transferred pursuant to the Shelf Registration Statement or another registration statement covering such Senior Convertible Note or share which has been filed with the Commission pursuant to the Securities Act, in either case after such registration statement has become and while such registration statement is effective under the Securities Act, (ii) has been transferred pursuant to Rule 144 under the Securities Act (or any similar provision then in force), or (iii) may be sold or transferred pursuant to Rule 144(k) under the Securities Act (or any similar provision then in force). Pursuant to the Registration Rights Agreement, the Company may suspend the use of the prospectus which is a part of the Shelf Registration Statement for a period not to exceed 30 days in any three-month period or for three periods not to exceed an aggregate of 90 days in any twelve-month period under certain circumstances (each, a "Suspension Period"); provided that the existence of a Suspension Period will not prevent the occurrence of a Registration Default or otherwise limit the obligation of the Company to pay Liquidated Damages. The above description of certain provisions of the Registration Rights Agreement is qualified by reference to, and is subject in its entirety to, the more complete description thereof contained in the Registration Rights Agreement. 17. Trustee Dealings with the Company. Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Senior Convertible Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. 18. No Recourse Against Others. A director, officer, employee, agent, representative, stockholder or equity Holder, as such, of the Company shall not have any liability for any obligations of the Company under the Senior Convertible Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Senior Convertible Note, each Senior Convertible Note Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Senior Convertible Notes. A-15 19. Authentication. This Senior Convertible Note shall not be valid until an authorized signatory of the Trustee manually signs the Trustee's Certificate of Authentication on the other side of this Senior Convertible Note. 20. Abbreviations. Customary abbreviations may be used in the name of a Senior Convertible Note Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 21. GOVERNING LAW. THIS SENIOR CONVERTIBLE NOTE AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF. A-16 The Company will furnish to any Senior Convertible Note Holder upon written request and without charge a copy of the Indenture that has in it the text of this Senior Convertible Note in larger type. Requests may be made to: Bausch & Lomb Incorporated One Bausch & Lomb Place Rochester, New York 14604 Attention: Chief Financial Officer A-17 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM-- as tenants in common UNIF GIFT MIN ACT- ______ Custodian ______ (Cust) (Minor) under Uniform Gifts to Minors Act TEN ENT-- as tenants by the entireties JT TEN-- as joint tenants with rights of survivorship and not as tenants in common ________________ (State) Additional abbreviations may also be used though not on the above list. A-18 CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF SECURITIES This Certificate relates to $_____________ principal amount of securities held in (check applicable space) ___ book-entry or ___ definitive form by _________________________ (the "Transferor"). The Transferor (check one box below): / / has requested the Trustee by written order to deliver, in exchange for its beneficial interest in the Global Security held by the Depositary, a security or securities in definitive, registered form of authorized denominations in an aggregate principal amount equal to its beneficial interest in such Global Security (or the portion thereof indicated above); or / / has requested the Trustee by written order to exchange or register the transfer of a security or securities. In connection with any transfer of any of the securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act of 1933, the undersigned confirms that such securities are being transferred in accordance with its terms: CHECK ONE BOX BELOW (1) / / to the Company; or (2) / / pursuant to an effective registration statement under the Securities Act of 1933; or (3) / / inside the United States to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or (4) / / outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act of 1933; or (5) / / pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. Prior to the expiration of the period referred to in Rule 144(k), unless one of the boxes is checked, the Trustee will refuse to register any of the securities evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box A-19 (4) or (5) is checked, the Trustee may require, prior to registering any such transfer of the securities, such legal opinions, certifications and other information satisfactory to the Company and the Trustee 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. ---------------------------------------- [INSERT NAME OF TRANSFEROR] Dated: ---------------------------- By: ---------------------------------------- SIGNATURE GUARANTEE Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A-20 [TO BE ATTACHED TO GLOBAL SECURITIES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY The following increases or decreases in Principal Amount represented by this Global Security have been made:
Principal Amount of Signature of Amount of decrease in Amount of increase in this Global Security authorized signatory Principal Amount of Principal Amount of following such decrease of Trustee or Date this Global Security this Global Security or increase Securities Custodian - ------------- --------------------- --------------------- ------------------------ --------------------
A-21 ASSIGNMENT FORM To assign this security, fill in the form below: I or we assign and transfer this security to - ------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) - ------------------------------------------------------------------------- (Insert assignee's social security or tax I.D. No.) and irrevocably appoint _____________________________________agent to transfer this security on the books of the Company. The agent may substitute another to act for him. Date: Your Signature: -------------------- ------------------------------------ - -------------------------------------------------------------------------------- Sign exactly as your name appears on the other side of this security. A-22 FORM OF CONVERSION NOTICE To: Bausch & Lomb Incorporated The undersigned registered Holder of this security hereby exercises the option to convert this security, or portion hereof (which is $1,000 principal amount or an integral multiple thereof) designated below, for shares of Common Stock of Bausch & Lomb Incorporated in accordance with the terms of the Indenture referred to in this security, and directs that the shares, if any, issuable and deliverable upon such conversion, together with any check for cash deliverable upon such conversion in lieu of fractional shares, and any securities representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If shares or any portion of this security not converted are to be issued in the name of a Person other than the undersigned, the undersigned shall pay all transfer taxes payable with respect thereto. This notice shall be deemed to be an irrevocable exercise of the option to convert this security. Dated: ----------------------------------------------- ----------------------------------------------- Signature(s) Signature(s) must be guaranteed by a commercial bank or trust company or a member firm of a major stock exchange if shares of Common Stock are to be issued, or securities to be delivered, other than to or in the name of the registered Holder. ----------------------------------------------- Signature Guarantee Fill in for registration of shares if to be delivered, and securities if to be issued other than to and in the name of registered Holder: - --------------------------------- Certificate No(s) of securities (not (Name) required for Global Securities) _________ - --------------------------------- Principal amount to be converted (Street Address) (if less than all): $______,000 - --------------------------------- --------------------------------------------- (City state and zip code) Social Security or Other Taxpayer I.D. Number Please print name and address A-23 FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE To: Bausch & Lomb Incorporated The undersigned registered Holder of this security hereby acknowledges receipt of a notice from Bausch & Lomb Incorporated (the "Company") as to the occurrence of a Fundamental Change with respect to the Company and requests and instructs the Company to repurchase this security, or the portion hereof (which is $1,000 principal amount or a integral multiple thereof) designated below, in accordance with the terms and conditions specified in this security and the Indenture referred to in this security and directs that the check in payment for this security or the portion thereof and any securities representing any unrepurchased principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any portion of this security not repurchased is to be issued in the name of a Person other than the undersigned, the undersigned shall pay all transfer taxes payable with respect thereto. Dated: ----------------------------------------------- ----------------------------------------------- Signature(s) Signature(s) must be guaranteed by a commercial bank or trust company or a member firm of a major stock exchange if securities are to be delivered, other than to or in the name of the registered Holder. ----------------------------------------------- Signature Guarantee Fill in for registration of shares if to be delivered, and securities if to be issued other than to and in the name of registered Holder: - --------------------------------- Certificate No(s) of securities (not required (Name) for Global Securities) ____________________ - --------------------------------- Principal amount to be purchased (Street Address) (if less than all): $______,000 - --------------------------------- --------------------------------------------- (City state and zip code) Social Security or Other Taxpayer Number Please print name and address A-24 FORM OF REPURCHASE NOTICE To: Bausch & Lomb Incorporated The undersigned registered Holder of this security hereby acknowledges receipt of a notice from Bausch & Lomb Incorporated (the "Company") as to the Holder's option to require the Company to repurchase this security and requests and instructs the Company to repurchase this security, or the portion hereof (which is $1,000 principal amount or a integral multiple thereof) designated below, in accordance with the terms and conditions specified in this security and the Indenture referred to in this security and directs that the consideration in payment for this security or the portion thereof and any securities representing any unrepurchased principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. The Senior Convertible Notes shall be purchased as of the Repurchase Date pursuant to the terms and conditions specified in the Senior Convertible Notes and in the Indenture. In the event the Company elected, pursuant to the notice that it is required to give, to pay the Purchase Price in shares of Common Stock, but the Purchase Price is ultimately paid to the Holder entirely in cash because any of the conditions to payment of the Purchase Price, or any portion of the Purchase Price, in shares of Common Stock is not satisfied prior to the close of business on the last Business Day prior to the Repurchase Date, the undersigned elects1 [strike out the inapplicable election]: (A) to withdraw the purchase notice as to $_________ in aggregate principal amount of the Senior Convertible Notes to which it relates; or (B) to receive cash in respect of the entire Purchase Price for all Senior Convertible Notes subject to the purchase notice. If any portion of this security not repurchased is to be issued in the name of a Person other than the undersigned, the undersigned shall pay all transfer taxes payable with respect thereto. The term "consideration" as used within this paragraph shall mean cash or Common Stock. Dated: ----------------------------------------------- ----------------------------------------------- Signature(s) Signature(s) must be guaranteed by a commercial bank or trust company or a member firm of a major stock exchange if securities are to be delivered, other than to or in the name of the registered Holder. ----------------------------------------------- Signature Guarantee Fill in for registration of securities if to be issued other than to and in the name of registered Holder: - --------------------------------- Certificate No(s) of securities (not required (Name) for Global Securities) ____________________ - --------------------------------- Principal amount to be purchased (Street Address) (if less than all): $______,000 - --------------------------------- --------------------------------------------- (City state and zip code) Social Security or Other Taxpayer Number Please print name and address - ---------- (1) If a Holder fails to indicate its choice with respect to this election, such Holder will be deemed to have elected to receive cash in respect of the entire Purchase Price for all Senior Convertible Notes subject to the Company Purchase Notice in these circumstances. A-25 EXHIBIT B CERTIFICATE OF AUTHENTICATION This is one of the securities of the series designated therein referred to in the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: --------------------------------------------- Authorized Officer B-1 EXHIBIT C PROJECTED PAYMENT SCHEDULE
MARKET VALUE OF PROJECTED ACCRETED BOND PRINCIPAL COVERT STOCK PRICE PROJECTED PRINCIPAL ACCRETED AT FEATURE ACTUAL/360 (BASED ON 6 MONTHS LIBOR VALUE OF COMPARABLE (BASED ON NON CONTINGENT DATE FACTOR RETURN) (ANNUAL RATE) CONVERTIBLE YIELD PARITY) PAYMENT - --------------------------------------------------------------------------------------------------------------------------------- 08/04/2003 $ 40.96 1.10% $ 1,000.00 $ 1,000.00 $ 666.66 -- 02/01/2004 0.503 $ 42.78 1.17% $ 1,000.00 $ 1,033.59 $ 696.31 $ 8.04 08/01/2004 0.506 $ 44.69 1.65% $ 1,000.00 $ 1,068.39 $ 727.45 $ 8.46 02/01/2005 0.511 $ 46.71 2.01% $ 1,000.00 $ 1,102.59 $ 760.33 $ 11.01 08/01/2005 0.503 $ 48.79 2.75% $ 1,000.00 $ 1,135.87 $ 794.14 $ 12.63 02/01/2006 0.511 $ 51.00 3.24% $ 1,000.00 $ 1,167.31 $ 830.04 $ 16.62 08/01/2006 0.503 $ 53.27 3.74% $ 1,000.00 $ 1,197.10 $ 866.96 $ 18.81 02/01/2007 0.511 $ 55.67 4.18% $ 1,000.00 $ 1,226.11 $ 906.15 $ 21.65 08/01/2007 0.503 $ 58.15 4.42% $ 1,000.00 $ 1,253.62 $ 946.44 $ 23.53 02/01/2008 0.511 $ 60.78 4.78% $ 1,000.00 $ 1,281.53 $ 989.23 $ 25.14 08/01/2008 0.506 $ 63.50 4.88% $ 1,000.00 $ 1,308.50 $ 1,033.46 $ 26.67 02/01/2009 0.511 $ 66.37 5.15% $ 1,000.00 $ 1,336.38 $ 1,080.18 $ 27.50 08/01/2009 0.503 $ 69.32 5.28% $ 1,000.00 $ 1,363.61 $ 1,128.22 $ 28.40 02/01/2010 0.511 $ 72.45 5.49% $ 1,000.00 $ 1,391.79 $ 1,179.22 $ 29.53 08/01/2010 0.503 $ 75.67 5.54% $ 1,000.00 $ 1,419.62 $ 1,231.66 $ 30.11 02/01/2011 0.511 $ 79.09 5.70% $ 1,030.85 $ 1,475.92 $ 1,287.34 $ 0.00 08/01/2011 0.503 $ 82.61 5.69% $ 1,062.97 $ 1,533.48 $ 1,344.58 $ 0.00 02/01/2012 0.511 $ 86.35 5.81% $ 1,096.61 $ 1,594.25 $ 1,405.37 $ 0.00 08/01/2012 0.506 $ 90.21 5.97% $ 1,131.58 $ 1,656.72 $ 1,468.21 $ 0.00 02/01/2013 0.511 $ 94.29 6.06% $ 1,168.98 $ 1,722.33 $ 1,534.58 $ 0.00 08/01/2013 0.503 $ 98.48 6.03% $ 1,207.53 $ 1,789.40 $ 1,602.82 $ 0.00 02/01/2014 0.511 $ 102.93 6.09% $ 1,247.80 $ 1,860.21 $ 1,675.28 $ 0.00 08/01/2014 0.503 $ 107.51 6.12% $ 1,289.11 $ 1,932.60 $ 1,749.78 $ 0.00 02/01/2015 0.511 $ 112.37 6.16% $ 1,332.72 $ 2,009.02 $ 1,828.88 $ 0.00 08/01/2015 0.503 $ 117.36 6.33% $ 1,377.31 $ 2,087.14 $ 1,901.21 $ 0.00 02/01/2016 0.511 $ 122.67 6.36% $ 1,425.42 $ 2,169.61 $ 1996.57 $ 0.00 08/01/2016 0.506 $ 128.15 6.38% $ 1,474.84 $ 2,254.38 $ 2,085.84 $ 0.00 02/01/2017 0.511 $ 133.95 6.38% $ 1,526.67 $ 2,343.38 $ 2,180.14 $ 0.00 08/01/2017 0.503 $ 139.90 6.39% $ 1,579.49 $ 2,434.36 $ 2,277.09 $ 0.00 02/01/2018 0.511 $ 146.23 6.38% $ 1,635.07 $ 2,530.40 $ 2,380.03 $ 0.00 08/01/2018 0.503 $ 152.73 6.47% $ 1,691.62 $ 2,628.56 $ 2,485.86 $ 0.00 02/01/2019 0.511 $ 159.64 6.45% $ 1,751.86 $ 2,732.18 $ 2,598.24 $ 0.00 08/01/2019 0.503 $ 166.74 6.43% $ 1,813.06 $ 2,838.08 $ 2,713.78 $ 0.00 02/01/2020 0.511 $ 174.27 6.40% $ 1,877.27 $ 2,949.87 $ 2,836.46 $ 0.00 08/01/2020 0.506 $ 182.07 6.37% $ 1,942.77 $ 3,064.75 $ 2,963.30 $ 0.00 02/01/2021 0.511 $ 190.30 6.34% $ 2,011.02 $ 3,185.36 $ 3,097.26 $ 0.00 08/01/2021 0.503 $ 198.76 6.30% $ 2,080.17 $ 3,308.62 $ 3,234.99 $ 0.00 02/01/2022 0.511 $ 207.74 6.265 $ 2,152.51 $ 3,438.72 $ 3,381.23 $ 0.00 08/01/2022 0.503 $ 216.98 6.22% $ 2,225.71 $ 3,571.67 $ 3,531.59 $ 0.00 02/01/2023 0.511 $ 226.79 6.18% $ 2,302.19 $ 3,712.00 $ 3,691.25 $ 0.00 08/01/2023 0.503 $ 236.88 6.06% $ 2,379.48 $ 3,855.39 $ 3,855.39 $ 0.00 ------------------- 288.12 ------------------- PRESENT DISCOUNT FACTOR PRESENT VALUE VALUE OF PAYMENT UPON TOTAL USING OF TOTAL CONTINGENT CONVERSION PRI PROJECTED COMPARABLE CONTINGENT PROJECTED DATE PAYMENT TAX DEDUCTION TO MATURITY PAYMENTS YIELD PAYMENT PAYMENTS - --------------------------------------------------------------------------------------------------------------------------- 08/04/2003 -- - - - - 02/01/2004 $ 0.00 $ 41.63 - $ 8.04 0.9600 $ 0.00 $ 7.72 08/01/2004 $ 0.00 $ 43.27 - $ 8.46 0.9215 $ 0.00 $ 7.80 02/01/2005 $ 0.00 $ 45.21 - $ 11.01 0.8840 $ 0.00 $ 9.74 08/01/2005 $ 0.00 $ 45.90 - $ 12.63 0.8487 $ 0.00 $ 10.72 02/01/2006 $ 0.00 $ 48.07 - $ 16.62 0.8143 $ 0.00 $ 13.54 08/01/2006 $ 0.00 $ 48.60 - $ 18.81 0.7817 $ 0.00 $ 14.70 02/01/2007 $ 0.00 $ 50.66 - $ 21.65 0.7500 $ 0.00 $ 16.23 08/01/2007 $ 0.00 $ 51.04 - $ 23.53 0.7200 $ 0.00 $ 16.94 02/01/2008 $ 0.00 $ 53.05 $ 25.14 0.6908 $ 0.00 $ 17.37 08/01/2008 $ 0.00 $ 53.64 - $ 26.67 0.6630 $ 0.00 $ 17.68 02/01/2009 $ 0.00 $ 55.38 - $ 27.50 0.6361 $ 0.00 $ 17.49 08/01/2009 $ 0.00 $ 55.63 - $ 28.40 0.6107 $ 0.00 $ 17.35 02/01/2010 $ 0.00 $ 57.71 - $ 29.53 0.5859 $ 0.00 $ 17.30 08/01/2010 $ 0.00 57.94 - $ 30.11 0.5625 $ 0.00 $ 16.94 02/01/2011 $ 3.78 $ 60.08 - $ 3.78 0.5396 $ 2.04 $ 2.04 08/01/2011 $ 3.88 $ 61.44 - $ 3.88 0.5181 $ 2.01 $ 2.01 02/01/2012 $ 4.12 $ 64.90 - $ 4.12 0.4970 $ 2.05 $ 2.05 08/01/2012 $ 4.26 $ 66.74 - $ 4.26 0.4771 $ 2.03 $ 2.03 02/01/2013 $ 4.50 $ 70.11 - $ 4.50 0.4577 $ 2.06 $ 2.06 08/01/2013 $ 4.63 $ 71.70 - $ 4.63 0.4394 $ 2.03 $ 2.03 02/01/2014 $ 4.92 $ 75.73 - $ 4.92 0.4216 $ 2.07 $ 2.07 08/01/2014 $ 5.05 $ 77.44 - $ 5.05 0.4047 $ 2.05 $ 2.05 02/01/2015 $ 5.37 $ 81.79 - $ 5.37 0.3883 $ 2.08 $ 2.08 08/01/2015 $ 5.52 $ 83.64 - $ 5.52 0.3728 $ 2.06 $ 2.06 02/01/2016 $ 5.86 $ 88.33 - $ 5.86 0.3576 $ 2.09 $ 2.09 08/01/2016 $ 6.06 $ 90.82 - $ 6.06 0.3433 $ 2.08 $ 2.08 02/01/2017 $ 6.40 $ 95.41 - $ 6.40 0.3293 $ 2.11 $ 2.11 08/01/2017 $ 6.58 $ 97.56 - $ 6.58 0.3162 $ 2.08 $ 2.08 02/01/2018 $ 6.98 $ 103.02 - $ 6.98 0.3033 $ 2.12 $ 2.12 08/01/2018 $ 7.18 $ 105.34 - $ 7.18 0.2912 $ 2.09 $ 2.09 02/01/2019 $ 7.62 $ 111.14 - $ 7.62 0.2794 $ 2.13 $ 2.13 08/01/2019 $ 7.84 $ 113.74 - $ 7.84 0.2682 $ 2.10 $ 2.10 02/01/2020 $ 8.32 $ 120.11 - $ 8.32 0.2573 $ 2.14 $ 2.14 08/01/2020 $ 8.60 $ 123.48 - $ 8.60 0.2470 $ 2.12 $ 2.12 02/01/2021 $ 9.09 $ 129.70 - $ 9.09 0.2370 $ 2.15 $ 2.15 08/01/2021 $ 9.34 $ 132.61 - $ 9.34 0.2275 $ 2.13 $ 2.13 02/01/2022 $ 9.92 $ 140.02 - $ 9.92 0.2182 $ 2.17 $ 2.17 08/01/2022 $ 10.20 $ 143.15 - $ 10.20 0.2095 $ 2.14 $ 2.14 02/01/2023 $ 10.83 $ 151.15 - $ 10.83 0.2010 $ 2.18 $ 2.18 08/01/2023 $ 11.14 $ 154.53 $ 3,855.39 $ 3,866.53 0.1930 $ 2.15 $ 746.17 ------------------------------------------------------------------------------------------------------- $ 177.99 $ 3,321.50 $ 3,855.39 $ 4,321.50 TOTAL PV $ 54.46 $1,000.00 -------------------------------------------------------------------------------------------------------
C-1 EX-4.3 7 a2116158zex-4_3.txt EXHIBIT 4.3 EXHIBIT 4.3 BAUSCH & LOMB INCORPORATED FLOATING RATE CONVERTIBLE SENIOR NOTES DUE 2023 REGISTRATION RIGHTS AGREEMENT August 4, 2003 Citigroup Global Markets Inc. As Representative of the Initial Purchasers 388 Greenwich Street New York, New York 10013 Ladies and Gentlemen: Bausch & Lomb Incorporated, a corporation organized under the laws of New York (the "Company"), proposes to issue and sell to certain purchasers (the "Initial Purchasers"), for whom you (the "Representative") are acting as representative, its Floating Rate Convertible Senior Notes due 2023 (the "Securities"), upon the terms set forth in the Purchase Agreement between the Company and the Representative dated July 29, 2003 (the "Purchase Agreement") relating to the initial placement (the "Initial Placement") of the Securities. To induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy a condition to your obligations thereunder, the Company agrees with you (i) for your benefit and (ii) for the benefit of the holders (including the Initial Purchasers)from time to time of the Securities and the Common Stock, par value $0.40 per share (the "Stock") (each a "Holder" and, collectively, the "Holders"), as follows: 1. DEFINITIONS. (a) Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized defined terms shall have the following meanings: "Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. "Affiliate" shall have the meaning specified in Rule 405 under the Act and the terms "controlling" and "controlled" shall have meanings correlative thereto. "Broker-Dealer" shall mean any broker or dealer registered as such under the Exchange Act. "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. "Closing Date" shall mean the date of the first issuance of the Securities. "Commission" shall mean the Securities and Exchange Commission. "Deferral Period" shall have the meaning indicated in Section 3(i) hereof. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. "Final Memorandum" shall mean the offering memorandum, dated July 29, 2003, relating to the Securities, including any and all exhibits thereto and any information incorporated by reference therein as of such date. "Holder" shall have the meaning set forth in the preamble hereto. "Indenture" shall mean the Indenture relating to the Securities, dated as of September 21, 1991, between the Company and Citibank, N.A., as trustee, as the same may be amended from time to time in accordance with the terms thereof. "Initial Placement" shall have the meaning set forth in the preamble hereto. "Initial Purchaser" shall have the meaning set forth in the preamble hereto. "Losses" shall have the meaning set forth in Section 5(d) hereof. "Majority Holders" shall mean, on any date, Holders of a majority of the aggregate original principal amount of Securities registered under a Registration Statement. "Managing Underwriters" shall mean the investment banker or investment bankers and manager or managers that administer an underwritten offering, if any, conducted pursuant to Section 6 hereof. "NASD Rules" shall mean the Conduct Rules and the By-Laws of the National Association of Securities Dealers, Inc. "Notice and Questionnaire" shall mean a written notice delivered to the Company substantially in the form attached as Annex A to the Final Memorandum. "Notice Holder" shall mean, on any date, any Holder of Registrable Securities that has delivered a Notice and Questionnaire to the Company on or prior to such date. "Prospectus" shall mean a prospectus included in the Shelf Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Shelf Registration Statement, and all amendments and supplements thereto, including any and all exhibits thereto and any information incorporated by reference therein. "Purchase Agreement" shall have the meaning set forth in the preamble hereto. 2 "Registrable Securities" shall mean Securities and the shares of Stock issuable upon conversion of such Securities, other than those that have been (i) registered under the Shelf Registration Statement and disposed of in accordance therewith or (ii) distributed to the public pursuant to Rule 144 under the Act or any successor rule or regulation thereto that may be adopted by the Commission. "Registration Default Damages" shall have the meaning set forth in Section 7 hereof. "Securities" shall have the meaning set forth in the preamble hereto. "Shelf Registration Period" shall have the meaning set forth in Section 2(c) hereof. "Shelf Registration Statement" shall mean a "shelf" registration statement of the Company pursuant to the provisions of Section 2 hereof which covers some or all of the Registrable Securities on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "Trustee" shall mean the trustee with respect to the Securities under the Indenture. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder. "underwriter" shall mean any underwriter of Registrable Securities in connection with an offering thereof under the Shelf Registration Statement. (b) Wherever there is a reference in this Agreement to a percentage of the "original principal amount" of Registrable Securities, Stock shall be treated as representing the original principal amount of Securities which was surrendered for conversion or exchange in order to receive such number of shares of Common Stock. 2. SHELF REGISTRATION. (a) The Company shall as promptly as practicable (but in no event more than 90 days after the Closing Date) file with the Commission a Shelf Registration Statement providing for the registration of, and the sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities, from time to time in accordance with the methods of distribution elected by such Holders, pursuant to Rule 415 under the Act or any similar rule that may be adopted by the Commission. (b) The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to become or be declared effective under the Act no later than 180 days after the Closing Date. (c) The Company shall use its reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period 3 (the "Shelf Registration Period") from the date the Shelf Registration Statement is declared effective by the Commission until the earlier of (i) the latest of the second anniversary of (a) the Closing Date, (b) the last date on which any Securities are issued upon exercise of the Initial Purchasers' option or (c) the last date on which any unregistered Stock is issued or issuable upon conversion of the Securities; (ii) the date on which the Securities and the unregistered Stock issuable upon their conversion may be sold by non-affiliates of the Company pursuant to paragraph (k) of Rule 144 (or any successor provision) promulgated by the SEC under the Act; (iii) the date as of which all the Securities and the unregistered Stock issuable upon their conversion have been sold under Rule 144 under the Act (or any similar provision then in force) and (iv) the date as of which all the Securities or the Stock issuable upon their conversion have been sold pursuant to the Shelf Registration Statement. The Company shall be deemed not to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Registration Period if it voluntarily takes any action that would result in Holders of Registrable Securities not being able to offer and sell such Registrable Securities at any time during the Shelf Registration Period, unless such action is (x) required by applicable law or otherwise undertaken by the Company in good faith and for valid business reasons (not including avoidance of the Company's obligations hereunder), including the acquisition or divestiture of assets, and (y) permitted by Section 3(i) hereof. (d) The Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading. (e) Each Holder of Registrable Securities agrees to deliver a Notice and Questionnaire to the Company at least three Business Days prior to any distribution by it of Registrable Securities under the Shelf Registration Statement. From and after the date the Shelf Registration Statement is declared effective, the Company shall, as promptly as is practicable after the date a Notice and Questionnaire is delivered, and in any event within the later of ten (10) Business Days after such date, or ten (10) Business Days after the expiration of any Deferral Period in effect when the Notice and Questionnaire are delivered or which comes into effect within ten (10) Business Days of such delivery: (i) if required by applicable law, file with the Commission a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or an amendment or supplement to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling holder in the Shelf Registration Statement and the related Prospectus and so that such Holder is permitted to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Act as promptly as is practicable; (ii) provide such Holder copies of any documents filed pursuant to Section 2(e)(i) hereof; and (iii) notify such Holder as promptly as practicable after the effectiveness under the Act of any post-effective amendment filed pursuant to Section 2(e)(i) hereof; PROVIDED, that if such Notice and Questionnaire is 4 delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(i) hereof. Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling holder in the Shelf Registration Statement or related Prospectus; PROVIDED, HOWEVER, that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(e) (whether or not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective) shall be named as a selling holder in the Shelf Registration Statement or related Prospectus in accordance with the requirements of this Section 2(e). (f) If at any time, the Securities, pursuant to their terms, are convertible into securities other than Stock, the Company shall, or shall cause any successor under the Indenture to, cause such securities to be included in the Shelf Registration Statement no later than the date on which the Securities may then be convertible into such securities. 3. REGISTRATION PROCEDURES. The following provisions shall apply in connection with the Shelf Registration Statement. (a) The Company shall: (i) furnish to the Representative and to counsel for the Notice Holders, not less than five Business Days prior to the filing thereof with the Commission, a copy of the Shelf Registration Statement and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein and shall use its reasonable best efforts to reflect in each such Shelf Registration Statement, Prospectus or supplement or amendment to either document, when so filed with the Commission, such comments as the Representative reasonably and timely proposes; and (ii) include information regarding the Notice Holders and the methods of distribution they have elected for their Registrable Securities provided to the Company in Notices and Questionnaires as necessary to permit such distribution by the methods specified therein. (b) The Company shall ensure that: (i) the Shelf Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies in all material respects with the Act; and (ii) the Shelf Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (c) The Company shall advise the Representative, the Notice Holders and any underwriter that has provided in writing to the Company a telephone or facsimile number and 5 address for notices, and confirm such advice by notice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension): (i) when the Shelf Registration Statement and any amendment thereto has been filed with the Commission and when the Shelf Registration Statement or any post-effective amendment thereto has become effective; (ii) of any request by the Commission for any amendment or supplement to the Shelf Registration Statement or the Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement or the receipt by the Company of notice from the Commission of the institution or threatening of any proceeding for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction, or the receipt by the Company of notice from the applicable governmental authority of the institution or threatening of any proceeding for such purpose; and (v) of the happening of any event that requires any change in the Shelf Registration Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue statement of a material fact and (B) do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading. (d) The Company shall use its reasonable best efforts to prevent the issuance of any order suspending the effectiveness of the Shelf Registration Statement or the qualification of the Registrable Securities therein for sale in any jurisdiction and, if issued, to obtain as soon as possible the withdrawal thereof. (e) The Company shall furnish to each Notice Holder, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, and, if a Notice Holder so requests in writing, all exhibits thereto (other than exhibits incorporated by reference therein). (f) During the Shelf Registration Period, the Company shall promptly deliver to each Initial Purchaser, each Notice Holder, and any sales or placement agents or underwriters acting on their behalf, without charge, as many copies of the Prospectus (including the preliminary Prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as any such person may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the foregoing in connection with the offering and sale of the Registrable Securities except during any Deferral Period. 6 (g) Prior to any offering of Registrable Securities pursuant to the Shelf Registration Statement, the Company shall use its reasonable best efforts to register or qualify the Registrable Securities for sale under the laws of such jurisdictions as any Notice Holder shall reasonably request in writing and shall maintain such qualification in effect the Registration Period; provided that in no event shall the Company be obligated to qualify to do business as a foreign corporation or a dealer in securities in any jurisdiction where it is not then so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the Initial Placement or any offering pursuant to the Shelf Registration Statement, or taxes in any jurisdiction where it is not then so subject. (h) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v) above, the Company shall promptly (or within the time period provided for by Section 3(i) hereof, if applicable) prepare a post-effective amendment to the Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to Initial Purchasers of the securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (i) Upon the occurrence or existence of any material event that, in the reasonable judgment of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, the Company shall give notice (without notice of the nature or details of such events) to the Notice Holders that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in Section 3(i) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The period during which the availability of the Shelf Registration and any Prospectus is suspended (the "Deferral Period") shall not exceed 30 days in any three-month period or 90 days in any twelve-month period. (j) Not later than the effective date of the Shelf Registration Statement, the Company shall provide a CUSIP number for the Securities registered under the Shelf Registration Statement and provide the Trustee with printed certificates for such Securities, free of any restrictive legends, in a form eligible for deposit with The Depository Trust Company. (k) The Company shall comply with all applicable rules and regulations of the Commission and shall make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Act as soon as practicable after the effective date of the Shelf Registration Statement and in any event no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Shelf Registration Statement. (l) The Company shall cause the Indenture to be qualified under the Trust Indenture Act in a timely manner. 7 (m) The Company may require each Holder of Registrable Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement. The Company may exclude from the Shelf Registration Statement the Registrable Securities of any Holder that unreasonably fails to furnish such information within a reasonable time after receiving such request. (n) The Company shall enter into customary agreements (including, if requested, an underwriting agreement in customary form) and take all other appropriate actions in order to expedite or facilitate the registration or the disposition of the Registrable Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 5 hereof. (o) Upon the effectiveness of the Shelf Registration Statement, the Company shall: (i) make reasonably available during normal business hours for inspection by the Holders of Registrable Securities to be registered thereunder, any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney, accountant or other agent retained by the Holders or any such underwriter all relevant financial and other records and pertinent corporate documents of the Company and its subsidiaries; (ii) cause the Company's officers, directors, employees, accountants and auditors to make reasonably available all relevant information reasonably requested by the Holders or any such underwriter, attorney, accountant or agent in connection with any the Shelf Registration Statement as is customary for similar due diligence examinations; (iii) make such representations and warranties to the Holders of Registrable Securities registered thereunder and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (iv) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters; (v) obtain "comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of 8 any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Shelf Registration Statement), addressed to each selling Holder of Registrable Securities registered thereunder and the underwriters, if any, in customary form and covering matters of the type customarily covered in "comfort" letters in connection with primary underwritten offerings; and (vi) deliver such documents and certificates as may be reasonably requested by the Majority Holders or the Managing Underwriters, if any, including those to evidence compliance with Section 3(i) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (o) shall be performed at (A) the effectiveness of the Shelf Registration Statement and each post-effective amendment thereto (other than a post-effective amendment providing solely for a change or addition to the list of selling securityholders); and (B) each closing under any underwriting or similar agreement as and to the extent required thereunder. (p) The Company shall use its reasonable best efforts to confirm that the ratings of the Securities prior to the initial sale of such Securities will apply to the Securities covered by the Shelf Registration Statement. (q) The Company will use its reasonable best efforts to cause the Stock issuable upon conversion thereof to be listed for quotation on the New York Stock Exchange or other stock exchange or trading system on which the Stock primarily trades on or prior to the effective date of any Shelf Registration Statement hereunder. (r) In the event that any Broker-Dealer shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the NASD Rules) thereof, whether as a Holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such Broker-Dealer in complying with the NASD Rules. (s) The Company shall use its reasonable best efforts to take all other steps necessary to effect the registration of the Securities and the common stock issuable upon conversion thereof covered by the Shelf Registration Statement. 4. REGISTRATION EXPENSES. The Company shall bear all expenses incurred in connection with the performance of its obligations under Sections 2 and 3 hereof and shall reimburse the Holders for the reasonable fees and disbursements of one firm or counsel (which shall initially be Mayer, Brown, Rowe & Maw, but which may be another nationally recognized law firm experienced in securities matters designated by the Majority Holders) to act as counsel for the Holders in connection therewith, PROVIDED, HOWEVER, the Holders shall pay the fees and expenses of any attorneys if retained in addition to the one firm or counsel, and their selling 9 expenses, including any underwriting discounts or other commissions and fees in connection with their sale of Registrable Securities. 5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities covered by the Shelf Registration Statement, each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each such Holder or Initial Purchaser and each person who controls any such Holder or Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the party claiming indemnification specifically for inclusion therein. This indemnity agreement shall be in addition to any liability that the Company may otherwise have. The Company also agrees to indemnify as provided in this Section 5(a) or contribute as provided in Section 5(d) hereof to Losses of each underwriter, if any, of Registrable Securities registered under the Shelf Registration Statement, its directors, officers, employees, Affiliates or agents and each person who controls such underwriter on substantially the same basis as that of the indemnification of the Initial Purchasers and the selling Holders provided in this paragraph (a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 3(n) hereof. (b) Each Holder of securities covered by the Shelf Registration Statement (including each Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Shelf Registration Statement and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not an Initial Purchaser in such Notice Holder's Notice and Questionnaire and shall be in addition to any liability that any such Notice Holder may otherwise have. 10 (c) Promptly after receipt by an indemnified party under this Section 5 or notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 5 is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending loss, claim, liability, damage or action) (collectively "Losses") to which such indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the Shelf Registration Statement which resulted in such Losses; PROVIDED, HOWEVER, that in no case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the purchase discount or commission applicable to such Security, as set forth in the Final Memorandum, nor shall any underwriter be responsible for any amount in excess of the 11 underwriting discount or commission applicable to the securities purchased by such underwriter under the Shelf Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the Initial Placement (before deducting expenses) as set forth in the Final Memorandum. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the Final Memorandum, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Registrable Securities registered under the Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Shelf Registration Statement which resulted in such Losses. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5, each person who controls a Holder within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Shelf Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). (e) The provisions of this Section 5 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 5, and shall survive the sale by a Holder of securities covered by the Shelf Registration Statement. 6. UNDERWRITTEN REGISTRATIONS. (a) If any of the Registrable Securities covered by the Shelf Registration Statement are to be sold in an underwritten offering, the Managing Underwriters shall be selected by the Majority Holders, subject to the consent of the Company, which consent shall not be unreasonably withheld. (b) No person may participate in any underwritten offering pursuant to the Shelf Registration Statement unless such person (i) agrees to sell such person's Registrable Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements; and (ii) completes and executes all 12 questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. 7. REGISTRATION DEFAULTS. If any of the following events shall occur, then the Company shall pay liquidated damages (the "Registration Default Damages") to the Holders of Securities in respect of the Securities as follows: (a) if the Shelf Registration Statement with respect to the Securities is not filed with the Commission on or prior to the 90th day following the Closing Date, then commencing on the 91st day after the Closing Date, Registration Default Damages shall accrue on the Securities at a rate of ..25% per annum for the first 90 days from and including such 91st day and .50% per annum thereafter; or (b) if the Shelf Registration Statement with respect to the Securities is not declared effective by the Commission on or prior to the 180th day following the Closing Date, then commencing on the 181st day after the Closing Date, Registration Default Damages shall accrue on the Securities at a rate of .25% per annum for the first 90 days from and including such 181st day and .50% per annum thereafter; or (c) if the Shelf Registration Statement with respect to the Securities has been declared effective but ceases to be effective (other than pursuant to Section 3(i) hereof) at any time during the Shelf Registration Period, then commencing on the day the Shelf Registration Statement ceases to be effective, Registration Default Damages shall accrue on the Securities at a rate of .25% per annum for the first 90 days from and including such date on which the Shelf Registration Statement ceases to be effective and .50% per annum thereafter; or (d) if the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period pursuant to Section 3(i) hereof, then commencing on the day the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period, Registration Default Damages shall accrue on the Securities at a rate of .25% per annum for the first 90 days from and including such date and ..50% per annum thereafter; PROVIDED, HOWEVER, that (1) upon the filing of the Shelf Registration Statement (in the case of paragraph (a) above), (2) upon the effectiveness of the Shelf Registration Statement (in the case of paragraph (b) above), (3) upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of paragraph (c) above), or (4) upon the termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a period set forth in Section 3(i) to be exceeded (in the case of paragraph (d) above), Registration Default Damages shall cease to accrue. 8. NO INCONSISTENT AGREEMENTS. The Company has not entered into, and agrees not to enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or that otherwise conflicts with the provisions hereof. 9. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of the 13 Holders of a majority of the aggregate original principal amount of the Registrable Securities outstanding; PROVIDED that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to be effective; PROVIDED, FURTHER, that no amendment, qualification, supplement, waiver or consent with respect to Section 7 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder; and PROVIDED, FURTHER, that the provisions of this Article 9 may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of the Initial Purchasers and each Holder. 10. NOTICES. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery: (a) if to a Holder, at the most current address given by such holder to the Company in accordance with the provisions of the Notice and Questionnaire , which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture; (b) if to the Initial Purchasers or the Representative, initially at the address or addresses set forth in the Purchase Agreement; and (c) if to the Company, initially at its address set forth in the Purchase Agreement. All such notices and communications shall be deemed to have been duly given when received. The Initial Purchasers or the Company by notice to the other parties may designate additional or different addresses for subsequent notices or communications. 11. REMEDIES. Each Holder, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive in any action for specific performance the defense that a remedy at law would be adequate. 12. SUCCESSORS. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors and assigns, including, without the need for an express assignment or any consent by the Company thereto, subsequent Holders of Registrable Securities, and the indemnified persons referred to in Section 5 hereof. The Company hereby agrees to extend the benefits of this Agreement to any Holder of Registrable Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto. 14 13. COUNTERPARTS. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. 14. HEADINGS. The section headings used herein are for convenience only and shall not affect the construction hereof. 15. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in the State of New York. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement. 16. SEVERABILITY. In the event that any one of more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law. 17. REGISTRABLE SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or approval of Holders of a specified percentage of original principal amount of Registrable Securities is required hereunder, Registrable Securities held by the Company or its Affiliates (other than subsequent Holders of Registrable Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. 15 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers. Very truly yours, BAUSCH & LOMB INCORPORATED By: ------------------------- Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. CITIGROUP GLOBAL MARKETS INC. By ------------------ Name: Title: For itself and the other several Initial Purchasers named in Schedule I to the Purchase Agreement. 16 EX-5.1 8 a2116158zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 Bausch & Lomb Incorporated One Bausch & Lomb Place Rochester, New York 14604 July 29, 2003 Bausch & Lomb Incorporated One Bausch & Lomb Place Rochester, New York 14604 I am Senior Vice President and General Counsel of Bausch & Lomb Incorporated, a New York Corporation (the "Company") and I am rendering this opinion in connection with the Company's Registration Statement on Form S-3 No. 333-90468 (the "Registration Statement") filed on June 14, 2002 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act") and effective on June 25, 2002 with respect to the Company's debt securities (the "Debt Securities"), Warrants to Purchase Debt Securities, preferred stock and common stock (the "Warrants"), Class A preferred stock, par value $1.00 (the "Class A Preferred Stock"), and common stock, par value $.40 (the "Common Stock") and the Prospectus Supplement dated July 29, 2003, with respect to the issuance of $50,000,000 the Company's 5.90% Senior Notes due 2008 (the "Notes"). I, or attorneys under my supervision, have examined the form of Indenture referred to in the Registration Statement between the Company and Citibank, N.A. (the "Trustee"), dated as of September 1, 1991, as amended by Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2, dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002 and Supplemental Indenture No. 4, dated the closing date of the sale of the Notes (the "Indenture") pursuant to which the Notes may be issued, and I have examined such other documents and made such other investigations as I have deemed necessary or advisable for purposes of this opinion. Upon the basis of such examination and investigation, I am of the opinion that: 1. The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of New York. 2. The execution and delivery of the Indenture by the Company and the issuance and sale of the Notes have been validly authorized by all necessary corporate action of the Company. 3. When the Notes shall have been executed, authenticated and delivered against payment therefore, the Notes shall constitute binding obligations of the Company enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally and subject to general principles of equity. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Legal Opinion" in the prospectus contained in the Registration Statement. Very truly yours, /s/ Robert B. Stiles Robert B. Stiles Senior Vice President and General Counsel -----END PRIVACY-ENHANCED MESSAGE-----