20-F/A

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 20-F/A
(Amendment No. 1)

	Registration Statement pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934
	Annual Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31, 2001
	Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from                to

Commission File Number: 0-13355

ASM INTERNATIONAL N.V.
fka ADVANCED SEMICONDUCTOR MATERIALS INTERNATIONAL N.V.
(Exact name of Registrant as specified in its charter)
The Netherlands
(Jurisdiction of incorporation or organization)

Jan van Eycklaan 10, 3723 BC Bilthoven, the Netherlands
(Address of principal executive offices)

Securities registered or to be registered pursuant to
Section 12(b) of the Act: None

Securities registered or to be registered pursuant to
Section 12(g) of the Act: Common Shares

Securities for which there is a reporting obligation
pursuant to Section 15(d) of the Act: None

         Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 49,070,296 common shares; no preferred shares.

         Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

         Yes                       No

         Indicate by check mark which financial statement item the registrant has elected to follow:

         Item 17                 Item 18

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         This amendment to the ASM International N.V. Form 20-F filed March 28, 2002 amends Part III, Item 19 (Exhibits) to include additional exhibits.

Part III

Item 19. Exhibits

Exhibit Number	Description	Incorporated by Reference to:	Included Herein:
1.1	English translation of ASM International N.V.’s Compiled Articles of Association, as amended	Exhibit 3.1 to Registrant’s 6-K filed on November 6, 2001
4.1	1994 Stock Option Plan	Exhibit 99.1 to the Registrant’s S-8 filed October 25, 1999
4.2	Debenture Purchase Agreement Part 1	Exhibit 4.2 to the Registrant’s Form F-3 filed on December 13, 1999
4.3	Debenture Purchase Agreement Part 2	Exhibit 4.2 to the Registrant’s Form F-3 filed on December 13, 1999
4.4	Zero Coupon Debenture	Exhibit 4.3 to the Registrant’s Form F-3 filed on December 13, 1999
4.5	Common Stock Purchase Warrant	Exhibit 4.4 to the Registrant’s Form F-3 filed on December 13, 1999
4.6	Supplemental Common Stock Purchase Warrant	Exhibit 4.5 to the Registrant’s Form F-3 filed on December 13, 1999
4.7	Registration Rights Agreement	Exhibit 4.6 to the Registrant’s Form F-3 filed on December 13, 1999
4.8	Equity Line Financing Agreement between ASM International N.V. and Canadian Imperial Holdings Inc. dated July 6, 2000	Exhibit 23.1 to Registrant’s 6-K filed on September 6, 2000
4.9	Amendment No. 1 to the Equity Line Agreement between ASM International N.V. and Canadian Imperial Holdings Inc.	Exhibit 4.9 to Registrant’s 20-F filed on March 9, 2001
4.10	Credit Agreement among ASM International N.V., Canadian Imperial Bank of Commerce and Advanced Semiconductor Materials (Netherlands Antilles) N.V. dated July 6, 2000	Exhibit 23.2 to Registrant’s 6-K filed on September 6, 2000

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Exhibit Number	Description	Incorporated by Reference to:	Included Herein:
4.11	Amendment No. 1 to the Credit Agreement among ASM International N.V. and Canadian Imperial Bank of Commerce, Advanced Semiconductor Materials (Netherlands Antilles) N.V.	Exhibit 4.11 to Registrant’s 20-F filed on March 9, 2001
4.12	Registration Rights Agreement between ASM International N.V. and Canadian Imperial Holdings Inc. dated July 6, 2000	Exhibit 23.3 to Registrant’s 6-K filed on September 6, 2000
4.13	Amendment No. 1 to the Registration Rights Agreement between ASM International N.V. and Canadian Imperial Holdings Inc.	Exhibit 4.13 to Registrant’s 20-F filed on March 9, 2001
4.14	Security Agreement among ASM International N.V., Advanced Semiconductor Materials (Netherlands Antilles), N.V. and Canadian Imperial Bank of Commerce dated July 6, 2000	Exhibit 23.4 to the Registrant’s 6-K filed on September 6, 2000
4.15	Supplement No. 1 to the Security Agreement between ASM International N.V. , Advanced Semiconductor Materials (Netherlands Antilles), N.V. and Canadian Imperial Bank of Commerce	Exhibit 4.15 of Registrant’s 20-F filed on March 9, 2001
4.16	Purchase Agreement dated November 14, 2001 between ASM International N.V. and CIBC World Markets Corp. for purchase of $100 million of 5% Convertible Subordinated Notes		X
4.17	Indenture Agreement dated November 19, 2001 and Citibank, N.A. relating to 5% Convertible Subordinated Notes		X
10.1	Auditor’s Consent	Exhibit 10.1 to the Form 20-F filed March 28, 2002

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SIGNATURES

         The registrant certifies that it meets all of the requirements for filing on Form 20-F/A and has duly caused and authorized the undersigned to sign this amendment to the annual report on its behalf.

	ASM INTERNATIONAL N.V.
Date: May 10, 2002	/s/ Arthur H. Del Prado
	Arthur H. del Prado
	Managing Director and
	Chief Executive Officer

-1- EX-4.16 3 p66543ex4-16.txt EX-4.16 Exhibit 4.16 ASM INTERNATIONAL N.V. $100,000,000 Principal Amount 5% Convertible Subordinated Notes due November 15, 2005 Purchase Agreement November 14, 2001 CIBC WORLD MARKETS CORP. 5% Convertible Subordinated Notes due November 15, 2005 of ASM INTERNATIONAL N.V. CIBC WORLD MARKETS CORP. November 14, 2001 CIBC World Markets Corp. 425 Lexington Avenue, 6th Floor New York, New York 10017 Dear Sirs and Madams: ASM International N.V., a public limited liability company organized under the laws of the Kingdom of the Netherlands (the "COMPANY"), proposes to issue and sell to CIBC World Markets Corp. ("CIBC" or the "INITIAL PURCHASER") an aggregate of $100,000,000 in principal amount of its 5% Convertible Subordinated Notes due November 15, 2005 (the "FIRM NOTES"), subject to the terms and conditions set forth herein. The Company also proposes to issue and sell to the Initial Purchaser not more than an additional $15,000,000 in aggregate principal amount of its 5% Convertible Subordinated Notes due November 15, 2005 (the "ADDITIONAL NOTES"), if requested by the Initial Purchaser as provided in Section 2 hereof. The Firm Notes and the Additional Notes are herein collectively referred to as the "NOTES." The Notes are to be issued pursuant to the provisions of an indenture (the "INDENTURE"), to be dated as of the Closing Date (as hereinafter defined), between the Company and Citibank, N.A., as trustee (the "TRUSTEE"), pursuant to which the Notes, as provided therein, will be convertible at the option of the holders thereof into the Company's common shares, E0.04 par value per share (the "COMMON SHARES"). The Notes and the Common Shares issuable upon conversion thereof are herein collectively referred to as the "SECURITIES." The Securities and the Indenture are more fully described in the Offering Circular (as hereinafter defined). Capitalized terms used but not defined herein shall have the meanings given to such terms in the Indenture. 1. OFFERING CIRCULAR. The Notes will be offered and sold to the Initial Purchaser pursuant to one or more exemptions from the registration requirements under the Securities Act of 1933, as amended (the "ACT"). The Company has prepared a preliminary Offering Circular, dated November 5, 2001 (the "PRELIMINARY OFFERING Circular"), and a final Offering Circular, dated November 14, 2001 (the "OFFERING CIRCULAR"), relating to the Notes. - 1 - Upon original issuance thereof, and until such time as the same is no longer required pursuant to the Indenture, the Notes (and all securities issued in exchange therefor, in substitution thereof or upon conversion thereof) shall bear the following legend: "THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR OTHER EXEMPTIONS THEREFROM. THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT THAT PRIOR TO SUCH TRANSFER PROVIDES TO THE TRUSTEE FOR THE NOTES A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTES (THE FORM OF THE LETTER CAN BE OBTAINED FROM THE TRUSTEE OF THE NOTES), (4) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO ASM INTERNATIONAL N.V.) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS - 2 - OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. THIS NOTE, ANY COMMON SHARES ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT." 2. AGREEMENTS TO SELL AND PURCHASE. (a) On the basis of the representations, warranties and covenants contained in this Agreement, and subject to the terms and conditions contained herein, the Company agrees to issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase from the Company, $100,000,000 principal amount of Firm Notes at a purchase price equal to 100% of the principal amount thereof (the "PURCHASE PRICE"). (b) On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, (i) the Company agrees to issue and sell the Additional Notes and (ii) the Initial Purchaser shall have a right, but not the obligation, to purchase the Additional Notes, from the Company at the Purchase Price. Additional Notes may be purchased solely for the purpose of covering over-allotments made in connection with the offering of the Firm Notes. The Initial Purchaser may exercise its right to purchase Additional Notes in whole or in part from time to time by giving written notice thereof to the Company at any time within 45 days after the date of this Agreement. Such notice shall specify the aggregate principal amount of Additional Notes to be purchased pursuant to such exercise and the date for payment and delivery thereof. The date specified in any such notice shall be a business day (i) no earlier than the Closing Date, (ii) no later than ten business days after such notice has been given and (iii) no earlier than two business days after such notice has been given. 3. TERMS OF OFFERING. The Initial Purchaser has advised the Company that the Initial Purchaser will make offers (the "EXEMPT RESALES") of the Notes purchased hereunder on the terms set forth in the Offering Circular, as amended or supplemented, - 3 - solely to persons whom the Initial Purchaser reasonably believes to be "qualified institutional buyers" as defined in Rule 144A under the Act ("ELIGIBLE PURCHASERS"). The Initial Purchaser will offer the Notes to Eligible Purchasers initially at a price equal to 100% of the principal amount thereof. Such price may be changed at any time without notice. This Agreement, the Indenture, and the Notes are hereinafter sometimes referred to collectively as the "OPERATIVE DOCUMENTS." 4. DELIVERY AND PAYMENT. (a) Delivery of, and payment of the Purchase Price for, the Firm Notes shall be made at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, or such other location as may be mutually acceptable. Such delivery and payment shall be made at 9:00 a.m., New York City time, on November 19, 2001 or at such other time on the same date or such other date as the Initial Purchaser and the Company shall agree in writing. The time and date of such delivery and the payment for the Firm Notes are herein called the "CLOSING DATE." (b) Delivery of, and payment for, any Additional Notes to be purchased by the Initial Purchaser shall be made at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166 at 9:00 a.m., New York City time, on the date specified in the exercise notice given by the Initial Purchaser pursuant to Section 2(b) or such other time on the same or such other date as the Initial Purchaser and the Company shall agree in writing. The time and date of delivery and payment for any Additional Notes are hereinafter referred to as an "OPTION CLOSING DATE." (c) One or more of the Notes in definitive global form, registered in the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"), having an aggregate principal amount corresponding to the aggregate principal amount of the Notes (collectively, the "GLOBAL NOTE"), shall be delivered by the Company to the Initial Purchaser (or as the Initial Purchaser directs) in each case with any transfer taxes thereon duly paid by the Company against payment by the Initial Purchaser of the Purchase Price thereof by wire transfer in same day funds to the order of the Company. The Global Note shall be made available to the Initial Purchaser for inspection not later than 9:30 a.m., New York City time, on the business day immediately preceding the Closing Date. 5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the Initial Purchaser as follows: - 4 - (a) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, to confirm such advice in writing of (i) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e), or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) the happening of any event during the period referred to in Section 5(c) below that makes any statement of a material fact made in the Preliminary Offering Circular or the Offering Circular untrue or that requires any additions to or changes in the Preliminary Offering Circular or the Offering Circular in order to make the statements therein not misleading. The Company shall use all reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or state regulatory authority shall issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, the Company shall use all reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company as many copies of the Preliminary Offering Circular and the Offering Circular, any documents incorporated by reference therein, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Circular and the Offering Circular, any documents incorporated by reference therein, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales. (c) During such period as in the opinion of counsel for the Initial Purchaser an Offering Circular is required by law to be delivered in connection with Exempt Resales by the Initial Purchaser, (i) not to make any amendment or supplement to the Offering Circular of which the Initial Purchaser shall not previously have been advised or to which the Initial Purchaser shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request any amendment or supplement to the Offering Circular that may be necessary or advisable in connection with such Exempt Resales. (d) If, during the period referred to in Section 5(c) above, any event shall occur or condition shall exist as a result of which, in the opinion of - 5 - counsel to the Initial Purchaser, it becomes necessary to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances when the Offering Circular is delivered to an Eligible Purchaser, not misleading, or if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement the Offering Circular to comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to the Offering Circular so that the statements therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Offering Circular will comply with applicable law, and to furnish to the Initial Purchaser and such other persons as the Initial Purchaser may designate such number of copies thereof as the Initial Purchaser may reasonably request. (e) Prior to the sale of all Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection with the registration or qualification of the Notes for offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the state securities or Blue Sky laws in such states as the Initial Purchaser may reasonably request and to continue such registration or qualification in effect so long as required for Exempt Resales and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process or taxation, other than as to matters and transactions relating to the Preliminary Offering Circular, the Offering Circular or Exempt Resales, in any jurisdiction in which it is not now so subject. (f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its Subsidiaries (as defined in Section 6(b) hereof) on a consolidated basis (and a similar financial report of all unconsolidated Subsidiaries, if any), it being agreed that all such financial reports will include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated Subsidiaries, if any) as of the end of and for such period, and for - 6 - the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year; provided, however, the Company's filing of the information specified herein with the Securities and Exchange Commission (the "COMMISSION") by EDGAR shall satisfy this provision with respect to such information. (g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and/or its Subsidiaries as the Initial Purchaser may reasonably request; provided, however, the Company's filing of information specified herein with the Commission by EDGAR shall satisfy this provision with respect to such information. (h) So long as any of the Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make available to any holder of Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act. (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and accountants of the Company in connection with the sale and delivery of the Notes to the Initial Purchaser and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Circular, the Offering Circular, any documents incorporated by reference and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified herein; (ii) all costs and expenses related to the transfer and delivery of the Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon; (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities; (iv) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing - 7 - or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchaser in connection with such registration or qualification and memoranda relating thereto); (v) the cost of printing certificates representing the Securities; (vi) all expenses and listing fees in connection with the application for quotation of the Notes in The PORTAL Market of the National Association of Securities Dealers, Inc. ("PORTAL"); (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Notes; (viii) the costs and charges of any transfer agent, registrar and/or depositary (including DTC); (ix) any fees charged by rating agencies for the rating of the Notes; (x) all expenses and listing fees in connection with the application for listing the Common Shares issuable upon conversion of the Notes on the Nasdaq Stock Market's National Market (the "NASDAQ NATIONAL MARKET"); (xi) provided that the Initial Purchaser has paid the fees, disbursements and expenses of counsel to the Initial Purchaser in connection with the sale and delivery of the Notes to the Initial Purchaser and pursuant to Exempt Resales, up to $70,000 of such fees, disbursements and expenses to be reimbursed by the Company; and (xii) and all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. (j) To use all reasonable efforts to effect the inclusion of the Notes in PORTAL and to maintain the listing of the Notes on PORTAL for so long as the Notes are outstanding. (k) To obtain the approval of DTC for "book-entry" transfer of the Notes, and to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for "book-entry" transfer. (l) To cause the Common Shares issuable upon conversion of the Notes to be duly included for quotation on the Nasdaq National Market prior to the Firm Closing Date, subject to notice of official issuance. The Company will ensure that such Common Shares remain included for quotation on the Nasdaq National Market or any other national securities exchange following the Firm Closing Date for so long as any Common Shares remain registered under the Exchange Act. (m) The Company shall not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Common Shares (other than the issuance of Common Shares upon conversion of the Notes and the issuance of Common Shares pursuant to the Equity Line Financing Agreement, dated as of July 6, 2000, between the Company and Canadian Imperial Holdings Inc., as amended as of March 9, 2001 - 8 - (the "EQUITY LINE")) or any securities convertible into or exercisable or exchangeable for Common Shares, for a period of 60 days after the date hereof without the prior written consent of CIBC. Notwithstanding the foregoing, during such period (i) the Company may grant securities convertible into or exercisable or exchangeable for Common Shares pursuant to the Company's existing stock option or stock purchase plans and (ii) the Company may issue Common Shares upon the conversion or exchange of a convertible or exchangeable security outstanding on the date hereof. The Company shall, prior to or concurrently with the execution of this Agreement, deliver an agreement executed by each of the directors and executive officers of the Company who beneficially own more than 1.0% of the Company's outstanding Common Shares to the effect that such person will not, during the period commencing on the date such person signs such agreement and ending 60 days after the date hereof, without the prior written consent of CIBC, (i) engage in any of the transactions described in the first sentence of this paragraph (whether such shares or any such securities are now owned by such individual or are hereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences associated with the ownership of any Common Shares (whether any such transactions described in clause (i) or (ii) are to be settled by the delivery of Common Shares or such other securities, in cash or otherwise). In addition, in such agreement each of such directors and executive officers of the Company will have agreed not to make any demand for or exercise any right with respect to the registration of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares during the period commencing on the date such person signs such agreement and ending 60 days after the date hereof without the prior written consent of CIBC. (n) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Notes to the Initial Purchaser or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Notes under the Act. (o) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes. (p) To use all reasonable efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (q) The Company will apply the net proceeds from the offering of the Securities in the manner set forth under "Use of Proceeds" in the Offering Circular. - 9 - (r) If any payment of any sum due under this Agreement from the Company is made to or received by the Initial Purchaser or any controlling person of the Initial Purchaser in a currency other than freely transferable United States dollars, whether by judicial judgment or otherwise, the obligations of the Company, as the case may be, under this Agreement shall be discharged only to the extent of the net amount of freely transferable United States dollars that the Initial Purchaser or such controlling person, as the case may be, in accordance with normal bank procedures, are able to lawfully purchase with such amount of such other currency on the date of payment. To the extent that the Initial Purchaser or such controlling person is not able to purchase sufficient United States dollars with such amount of such other currency on the date of payment to discharge the obligations of the Company, as the case may be, to the Initial Purchaser or such controlling person, the obligations of the Company, as the case may be, to the Initial Purchaser or such controlling person, as the case may be, shall not be discharged with respect to such difference, and any such undischarged amount will be due as a separate obligation and shall not be affected by payment of or judgment being obtained for any other sums due under or in respect of this Agreement. (s) The Company covenants and agrees with the Initial Purchaser that in any suit (whether in a court in the United States, the Netherlands or elsewhere) seeking enforcement of this Agreement, (i) no defense (other than a procedural defense) given or allowed by the laws of any other state or country shall be interposed in any suit, action or proceeding hereon unless such defense is also given or allowed by the laws of the State of New York or of the United States, (ii) if the plaintiffs thereon seek that a judgment otherwise awarded to the plaintiffs be awarded in either United States dollars or Netherlands currency, subject to Netherlands foreign currency control regulations, the Company will not interpose any defense or objection to or otherwise oppose the award of a judgment, if any, in such currencies except to the extent that such a judgment would violate the laws of the Netherlands, and (iii) if the plaintiffs therein seek to have any judgment (or any aspect thereof) awarded in Netherlands currency linked, for the period from entry of such judgment until actual payment thereof in full has been made, to changes in the United States dollar exchange rate with respect to the currency of the Netherlands, the Company will not interpose any defense or objection to or otherwise oppose inclusion of such linkage in any such judgment except to the extent that such a judgment would violate the laws of the Netherlands. The Company agrees that it will not initiate or seek to initiate any action, suit or proceeding, in the Netherlands or in any other jurisdiction other than in the United States, seeking damages or for the purpose of obtaining any injunction or declaratory judgment against the enforcement of, or declaratory judgment concerning any alleged breach by the Company of, or other claim by the Initial Purchaser in respect of, this Agreement or any of the Initial Purchaser's - 10 - rights under this Agreement, including, without limitation, any action, suit or proceeding challenging the enforceability of or seeking to invalidate in any respect the submission by the Company hereunder to the jurisdiction of federal or New York state courts or the designation of the laws of the State of New York as the law applicable to this Agreement. 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the date hereof, the Company represents and warrants to, and agrees with, the Initial Purchaser that: (a) The Preliminary Offering Circular and the Offering Circular (including the information incorporated by reference therein, collectively the "INCORPORATED DOCUMENTS") do not, and any supplement or amendment to them will not, contain any 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, except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Circular or the Offering Circular (or any supplement or amendment thereto) based upon information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use therein. No stop order preventing the use of the Preliminary Offering Circular or the Offering Circular, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued. The Incorporated Documents, at the time they were or hereafter are filed or last amended, as the case may be, with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act. (b) Each of the Company and the subsidiaries of the Company listed on Schedule A hereto (the "SUBSIDIARIES") has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Other than the Subsidiaries and NuTool, Inc., the Company does not control, directly or indirectly, or hold greater than a 5% interest in, any other corporation or other business organization. Each of the Company and its Subsidiaries has the corporate power and authority to carry on its business as described in the Offering Circular and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). - 11 - (c) All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. There are no preemptive or similar rights to subscribe for or to purchase or acquire any shares of capital stock of the Company or its Subsidiaries, and there are no restrictions upon the voting or transfer of the Common Shares, in either case pursuant to the Company's charter or by-laws or other governing documents or any agreement or other instrument to or by which the Company or any of its Subsidiaries is a party or is bound, except for rights pursuant to Netherlands law and the Articles of Association of the Company which have been waived. The Company has the authorized and outstanding capital stock as set forth in the Offering Circular, and except as described in the Offering Circular there have been no changes in the outstanding capital stock of the Company since the date set forth under the heading "Capitalization" in the Preliminary Offering Circular and the Offering Circular, except to the extent that certain outstanding options and warrants set forth in the footnotes thereto may have been exercised. (d) All of the outstanding shares of capital stock of each of the Company's Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and, except as set forth in the Offering Circular, are owned by the Company, directly or indirectly through one or more Subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN"). (e) This Agreement has been duly authorized, executed and delivered by the Company. (f) The Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company, and assuming the due authority, execution and delivery by the Trustee, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (g) The Notes have been duly authorized and, when duly executed, delivered and authenticated in accordance with the provisions of the Indenture and when delivered and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing - 12 - Date, the Notes will conform as to legal matters to the description thereof contained in the Offering Circular. (h) The Notes are convertible into Common Shares in accordance with the terms of the Indenture; the Common Shares initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and non-assessable, will conform in all material respects to the description thereof contained in the Offering Circular and will be duly authorized for listing on the Nasdaq National Market, subject to notice of official issuance. Neither the Notes nor the Common Shares issuable upon conversion of the Notes will be issued in violation of any preemptive rights, co-sale rights, rights of first refusal or other similar rights to subscribe for or to purchase or acquire any securities of the Company, or any restriction upon the voting or transfer of any securities of the Company, pursuant to the Company's charter or by-laws or any agreement or other instrument to or by which the Company or any of its Subsidiaries is a party or is bound. Except as disclosed in the Offering Circular, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of capital stock of the Company or any of its Subsidiaries or any security convertible into, or exercisable or exchangeable for, any such capital stock. The certificates evidencing the Common Shares issuable upon conversion of the Notes will be in due and proper legal form. (i) Neither the Company nor any of its Subsidiaries is (i) in violation of its respective charter or by-laws, (ii) in default in the performance of any material obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound or (iii) in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. (j) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency, including the Euronext Amsterdam ("EURONEXT AMSTERDAM") (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of - 13 - its Subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its Subsidiaries or their respective property, including any rule or regulation of the NASD, Nasdaq or Euronext Amsterdam, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any 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 or their respective property is bound, or (v) result in the termination, suspension or revocation of any Authorization (as defined below) of the Company or any of its Subsidiaries or result in any other impairment of the rights of the holder of any such Authorization. (k) There are no legal or governmental proceedings (including proceedings by or before Euronext Amsterdam or any other administrative authority) pending or known by the Company to be threatened to which the Company or any of its Subsidiaries is or could reasonably be expected to be a party or to which any of their respective property is or could reasonably be subject that could reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect or adversely affect the consummation of the transactions contemplated by this Agreement. (l) Each of the Company and its Subsidiaries is in compliance in all material respects with all material foreign, federal, state and local rules, laws and regulations relating to the use, treatment, storage and disposal of hazardous or toxic substances or wastes, pollutants or contaminants and protection of health or the environment ("ENVIRONMENTAL LAW") which are applicable to its business; (ii) neither the Company nor any of its Subsidiaries has received any written notice from any governmental authority or third party of an asserted claim under Environmental Laws; (iii) each of the Company and its Subsidiaries has received all material permits, licenses and other approvals required of it under applicable Environmental Laws to conduct its business and is in compliance with all material terms and conditions of any such permit, license or approval; (iv) to the Company's knowledge, no facts currently exist that will require the Company or its Subsidiaries to make future material capital expenditures to comply with Environmental Laws; and (v) no property which is or has been owned, leased or occupied by the Company or its Subsidiaries has been designated as a Superfund site pursuant to the Comprehensive Environmental Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA 180") or otherwise designated as a contaminated site under applicable state or - 14 - local law. Neither the Company nor any of its Subsidiaries has been named as a "potentially responsible party" under CERCLA 1980. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its Subsidiaries, in the course of which the Company identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, 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, singly or in the aggregate, have a Material Adverse Effect. (m) Neither the Company nor any of its Subsidiaries has violated any provisions of the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect. None of the Company, its Subsidiaries or any director, officer or employee of the Company or its Subsidiaries has, in the course of such person's actions for, or on behalf of, the Company or its Subsidiaries, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; and none of the Company, its Subsidiaries, or to the Company's knowledge, any director, officer, employee, agent or other person acting on behalf of the Company or its Subsidiaries, has, in the course of such person's actions for, or on behalf of, the Company or its Subsidiaries made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (n) Each of the Company and its Subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "AUTHORIZATION") of, and has made all filings with and given all notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the material terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including without limitation the receipt of any notice from any authority or governing body) that allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any - 15 - such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; except, in each case, where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect. (o) The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them that is material to the business of the Company and its Subsidiaries, in each case free and clear of all Liens and defects, except such as are described in the Offering Circular or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described in the Offering Circular. (p) The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, all patents, patent applications, patent rights, licenses, inventions, copyrights, copyright applications, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, logos and trade names ("INTELLECTUAL PROPERTY") necessary for or currently employed by them in connection with the business now operated by them except where the failure to own or possess or otherwise to be able to acquire such intellectual property would not, singly or in the aggregate, have a Material Adverse Effect; neither the Company nor any of its Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has given notice of, or is aware of, any third parties that are infringing or are in conflict with any rights of the Company or any of its Subsidiaries in any intellectual property that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; in each case except as described in the Offering Circular. (q) Each agreement described in the Preliminary Offering Circular, the Offering Circular or the Incorporated Documents is in full force and effect and is valid and enforceable by the Company or a Subsidiary, as applicable, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto except as (i) the enforceability - 16 - thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) to the extent that rights to indemnity or contribution thereunder may be limited by federal and state securities laws or the public policy underlying such laws. None of the Company, any of its Subsidiaries, or to the Company's knowledge, any other party is in default in the observance or performance of any term or obligation to be performed by it under such agreement, and no event has occurred that with notice or lapse of time or both would constitute such a default, in any such case where such default or event would have a Material Adverse Effect. No default exists, and no event has occurred that with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition, by the Company or any of its Subsidiaries of any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties or business may be bound or affected where such default or event would have a Material Adverse Effect. (r) Except as disclosed in the Offering Circular, no relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of its Subsidiaries on the other hand, that would be required by the Act to be described in the Offering Circular if the Offering Circular were a prospectus included in a registration statement on Form S-1 filed with the Commission. (s) There is no (i) significant labor practice complaint, grievance or arbitration proceeding pending or threatened against the Company or any of its Subsidiaries before the National Labor Relations Board or any state or local labor relations board, (ii) strike, labor dispute, slowdown or stoppage pending or threatened against the Company or any of its Subsidiaries or (iii) union representation question existing with respect to the employees of the Company or any of its Subsidiaries, except in the case of clauses (i), (ii) and (iii) for such actions that singly or in the aggregate, would not have a Material Adverse Effect. To the Company's knowledge, no collective bargaining organizing activities are taking place with respect to the Company or any of its Subsidiaries. (t) All material tax returns required to be filed by the Company and each of its Subsidiaries in any jurisdiction have been filed, other than those filings being contested in good faith, and all material taxes, including withholding taxes, penalties and interest, assessments, fees and other charges due pursuant to such returns or pursuant to any assessment received by the Company or any of its Subsidiaries have been paid, other than those being contested in good faith and for which adequate reserves have been provided. The Company has adequately reserved for all taxes that have accrued but are not yet due. There are no tax audits - 17 - or investigations pending, which if adversely determined would have a Material Adverse Effect, nor are there any material proposed additional tax assessments against the Company or any of its Subsidiaries. No agreements have been made, orders consented to or rulings concluded with any tax authority that could have a Material Adverse Effect. (u) The accountants Deloitte & Touche Accountants that have certified the financial statements and supporting schedules included in the Preliminary Offering Circular and the Offering Circular are independent public accountants with respect to the Company, as required by the Act and the Exchange Act. The historical financial statements, together with related schedules and notes, set forth in the Preliminary Offering Circular and the Offering Circular comply as to form in all material respects with the requirements applicable to registration statements on Form F-3 under the Act. (v) The historical financial statements, together with related schedules and notes forming part of the Preliminary Offering Circular and the Offering Circular (and any amendment or supplement thereto), present fairly the consolidated financial position, results of operations and changes in financial position of the Company and its Subsidiaries on the basis stated or incorporated by reference in the Offering Circular at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data set forth or incorporated by reference in the Preliminary Offering Circular and the Offering Circular (and any amendment or supplement thereto) are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Company. (w) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the net proceeds thereof as described in the Offering Circular, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. (x) Except pursuant to the Equity Line, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company. (y) Neither the Company nor any of its Subsidiaries nor any agent thereof acting on the behalf of any of them has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part - 18 - 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. (z) No "nationally recognized statistical rating organization" as such term is defined for the purpose of Rule 436(g)(1) under the Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company's retaining any rating assigned to the Company, any securities of the Company or (ii) has indicated to the Company that it is considering (A) the downgrading, suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (B) any change in the outlook for any rating of the Company or any securities of the Company. (aa) Since the respective dates as of which information is given in the Offering Circular, other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (i) there has not occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, (ii) there has not been any material adverse change or any development involving a prospective material adverse change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries has incurred any material liability or obligation, direct or contingent, that is material to the Company and its Subsidiaries, taken as a whole other than backlog orders received in the ordinary course of business, (iv) neither the Company nor any of its Subsidiaries has sustained any material loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree that would have a Material Adverse Effect; and (v) since the date of the latest consolidated balance sheet included in the Preliminary Offering Circular and the Offering Circular, except as reflected therein, neither the Company nor any of its Subsidiaries has (A) issued any securities other than the issuance of securities pursuant to the exercise of options granted under stock option plans or agreements existing prior to the date of the latest consolidated balance sheet included in the Preliminary Offering Circular and the Offering Circular, (B) entered into any material transaction not in the ordinary course of business or (C) declared or paid any dividend or made any distribution on any shares of its capital stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its capital stock. - 19 - (bb) The books, records and accounts of each of the Company and each of its Subsidiaries accurately and fairly reflect, in reasonable detail, the transactions in, and dispositions of, the assets of, and the results of operations of, the Company and its Subsidiaries, as applicable. Each of the Company and each of its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principals and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (cc) Each of the Preliminary Offering Circular and the Offering Circular, as of their respective dates, contains all the information specified in, and meets the requirements of, Rule 144A(d)(4) under the Act. (dd) When the Notes are issued and delivered pursuant to this Agreement, the Notes will not be of the same class (within the meaning of Rule 144A under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated inter-dealer quotation system. (ee) No form of general solicitation or general advertising (as defined in Regulation D under the Act) was used by the Company, or any of its representatives (other than the Initial Purchaser, as to whom the Company makes no representation) in connection with the offer and sale of the Notes contemplated hereby, including without limitation articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. No securities of the same class as the Notes have been issued and sold by the Company within the six-month period immediately prior to the date hereof. (ff) The Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in, or that has constituted or that might reasonably be expected to constitute, the stabilization or manipulation of the price of the Common Shares. (gg) The Indenture is not required to be qualified under the TIA. (hh) No registration under the Act of the Securities is required for the sale of the Securities to the Initial Purchaser as contemplated hereby or for the - 20 - Exempt Resales assuming the accuracy of the Initial Purchaser's representations and warranties and agreements set forth in Section 7 hereof. (ii) Each certificate signed by any officer of the Company and delivered to the Initial Purchaser or counsel for the Initial Purchaser shall be deemed to be a representation and warranty by the Company to the Initial Purchaser as to the matters covered thereby. (jj) Neither the Company nor any of its Subsidiaries currently is, and the Company will use its best efforts so that none of them will become, a personal holding company within the meaning of Section 542 of the Internal Revenue Code of 1986, as amended (the "CODE"), for its current taxable year. (kk) The Company is not and upon the consummation of the transactions described hereby and the application of the proceeds as described in the Offering Circular under the caption "Use of Proceeds" will not become a Passive Foreign Investment Company ("PFIC") within the meaning of Section 1297 of the Code and will use its best efforts to continue to manage its business so as to avoid PFIC status. If the Company becomes a PFIC, it will comply with all the requirements of the Code so that its shareholders will be able to elect to treat the Company as a "qualified electing fund" within the meaning of section 1295 of the Code. The Company acknowledges that the Initial Purchaser and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 9 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Company hereby consents to such reliance. 7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Initial Purchaser represents and warrants to, and agrees with, the Company: (a) The Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Act (a "QIB"), with such knowledge and experience in financial and business matters as is necessary in order to evaluate the merits and risks of an investment in the Notes. (b) The Initial Purchaser (A) is not acquiring the Securities with a view to any distribution thereof or with any present intention of offering or selling any of the Securities in a transaction that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction and (B) will be reoffering and reselling the Securities only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A. (c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the - 21 - Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of the Securities pursuant hereto, including without limitation articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. (d) The Initial Purchaser agrees that, in connection with Exempt Resales, the Initial Purchaser will solicit offers to buy the Securities only from, and will offer to sell the Securities only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Securities only to, and will solicit offers to buy the Securities only from, Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs, that agree that (A) the Securities purchased by them may be offered, resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Securities, only (i) to a person whom the seller reasonably believes is a QIB acquiring for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (ii) pursuant to an exemption from registration under the Act provided by Rule 144 thereunder (if available), (iii) to an institutional "accredited investor," as defined in Rule 501(a) (1), (2), (3) or (7) under the Act (an "ACCREDITED INSTITUTION") that prior to such transfer provides to the Trustee for the Notes a signed letter containing certain representations and agreement relating to the restriction on transfer of the Notes (the form of the letter to be obtained from the Trustee for the Notes), (iv) pursuant to an exemption from registration under the Act (if available) or (v) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of the United States or other jurisdictions and (B) such Eligible Purchasers will deliver to each person to whom such Securities or an interest therein is transferred a notice substantially to the effect of the foregoing. (e) The Initial Purchaser acknowledges that, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 9 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance. 8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless the Initial Purchaser, its directors, its officers and each person, if any, who controls the Initial Purchaser (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against any and all losses, claims, damages, liabilities and judgments (including without limitation any legal or other expenses incurred - 22 - in connection with investigating or defending any matter, including any action that could give rise to any such losses, claims, damages, liabilities or judgments) caused by any untrue statement or alleged untrue statement of a material fact contained in the Offering Circular (or any amendment or supplement thereto), the Preliminary Offering Circular or any Rule 144A Information provided by the Company to any holder or prospective purchaser of Securities pursuant to Section 5(h) or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or judgments are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Initial Purchaser furnished in writing to the Company by the Initial Purchaser; provided, however, that the foregoing indemnity agreement with respect to any Preliminary Offering Circular shall not inure to the benefit of the Initial Purchaser if the Initial Purchaser failed to deliver an Offering Circular (as then amended or supplemented, provided by the Company to the Initial Purchaser in the requisite quantity and on a timely basis to permit proper delivery on or prior to the Closing Date) to the person asserting any losses, claims, damages and liabilities and judgments caused by any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Offering Circular, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such material misstatement or omission or alleged material misstatement or omission was cured in the Offering Circular. (b) The Initial Purchaser agrees to indemnify and hold harmless the Company and its directors and officers and each person, if any, who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company to the same extent as the foregoing indemnity from the Company to the Initial Purchaser but only with reference to information relating to the Initial Purchaser furnished in writing to the Company by the Initial Purchaser expressly for use in the Preliminary Offering Circular or the Offering Circular. (c) In case any action shall be commenced involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party shall assume the defense of such action, including the employment of counsel reasonably satisfactory to the indemnified party and the payment of all fees and expenses of such counsel, as they are incurred (except that in the case of any action in respect of which indemnity may be sought pursuant to both Sections 8(a) and 8(b), the Initial Purchaser shall not be required to assume the defense of such action pursuant to this Section 8(c) but may employ separate counsel and participate in the defense thereof, but the fees and - 23 - expenses of such counsel, except as provided below, shall be at the expense of the Initial Purchaser). Any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party). In any such case, the indemnifying party shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties, and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Initial Purchaser, in the case of the parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and hold harmless the indemnified party from and against any and all losses, claims, damages, liabilities and judgments by reason of any settlement of any action (i) effected with its written consent or (ii) effected without its written consent if the settlement is entered into more than twenty business days after the indemnifying party shall have received a request from the indemnified party for reimbursement for the fees and expenses of counsel (in any case where such fees and expenses are at the expense of the indemnifying party) and, prior to the date of such settlement, the indemnifying party shall have failed to comply with such reimbursement request. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action in respect of which the indemnified party is or could have been a party and indemnity or contribution may be or could have been sought hereunder by the indemnified party, unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability on claims that are or could have been the subject matter of such action and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the indemnified party. (d) To the extent the indemnification provided for in this Section 8 is unavailable to an indemnified party or insufficient in respect of any losses, - 24 - claims, damages, liabilities or judgments referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and judgments (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Initial Purchaser, on the other hand, from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Initial Purchaser, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities or judgments, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Initial Purchaser, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities (after the Initial Purchaser's discounts or commissions, but before deducting expenses) received by the Company, and the total discounts and commissions received by the Initial Purchaser bear to the total price to investors of the Securities, in each case as set forth on the cover page of the Offering Circular. The relative fault of the Company, on the one hand, and the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Initial Purchaser, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such indemnified party in connection with investigating or defending any matter, including any action, that could have given rise to such losses, claims, damages, liabilities or judgments. Notwithstanding the provisions of this Section 8, the Initial Purchaser shall not be required to contribute any amount in excess of the amount by which the total discounts and commissions received by the Initial Purchaser exceeds the amount of any damages that the Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be - 25 - entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity. 9. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS. The obligations of the Initial Purchaser to purchase the Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions. (a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except that any representation or warranty already qualified as to materiality shall be true and correct in all respects) on the Closing Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any. (b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including without limitation the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for the purpose of Rule 436(g)(i) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed. (c) Since the respective dates as of which information is given in the Offering Circular, other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto after the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its Subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall - 26 - have incurred any liability or obligation, direct or contingent, and (iv) neither the Company nor any of its Subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree that, in case of any event described in the foregoing clause (i), (ii), (iii) or (iv), would have a Material Adverse Effect the effect of which, in your judgment, is material and adverse and, in your judgment, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Offering Circular. (d) You shall have received on the Closing Date a certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(aa), 9(a) and 9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or relevant Option Closing Date, as the case may be. (e) You shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and your counsel), addressed to you and dated such Closing Date or such Option Closing Date, as the case may be, of Stibbe, counsel for the Company, to the effect that: (i) The Company has been duly organized and is validly existing as a public limited liability company under the laws of the Kingdom of the Netherlands. To such counsel's knowledge, other than the Subsidiaries listed on Schedule A to this Agreement and NuTool, Inc., the Company does not control, directly or indirectly, or hold greater than a 5% interest in, any other corporation or other business organization. (ii) The Company has all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as described in the Offering Circular and to enter into, deliver and perform this Agreement and to issue and sell the Securities. (iii) The authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Circular. - 27 - (iv) The Securities have been duly authorized by the Company and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement (and assuming the Securities and the Indenture were governed by Netherlands law), will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Indenture. (v) The Common Shares to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable. Neither the Notes nor the Common Shares issuable upon conversion of the Notes will be issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or to purchase or acquire any securities of the Company, or any restriction upon the voting or transfer of any securities of the Company, pursuant to the Company's charter or by-laws or, to such counsel's knowledge, any agreement or other instrument to or by which the Company or any of its Subsidiaries is a party or is bound. (vi) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Securities. (vii) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency of the Netherlands other than the filing of the Offering Circular with the Securities Board of the Netherlands (Stichting Toezicht Effectenverkeer), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the Articles of Association of the Company or, to such counsel's knowledge, any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which to the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or their respective - 28 - property is bound, (iii) violate or conflict with any applicable law or any rule or regulation or, to such counsel's knowledge, any judgment, order or decree of any court or any governmental body or agency of the Netherlands, (iv) to such counsel's knowledge, result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or their respective property is bound, or (v) to such counsel's knowledge, result in the termination, suspension or revocation of any Authorization of the Company or its Subsidiaries or result in any other impairment of the rights of the holder of any such Authorization. (viii) The Company is not (i) in violation of its Articles of Association, (ii) to such counsel's knowledge, in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their property is bound or (iii) to such counsel's knowledge, in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of any court or governmental body or agency of the Netherlands, where the consequences of such violation would have a Material Adverse Effect. (ix) To such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any Netherlands court or before or by any Netherlands public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which would have a Material Adverse Effect. (x) To such counsel's knowledge, the Company owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations necessary to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted, except where the failure to so own, possess or obtain would not have a Material Adverse Effect; and to such counsel's knowledge, neither the Company nor any of its Netherlands Subsidiaries has received any notice of proceedings relating to revocation or modification of - 29 - any such licenses, permits, certificates, consents, orders approvals or authorizations. (xi) The Indenture has been duly authorized. When executed and delivered by the Company (and assuming the Indenture were governed by Netherlands law), the Indenture will be the valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms. (xii) The statements in the Offering Circular under the captions "Description of Share Capital," "Risk Factors - Risks Relating to Our Business - Our anti-takeover provisions and our settlement agreement with Applied Materials may prevent a beneficial change of control" (to the extent relating to anti-takeover provisions), "Risk Factors - Risks Relating to This Offering - You may have difficulty protecting your rights as an investor and in enforcing civil liabilities because we are a Netherlands limited liability company" and "Enforceability of Civil Liabilities" insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects. (xiii) Under exchange control regulations currently in effect, there are no authorizations or consents required from any governmental or regulatory body in the Netherlands to provide nonresidents of the Netherlands the right to freely repatriate to non-Netherlands currency all amounts received with respect to the Securities that were purchased with non-Netherlands currency, whether as payment of principal or interest, as a dividend, as a liquidating distribution or as proceeds from the sale of such Securities, subject to applicable tax withholding. (xiv) To the extent that Netherlands law is applicable, the Company has, as provided in Section 12 of this Agreement, duly and irrevocably appointed Corporation Service Company as its agent to receive service of process in any action against it in any federal or state court sitting in the county of New York arising out of or in connection with the offering contemplated by this Agreement. (xv) Under the laws of the Netherlands, the submission by the Company to the jurisdiction of any federal or state court sitting in the county of New York and the designation of the law of the State of New York to apply to the Operating Documents is binding upon the Company. - 30 - (xvi) There is no rule under Netherlands law that would prevent the validity and enforceability of the lock-up agreements executed by the persons listed in Section 5(m) of this Agreement, assuming that each of such lock-up agreements has been duly executed by the relevant person and duly and validly delivered by such persons, and that each such lock-up agreement shall then constitute the legal, valid and binding obligation of each such person enforceable against each such person in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. In addition, such counsel shall state that although it has not verified, and is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular (other than with regard to the opinions set forth in paragraph (xii) above), such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which the contents of the Offering Circular and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular (other than with regard to the opinions set forth in paragraph (xii) above), and have not made any independent check or verification thereof, during the course of such participation, no facts have come to such counsel's attention that would cause such counsel to believe that the Offering Circular, as of its date or as of the Closing Date (or relevant Option Closing Date, as the case may be), contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need not comment with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Offering Circular). (f) You shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and your counsel), addressed to you and dated such Closing Date or such Option Closing Date, as the case may be, - 31 - of Quarles & Brady Streich Lang LLP, United States counsel for the Company, to the effect that: (i) Assuming that the law of the State of Arizona were to govern, the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Indenture. (ii) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency of the United States, (ii) to such counsel's knowledge, conflict with or constitute a breach of any of the terms or provisions of, or a default under, any indenture, loan agreement, mortgage, lease or other agreement or instrument that has been deemed a material contract under the standard of Section 4 to the instructions as to the exhibits for Form 20-F promulgated by the Commission and has accordingly been filed with the Commission, (iii) violate any applicable law or any rule or regulation or, to such counsel's knowledge, any judgment, order or decree of any court or any governmental body or agency of the United States, (iv) to such counsel's knowledge, result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or their respective property is bound, or (v) to such counsel's knowledge, result in the termination, suspension or revocation of any Authorization of the Company or its Subsidiaries or result in any other material impairment of the rights of the holder of any such Authorization. (iii) To such counsel's knowledge except as disclosed in the Offering Circular, there is no litigation or governmental or other proceeding or investigation, before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which would have a Material Adverse Effect. - 32 - (iv) Assuming that the law of the State of Arizona were to govern, when executed and delivered by the Company, the Indenture will be the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (v) The Company is not an "investment company" as such term is defined in the Investment Company Act of 1940, as amended. (vi) The statements in the Offering Circular under the captions "Description of the Notes," the first, third, fourth, seventh, eighth and tenth paragraphs under "Plan of Distribution," "Taxation - Summary of United States Federal Income Tax Considerations," "Risk Factors - Risks Relating to Our Business - Claims or litigation regarding intellectual property rights could seriously harm our business or require us to incur significant costs" and "Risk Factors - Risks Relating to Our Business - Our anti-takeover provisions and our settlement agreement with Applied Materials may prevent a beneficial change of control" (to the extent relating to Applied Materials, Inc.), insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects. (vii) Assuming (i) the Initial Purchaser is a "qualified institutional buyer" within the meaning of Rule 144A of the Act and (ii) the accuracy of the representations and warranties and compliance with the agreements of the Company in Section 6(ee) of this Agreement and of the Initial Purchaser in Section 7 of this Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchaser under this Agreement or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement and the Offering Circular to register the Securities under the Act, or to qualify the Indenture under the Trust Indenture Act, it being understood that no opinion need be expressed as to any subsequent resale of any of the Notes or the Common Shares issuable upon conversion of any of the Notes. (viii) Each of the lock-up agreements executed by the persons listed in Section 5(m) of this Agreement, to the extent such matters are governed by the law of the State of Arizona, has been duly and validly delivered by each such person and constitutes the legal, valid and binding obligation of each such person enforceable - 33 - against each such person in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, whether applied by a court of law or equity. In addition, such counsel shall state that although it has not verified, and is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular (other than with regard to the opinions set forth in paragraph (vi) above), such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which the contents of the Offering Circular and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular (other than with regard to the opinions set forth in paragraph (vi) above), and have not made any independent check or verification thereof, during the course of such participation, no facts have come to such counsel's attention that have caused such counsel to believe that the Offering Circular, as of its date or as of the Closing Date (or relevant Option Closing Date, as the case may be), contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need not comment with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in the Offering Circular). (g) You shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and your counsel), addressed to you and dated such Closing Date or such Option Closing Date, as the case may be, of Baker & McKenzie, Netherlands tax counsel for the Company, to the effect that: (i) The statements in the Offering Circular under the caption "Taxation," insofar as such statements constitute a summary of the Netherlands tax laws referred to therein, are accurate - 34 - and fairly summarize the matters referred to therein in all material respects. (ii) No capital duty, stamp duty, or other issuance or transfer taxes or duties, other than Netherlands capital duty payable by the Company, are payable in connection with or as a result of (i) the sale and delivery of the Securities being sold pursuant to this Agreement or (ii) the execution, delivery or performance of this Agreement. (iii) Neither the holders of the Securities to be issued in the offering contemplated by this Agreement nor the Initial Purchaser will be deemed resident, domiciled, carrying on business or subject to taxation (other than withholding tax) in the Netherlands solely by reason of the holding of the Securities, the execution, delivery or performance of this Agreement or the direct or indirect receipt of any dividends or distributions on capital stock from the Company, provided that neither the holders of the Securities nor the Initial Purchaser have a substantial interest or deemed substantial interest in the Company (as the concept of "substantial interest" is described in the Offering Circular under the caption "Taxation"). (h) You shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and your counsel), each addressed to you and dated such Closing Date or such Option Closing Date, as the case may be, of each counsel listed in paragraphs A to F below, with respect to each Subsidiary or Subsidiaries set forth next to such counsel's name, substantially to the effect that: (i) Such Subsidiary is validly existing, and, to the extent such concept exists in such Subsidiary's jurisdiction, is in good standing, under the laws of its jurisdiction. To such counsel's knowledge, other than the Subsidiaries listed on Schedule A to this Agreement, such Subsidiary does not control, directly or indirectly, or hold greater than a 5% interest in, any other corporation or other business organization. (ii) Such Subsidiary has all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as described in the Offering Circular. - 35 - (iii) Such Subsidiary is duly qualified and is in good standing as a foreign corporation authorized to do business in the jurisdictions listed in such opinion. (iv) All of the outstanding shares of capital stock of such Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable, and to our knowledge based on review of corporate stock registries are owned by the Company, directly or indirectly, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature. (v) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency of such Subsidiary's jurisdiction, (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of such Subsidiary or, to such counsel's knowledge, any indenture, loan agreement, mortgage, lease or other agreement or instrument that has been deemed a material contract of the Company under the standard of Section 4 to the instructions as to the exhibits for Form 20-F promulgated by the Commission and accordingly has been filed with the Commission, (iii) violate or conflict with any applicable law or any rule or regulation or, to such counsel's knowledge, any judgment, order or decree of any court or any governmental body or agency of such Subsidiary's jurisdiction, (iv) to such counsel's knowledge, result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which such Subsidiary is a party or by which such Subsidiary or its respective property is bound, or (v) to such counsel's knowledge, result in the termination, suspension or revocation of any Authorization of such Subsidiary or result in any other material impairment of the rights of the holder of any such Authorization. (vi) To such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation, before any court in the jurisdiction of such Subsidiary or before or by any public body or board in the jurisdiction of such Subsidiary pending or threatened against, or involving the assets, properties or - 36 - businesses of, the Company or such Subsidiary which would have a Material Adverse Effect. (vii) To such counsel's knowledge, such Subsidiary owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations necessary to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted, except where the failure to so own, possess or obtain would not have a Material Adverse Effect; and to such counsel's knowledge, neither the Company nor such Subsidiary has received any notice of proceedings relating to revocation or modification of any such licenses, permits, certificates, consents, orders approvals or authorizations. (viii) There are no exchange control regulations of such Subsidiary's jurisdiction that would limit the ability of a shareholder to convert dividend payments made by such Subsidiary into other currencies which are freely transferable out of such Subsidiary's jurisdiction. (ix) There is no tax, duty, levy, impost, deduction, charge or withholding imposed or, to our knowledge, pending or proposed, by such Subsidiary's jurisdiction or any political subdivision thereof or taxing authority therein or any federation or organization or similar entity of which it is a member either on or by virtue of any payment of dividends or distributions on capital stock by such Subsidiary; and neither the holders of the Securities nor the Initial Purchaser will be deemed resident, domiciled, carrying on business or subject to taxation in such Subsidiary's jurisdiction solely by reason of the holding of the Securities or the direct or indirect receipt of any dividends or distributions on capital stock from such Subsidiary. (A) Stibbe, counsel for the Company with respect to ASM Europe B.V. (such counsel may include such opinion with the opinion rendered by such counsel pursuant to Section 9(e) hereof). (B) Quarles & Brady Streich Lang LLP, counsel for the Company with respect to ASM America, Inc. (such counsel may include such opinion with the opinion rendered by such counsel pursuant to Section 9(f) hereof). - 37 - (C) Jennifer Cheung & Co., local counsel for the Company in Hong Kong, with respect to ASM Pacific Technology Limited, ASM Assembly Automation Limited, ASM Assembly Materials Limited and ASM Pacific Investment Limited. (D) Sumio Takeuchi Law Offices, local counsel for the Company in Japan, with respect to ASM Japan, K.K. (E) Conyers, Dill & Pearman, local counsel for the Company in the Cayman Islands, with respect to ASM Pacific Technology Limited and ASM Pacific International Marketing Limited. (F) Smeets Thesseling van Bokhorst, local counsel for the Company in the Netherlands Antilles, with respect to Advanced Semiconductor Materials (Netherlands Antilles) N.V. (i) The Initial Purchaser shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Gibson, Dunn & Crutcher LLP, counsel for the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser. (j) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters dated the date hereof or the Closing Date or an Option Closing Date, as the case may be, from Deloitte & Touche Accountants, independent public accountants, in form and substance satisfactory to the Initial Purchaser containing the information and statements of the type ordinarily included in accountants' "comfort letters" with respect to the financial statements and certain financial information contained and incorporated by reference in the Offering Circular. (k) The Notes shall have been approved by the National Association of Securities Dealers, Inc. for trading and duly listed in PORTAL. (l) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee. (m) The Company shall not have failed at or prior to the Closing Date or each Option Closing Date, if any, as the case may be, to perform or comply with all of the agreements contained herein and required to be performed or complied with by the Company at or prior to the Closing Date or Option Closing Date, as the case may be. - 38 - (n) The Representatives shall have received lock-up agreements executed by each person identified in Section 5(m). (o) The Initial Purchaser shall have received on the Closing Date and on each Option Closing Date a certificate of the transfer agent of ASM Pacific Technology Ltd. ("ASMPT"), dated as of a date that is within three business days prior to such Closing Date or Option Closing Date, setting forth the total number of outstanding shares of capital stock of ASMPT and the number of such shares that are owned of record by ASM Netherlands Antilles N.V., and based on the information set forth in such certificate, ASM Netherlands Antilles N.V. shall own a majority of the outstanding shares of capital stock of ASMPT; provided, however, that if such a certificate is not available, the Initial Purchaser shall have received instead on each Closing Date and on each Option Closing Date a certificate, addressed to the Initial Purchaser and dated such Closing Date or Option Closing Date, of the chief executive officer or the chief financial officer of the Company stating that ASM International N.V. directly and through ASM Netherlands Antilles N.V. owns a majority of the outstanding shares of capital stock of ASMPT. (p) The management board of the Company shall have adopted a resolution appointing an agent for service of process in New York as contemplated by Section 12 of this Agreement, and the Initial Purchaser shall have received on each Closing Date and on each Option Closing Date a certificate, addressed to the Initial Purchaser and dated such Closing Date or Option Closing Date, of the chief financial officer of the Company, certifying that such resolution has been duly adopted, has not been rescinded or modified and remains in full force and effect. (q) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates or documents as the Initial Purchaser shall have reasonably requested. 10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. (a) This Agreement may be terminated at any time on or prior to the Closing Date by the Initial Purchaser by written notice to the Company if any of the following has occurred: (i) any outbreak or escalation of hostilities, any act of terrorism, any declaration of war by the Congress of the United States or the Netherlands government, or any other national or international calamity or crisis or change in economic conditions or in the financial markets of the United States or the Netherlands or elsewhere that, in your judgment, is material and adverse and, in your judgment, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Offering Circular, (ii) the suspension or material limitation of trading, or the material disruption in the settlement of such trading, in securities or other instruments on the New York Stock Exchange, - 39 - the American Stock Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade, the Nasdaq National Market or Euronext Amsterdam or limitation on prices for securities or other instruments on any such exchange or the Nasdaq National Market, (iii) the suspension of trading of any securities of the Company on any exchange (including Euronext Amsterdam) or in the over-the-counter market, (iv) the enactment, publication, decree or other promulgation of any federal, state or Netherlands statute, regulation, rule or order of any court or other governmental authority that in your judgment has had a Material Adverse Effect, (v) the declaration of a banking moratorium by either federal, New York state or Netherlands authorities or (vi) the taking of any action by any federal, state, local or Netherlands government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States or the Netherlands. (b) If on the Closing Date, or an Option Closing Date, if any, as the case may be, the Initial Purchaser shall fail or refuse to purchase the Notes and arrangements satisfactory to the Initial Purchaser and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement will terminate without liability on the part the Company. In any such case that does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, or such Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Offering Circular or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve the Initial Purchaser from liability in respect of any default of the Initial Purchaser under this Agreement. 11. MISCELLANEOUS. (a) Notices given pursuant to any provision of this Agreement shall be addressed as follows: (i) if to the Company to ASM International N.V., Jan van Eycklaan 10, 3723 BC Bilthoven, The Netherlands, Attention: Robert de Bakker, with copies to Stibbe, Strawinskylaan 2001, 1077 ZZ Amsterdam, the Netherlands, Attention: Maurits van den Wall Bake and to Quarles & Brady Streich Lang LLP, One Renaissance Square, 2 North Central, Phoenix, Arizona 85004, Attention: P. Robert Moya; and (ii) if to the Initial Purchaser, c/o CIBC World Markets Corp., 2420 Sand Hill Road, Suite 300, Menlo Park, CA 94025, Attention: Charlie Bullock, with a copy to Barbara L. Becker, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, in any case to such other address as the person to be notified may have requested in writing. (b) The respective indemnities, contribution agreements, representations, warranties and other statements of the Company and the Initial - 40 - Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect and will survive delivery of and payment for the Securities regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of the Initial Purchaser, the officers or directors of the Initial Purchaser, any person controlling the Initial Purchaser, the Company, the officers or directors of the Company, or any person controlling the Company, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. (c) If for any reason the Notes are not delivered by or on behalf of the Company as required herein (other than as a result of any termination of this Agreement pursuant to Section 10), the Company agrees to reimburse the Initial Purchaser for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by it. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which it has agreed to pay pursuant to Section 5(i). The Company also agrees to reimburse the Initial Purchaser and the officers, directors and each person, if any, who controls the Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of the Exchange Act for any and all fees and expenses (including without limitation the fees and expenses of counsel) incurred by it in connection with enforcing their rights under this Agreement (including without limitation its rights under Section 8). (d) Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Initial Purchaser, the Initial Purchaser's directors and officers, any controlling persons referred to herein, the directors of the Company and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" shall not include a purchaser of any of the Securities from the Initial Purchaser merely because of such purchase. (e) This Agreement shall be governed and construed in accordance with the laws of the State of New York, including without limitation, Section 5-1401 of the New York General Obligations Law. (f) This Agreement may be signed in various counterparts, which together shall constitute one and the same instrument. 12. AGENT FOR SERVICE, SUBMISSION TO JURISDICTION, WAIVER OF IMMUNITIES. By the execution and delivery of this Agreement, the Company hereby designates and appoints Corporation Service Company, as the authorized agent of the Company, upon whom process may be served in - 41 - any suit, proceeding or other action against the Company instituted by the Initial Purchaser or by any person controlling the Initial Purchaser as to which the Initial Purchaser or any such controlling person is a party and based upon this Agreement, or in any other action against the Company in any federal or state court sitting in the County of New York, arising out of the offering made by the Offering Circular or any purchase or sale of securities in connection therewith. The Company expressly accepts jurisdiction of any such court in respect of any such suit, proceeding or other action and, without limiting other methods of obtaining jurisdiction, expressly submits to nonexclusive personal jurisdiction of any such court in respect of any such suit, proceeding or other action. Such designation and appointment shall be irrevocable, unless and until a successor authorized agent in the County and State of New York reasonably acceptable to the Initial Purchaser shall have been appointed by the Company, such successor shall have accepted such appointment and written notice thereof shall have been given to the Initial Purchaser. The Company further agrees that service of process upon its authorized agent or successor (and written notice of said service to the Company mailed by certified mail or delivered, as provided in Section 11(a) hereto) shall be deemed in every respect personal service of process upon the Company in any such suit, proceeding or other action. In the event that service of any process or notice of motion or other application to any such court in connection with any such motion in connection with any such action or proceeding cannot be made in the manner described above, such service may be made in the manner set forth in conformance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents on Civil and Commercial Matters or any successor convention or treaty. The Company hereby irrevocably waives any objection that it may have or hereafter have to the laying of venue of any such action or proceeding arising out of or based on the Securities or this Agreement or otherwise relating to the offering, issuance and sale of the Securities in any federal or state court sitting in the County of New York and hereby further irrevocably waives any claim that any such action or proceeding in any such court has been brought in an inconvenient forum. The Company agrees that any final judgment after exhaustion of all appeals or the expiration of time to appeal in any such action or proceeding arising out of the sale of the Securities or this Agreement rendered by any such federal court or state court shall be conclusive, and subject to the limitations on enforcement set forth in the opinion referred to in Section 9(e) hereof, may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law. Nothing contained in this Agreement shall affect or limit the right of the Initial Purchaser to serve any process or notice of motion or other application in any other manner permitted by law or limit or affect the right of the Initial Purchaser to bring - 42 - any action or proceeding against the Company or any of its property in the courts of any other jurisdiction. The Company further agrees to take any and all action, including the execution and filing of all such instruments and documents, as may be necessary to continue such designations and appointments or such substitute designations and appointments in full force and effect for a period of six years from the date hereof. The Company hereby agrees with the Initial Purchaser to the exclusive jurisdiction of the courts of the State of New York, or the federal courts sitting in the County of New York, in connection with any action brought by the Company. - 43 - Please confirm that the foregoing correctly sets forth the agreement between the Company and the Initial Purchaser by signing in the space provided below. Very truly yours, ASM INTERNATIONAL N.V. By: ------------------------------------ Name: Title: CIBC WORLD MARKETS CORP. By: ------------------------------------ Name: Title: - 44 - SCHEDULE A SUBSIDIARIES ASM Netherlands Antilles N.V. ASM Pacific Technology Ltd. (subsidiary of ASM Netherlands Antilles N.V.) ASM Assembly Automation Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Materials Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Products B.V. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Technology Co, Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Pacific International Marketing Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Pacific Investments Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Pacific KOR Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Equipment Bangkok Limited (subsidiary of ASM Pacific Technology Ltd.) ASM Technology Singapore Pte. Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Technology (M) Sdn. Bhd. (subsidiary of ASM Pacific Technology Ltd.) Capital Equipment Distribution Ltd. (subsidiary of ASM Pacific Technology Ltd.) Shenzhen ASM Micro Electronic Technology Co. Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Precision Machinery Manufactory Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Equipment (M) Sdn. Bhd. (subsidiary of ASM Pacific Technology Ltd.) ASM Assembly Equipment Trading (Shanghai Co. Ltd.) (subsidiary of ASM Pacific Technology Ltd.) ASM Pacific (Bermuda) Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM Asia Ltd. (subsidiary of ASM Pacific Technology Ltd.) ASM America Inc. ASM Pacific Assembly Products Inc. (subsidiary of ASM America Inc.) ASM Japan K.K. ASM Microchemistry Oy NanoPhotonics AG ASM Europe B.V. ASM France SARL (subsidiary of ASM Europe B.V.) ASM Belgium N.V. (subsidiary of ASM Europe B.V.) ASM United Kingdom Sales B.V. (subsidiary of ASM Europe B.V.) ASM Germany Sales B.V. (subsidiary of ASM Europe B.V.) ASM Italia SRL (subsidiary of ASM Europe B.V.) ASM China Ltd. ASM Wafer Process Equipment Ltd. ASM Far East Marketing Ltd. (subsidiary of ASM Wafer Process Equipment Ltd.) ASM Korea Ltd. ASM Wafer Processing Equipment Singapore Pte. Ltd. EX-4.17 4 p66543ex4-17.txt EX-4.17 EXHIBIT 4.17 ASM INTERNATIONAL N.V., AS ISSUER CITIBANK, N.A., A NATIONAL BANKING ASSOCIATION, AS TRUSTEE INDENTURE DATED AS OF NOVEMBER 19, 2001 5% CONVERTIBLE SUBORDINATED NOTES DUE NOVEMBER 15, 2005 INDENTURE, dated as of November 19, 2001, between ASM International N.V., a public limited liability company duly organized and existing under the laws of the Kingdom of the Netherlands, having its principal office at Jan van Eycklaan 10, 3723 BC Bilthoven, the Netherlands (herein called the "COMPANY"), and Citibank, N.A., a national banking association, as Trustee hereunder (herein called the "TRUSTEE"). RECITALS OF THE COMPANY The Company has duly authorized the creation of an issue of its 5% Convertible Subordinated Notes due November 15, 2005 (herein called the "SECURITIES"), of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture. All things necessary to make the Securities, when the Securities are executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company and to make this Indenture a valid agreement of the Company, in accordance with their and its terms, have been done. Further, all things necessary to duly authorize the issuance of shares of Common Stock of the Company issuable upon the conversion of the Securities, and to duly reserve for issuance the number of shares of Common Stock issuable upon such conversion, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.1 DEFINITIONS. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States; and (c) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. -1- "ACT," when used with respect to any Holder of a Security, has the meaning specified in Section 1.4. "ADDITIONAL SECURITIES" means Securities initially issued subsequent to the date of this Indenture. "AFFILIATE" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "AGGREGATE CURRENT MARKET PRICE" has the meaning specified in Section 10.4(e). "APPLICABLE PROCEDURES" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, to the extent applicable to such transaction and as in effect from time to time. "AUTHENTICATING AGENT" means any Person authorized pursuant to Section 5.12 to act on behalf of the Trustee to authenticate Securities. "AVERAGE SALES PRICE PER SHARE" means, with respect to the Common Stock of the Company, for any day, (1) the average of the high and low sales price per share regular way on a national securities exchange or, (2) if the Common Stock is not listed on a national securities exchange, the average of the high and low sales price per share regular way on The Nasdaq National Market, or (3) if the Common Stock is not quoted on The Nasdaq National Market or listed or admitted to trading on any national securities exchange, the average of the high and low sales prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. "BENEFICIAL OWNER" means a "beneficial owner" as defined in Rules 13d-3 and 13d-5 under the Exchange Act. "BOARD OF DIRECTORS" means either the Management Board of the Company or any duly authorized committee of that board. "BOARD RESOLUTION" means a resolution duly adopted by the Board of Directors, a copy of which, certified by the Secretary or an Assistant Secretary of the Company (or an officer of the Company serving an equivalent function) to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, shall have been delivered to the Trustee. "BUSINESS DAY," when used with respect to any Place of Payment, Place of Conversion or any other place, as the case may be, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in such Place of Payment, Place of -2- Conversion or other place, as the case may be, are authorized or obligated by law or executive order to close; provided, however, that a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close shall not be a Business Day for purposes of Section 9.6 or Section 10.5. "CASH EQUIVALENTS" means (1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (2) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500 million and a Thompson Bank Watch Rating of "B" or better, (3) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any financial institution meeting the qualifications specified in clause (2) above, (4) commercial paper having the highest rating obtainable from Moody's Investors Service, Inc. or Standard & Poor's Ratings Services and in each case maturing within six months after the date of acquisition and (5) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1)-(4) of this definition. "CHANGE IN CONTROL" means the occurrence at any time, after the original issuance of the Securities, of any transaction or event (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise) in connection with which all or substantially all of the Common Stock is exchanged for, converted into, acquired for or constitute solely the right to receive, consideration which is not all or substantially all common stock that: (1) is listed on, or immediately after such transaction or event will be listed on, a United States national securities exchange; or (2) is approved, or immediately after the transaction or event will be approved, for quotation on The Nasdaq National Market or any similar United States system of automated dissemination of quotations of securities prices. provided, however, that a Change in Control shall not be deemed to have occurred if the Average Sales Price Per Share on any five Trading Days within the period of 10 consecutive Trading Days ending immediately prior to the date of the Change in Control shall equal or exceed 105% of the Conversion Price of the Securities in effect on each such Trading Day. For the purposes of this definition, "beneficial owner," has the meaning attributed to it in Rules 13d-3 under the Exchange Act, whether or not applicable. "CODE" has the meaning specified in Section 2.1. "COMBINED CASH AND TENDER AMOUNT" has the meaning specified in Section 10.4(e). "COMBINED TENDER AND CASH AMOUNT" has the meaning specified in Section 10.4(f). -3- "COMMISSION" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "COMMON STOCK" means the Common Shares, par value E0.04 per share, of the Company at the date of this Indenture or as such stock may be reconstituted from time to time. Subject to the provisions of Section 10.11, shares issuable on conversion or repurchase of Securities shall include only shares of Common Stock or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be more than one such resulting class, the shares so issuable on conversion of Securities shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "COMPANY" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "COMPANY NOTICE" has the meaning specified in Section 12.3(a). "COMPANY REQUEST" or "COMPANY ORDER" means a written request or order signed in the name of the Company by its Chairman of the Management Board, its Vice Chairman of the Management Board, its Chief Executive Officer, its President or a Vice President, and by its principal financial officer, Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (or an officer of the Company serving an equivalent function), and delivered to the Trustee. "COMPLETION DATE" has the meaning specified in Section 10.4(f). "CONSTITUENT PERSON" has the meaning specified in Section 10.11. "CONVERSION AGENT" means any Person authorized by the Company to convert Securities in accordance with Article Ten. The Company has initially appointed the Trustee as its Conversion Agent. "CONVERSION PRICE" means the amount equal to U.S. $1,000 divided by the Conversion Rate. "CONVERSION RATE" has the meaning specified in Section 10.1. "CONVERSION SHARES" has the meaning specified in Section 10.4(m). "CORPORATE TRUST OFFICE" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered (which at the date of this Indenture -4- is located at 111 Wall Street, Corporate Trust Department, 14th Floor, New York, New York 10043, Attn: Jennifer Cheng (Account of ASM International N.V.)). "CORPORATION" means a corporation, company, association, joint-stock company or business trust. "DEFAULTED INTEREST" has the meaning specified in Section 2.8. "DEPOSITARY" means, with respect to any Registered Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Registered Securities (or any successor securities clearing agency so registered). "DESIGNATED SENIOR DEBT" means the E90,000,000 Multicurrency Revolving Facilities Agreement, dated as of June 27, 2001, between the Company, the Guarantors named therein, ABN Amro Bank N.V. and Deutsche Bank AG as Arrangers, ABN Amro Bank N.V. as Facility Agent, and Deutsche Bank AG as Security Agent, as such agreement may be amended, modified or supplemented from time to time in accordance with the terms thereof, and any other obligations of the Company under any particular Senior Debt in which the instrument creating or evidencing the same, or the assumption or guarantee thereof, or related agreements or documents to which the Company is a party, expressly provides that such indebtedness shall be "Designated Senior Debt" for purposes of this Indenture (provided that such instrument, agreement or other document may place limitations and conditions on the right of such Senior Debt to exercise the rights of Designated Senior Debt). "DISTRIBUTION DATE" has the meaning specified in Section 10.4(m). "DOLLAR" or "U.S.$" means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts. "DTC" means The Depository Trust Company, a New York corporation. "EVENT OF DEFAULT" has the meaning specified in Section 4.1. "EXCHANGE ACT" means the United States Securities Exchange Act of 1934 (or any successor statute), as amended from time to time. "GLOBAL SECURITY" means a Registered Security that is registered in the Security Register in the name of a Depositary or a nominee thereof. "HOLDER" means the Person in whose name the Security is registered in the Security Register. "INDENTURE" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and -5- any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. "INITIAL PURCHASER" means CIBC World Markets Corp. "INTEREST PAYMENT DATE" means the Stated Maturity of an installment of interest on the Securities. "MATURITY," when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, exercise of the repurchase right set forth in Article Thirteen or otherwise. "MEMBER" means any member of, or participant in, the Depositary. "NON-ELECTING SHARE" has the meaning specified in Section 10.11. "NOTICE OF DEFAULT" has the meaning specified in Section 4.1. "OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the Management Board, a Vice Chairman of the Management Board, the Chief Executive Officer, the President or a Vice President and by the principal financial officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary (or an officer of the Company serving an equivalent function) of the Company, and delivered to the Trustee. "OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel for or employed by the Company and who shall be acceptable to the Trustee. "OUTSTANDING," when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (2) Securities for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (if other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities (provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made); and (3) Securities that have been paid pursuant to Section 2.7 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been -6- presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such determination as to the presence of a quorum or upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor. "PAYING AGENT" means any Person authorized by the Company to pay the principal of or interest on any Securities on behalf of the Company and, except as otherwise specifically set forth herein, such term shall include the Company if it shall act as its own Paying Agent. The Company has initially appointed the Trustee as its Paying Agent. "PERSON" means any individual, corporation, limited liability company, partnership, joint venture, trust, estate, unincorporated organization or government or any agency or political subdivision thereof. "PLACE OF CONVERSION" has the meaning specified in Section 2.2. "PLACE OF PAYMENT" has the meaning specified in Section 2.2. "PREDECESSOR SECURITY" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "PURCHASE AGREEMENT" means (i) with respect to the Securities issued in the date of this Indenture, the Purchase Agreement, dated as of November 14, 2001, between the Company and the Initial Purchaser, as such agreement may be amended from time to time and (ii) with respect to any Additional Securities, any purchase or underwriting agreement entered into by the Company and the initial purchasers or underwriters with respect thereto, as such agreement may be amended, modified or supplemented from time to time in accordance with the terms thereof. "PURCHASED SHARES" has the meaning specified in Section 10.4(f). "PURCHASERS" has the meaning specified in Section 9.9. -7- "RECORD DATE" means any Regular Record Date or Special Record Date. "RECORD DATE PERIOD" means the period from the close of business of any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date. "REDEMPTION DATE," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "REDEMPTION PRICE," when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "REGISTERED SECURITIES" has the meaning specified in Section 2.1. "REGULAR RECORD DATE" for interest payable in respect of any Registered Security on any Interest Payment Date means the May 1 and November 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "REPRESENTATIVE" means (1) the indenture trustee or other trustee, agent or representative for any Designated Senior Debt or (2) with respect to Designated Senior Debt that does not have any such trustee, agent or other representative, (A) in the case of such Designated Senior Debt issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Designated Senior Debt, any holder or owner of such Designated Senior Debt acting with the consent of the required Persons necessary to bind such holders or owners of such Designated Senior Debt and (B) in the case of all other such Designated Senior Debt, the holder or owner of such Designated Senior Debt. "REPURCHASE DATE" has the meaning specified in Section 12.1. "REPURCHASE PRICE" has the meaning specified in Section 12.1. "RESPONSIBLE OFFICER," when used with respect to the Trustee, means any officer within the Corporate Trust Office, including without limitation any vice president, assistant vice president, assistant treasurer, corporate trust officer or other employee of the Trustee customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge and familiarity with the particular subject. "RESTRICTED GLOBAL SECURITY" has the meaning specified in Section 2.1. "RESTRICTED SECURITIES LEGEND" means, collectively, the legends substantially in the forms of the legends required in the form of Security attached hereto as Exhibit A to be placed upon each Security. -8- "RULE 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time. "RULE 144A INFORMATION" has the meaning specified in Section 8.9. "SECURITIES" has the meaning ascribed to it in the first paragraph under the caption "Recitals of the Company." From and after the issuance of any Additional Securities (but not for purposes of determining whether such issuance is permitted hereunder), "Securities" shall include such Additional Securities for purposes of this Indenture. The Securities issued on the date of this Indenture, any Securities issued in respect of the Initial Purchaser's exercise of its over-allotment option, and the Additional Securities shall be treated as a single class of securities under this Indenture. "SECURITIES ACT" means the United States Securities Act of 1933 (or any successor statute), as amended from time to time. "SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings specified in Section 2.6. "SENIOR DEBT" means the principal of (and premium, if any) and interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding) on, and rent payable on or in connection with, and all fees, costs, claims, expenses and other amounts payable in connection with, the following, whether absolute or contingent, secured or unsecured, due or to become due, outstanding on the date of this Indenture or thereafter created, incurred or assumed: (1) all the Company's indebtedness evidenced by a credit or loan agreement, note, bond, debenture, or other similar instrument whether or not the recourse of the lender is to all of the Company's assets or to only a portion, (2) all of the Company's indebtedness, obligations and other liabilities, contingent or otherwise, for borrowed money, including, without limitation, overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements and any loans or advances from banks, whether or not evidenced by notes or similar instruments, or bonds, debentures, notes or similar instruments, whether or not the recourse of the lender is to all of the Company's assets or to only a portion thereof, (3) all of the Company's obligations as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles, (4) all of the Company's obligations under leases for facilities, equipment or other assets entered into for financing purposes, whether or not capitalized, (5) all of the Company's obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, in connection with the lease of real property or improvements, or any personal property included as part of any such lease, which provides that the Company is contractually obligated to purchase or cause a third party to purchase the leased property and thereby guarantee a residual value of leased property to the lessor and all of the Company's obligations under such lease or related document to purchase or cause a third party to purchase the leased property, whether or not such lease transaction is characterized as an operating lease or capitalized lease in accordance with generally accepted accounting principles, (6) all of the Company's obligations under interest rate and currency swaps, caps, floors, collars, hedge -9- agreements, forward contracts, or similar agreements or arrangements, (7) all of the Company's obligations with respect to letters of credit, bank guarantees, bankers' acceptances and similar facilities, including related reimbursement obligations, (8) all of the Company's obligations issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable and accrued liabilities arising in the ordinary course of business), (9) all of the Company's obligations of the type referred to in clauses (1) through (8) above of another Person and all dividends of another Person, the payment of which, in either case, the Company has assumed or guaranteed or for which the Company is responsible or liable, directly or indirectly, jointly or severally, as obligor, guarantor or otherwise or which is secured by a lien on the Company's property and (10) renewals, extensions, modifications, replacements, restatements and refundings of, or any indebtedness or obligation issued in exchange for, any such indebtedness or obligation described in clauses (1) through (9) of this definition; provided, however, that Senior Debt shall not include the Securities or any indebtedness or obligation if the terms of such indebtedness or obligation (or the terms of the instrument under which such indebtedness or obligation is issued) expressly provides that such indebtedness or obligation is not superior in right of payment to the Securities; and provided, further, that Senior Debt shall not include accounts payable or other accrued liabilities or obligations incurred in the ordinary course of business in connection with the obtaining of materials or services and any indebtedness or obligation that the Company may owe to any direct or indirect Subsidiary. "SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof. "SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 2.8. "STATED MATURITY," when used with respect to any Security or any installment of interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable. "SUBSIDIARY" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock or other similar interests in the corporation that ordinarily has or have voting power for the election of directors or Persons performing similar functions, whether at all times or only so long as no senior class of stock or other interests has or have such voting power by reason of any contingency. "SUCCESSOR SECURITY" of any particular Security means every Security issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "TAXES" means all taxes, duties, assessments or other governmental charges of whatsoever nature, including penalties, interest and any other liabilities related thereto. -10- "TRADING DAYS" means (1) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business; (2) if the Common Stock is quoted on The Nasdaq National Market or any other system of automated dissemination of quotations of securities prices, days on which trades may be effected through such system; or (3) if the Common Stock is not listed or admitted for trading on any national securities exchange or quoted on The Nasdaq National Market or any other system of automated dissemination of quotation of securities prices, days on which the Common Stock is traded regular way in the over-the-counter market and for which a closing bid and a closing asked price for the Common Stock are available. "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "TRUSTEE" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. "UNITED STATES" means the United States of America (including the several States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (its "possessions" including Puerto Rico, the United States Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands). "VICE PRESIDENT," when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and, if required by the Trust Indenture Act, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (including certificates provided for in Section 8.8) shall include: (a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; -11- (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with; provided, however, with respect to matters of fact, an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials. SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or any other Person stating that the information with respect to such factual matters is in the possession of the Company or such other Person, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 1.4 ACTS OF HOLDERS OF SECURITIES. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or proxy duly appointed in writing by such Holders. Such action shall become effective when such instrument or instruments is delivered to the Trustee and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of all such instruments delivered to the Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders of Securities signing such instrument or instruments. -12- Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 5.1) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section 1.4. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. (c) The principal amount and serial number of any Registered Security held by any Person, and the date of his holding the same, shall be proved by the Security Register. (d) The fact and date of execution of any such instrument or writing and the authority of the Person executing the same may also be proved in any other manner that the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 1.4. (e) The Company may set any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted by this Indenture to be given or taken by Holders. Promptly and in any case not later than ten days after setting a record date, the Company shall notify the Trustee and the Holders of such record date. If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the thirtieth day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 13.1) prior to such first solicitation or vote, as the case may be. With regard to any record date, the Holders on such date (or their duly appointed agents or proxies), and only such Persons, shall be entitled to give or take, or vote on, the relevant action, whether or not such Holders remain Holders after such record date. Notwithstanding the foregoing, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any notice, declaration or direction referred to in the next paragraph. Upon receipt by the Trustee from any Holder of (1) any notice of default or breach referred to in Section 4.1(e), if such default or breach has occurred and is continuing and the Trustee shall not have given such a notice to the Company, (2) any declaration of acceleration referred to in Section 4.2, if an Event of Default has occurred and is continuing and the Trustee shall not have given such a declaration to the Company, or (3) any direction referred to in Section 4.12, if the Trustee shall not have taken the action specified in such direction, then, with respect to clauses (2) and (3), a record date shall automatically and without any action by the Company or the Trustee be set for determining the Holders entitled to join in such declaration or direction, which record date shall be the close of business on the tenth day (or, if such day is not a Business Day, the next succeeding Business Day) following the day on which the Trustee receives such declaration or direction, and, with respect to clause (1), the Trustee may set any -13- day as a record date for the purpose of determining the Holders entitled to join in such notice of default. Promptly after such receipt by the Trustee of any such declaration or direction referred to in clause (2) or (3), and promptly after setting any record date with respect to clause (1), and as soon as practicable thereafter, the Trustee shall notify the Company and the Holders of any such record date so fixed. The Holders on such record date (or their duly appointed agents or proxies), and only such Persons, shall be entitled to join in such notice, declaration or direction, whether or not such Holders remain Holders after such record date; provided, however, that, unless such notice, declaration or direction shall have become effective by virtue of Holders of the requisite principal amount of Securities on such record date (or their duly appointed agents or proxies) having joined therein on or prior to the ninetieth day after such record date, such notice, declaration or direction shall automatically and without any action by any Person be cancelled and of no further effect. Nothing in this paragraph shall be construed to prevent a Holder (or a duly appointed agent or proxy thereof) from giving, before or after the expiration of such 90-day period, a notice, declaration or direction contrary to or different from, or, after the expiration of such period, identical to, the notice, declaration or direction to which such record date relates, in which event a new record date in respect thereof shall be set pursuant to this paragraph. In addition, nothing in this paragraph shall be construed to render ineffective any notice, declaration or direction of the type referred to in this paragraph given at any time to the Trustee and the Company by Holders (or their duly appointed agents or proxies) of the requisite principal amount of Securities on the date such notice, declaration or direction is so given. (f) Except as provided in Sections 4.2 and 4.13, any request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of Holders of Securities or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (a) the Trustee by any Holder of Securities or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee and received at the Corporate Trust Office, Attention: Corporate Trust Department, and shall be deemed given when received, (b) the Company by the Trustee or by any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing, mailed, first-class postage prepaid, or telecopied and confirmed by mail, first-class postage prepaid, or delivered by hand or overnight courier, addressed to the Company at Jan van Eycklaan 10, 3723 BC Bilthoven, the Netherlands, Attention: Robert de Bakker (telecopy no.: +31 30 228 74 69), or at any other address previously furnished in writing to the Trustee by the Company, with a copy to Quarles & Brady Streich Lang LLP, One Renaissance Square, Two North Central -14- Avenue, Phoenix, Arizona 85004, Attention: P. Robert Moya, and shall be deemed given when received by the Company. Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication. SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER. Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given to Holders if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at the address of such Holder as it appears in the Security Register, not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee, which approval shall not be unreasonably withheld or delayed, shall constitute a sufficient notification to such Holders for every purpose hereunder. Such notice shall be deemed to have been given when such notice is mailed. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this Indenture by the Company and by the Trustee shall bind its successors and assigns, whether so expressed or not. SECTION 1.9 SEPARABILITY CLAUSE. In case any provision in this Indenture or the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. -15- SECTION 1.10 BENEFITS OF INDENTURE. Except as provided in the next sentence, nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors and assigns hereunder and the Holders of Securities, any benefit or legal or equitable right, remedy or claim under this Indenture. The provisions of Article Eleven are intended to be for the benefit of, and shall be enforceable directly by, the holders of Senior Debt. SECTION 1.11 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA, INCLUDING, WITHOUT LIMITATION, THE NEW YORK GENERAL OBLIGATIONS LAW SECTION5-1401. SECTION 1.12 LEGAL HOLIDAYS. In any case where any Interest Payment Date, Redemption Date, Repurchase Date or Stated Maturity of any Security or the last day on which a Holder of a Security has a right to convert his Security shall not be a Business Day at a Place of Payment or Place of Conversion, as the case may be, then (notwithstanding any other provision of this Indenture or of the Securities) payment of principal of, premium, if any, or interest on, or the payment of the Repurchase Price (whether the same is payable in cash or in shares of Common Stock) with respect to, or delivery for conversion of, such Security need not be made at such Place of Payment or Place of Conversion, as the case may be, on or by such day, but may be made on or by the next succeeding Business Day at such Place of Payment or Place of Conversion, as the case may be, with the same force and effect as if made on the Interest Payment Date, Redemption Date or Repurchase Date, or at the Stated Maturity or by such last day for conversion; provided, however, that in the case that payment is made on such succeeding Business Day, no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repurchase Date, Stated Maturity or last day for conversion, as the case may be. SECTION 1.13 CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. Until such time as this Indenture shall be qualified under the Trust Indenture Act, this Indenture, the Company and the Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act to the same extent as would be the case if this Indenture were so qualified on the date hereof. -16- SECTION 1.14 COUNTERPARTS. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. SECTION 1.15. CONSENT TO JURISDICTION. The Company hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City and any appellate court from any thereof for the purposes of (and solely for the purposes of) any suit, action or other proceeding arising out of or relating to this Indenture or any of the transactions contemplated hereby, and the Company hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or in such Federal court. The Company hereby (to the fullest extent they may effectively do so) irrevocably waives and agrees not to assert, by way of motion, as a defense, or otherwise in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason whatsoever, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper, or that this Indenture or the subject matter hereof may not be enforced in such courts. The Company hereby irrevocably appoints Corporation Service Company (the "PROCESS AGENT"), with an office on the date hereof at 1177 Avenue of the Americas, 17th Floor, New York, NY 10036-2721, United States, as their agent to receive on behalf of the Company and its property service of copies of the summons and complaint and any other process which may be served in any such suit, action or proceeding and in any suit, action or proceeding arising out of or relating to this Indenture to which the Company is a party. Such service may be made by mailing or delivering a copy of such process to the Company in care of the Process Agent at the Process Agent's above address, and the Company hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Company also irrevocably consents to the service of any and all process in any such suit, action or proceeding by the mailing of copies of such process to the Company at its address specified in Section 1.5. The Company agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 1.15 shall affect the right of the Trustee to serve legal process in any other manner permitted by law or affect the right of the Trustee to bring any action or proceeding against the Company or its property in the courts of any other jurisdictions. ARTICLE TWO THE SECURITIES SECTION 2.1 FORM GENERALLY. The Securities and the Trustee's Certificate of Authentication shall be in substantially the form set forth in Exhibit A hereto, which Exhibit is a part of this Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such -17- legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or the Internal Revenue Code of l986, as amended, and regulations thereunder (the "CODE"), or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. All Securities shall be issued in registered form, as opposed to bearer form, and shall sometimes be referred to as the "REGISTERED SECURITIES." The Securities shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods on steel engraved borders, if so required by any securities exchange upon which the Securities may be listed, or may be produced in any other manner permitted by the rules of any such securities exchange, or, if the Securities are not listed on a securities exchange, in any other manner approved by the Company, all as determined by the officers executing such Securities, as evidenced by their execution thereof. Upon their original issuance, Securities shall be issued in the form of one or more Global Securities without interest coupons and shall be registered in the name of DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Securities represented thereby (or such other accounts as they may direct). Such Global Security, together with its Successor Securities that are Global Securities, are collectively herein called the "RESTRICTED GLOBAL SECURITY." SECTION 2.2 TITLE AND TERMS. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is initially limited to U.S.$100,000,000 (or such greater amount necessary to reflect (i) exercise of the Initial Purchaser's over-allotment option in compliance with the Purchase Agreement and/or (ii) the issuance of Additional Securities in an aggregate principal amount of up to $35,000,000, in which case the maximum aggregate principal amount of the Securities shall be $150,000,000), except for Securities authenticated and delivered in exchange for, or in lieu of, other Securities pursuant to Section 2.5, 2.6, 2.7, 7.5, 9.8, 10.2 or 12.3(e). The Securities shall be known and designated as the "5% Convertible Subordinated Notes due November 15, 2005" of the Company. Their Stated Maturity shall be November 15, 2005 and they shall bear interest on their principal amount from November 19, 2001, payable semiannually in arrears on May 15 and November 15 in each year, commencing May 15, 2002, at the rate of 5% per annum until the principal thereof is due and at the rate then in effect on any overdue principal and, to the extent permitted by law, on any overdue interest; provided, however, that payments shall only be made on Business Days as provided in Section 1.12. The principal of, premium, if any, and interest on the Securities shall be payable as provided in the form of Securities attached hereto as Exhibit A, and the Repurchase Price, whether payable in cash or in shares of Common Stock, shall be payable at such places as are identified in the Company Notice given pursuant to Section 12.3 (any city in which any Paying Agent is located being herein called a "PLACE OF PAYMENT"). -18- The Securities shall be redeemable at the option of the Company, as provided in Article Nine and in the form of Securities attached hereto as Exhibit A. The Securities shall be convertible as provided in Article Ten (any city in which any Conversion Agent is located being herein called a "PLACE OF CONVERSION"). The Securities shall be subordinated in right of payment to Senior Debt of the Company as provided in Article Eleven. The Securities shall be subject to repurchase by the Company at the option of the Holders as provided in Article Twelve. SECTION 2.3 DENOMINATIONS. The Securities shall be issuable only in registered form, without coupons, in denominations of U.S.$1,000 and integral multiples thereof. SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities shall be executed on behalf of the Company by its Chairman of the Management Board, its Vice Chairman of the Management Board, its Chief Executive Officer, its President, one of its Vice Presidents, its Chief Financial Officer, its Treasurer or its Controller under a facsimile of its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries (or an officer of the Company serving an equivalent function). Any such signature may be manual or facsimile. Securities bearing the manual or facsimile signature of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee or to its order for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and make available for delivery such Securities as provided in this Indenture and not otherwise. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. -19- SECTION 2.5 GLOBAL SECURITIES; TEMPORARY SECURITIES. (a) GLOBAL SECURITIES (1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated by the Company for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered as such under the Exchange Act or announces an intention permanently to cease business or does in fact do so or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security. (3) If any Global Security is to be exchanged for other Securities or cancelled in whole, it shall be surrendered by or on behalf of the Depositary or its nominee to the Trustee, as Security Registrar, for exchange or cancellation, as provided in this Article Two. If any Global Security is to be exchanged for other Securities or cancelled in part, or if another Security is to be exchanged in whole or in part for a beneficial interest in any Global Security, in each case, as provided in Section 2.6, then either (A) such Global Security shall be so surrendered for exchange or cancellation, as provided in this Article Two, or (B) the principal amount thereof shall be reduced or increased by an amount equal to the portion thereof to be so exchanged or cancelled or equal to the principal amount of such other Security to be so exchanged for a beneficial interest therein, as the case may be, by means of an appropriate adjustment made on the records of the Trustee, as Security Registrar, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its authorized representative to make a corresponding adjustment to its records. Upon any such surrender or adjustment of a Global Security, the Trustee shall, subject to Section 2.6(c) and as otherwise provided in this Article Two, authenticate and make available for delivery any Securities issuable in exchange for such Global Security (or any portion thereof) to or upon the order of, and registered in such names as may be directed by, the Depositary or its authorized representative. Upon the request of the Trustee in connection with the occurrence of any of the events specified in the preceding paragraph, the Company shall promptly make available to the Trustee a reasonable supply of Securities that are not in the form of Global Securities. The Trustee shall be entitled to rely upon any order, direction or request of the Depositary or its authorized representative which is given or made pursuant to this Article Two if such order, direction or request is given or made in accordance with the Applicable Procedures. -20- (4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Article Two or otherwise, shall be authenticated and delivered in the form of, and shall be, a registered Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof, in which case such Registered Security shall be authenticated and delivered in definitive, fully registered form, without interest coupons. (5) The Depositary or its nominee, as registered owner of a Global Security, shall be the Holder of such Global Security for all purposes under the Indenture and the Registered Securities, and owners of beneficial interests in a Global Security shall hold such interests pursuant to the Applicable Procedures. Accordingly, any such owner's beneficial interest in a Global Security shall be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or its nominee or its Agent Members, and such owners of beneficial interests in a Global Security shall not be considered the owners or holders thereof. (b) TEMPORARY SECURITIES Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and make available for delivery, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Registered Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Registered Securities may determine, as evidenced by their execution of such Securities. If temporary Securities are issued, the Company shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at any office or agency of the Company designated pursuant to Section 8.2, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like principal amount of definitive Securities of authorized denominations. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities. SECTION 2.6 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE; RESTRICTIONS ON TRANSFER. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company designated pursuant to Section 8.2 being herein sometimes collectively referred to as the "SECURITY REGISTER") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered -21- Securities. The Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose of registering Registered Securities and transfers and exchanges of Registered Securities as herein provided. Upon surrender for registration of transfer of any Security at an office or agency of the Company designated pursuant to Section 8.2 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. At the option of the Holder, and subject to the other provisions of this Section 2.6, Securities may be exchanged for other Securities of any authorized denomination and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, and subject to the other provisions of this Section 2.6, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Securities the Holder making the exchange is entitled to receive. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, subject to the other provisions of this Section 2.6, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange of Securities except as provided in Section 2.7, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.5, 7.5, 9.8, 10.2 or 12.3(e) (other than where the shares of Common Stock are to be issued or delivered in a name other than that of the Holder of the Security) not involving any transfer and other than any stamp and other duties, if any, that may be imposed in connection with any such transfer or exchange by the United States or any political subdivision thereof or therein, which shall be paid by the Company. In the event of a redemption of the Securities, the Company shall not be required (1) to register the transfer of or exchange Securities for a period of 15 days immediately preceding the date notice is given identifying the serial numbers of the Securities called for such redemption or (2) to register the transfer of or exchange any Security, or portion thereof, called for redemption. (b) RESTRICTED SECURITIES LEGENDS. All Securities shall bear the applicable Restricted Securities Legend subject to the following: (1) subject to the following clauses of this Section 2.6(b), a Security or any portion thereof that is exchanged, upon transfer or otherwise, for a Global Security or any -22- portion thereof shall bear the Restricted Securities Legend borne by such Global Security while represented thereby; (2) subject to the following clauses of this Section 2.6(b), a new Security that is not a Global Security and is issued in exchange for another Security (including a Global Security) or any portion thereof, upon transfer or otherwise, shall bear the Restricted Securities Legend borne by such other Security; (3) any Securities that are sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act, together with their Successor Securities, shall not bear a Restricted Securities Legend; the Company shall inform the Trustee in writing of the effective date of any such registration statement registering the Securities under the Securities Act and shall notify the Trustee at any time when prospectuses may not be delivered with respect to Securities to be sold pursuant to such registration statement. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned registration statement; (4) at any time after the Securities may be freely transferred without registration under the Securities Act or without being subject to transfer restrictions pursuant to the Securities Act, a new Security that does not bear a Restricted Securities Legend may be issued in exchange for or in lieu of a Security (other than a Global Security) or any portion thereof that bears such a legend if the Trustee has received a certificate regarding the unrestricted nature of the Securities, satisfactory to the Trustee and duly executed by the Holder of such legended Security or his attorney duly authorized in writing, and after such date and receipt of such certificate, the Trustee shall authenticate and make available for delivery such a new Security in exchange for or in lieu of such other Security as provided in this Article Two; (5) a new Security that does not bear a Restricted Securities Legend may be issued in exchange for or in lieu of a Security (other than a Global Security) or any portion thereof that bears such a legend if, in the Company's judgment, placing such a legend upon such new Security is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee, at the direction of the Company, shall authenticate and make available for delivery such a new Security as provided in this Article Two; and (6) notwithstanding the foregoing provisions of this Section 2.6(b), a Successor Security of a Security that does not bear a particular form of Restricted Securities Legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Security is a "restricted security" within the meaning of Rule 144, in which case the Trustee, at the direction of the Company, shall authenticate and make available for delivery a new Security bearing a Restricted Securities Legend in exchange for such Successor Security as provided in this Article Two. -23- (c) Neither the Trustee, the Paying Agent nor any of their agents shall (1) have any duty to monitor compliance with or with respect to any federal or state or other securities or tax laws or (2) have any duty to obtain documentation on any transfers or exchanges other than as specifically required hereunder. SECTION 2.7 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there be delivered to the Company and to the Trustee: (a) evidence to their satisfaction of the destruction, loss or theft of any Security, and (b) such security or indemnity as may be satisfactory to the Company and the Trustee to save each of them and any agent of either of them harmless, then, in the absence of actual notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security, upon satisfaction of the conditions set forth in the preceding paragraph. Upon the issuance of any new Security under this Section 2.7, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto (other than any stamp and other duties, if any, that may be imposed in connection therewith by the United States or any political subdivision thereof or therein, which shall be paid by the Company) and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section 2.7 are exclusive and shall preclude (to the extent lawful) all other rights and remedies of any Holder with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. -24- SECTION 2.8 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest on any Security 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 Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date ("DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below: (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security, the date of the proposed payment and the Special Record Date, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. The Special Record Date for the payment of such Defaulted Interest shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 15 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at such Holder's address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b). (b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 2.8 and Section 2.6, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. -25- Interest on any Security that is converted in accordance with Section 10.2 during a Record Date Period shall be payable in accordance with the provisions of Section 10.2. SECTION 2.9 PERSONS DEEMED OWNERS. Prior to due presentment of a 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 such Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 2.8) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. SECTION 2.10 CANCELLATION. All Securities surrendered for payment, redemption, repurchase, registration of transfer or exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.10. The Trustee shall dispose of all cancelled Securities in accordance with applicable law and its customary practices in effect from time to time. SECTION 2.11 COMPUTATION OF INTEREST. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 2.12 CUSIP NUMBERS. The Company in issuing Securities may use "CUSIP" numbers (if then generally in use) in addition to serial numbers; the Trustee shall use such CUSIP numbers in addition to serial numbers in notices of redemption and repurchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such CUSIP numbers either as printed on the Securities or as contained in any notice of a redemption or repurchase and that reliance may be placed only on the serial or other identification numbers printed on the Securities, and any such redemption or repurchase shall not be affected by any defect in or omission of such CUSIP numbers. The Company shall promptly notify the Trustee in writing of any change in any such CUSIP number. -26- ARTICLE THREE SATISFACTION AND DISCHARGE SECTION 3.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of conversion, or registration of transfer or exchange, or replacement of Securities herein expressly provided for in the form of Securities attached hereto as Exhibit A and the Company's obligations to the Trustee pursuant to Section 5.7), and the Trustee, at the expense of the Company, shall execute proper instruments in form and substance satisfactory to the Trustee acknowledging satisfaction and discharge of this Indenture, when (a) either (1) all Securities theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.7 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 8.3) have been delivered to the Trustee for cancellation; or (2) all such Securities not theretofore delivered to the Trustee or its agent for cancellation (other than Securities referred to in clauses (A) and (B) of clause (a)(1) above) (i) have become due and payable, or (ii) will have become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of clause (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds (immediately available to the Holders in the case of clause (i) above) an amount sufficient to pay and discharge the entire principal, premium, if any, and interest on such Securities not theretofore delivered to the Trustee for cancellation, to the date of such deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and -27- (c) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 5.7, the obligations of the Company to any Authenticating Agent under Section 5.12, if money shall have been deposited with the Trustee pursuant to clause (a)(2) of this Section 3.1, the obligations of the Trustee under Section 3.2 and the last paragraph of Section 8.3, and the obligations of the Company and the Trustee under Section 2.6 and Article Ten shall survive. Funds held in trust pursuant to this Section 3.1 are not subject to the provisions of Article Eleven. SECTION 3.2 APPLICATION OF TRUST MONEY. Subject to the provisions of the last paragraph of Section 8.3, all money deposited with the Trustee pursuant to Section 3.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee. All moneys deposited with the Trustee pursuant to Section 3.1 (and held by it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request. ARTICLE FOUR REMEDIES SECTION 4.1 EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Eleven or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of the principal of or premium, if any, on any Security at its Maturity, whether or not the such payment is prohibited by the subordination provisions of this Indenture; or (b) default in the payment of any interest if any, upon any Security when it becomes due and payable, and continuance of such default for a period of 30 days, whether or not such payment is prohibited by the subordination provisions of this Indenture; or (c) default in the delivery of shares of Common Stock, together with cash instead of fractional shares of Common Stock, when such shares of Common Stock or cash instead of -28- fractional shares are required to be delivered upon conversion of a Security, and such failure continues for ten days after such delivery date; or (d) failure by the Company to give the Company Notice in accordance with Section 12.3, whether or not such notice is prohibited by the subordination provisions of this Indenture; or (e) default in the performance, or breach, of any covenant of the Company in this Indenture (other than a covenant a default in the performance or breach of which is specifically dealt with elsewhere in this Section 4.1), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "NOTICE OF DEFAULT" hereunder; or (f) with respect to any indebtedness of the Company having an outstanding principal amount of $10,000,000 or more in the aggregate for all such indebtedness, an event of default that has caused the lender to declare such indebtedness to be due and payable prior to its scheduled maturity; or (g) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company or any Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or (h) the commencement by the Company or any Significant Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or similar relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action. -29- SECTION 4.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event of Default (other than an Event of Default specified in Section 4.1(g) or 4.1(h)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities may declare the principal of all the Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration, such principal and all accrued interest thereon shall become immediately due and payable. If an Event of Default specified in Section 4.1(g) or 4.1(h) occurs, the principal of, and accrued interest on, all the Securities shall ipso facto become immediately due and payable without any declaration or other Act of the Holder or any act on the part of the Trustee. At any time after such declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article Four provided, the Holders of a majority in principal amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1) all overdue interest on all Securities, (2) the principal of and premium, if any, on any Securities that have become due otherwise than by such declaration of acceleration and any interest thereon at the rate borne by the Securities, (3) to the extent permitted by applicable law, interest upon overdue interest at the rate then in effect, and (4) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel; and (b) all Events of Default, other than the non-payment of the principal of, and any premium and interest on, Securities that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 4.13. No rescission or annulment referred to above shall affect any subsequent default or impair any right consequent thereon. -30- SECTION 4.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. The Company covenants that if: (a) default is made in the payment of any interest on any Security when it becomes due and payable and such default continues for a period of 30 days, or (b) default is made in the payment of the principal of or premium, if any, on any Security at the Maturity thereof, the Company will upon demand of the Trustee pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest on any overdue principal, premium, if any, and, to the extent permitted by applicable law, on any overdue interest at the rate then in effect, and in addition thereto, such further amount as shall be sufficient to cover the reasonable costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities by such appropriate judicial proceedings as the Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 4.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or the creditors of either, the Trustee (irrespective of whether the principal of, and any interest on, the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Securities and take such other actions, including participating as a member, voting or otherwise, of any official committee of creditors appointed -31- in such matter, and to file such other papers or documents, in each of the foregoing cases, as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel) and of the Holders of Securities allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claim and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel and any other amounts due the Trustee under Section 5.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding; provided, however, that the Trustee may, on behalf of such Holders, vote for the election of a trustee in bankruptcy or similar official. SECTION 4.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, be for the ratable benefit of the Holders of the Securities in respect of which judgment has been recovered. SECTION 4.6 APPLICATION OF MONEY COLLECTED. Subject to Article Eleven, any money collected by the Trustee pursuant to this Article Four shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 5.7; SECOND: To the payment of the amounts then due and unpaid for principal of, premium, if any, or interest on, the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and -32- THIRD: Any remaining amounts shall be repaid to the Company. SECTION 4.7 LIMITATION ON SUITS. No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default; (b) the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) the Trustee has not received any direction inconsistent with such written request from the Holders of a majority of the aggregate principal amount of the Outstanding Securities during the 60 day period referred to in (d) above; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. SECTION 4.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST AND TO CONVERT. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, premium, if any, and (subject to Section 2.8) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption or repurchase, on the Redemption Date or Repurchase Date, as the case may be), and to convert such Security in accordance with Article Ten, and to institute suit for the enforcement of any such payment and right to convert, and such rights shall not be impaired without the consent of such Holder. -33- SECTION 4.9 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and such Holders shall continue as though no such proceeding had been instituted. SECTION 4.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.7, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 4.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article Four or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or (subject to the limitations contained in this Indenture) by the Holders of Securities, as the case may be. SECTION 4.12 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. SECTION 4.13 WAIVER OF PAST DEFAULTS. The Holders, either (a) through the written consent of not less than a majority in principal amount of the Outstanding Securities or (b) by the adoption of a resolution, at a meeting of -34- Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority in principal amount of the Outstanding Securities represented at such meeting, may on behalf of the Holders of all the Securities waive any past default hereunder and its consequences, except a default (1) in the payment of the principal of, premium, if any, interest or the Repurchase Price on any Security or (2) in respect of a covenant or provision hereof that under Article Seven cannot be modified or amended without the consent of the Holder of each Outstanding Security affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 4.14 UNDERTAKING FOR COSTS. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 4.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of, premium, if any, or interest on any Security on or after the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption or repurchase, on or after the Redemption Date or Repurchase Date, as the case may be) or for the enforcement of the right to convert any Security in accordance with Article Ten. SECTION 4.15 WAIVER OF STAY, USURY OR EXTENSION LAWS. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, usury or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede by reason of such law the execution of any power herein granted to the Trustee but will suffer and permit the execution of every such power as though no such law had been enacted. -35- ARTICLE FIVE THE TRUSTEE SECTION 5.1 CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture but not to verify the contents thereof. (b) In case an Event of Default has occurred and is continuing, the Trustee shall, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct (as finally determined by a court of competent jurisdiction), except that (1) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 5.1; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be finally determined by a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have -36- reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 5.1. SECTION 5.2 NOTICE OF DEFAULTS. Within 90 days after the occurrence of any default hereunder as to which a Responsible Officer of the Trustee has actually received written notice from the Issuer, Paying Agent or a Holder, the Trustee shall give to all Holders of Securities, in the manner provided in Section 1.6, notice of such default, unless such default shall have been cured or waived. For the purpose of this Section 5.2, the term "default" means any event that is, or after notice or lapse of time or both would become, an Event of Default. SECTION 5.3 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of Section 5.1: (a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, Officers' Certificate, other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate and shall not be liable for any action taken, suffered or omitted in accordance with such certificate or for any delay in acting while waiting for such certificate, provided that the Trustee has submitted a written request for such certificate; (d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or -37- indemnity, reasonably satisfactory to the Trustee, against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (g) The Trustee shall not be considered to have knowledge of an Event of Default unless a Responsible Officer of the Trustee receives written notice of such event from the Issuer, the Paying Agent or a Holder; and (h) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, experts, custodians, nominees or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, expert, custodian, nominee or attorney appointed with due care by it hereunder. SECTION 5.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals contained herein and in the Securities (except the Trustee's certificates of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Securities or of the Common Stock issuable upon the conversion of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 5.5 MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER INDENTURES. The Trustee, any Authenticating Agent, any Paying Agent, any Conversion Agent or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Conversion Agent or such other agent. The Trustee may become and act as trustee under other indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee hereunder. SECTION 5.6 MONEY HELD IN TRUST. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder. -38- SECTION 5.7 COMPENSATION AND REIMBURSEMENT. The Company agrees: (a) to pay, or cause to be paid, to the Trustee from time to time such reasonable compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse, or to cause to be reimbursed, the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, experts, custodians, nominees and counsel or under or in connection with any amendments, supplements or modifications hereto), except any such expense, disbursement or advance as may be attributable to its gross negligence or bad faith (as finally determined by a court of competent jurisdiction); and (c) to indemnify the Trustee (and its directors, officers, employees and agents) for, and to hold it harmless against, any and all loss, damage, claim, liability, judgment, fine, penalty, settlement, cost or expense, including taxes (other than taxes based on the income of the Trustee), incurred without gross negligence, bad faith or willful misconduct on its part (as finally determined by a court of competent jurisdiction), arising out of or in connection with the acceptance or administration of this trust or the exercise or performance of any action, duty or obligation hereunder, including the reasonable costs, expenses and reasonable attorneys' fees of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.1(g) or Section 4.1(h) with respect to the Company, the expenses (including the reasonable fees and disbursements of its experts, agents and counsel) and the compensation for the services are intended to constitute expenses of the administration under any applicable federal or state bankruptcy, insolvency or other similar law. No direction of any Holder shall affect the right of the Trustee to collect amounts owed to it under this Indenture. The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 5.7, except with respect to funds held in trust for the benefit of the Holders of particular Securities. The provisions of this Section 5.7 shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee. -39- SECTION 5.8 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, having a combined capital and surplus (or for such purposes, the combined capital and surplus of any parent holding company) of at least U.S. $25,000,000, subject to supervision or examination by federal or state authority, in good standing and having an established place of business or agency in the Borough of Manhattan, The City of New York. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 5.8, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 5.8, it shall resign as soon as practicable in the manner and with the effect hereinafter specified in this Article and a successor shall be appointed pursuant to Section 5.9. SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 5.10. (b) The Trustee may resign at any time by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 5.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee or the Company may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and the Company. If the instrument of acceptance by a successor Trustee required by Section 5.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the removed Trustee or the Company may petition any court of competent jurisdiction for the appointment of a successor Trustee. (d) If at any time: (1) the Trustee shall cease to be eligible under Section 5.8 and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, -40- then, (i) in any such case the Company may remove the Trustee, or (ii) in the case of clause (d)(1) above only and subject to Section 4.14, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company shall promptly appoint a successor Trustee and shall comply with the applicable requirements of this Section 5.9 and Section 5.10. If, within one year after such resignation, removal or incapability, or occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 5.10, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by this Section 5.9 and Section 5.10, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The successor Trustee shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders of Securities in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. Such retiring Trustee shall, upon payment of its charges, promptly execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be eligible under this Article. -41- SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided such corporation shall be otherwise eligible under this Article), without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 5.12 AUTHENTICATING AGENTS. The Trustee may, with the consent of the Company, appoint an Authenticating Agent or Agents acceptable to the Company with respect to the Securities, which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon exchange or substitution pursuant to this Indenture. Securities authenticated by an Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder, and every reference in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be subject to acceptance by the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent and subject to supervision or examination by government or other fiscal authority. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.12, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 5.12. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent (provided such corporation shall be otherwise eligible under this Section 5.12), without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at -42- any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 5.12, the Trustee may appoint a successor Authenticating Agent, which shall be subject to acceptance by the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 5.12. The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 5.12. If an Authenticating Agent is appointed with respect to the Securities pursuant to this Section 5.12, the Securities may have endorsed thereon, in addition to or in lieu of the Trustee's certification of authentication, an alternative certificate of authentication in the following form: -43 This is one of the Securities referred to in the within-mentioned Indenture. By: Citibank, N.A., as Authenticating Agent By _____________________________ Authorized Signature SECTION 5.13 DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign as Trustee hereunder, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. SECTION 5.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor). ARTICLE SIX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 6.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The Company shall not consolidate with or merge with or into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge with or into it or convey, transfer, sell or lease such Person's properties and assets substantially as an entirety to it, unless: (a) the Person formed by such consolidation or into or with which the Company is merged, or the Person to which the Company's properties and assets are conveyed, transferred, sold or leased, shall be (1) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia or (2) organized under the laws of a jurisdiction outside the United States of America and have common stock or American Depositary Shares representing such common stock traded on a national securities exchange in the United States, including The Nasdaq Stock Market, Inc., and, in each case, if other than the Company, shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest on all of -44- the Securities as applicable, and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (c) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with, together with any documents required under Section 7.3. SECTION 6.2 SUCCESSOR SUBSTITUTED. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all the properties and assets of the Company in accordance with Section 6.1, the successor Person formed by such consolidation or into or with which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. ARTICLE SEVEN SUPPLEMENTAL INDENTURES SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES. Without the consent of any Holders of Securities, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following purposes: (a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants and obligations of the Company herein and in the Securities as permitted by this Indenture; or (b) to add to the covenants of the Company for the benefit of the Holders of Securities or to surrender any right or power herein conferred upon the Company; or (c) to secure the Securities; or -45- (d) to make provision with respect to the conversion rights of Holders of Securities pursuant to Section 10.11; or (f) to comply with the requirements of the Trust Indenture Act or the rules and regulations of the Commission thereunder in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act, as contemplated by this Indenture or otherwise; or (g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee; or (h) to cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with any other provision herein or that is otherwise defective, or to make any other provisions with respect to matters or questions arising under this Indenture as the Company and the Trustee may deem necessary or desirable (provided such action pursuant to this clause (h) shall not, in the judgment of the Company, adversely affect the interests of the Trustee or the Holders of Securities in any material respect). Upon Company Request accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and subject to and upon receipt by the Trustee of the documents described in Section 7.3 hereof, the Trustee shall join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained. SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF SECURITIES. With either (a) the written consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, by the Act of said Holders delivered to the Company and the Trustee, or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of a majority in principal amount of the Outstanding Securities represented at such meeting, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities under this Indenture; provided, however, that no such supplemental indenture shall, without the consent or affirmative vote of the Holder of each Outstanding Security affected thereby, (l) change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount, any premium or the rate of interest payable thereon, or change the place at which or the coin or currency in which any Security or the interest or any premium thereon or any other amount in respect thereof is payable; or (2) reduce the amount payable on any Security upon redemption at the Company's option; or -46- (3) impair the right to institute suit for the enforcement of any payment in respect of any Security on or after the Stated Maturity thereof (or, in the case of redemption or any repurchase, on or after the Redemption Date or Repurchase Date, as the case may be); or (4) except as permitted by Section 10.11, adversely affect the right to convert any Security as provided in Article Ten; or (5) modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holders of any Securities; or (6) reduce the percentage in principal amount of the Outstanding Securities the consent of whose Holders is required for any supplemental indenture to modify or amend any provision of this Indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or (7) modify any of the provisions of this Section 7.2 except to increase any percentage contained herein or therein or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or (8) amend or modify the provisions of Article Twelve in a manner adverse to the Holders after the Holder's right to require the Company to repurchase the Securities upon a Change in Control arises. It shall not be necessary for any Act of Holders of Securities under this Section 7.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. The quorum at any meeting called to adopt a resolution shall be Holders representing a majority in aggregate principal amount of Securities at the time Outstanding. SECTION 7.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Sections 5.1 and 5.3) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. -47- SECTION 7.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder appertaining thereto shall be bound thereby. SECTION 7.5 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Company and the Trustee, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities. SECTION 7.6 NOTICE OF SUPPLEMENTAL INDENTURES. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 7.2, the Company shall give notice to all Holders of Securities of such fact, setting forth in general terms the substance of such supplemental indenture, in the manner provided in Section 1.6. Any failure of the Company to give such notice, or any defect therein, shall not in any way impair or affect the validity of any such supplemental indenture. ARTICLE EIGHT COVENANTS SECTION 8.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company covenants and agrees that it will duly and punctually pay the principal of and premium, if any, and interest on the Securities in accordance with the terms of the Securities and this Indenture. The Company shall deposit or cause to be deposited with the Trustee, no later than 10:00 a.m. Eastern time on the date of the Stated Maturity of any Security or no later than 10:00 a.m. Eastern time on the due date for any installment of interest, all payments so due, which payments shall be in immediately available funds on the date of such Stated Maturity or due date, as the case may be. SECTION 8.2 MAINTENANCE OF OFFICES OR AGENCIES. The Company hereby appoints the Corporate Trust Office or such other office or agency of the Trustee as its agent in the Borough of Manhattan, The City of New York, where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and -48- where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company may at any time and from time to time vary or terminate the appointment of any such agent or appoint any additional agents for any or all of such purposes; provided, however, that until all of the Securities have been delivered to the Trustee for cancellation, or moneys sufficient to pay the principal of, premium, if any, and interest on the Securities have been made available for payment and either paid or returned to the Company pursuant to the provisions of Section 8.3, the Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency where Securities may be presented or surrendered for payment and conversion, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company shall give prompt written notice to the Trustee, and notice to the Holders in accordance with Section 1.6, of the appointment or termination of any such agents and of the location and any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency, or shall fail to furnish the Trustee with the address thereof, presentations and surrenders may be made and notices and demands may be served on the Corporate Trust Office. SECTION 8.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. If the Company will act as its own Paying Agent, it shall, on or before each due date of the principal of, premium, if any, or interest on any of the Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and the Company will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents, it will, no later than 10:00 a.m. Eastern time on each due date of the principal of, premium, if any, or interest on any Securities, deposit with the Trustee a sum sufficient to pay the principal, premium, if any, or interest so becoming due, such sum to be held for the benefit of the Persons entitled to such principal, premium, if any, or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act. The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 8.3, that such Paying Agent will: (a) hold all sums held by it for the payment of the principal of, premium, if any, or interest on Securities for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal, premium, if any, or interest; and -49- (c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Anything contained herein to the contrary notwithstanding, any money held by the Trustee or any Paying Agent in trust for the payment and discharge of the principal of, premium, if any, or interest on any Security that remains unclaimed for two years after the date when each payment of such principal, premium, or interest has become payable shall, upon the request of the Company, be repaid by the Trustee to the Company as its absolute property free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Holders shall look only to the Company for the payment of the principal, premium or interest on such Security. The Trustee shall not be liable to the Company or any Holder for interest on funds held by it for the payment and discharge of the principal, premium or interest on any of the Securities to any Holder. The Company shall not be liable for any interest on the sums paid to it pursuant to this paragraph and shall not be regarded as a trustee of such money. SECTION 8.4 EXISTENCE. Subject to Article Six, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders. SECTION 8.5 MAINTENANCE OF PROPERTIES. The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 8.5 shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. -50- SECTION 8.6 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge, or cause to be paid or discharged, before the same may become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, (b) all claims for labor, materials and supplies that, if unpaid, might by law become a lien or charge upon the property of the Company or any Subsidiary, and (c) all stamps and other duties, if any, that may be imposed by the United States, the Netherlands or any political subdivision thereof or therein in connection with the issuance, transfer, exchange or conversion of any Securities or with respect to this Indenture; provided, however, that, in the case of clauses (a) and (b), the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (1) if the failure to do so will not, in the aggregate, have a material adverse impact on the Company or (2) if the amount, applicability or validity is being contested in good faith by appropriate proceedings. SECTION 8.7 REGISTRATION AND LISTING. Within a reasonable time after the issuance of the Global Security, the Company (a) will effect all registrations with, and obtain all approvals by, all governmental authorities that may be necessary under any United States federal or state law (including the Securities Act, the Exchange Act and state securities and Blue Sky laws) before the shares of Common Stock issuable upon conversion of Securities may be lawfully issued and delivered, and qualified or listed as contemplated by clause (b) (it being understood that the Company shall not be required to register the Securities under the Securities Act); and (b) will cause the shares of Common Stock required to be issued and delivered upon conversion of Securities, prior to such issuance or delivery, to be approved for quotation on The Nasdaq National Market or, if the Common Stock is not then approved for quotation on The Nasdaq National Market, list the Common Stock or qualify the Common Stock for quotation on each national securities exchange or quotation system on which outstanding Common Stock is listed or quoted at the time of such delivery. Nothing in this Section 8.7 will limit the application of Section 8.11. SECTION 8.8 STATEMENT BY OFFICERS AS TO DEFAULT. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate (one of the signers of which shall be the Company's principal executive, principal financial or principal accounting officer), stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they have knowledge. The Company will deliver to the Trustee, forthwith upon becoming aware of any default in the performance or observance of any covenant, agreement or condition contained in this Indenture, or any Event of Default, an Officers' Certificate specifying with particularity such default or Event of Default and further stating what action the Company has taken, is taking or proposes to take with respect thereto. -51- Any notice required to be given under this Section 8.8 shall be delivered to the Trustee at the Corporate Trust Office. SECTION 8.9 DELIVERY OF CERTAIN INFORMATION. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder of a Security or the holder of shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information to such Holder of Securities or such holder of shares of Common Stock issued upon conversion of Securities, or to a prospective purchaser of any such security designated by any such Holder or holder, as the case may be, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act (or any successor provision thereto) in connection with the resale of any such security; provided, however, that the Company shall not be required to furnish such information in connection with any request made on or after the date that is two years from the later of (a) the date such a security (or any such predecessor security) was last acquired from the Company or (b) the date such a security (or any such predecessor security) was last acquired from an "affiliate" of the Company within the meaning of Rule 144 under the Securities Act (or any successor provision thereto). "RULE 144A INFORMATION" shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto). SECTION 8.10 RESALE OF CERTAIN SECURITIES; REPORTING ISSUER. During the period beginning on the last date of original issuance of the Securities and ending on the date that is two years from such date, the Company will not, and will not permit any of its subsidiaries or other "affiliates" (as defined under mule 144 under the Securities Act or any successor provision thereto) controlled by it to, resell (a) any Securities that constitute "restricted securities" under Rule 144 or (b) any securities into which the Securities have been converted under this Indenture that constitute "restricted securities" under Rule 144 that, in either case, have been reacquired by any of them. The Trustee shall have no responsibility in respect of the Company's performance of its agreement in the preceding sentence. SECTION 8.11 WAIVER OF CERTAIN COVENANTS. The Company may omit in any particular instance to comply with any covenant or conditions set forth in Sections 8.5 and 8.6, inclusive (other than a covenant or condition which under Article Seven cannot be modified or amended without the consent of the Holder of each Outstanding Security affected), if before the time for such compliance the Holders shall, through the written consent of, not less than a majority in principal amount of the Outstanding Securities, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and until such waiver shall become effective, the obligations of the Company and the duties of the Trustee or any Paying or Conversion Agent in respect of any such covenant or condition shall remain in full force and effect. -52- SECTION 8.12 WITHHOLDING TAXES. (a) All payments in respect of the Securities shall be made without withholding or deduction for or on account of any present or future Taxes, imposed or levied by or on behalf of the Netherlands or any relevant jurisdiction or any political subdivision or authority thereof or therein having power to tax, unless the Company with respect to the Securities is compelled by law to deduct or withhold such Taxes. In such event, the Company, with respect to the Securities, will pay to the Holder of a Security, as additional interest, such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security to ensure that the net amounts received by the Holder of such Security who, with respect to any such Tax, is not resident in, or a citizen of, such jurisdiction, after such withholding or deduction shall equal the respective amounts that would have been receivable in respect of the Security in the absence of such withholding or deduction; provided, however, that no such additional amounts will be payable for or on account of: (i) Any Taxes which would not have been imposed but for (a) the existence of any present or former connection between such Holder or Beneficial Owner of such Security and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction other than the mere purchase, holding or disposition of any Security, or the receipt of payments in respect thereof or enforcement of rights thereunder, including, without limitation, such Holder being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (b) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment first became due and payable or (y) the date on which payment thereof is made available, whichever occurs later; (ii) Any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; (iii) Any Taxes which are payable other than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, Securities; (iv) Any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the Beneficial Owner of the Security with a request of the Company addressed to the Holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such Beneficial Owner or (b) to make and deliver any declaration or other similar claim (other than a claim for refund of any Taxes withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such Taxes; or (v) Any combination of items (i), (ii), (iii) and (iv) above. -53- Such additional amounts will also not be payable where, had the Beneficial Owner of the Security been the Holder of the Security, such Person would not have been entitled to payment of additional amounts by reason of clauses (i) to (iv) inclusive above. (b) The Company will also (i) make such withholding or deduction compelled by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish copies of such receipts evidencing the payment of any Taxes so deducted or withheld in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Company to the Trustee within 60 days after the date of receipt of such evidence. The Trustee will make such evidence available to the Holders of Securities upon request. (c) The Company will indemnify and reimburse the Trustee for any Taxes and any losses, liabilities, claims, damages, settlements, costs, and fees and expenses it may incur in connection with any failure of the Company to make payment of Taxes when due. (d) The foregoing obligations shall survive any termination, defeasance or discharge of this Indenture. SECTION 8.13 JUDGMENT CURRENCY. The Company agrees to indemnify the Trustee and each Holder of a Security against any loss incurred by any of them as a result of any judgment or order being given or made for any amount due under this Indenture or the Securities and such judgment or order being expressed and paid in a currency (the "Judgment Currency") other than Dollars and as a result of any variation as between (i) the rate of exchange at which the Dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in the City of New York at which any such person on the date of payment of such judgment or order is able to purchase Dollars with the amount of the Judgment Currency actually received by such person. The foregoing indemnity shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term "spot rate of exchange" shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, Dollars. ARTICLE NINE REDEMPTION OF SECURITIES SECTION 9.1 RIGHT OF REDEMPTION. The Securities may be redeemed in accordance with the provisions of the form of Securities attached hereto as Exhibit A. -54- SECTION 9.2 APPLICABILITY OF ARTICLE. Redemption of Securities at the election of the Company or otherwise, as permitted or required by any provision of the Securities or this Indenture, shall be made in accordance with such provision and this Article Nine. SECTION 9.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE. In case of any redemption at the election of the Company of any of the Securities, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date. SECTION 9.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less than all the Securities are to be redeemed, the particular Securities to be redeemed shall be selected by the Trustee at least three Business Days prior to the date that the notice described in Section 9.5 is given from the Outstanding Securities not previously called for redemption by lot or such method as the Trustee may deem fair and appropriate. If any Registered Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities that have been converted during a selection of Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection. The Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount and certificate numbers thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed. SECTION 9.5 NOTICE OF REDEMPTION. Notice of redemption shall be given in the manner provided in Section 1.6 to the Holders of Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date, and such notice shall be irrevocable. All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers) and shall state: (a) the Redemption Date, -55- (b) the Redemption Price, and accrued interest, if any, (c) if less than all Outstanding Securities are to be redeemed, the aggregate principal amount of Securities to be redeemed, (d) that on the Redemption Date the Redemption Price, and accrued interest, if any, will become due and payable upon each such Security to be redeemed, and that interest thereon shall cease to accrue on and after said date, (e) the Conversion Rate, the date on which the right to convert the Securities to be redeemed will terminate and the places where such Securities may be surrendered for conversion, and (f) the place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's written request, by the Trustee in the name of and at the expense of the Company. Notice of redemption of Securities to be redeemed at the election of the Company received by the Trustee shall be given by the Trustee to each Paying Agent in the name of and at the expense of the Company. SECTION 9.6 DEPOSIT OF REDEMPTION PRICE. Not less than one Business Day prior to any Redemption Date, the Company shall deposit with the Trustee (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 8.3) an amount of money (which shall be in immediately available funds on such Redemption Date) sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities that are to be redeemed on that date other than any Securities called for redemption on that date that have been converted prior to the date of such deposit. If any Security called for redemption is converted, any money deposited with the Trustee or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder or such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 2.8) be paid to the Company on Company Request or, if then held by the Company, shall be discharged from such trust. SECTION 9.7 SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption having been given as aforesaid, the Securities to be so redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price, including accrued interest) such Securities shall cease to bear interest. Upon surrender of any Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price together with accrued and unpaid interest to the -56- Redemption Date; provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.8. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal amount of, premium, if any, and, to the extent permitted by applicable law, accrued interest on such Security shall, until paid, bear interest from the Redemption Date at the rate then in effect, and such Security shall remain convertible until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for. SECTION 9.8 SECURITIES REDEEMED IN PART. Any Security that is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 8.2 (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. SECTION 9.9 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In connection with any redemption of the Securities, the Company may arrange for the purchase and conversion of any Securities by an agreement with one or more investment bankers or other purchasers (the "PURCHASERS") to purchase such Securities by paying to the Trustee in trust for the Holders, on or before the Redemption Date, an amount not less than the applicable Redemption Price, together with interest accrued and unpaid to the Redemption Date, of such Securities. Notwithstanding anything to the contrary contained in this Article Nine, the obligation of the Company to pay the Redemption Price, together with interest accrued and unpaid to the Redemption Date, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such Purchasers. If such an agreement is entered into (a copy of which shall be filed with the Trustee prior to the close of business on the second Business Day immediately prior to the Redemption Date), any Securities called for redemption that are not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, and consistent with any agreement or agreements with such Purchasers, to be acquired by such Purchasers from such Holders and (notwithstanding anything to the contrary contained in this Article Nine) surrendered by such Purchasers for conversion, all as of immediately prior to the close of business on the Redemption Date (and the right to convert any such Securities shall be extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Company, the Trustee shall hold and dispose of any such amount paid to it by the Purchasers to the Holders in the same manner as it would monies deposited with it by the Company for the redemption of Securities. Without the Trustee's prior written consent, no arrangement between the Company and such Purchasers for -57- the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Company agrees to indemnify the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such Purchasers, including the costs and expenses, including reasonable legal fees, incurred by the Trustee in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. ARTICLE TEN CONVERSION OF SECURITIES SECTION 10.1 CONVERSION PRIVILEGE AND CONVERSION RATE. Subject to and upon compliance with the provisions of this Article, at the option of the Holder thereof, any Security or any portion of the principal amount thereof that is U.S.$l,000 or an integral multiple of U.S.$1,000 may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common Stock of the Company at the Conversion Rate, determined as hereinafter provided, in effect at the time of conversion. Such conversion right shall commence upon the original issuance of the Securities and expire at the close of business on November 15, 2005, unless the Security has been previously redeemed or repurchased, subject, in the case of conversion of any Global Security, to any Applicable Procedures. In case a Security or portion thereof is called for redemption at the election of the Company or the Holder thereof exercises his right to require the Company to repurchase the Security, such conversion right in respect of the Security, or portion thereof so called, shall expire at the close of business on the Business Day immediately preceding the Redemption Date or the Repurchase Date, as the case may be, unless the Company defaults in making the payment due upon redemption or repurchase, as the case may be (in each case subject, as aforesaid, to any Applicable Procedures with respect to any Global Security). The rate at which shares of Common Stock shall be delivered upon conversion (herein called the "CONVERSION RATE") shall be initially 53.0504 shares of Common Stock for each U.S.$l,000 principal amount of Securities. The Conversion Rate shall be adjusted in certain instances as provided in this Article Ten. SECTION 10.2 EXERCISE OF CONVERSION PRIVILEGE. In order to exercise the conversion privilege, the Holder of any Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank, at any office or agency of the Company maintained for that purpose pursuant to Section 8.2, accompanied by a duly signed and completed conversion notice substantially in the form attached hereto as Exhibit C stating that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Each Security surrendered for conversion (in whole or in part) during the period from the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening -58- of business on such Interest Payment Date shall (except in the case of any Security or portion thereof that has been called for redemption on a Redemption Date, or is to be repurchased on a Repurchase Date, with the consequence that the conversion right of such Security would terminate between such Regular Record Date and the close of business on such Interest Payment Date) be accompanied by payment in New York Clearing House funds or other funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of such Security (or part thereof, as the case may be) being surrendered for conversion. The interest so payable on such Interest Payment Date, with respect to any Security (or portion thereof, if applicable) that is surrendered for conversion during the period from the close of business on any Record Date next preceding any Interest Payment Date to the opening of business on such Interest Payment Date, shall be paid to the Holder of such Security as of such Regular Record Date. Interest payable in respect of any Security surrendered for conversion on or after an Interest Payment Date shall be paid to the Holder of such Security as of the next preceding Regular Record Date, notwithstanding the exercise of the right of conversion. Except as provided in this paragraph and subject to the last paragraph of Section 2.8, no cash payment or adjustment shall be made upon any conversion on account of any interest accrued from the Interest Payment Date next preceding the conversion date, in respect of any Security (or part thereof, as the case may be) surrendered for conversion, or on account of any dividends on the Common Stock issued upon conversion. The Company's delivery to the Holder of the number of shares of Common Stock (and cash in lieu of fractions thereof, as provided in this Indenture) into which a Security is convertible and any rights and warrants pursuant to Section 10.4(m) will be deemed to satisfy the Company's obligation to pay the principal amount of the Security. Securities shall be deemed to have been converted on the day of surrender of such Securities for conversion in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time. As promptly as practicable on or after the conversion date, the Company shall issue and deliver to the Trustee, for delivery to the Holder, a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 10.3. All shares of Common Stock delivered upon such conversion of Securities shall bear restrictive legends substantially in the form of the legends required to be set forth on the Securities pursuant to Section 2.6 and shall be subject to the restrictions on transfer provided in such legends. Neither the Trustee nor any agent maintained for the purpose of such conversion shall have any responsibility for the inclusion or content of any such restrictive legends on such Common Stock; provided, however, that the Trustee or any agent maintained for the purpose of such conversion shall have provided to the Company or to the Company's transfer agent for such Common Stock, prior to or concurrently with a request to the Company to deliver such Common Stock, written notice that the Securities delivered for conversion are Securities. In the case of any Security that is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Registered Security or Securities of -59- authorized denominations in an aggregate principal amount equal to the unconverted portion of the principal amount of such Security. A Security may be converted in part, but only if the principal amount of such Security to be converted is any integral multiple of U.S.$1,000 and the principal amount of such security to remain Outstanding after such conversion is equal to U.S.$l,000 or any integral multiple of U.S.$l,000 in excess thereof. SECTION 10.3 FRACTIONS OF SHARES. No fractional shares of Common Stock shall be issued upon conversion of any Security or Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares that shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Security or Securities (or specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the Average Sales Price Per Share at the close of business on the day of conversion. SECTION 10.4 ADJUSTMENT OF CONVERSION RATE. The Conversion Rate shall be subject to adjustments from time to time as follows: (a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate 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 (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (h) of this Section 10.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of a specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following -60- 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 of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price 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, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company. (c) In case outstanding shares of Common Stock shall be subdivided 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 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 or combination becomes effective. (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (1) any rights, options or warrants referred to in paragraph (b) of this Section 10.4, (2) any dividend or distribution paid in cash, except as set forth in paragraphs (e) and (f) of this Section 10.4, (3) any dividend or distribution referred to in paragraph (a) of this Section 10.4 and (4) any merger or consolidation to which Section 10.11 applies), the Conversion Rate shall be adjusted 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 the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (h) of this Section 10.4) 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) of the portion of the assets, shares or evidences of indebtedness 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 effective (subject to paragraph (l) of this Section 10.4) immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 10.4(d) -61- and any cash that is distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (1) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (e) has been made and (2) the aggregate of any cash plus the fair market value (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 offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (f) of this Section 10.4 has been made (the "COMBINED CASH AND TENDER AMOUNT") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (h) of this Section 10.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "AGGREGATE CURRENT MARKET PRICE"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 10.4, the Conversion Rate shall be adjusted 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 (A) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 10.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 10.4) of the Common Stock on such date fixed for determination. (f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be completed for an aggregate consideration consisting of cash and/or property 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 (1) 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), of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock concluded within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to this paragraph (f) has been made and (2) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within the 365-day period preceding the completion of such tender offer and in respect of which no adjustment pursuant to paragraph (e) of this Section 10.4 has been made (the "COMBINED TENDER AND CASH AMOUNT") exceeds 10% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.4) as of the completion of such tender offer (the "COMPLETION DATE") times the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Completion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate -62- immediately prior to close of business on the Completion Date by a fraction (A) the numerator of which shall be equal to (i) the product of (x) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.4) on the Completion Date multiplied by (y) the number of shares of Common Stock outstanding (including any tendered shares) on the Completion Date less (ii) the combined tender and cash amount, and (B) the denominator of which shall be equal to the product of (x) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 10.4) as of the Completion Date multiplied by (y) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (the shares deemed so accepted up to any such maximum, being referred to as the "PURCHASED SHARES"). (g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 10.11 applies) shall be deemed to involve (1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (d) of this Section 10.4), and (2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (c) of this Section 10.4). (h) For the purpose of any computation under paragraphs (b), (d), (e) or (f) of this Section 10.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the daily Average Sales Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution. (i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (j) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (a), (b), -63- (c), (d), (e) and (f) of this Section 10.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of Common Stock or issuance of rights or warrants to purchase or subscribe for Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days 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; provided, however, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect. (k) Notwithstanding the foregoing provisions of this Section 10.4, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h) (5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company. (l) In any case in which this Section 10.4 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (1) defer paying any cash payment pursuant to Section 10.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock issuable upon such conversion in excess of the number of shares of Common Stock issuable thereupon only on the basis of the Conversion Rate prior to adjustment, and (2) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 10.3 hereof and issue to such Holder the additional shares of Common Stock issuable on such conversion. Notwithstanding the foregoing, no adjustment of the Conversion Rate shall be made if the event giving rise to such adjustment does not occur. (m) In the event that the Company distributes rights or warrants (other than those referred to in paragraph (b) above) pro rata to holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall make proper provision so that the Holder of any Security surrendered for conversion will be entitled to receive upon such conversion, in addition to the Common Stock issuable upon conversion of the Securities (the "CONVERSION SHARES"), a number of rights and warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of rights or warrants of separate certificates evidencing such rights or warrants (the "DISTRIBUTION -64- DATE"), the same number of rights or warrants to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the rights or warrants, and (ii) if such conversion occurs after such Distribution Date, the same number of rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of such Security so converted was convertible immediately prior to such Distribution Date would have been entitled on such Distribution Date in accordance with the terms and provisions of and applicable to the rights or warrants. SECTION 10.5 NOTICE OF ADJUSTMENTS OF CONVERSION RATE. Whenever the Conversion Rate is adjusted as herein provided: (a) the Company shall compute the adjusted Conversion Rate in accordance with Section 10.4 and shall prepare a certificate signed by the Chief Financial Officer of the Company setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with the Conversion Agent; and (b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall be required, and as soon as practicable after it is required, such notice shall be provided by the Company to all Holders in accordance with Section 1.6. Neither the Trustee nor the Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations contained therein, except to exhibit the same to any Holder of Securities desiring inspection thereof at its office during normal business hours. Unless and until a Responsible Officer of the Trustee and Conversion Agent receive notice of an adjusted Conversion Rate, the Trustee and the Conversion Agent may rely without inquiry on the Conversion Rate most recently in effect. SECTION 10.6 NOTICE OF CERTAIN CORPORATE ACTION. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock payable (i) otherwise than exclusively in cash or (ii) exclusively in cash in an amount that would require any adjustment pursuant to Section 10.4; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights; or (c) of any reclassification of the Common Stock of the Company, or of any consolidation, merger or share exchange to which the Company is a party and for which approval -65- of any stockholders of the Company is required, or of the conveyance, sale, transfer or lease of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 8.2, and shall cause to be provided to all Holders in accordance with Section 1.6, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record or effective date hereinafter specified, a notice stating (1) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined or (2) the date on which such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. Neither the failure to give such notice or the notice referred to in the following paragraph nor any defect therein shall affect the legality or validity of the proceedings described in clauses (a) through (d) of this Section 10.6. If at the time the Trustee shall not be the Conversion Agent, a copy of such notice shall also forthwith be filed by the Company with the Trustee. The Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 8.2, and shall cause to be provided to all Holders in accordance with Section 1.6, notice of any tender offer by the Company or any Subsidiary for all or any portion of the Common Stock at or about the time that such notice of tender offer is provided to the public generally. SECTION 10.7 COMPANY TO RESERVE COMMON STOCK. The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, the full number of shares of Common Stock then issuable upon the conversion of all Outstanding Securities. SECTION 10.8 TAXES ON CONVERSIONS. Except as provided in the next sentence, the Company will pay any and all taxes and duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the -66- Person requesting such issue has paid to the Company the amount of any such tax or duty or has established to the satisfaction of the Company that such tax or duty has been paid. SECTION 10.9 COVENANT AS TO COMMON STOCK. The Company agrees that all shares of Common Stock that may be delivered upon conversion of Securities, upon such delivery, will be newly issued shares and will have been duly authorized and validly issued and will be fully paid and nonassessable and, except as provided in Section 10.8, the Company will pay all taxes, liens and charges with respect to the issue thereof. SECTION 10.10 CANCELLATION OF CONVERTED SECURITIES. All Securities delivered for conversion shall be delivered to the Trustee or its agent to be cancelled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10. SECTION 10.11 PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS. In case of any consolidation or merger of the Company with or into any other Person, any merger of another Person with or into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company) or any conveyance, sale, transfer or lease of all or substantially all of the assets of the Company, the Person formed by such consolidation or resulting from such merger or that acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 1l.l, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (a) is not a Person with which the Company consolidated or merged with or into or that merged into or with the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a "CONSTITUENT PERSON"), or an Affiliate of a Constituent Person and (b) failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock of the Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("NON-ELECTING SHARE"), then for the purpose of this Section 10.11 the kind and amount of securities, cash and other property receivable upon such consolidation, merger, conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be deemed to be the kind and amount so receivable per share by a plurality of the Non-electing Shares). Such supplemental indenture shall provide for adjustments that, for events subsequent -67- to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article. The above provisions of this Section 10.11 shall similarly apply to successive consolidations, mergers, conveyances, sales, transfers or leases. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 1.6 promptly upon such execution. Neither the Trustee nor the Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or other securities or property or cash receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such adjustment but may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, an Officers' Certificate or an Opinion of Counsel with respect thereto, which the Company shall cause to be furnished to the Trustee upon request. SECTION 10.12 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS. The Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist that may require any adjustment of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same, or whether a supplemental indenture need be entered into. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Common Stock, or of any other securities or property or cash, that may at any time be issued or delivered upon the conversion of any Security; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall be responsible for any failure of the Company to make or calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not be responsible for any failure of the Company to comply with any of the covenants of the Company contained in this Article. ARTICLE ELEVEN SUBORDINATION OF SECURITIES SECTION 11.1 SECURITIES SUBORDINATE TO SENIOR DEBT. The Company covenants and agrees, and each Holder of a Security by his acceptance thereof likewise covenants and agrees, that to the extent and in the manner hereinafter set forth in this Article (subject to the provisions of Article Three) the indebtedness represented by the Securities and the payment of the principal of (and premium, if any) and interest on, and any payment of the Repurchase Price with respect to, each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash or Cash Equivalents of all Senior Debt. -68- SECTION 11.2 NO PAYMENTS IN CERTAIN CIRCUMSTANCES; PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. No payment on account of principal of, premium, if any, or interest on, or redemption or repurchase of, the Securities shall be made if, at the time of such payment: (a) a default in the payment of principal, premium, if any, or interest or other amounts due on or in connection with any Senior Debt, including any default under any redemption or repurchase obligation, occurs and is continuing (or, in the case of Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Debt and the Trustee has received written notice of such default), unless and until such default shall have been cured or waived or shall have ceased to exist; or (b) a default, other than a payment default, on Designated Senior Debt occurs and is continuing that then permits holders of such Designated Senior Debt to accelerate its maturity and the Trustee receives a notice of the default (a "PAYMENT BLOCKAGE NOTICE") from the Company, a holder of Designated Senior Debt or a Representative. Notwithstanding the foregoing, the Company may make, and the Trustee may receive and shall apply, any payment in respect of the Securities (for principal, premium, if any, or interest or repurchase) if such payment was made prior to the occurrence of any of the contingencies specified in clauses (a) and (b) above. If the Trustee receives any Payment Blockage Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section 11.2 unless and until (1) at least 365 days shall have elapsed since the effectiveness of the immediately prior Payment Blockage Notice and (2) all scheduled payments of principal, premium, if any, and interest on the Securities that have come due have been paid in full in cash. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless such existing nonpayment default has been cured for a period of at least 90 days. The Company may and shall resume payments on and distributions in respect of the Securities (including missed payments, if any) upon the earlier of: (A) the date upon which the default is cured or waived, or (B) in the case of a default referred to in clause (b) of the second preceding paragraph, 179 days after notice is received if the maturity of such Designated Senior Debt has not been accelerated such that such debt is then presently payable, unless this Indenture otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon (i) any acceleration of the principal amount due on the Securities or (ii) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings, all principal of, premium, if any, sinking fund and interest or other amounts due, or to become due, upon or in connection with all Senior Debt shall first be paid in full in cash or Cash Equivalents, or payment thereof provided for in cash or Cash Equivalents in accordance with its terms, before any payment is made on account of the principal of, premium, if any, or interest on, or repurchase of, the indebtedness evidenced by the Securities, and upon any such dissolution or winding up or liquidation or reorganization any -69- payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, as the case may be, directly to the holders of Senior Debt (pro rata to each such holder on the basis of the respective amounts of Senior Debt held by such holder) or their representatives, to the extent necessary to pay all Senior Debt in full, in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Holders of the Securities or to the Trustee under this Indenture. In the event that, contrary to the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than junior securities, as defined in Section 11.11), shall be received by the Trustee or the Holders of the Securities before all Senior Debt is paid in full in cash or Cash Equivalents or provision made for such payment in accordance with its terms, such payment or distribution shall be paid over or delivered to the holders of such Senior Debt or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Debt have been issued, as their respective interests may appear, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all such Senior Debt in full in cash or Cash Equivalents in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt. Subject to the payment in full in cash or Cash Equivalents of all Senior Debt, the Holders of the Securities (together with the holders of any other indebtedness of the Company that is subordinated in right of payment to the payment in full of all Senior Debt that is not subordinated in right of payment to the Securities and that by its terms grants such right of subrogation to the holders thereof) shall be subrogated to the rights of the holders of Senior Debt to receive payments or distribution of assets of the Company made on the Senior Debt until the principal of, premium, if any, and interest on, or amounts payable upon repurchase of, the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payment over pursuant to the provisions of this Article to the holders of Senior Debt by the Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than the holders of Senior Debt, and the Holders of Securities, be deemed to be a payment by the Company to the holders of or on account of Senior Debt, it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of Senior Debt, on the other hand. SECTION 11.3 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination -70- provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes and releases the Trustee from all claims and liabilities with respect to such action. SECTION 11.4 NO WAIVER OF SUBORDINATION PROVISIONS. No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder of any Senior Debt or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Debt, do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt or otherwise amend or supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the collection of Senior Debt; and (d) exercise or refrain from exercising any rights against the Company and any other Person. SECTION 11.5 NOTICE TO TRUSTEE. The Company shall give prompt written notice to the Trustee of any fact known to the Company that would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder of Senior Debt or from any trustee, agent or representative therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 5.1, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 11.5 prior to the date upon which by the terms hereof any money may become payable for any purpose (including without limitation the payment of the principal of (and premium, if any) or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. Subject to the provisions of Section 5.1, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt -71- (or a trustee, agent or representative therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee, agent or representative therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article Eleven, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Eleven, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 11.6 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 5.1, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. SECTION 11.7 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article Eleven, and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against the Trustee. SECTION 11.8 RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION PROVISIONS. Each Holder by accepting a Security acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Debt, whether such Senior Debt was created or acquired before or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold, such Senior Debt, and such holder of Senior Debt shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Debt. Such holders of the Company's Senior Debt are intended by the parties to the -72- Indenture to be third party creditor beneficiaries under this Indenture for the purposes of enforcing the provisions of this Article Eleven. SECTION 11.9 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Eleven with respect to any Senior Debt that may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article Eleven shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.7. SECTION 11.10 ARTICLE APPLICABLE TO PAYING AGENTS. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Eleven in addition to or in place of the Trustee; provided, however, that Section 11.9 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. SECTION 11.11 CERTAIN CONVERSIONS AND REPURCHASES DEEMED PAYMENT. For the purposes of this Article Eleven only, (a) the issuance and delivery of junior securities upon conversion of Securities in accordance with Article Ten or upon the repurchase of Securities in accordance with Article Twelve shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest on Securities or on account of the purchase or other acquisition of Securities, and (b) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this Section 11.11, the term "junior securities" means (1) shares of any stock of any class of the Company and any cash, property or securities into which the Securities are convertible pursuant to Article Ten and (2) securities of the Company that are subordinated in right of payment to all Senior Debt that may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article Eleven. Nothing contained in this Article Eleven or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article Ten or to exchange such Security for Common Stock in accordance with Article Twelve if the Company elects to satisfy the obligations under Article Twelve by the delivery of Common Stock. -73- ARTICLE TWELVE REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL SECTION 12.1 RIGHT TO REQUIRE REPURCHASE. In the event that a Change in Control shall occur, then each Holder shall have the right, at the Holder's option, but subject to the provisions of Section 12.2, to require the Company to repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder's Securities not theretofore called for redemption, or any portion of the principal amount thereof that is equal to U.S.$1,000 or any greater integral multiple of U.S.$1,000, on the date (the "REPURCHASE DATE") that is fixed by the Company at a cash purchase price equal to 101% of the principal amount of the Securities to be repurchased plus interest accrued to the Repurchase Date (the "REPURCHASE PRICE"); provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Repurchase Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 2.8. The Repurchase Date will be determined by the Company in the following manner: (i) the Company will give notice of the Change in Control as contemplated in Section 12.3(a); (ii) each Holder electing to exercise the repurchase right must deliver, on or before the thirtieth (30th) day (or such greater period as may be required by applicable law) after the date of the Company's notice provided in provision (i) above: (A) irrevocable written notice to the trustee of such Holder's exercise of its repurchase right, and (B) the Securities with respect to which such repurchase right is being exercised; and (iii) the Company will make the repurchase on a date that is no later than 45 days after the Holder has delivered the notice provided in proviso (ii) above. Such right to require the repurchase of the Securities shall not continue after a discharge of the Company from its obligations with respect to the Securities in accordance with Article Three unless a Change in Control shall have occurred prior to such discharge. At the option of the Company, the Repurchase Price may be paid in cash or, subject to the fulfillment by the Company of the conditions set forth Section 12.2, by delivery of shares of Common Stock or in a combination of cash and Common Stock having a fair market value equal to the Repurchase Price. Whenever in this Indenture (including Sections 2.2, 4.1(a) and 4.8) there is a reference, in any context, to the principal of any Security as of any time, such reference shall be deemed to include reference to the Repurchase Price that has become and remains payable in respect of such Security to the extent that such Repurchase Price is, was or would be so payable at such time, and express mention of the Repurchase Price in any provision of this Indenture shall not be construed as excluding the Repurchase Price in those provisions of this Indenture when such express mention is not made; provided, however, that for the purposes of Article Eleven such reference shall be deemed to include reference to the Repurchase Price only to the extent the Repurchase Price is payable in cash. For purposes of this Section 12.1, the fair market value of shares of Common Stock shall be determined by the Company and shall be equal to 95% of the average of the closing price per share of the Common Stock on The Nasdaq National Market or the principal exchange on which -74- the Common Stock is traded for each of the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Repurchase Date. SECTION 12.2 CONDITIONS TO THE COMPANY'S ELECTION TO PAY THE REPURCHASE PRICE IN COMMON STOCK. The Company may elect to pay the Repurchase Price by delivery of shares of Common Stock pursuant to Section 12.1 if and only if the following conditions shall have been satisfied: (a) As to each Holder, the Repurchase Price shall be paid only in cash in the event any shares of Common Stock to be issued to such Holder upon repurchase of Securities hereunder (1) require registration under any federal securities law before such shares may be freely transferable without being subject to any transfer restrictions under the Securities Act upon repurchase and if such registration is not completed or does not become effective prior to the Repurchase Date or (2) require registration with or approval of any governmental authority under any state law or any other federal law before such shares may be validly issued or delivered upon repurchase and if such registration is not completed or does not become effective or such approval is not obtained prior to the Repurchase Date; (b) Payment of the Repurchase Price may not be made in Common Stock unless such stock is, or shall have been, approved for quotation on The Nasdaq National Market or listed or quoted on a national securities exchange or other quotation system, in either case, prior to the Repurchase Date; and (c) All shares of Common Stock that may be issued upon repurchase of Securities will be issued out of the Company's authorized but unissued Common Stock will and, upon issue, be duly and validly issued and fully paid and non-assessable and free of any preemptive rights. If all of the conditions set forth in this Section 12.2 are not satisfied in accordance with the terms thereof, the Repurchase Price shall be paid by the Company only in cash. SECTION 12.3 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC. (a) Unless the Company shall have theretofore called for redemption all of the Outstanding Securities, on or before the thirtieth day after the occurrence of a Change in Control, the Company or, at the request and expense of the Company on or before the thirtieth day after such occurrence, the Trustee, shall give to all Holders of Securities, in the manner provided in Section 1.6, notice (the "COMPANY NOTICE") of the occurrence of the Change in Control and of the repurchase right set forth herein arising as a result thereof. The Company shall also deliver a copy of such notice of a repurchase right to the Trustee. Each notice of a repurchase right shall state: (1) the Repurchase Date, -75- (2) the date by which the repurchase right must be exercised, (3) the Repurchase Price, and whether the Repurchase Price shall be paid by the Company in cash or by delivery of shares of Common Stock, (4) a description of the procedure that a Holder must follow to exercise a repurchase right, and the place or places where such Securities are to be surrendered for payment of the Repurchase Price and accrued interest, if any, (5) that on the Repurchase Date, the Repurchase Price, and accrued interest, if any, will become due and payable upon each such Security designated by the Holder to be repurchased and that interest thereon shall cease to accrue on and after said date, (6) the Conversion Rate then in effect, the date on which the right to convert the principal amount of the Securities to be repurchased will terminate and the place or places where such Securities may be surrendered for conversion, (7) the place or places that the Notice of Election of Holder to Require Repurchase attached hereto as Exhibit B, shall be delivered, and the form of such notice, and (8) the CUSIP number or numbers of such Securities. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder's right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Securities. If any of the foregoing provisions or other provisions of this Article Twelve are inconsistent with applicable law, such law shall govern. (b) To exercise a repurchase right, a Holder shall deliver to the Trustee on or before the thirtieth day (or such greater period as may be required by applicable law) after the date of the Company Notice (1) written notice of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Securities to be repurchased (and, if any Security is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain Outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (2) the Securities with respect to which the repurchase right is being exercised. Such written notice shall be irrevocable, except that the right of the Holder to convert the Securities with respect to which the repurchase right is being exercised shall continue until the close of business on the Business Day immediately preceding the Repurchase Date. -76- (c) In the event a repurchase right shall be exercised in accordance with the terms hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable, together with accrued and unpaid interest to the Repurchase Date payable with respect to the Securities as to which the purchase right has been exercised; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date. (d) If any Security (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such Security (or portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Repurchase Date at the rate then in effect per annum, and each Security shall remain convertible into Common Stock until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for. (e) Any Security that is to be repurchased only in part shall be surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered. (f) Any issuance of shares of Common Stock in respect of the Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any Security declared prior to the Repurchase Date. (g) No fractions of shares shall be issued upon repurchase of Securities. If more than one Security shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares that shall be issuable upon such repurchase shall be computed on the basis of the aggregate principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock that would otherwise be issuable on the repurchase of any Security or Securities, the Company will deliver to the applicable Holder its check for the current market value of such fractional share. The current market value -77- of a fraction of a share is determined by multiplying the current market price of a full share by the fraction and rounding the result to the nearest cent. For purposes of this Section 12.3, the current market price of a share of Common Stock is the average of the high and low sales price per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date. (h) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Securities shall be made without charge to the Holder of Securities being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided, however, that the Company shall not be required to pay any tax or duty that may be payable in respect of (1) income of the Holder or (2) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid. (i) All Securities delivered for repurchase shall be delivered to the Trustee to be canceled at the direction of the Trustee, which shall dispose of the same as provided in Section 2.10. ARTICLE THIRTEEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE SECTION 13.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee: (a) semi-annually, not more than 15 days after the Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities as of such Regular Record Date, and (b) at such other times as the Trustee may reasonably request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that no such list need be furnished so long as the Trustee is acting as Security Registrar. SECTION 13.2 PRESERVATION OF INFORMATION. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 13.1 and the names and addresses of Holders received by the Trustee in its -78- capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 13.1 upon receipt of a new list so furnished. (b) After this Indenture has been qualified under the Trust Indenture Act, the rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act. SECTION 13.3 NO RECOURSE AGAINST OTHERS. An incorporator or any past, present or future director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities. SECTION 13.4 REPORTS BY TRUSTEE. (a) After this Indenture has been qualified under the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, that complies with the provisions of such Section 313(a). (b) After this Indenture has been qualified under the Trust Indenture Act, a copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when the Securities are listed on any stock exchange. SECTION 13.5 REPORTS BY COMPANY. After this Indenture has been qualified under the Trust Indenture Act, the Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein; provided, however, that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. -79- Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). -80- IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written. ASM International N.V., By _________________________ Name: Title: Citibank, N.A., a national banking association, as Trustee By _________________________ Name: Title: -81- TABLE OF CONTENTS

PAGE ---- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .............................................. 1 SECTION 1.1 Definitions ............................................ 1 SECTION 1.2 Compliance Certificates and Opinions ................... 11 SECTION 1.3 Form of Documents Delivered to the Trustee ............. 12 SECTION 1.4 Acts of Holders of Securities .......................... 12 SECTION 1.5 Notices, Etc., to Trustee and Company .................. 14 SECTION 1.6 Notice to Holders of Securities; Waiver ................ 15 SECTION 1.7 Effect of Headings and Table of Contents ............... 15 SECTION 1.8 Successors and Assigns ................................. 15 SECTION 1.9 Separability Clause .................................... 15 SECTION 1.10 Benefits of Indenture ................................. 16 SECTION 1.11 Governing Law ......................................... 16 SECTION 1.12 Legal Holidays ........................................ 16 SECTION 1.13 Conflict with Trust Indenture Act ..................... 16 SECTION 1.14 Counterparts .......................................... 17 SECTION 1.15 Consent to Jurisdiction ............................... 17 ARTICLE TWO THE SECURITIES ............................................... 17 SECTION 2.1 Form Generally ......................................... 17 SECTION 2.2 Title and Terms ........................................ 18 SECTION 2.3 Denominations .......................................... 19 SECTION 2.4 Execution, Authentication, Delivery and Dating ......... 19 SECTION 2.5 Global Securities; Temporary Securities ................ 20

-i- SECTION 2.6 Registration, Registration of Transfer and Exchange; Restrictions on Transfer ............................... 21 SECTION 2.7 Mutilated, Destroyed, Lost or Stolen Securities ........ 24 SECTION 2.8 Payment of Interest; Interest Rights Preserved ......... 25 SECTION 2.9 Persons Deemed Owners .................................. 26 SECTION 2.10 Cancellation .......................................... 26 SECTION 2.11 Computation of Interest ............................... 26 SECTION 2.12 CUSIP Numbers ......................................... 26 ARTICLE THREE SATISFACTION AND DISCHARGE ................................. 27 SECTION 3.1 Satisfaction and Discharge of Indenture ................ 27 SECTION 3.2 Application of Trust Money ............................. 28 ARTICLE FOUR REMEDIES .................................................... 28 SECTION 4.1 Events of Default ...................................... 28 SECTION 4.2 Acceleration of Maturity; Rescission and Annulment ..... 30 SECTION 4.3 Collection of Indebtedness and Suits for Enforcement by Trustee ............................................. 31 SECTION 4.4 Trustee May File Proofs of Claim ....................... 31 SECTION 4.5 Trustee May Enforce Claims without Possession of Securities .......................................... 32 SECTION 4.6 Application of Money Collected ......................... 32 SECTION 4.7 Limitation on Suits .................................... 33 SECTION 4.8 Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert .................... 33 SECTION 4.9 Restoration of Rights and Remedies ..................... 34 SECTION 4.10 Rights and Remedies Cumulative ........................ 34 SECTION 4.11 Delay or Omission Not Waiver .......................... 34 SECTION 4.12 Control by Holders of Securities ...................... 34 SECTION 4.13 Waiver of Past Defaults ............................... 34 -ii- SECTION 4.14 Undertaking for Costs ................................. 35 SECTION 4.15 Waiver of Stay, Usury or Extension Laws ............... 35 ARTICLE FIVE THE TRUSTEE ................................................. 36 SECTION 5.1 Certain Duties and Responsibilities .................... 36 SECTION 5.2 Notice of Defaults ..................................... 37 SECTION 5.3 Certain Rights of Trustee .............................. 37 SECTION 5.4 Not Responsible for Recitals or Issuance of Securities . 38 SECTION 5.5 May Hold Securities, Act as Trustee under Other Indentures ............................................. 38 SECTION 5.6 Money Held in Trust .................................... 38 SECTION 5.7 Compensation and Reimbursement ......................... 39 SECTION 5.8 Corporate Trustee Required; Eligibility ................ 40 SECTION 5.9 Resignation and Removal; Appointment of Successor ...... 40 SECTION 5.10 Acceptance of Appointment by Successor ................ 41 SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business ........................................... 42 SECTION 5.12 Authenticating Agents ................................. 42 SECTION 5.13 Disqualification; Conflicting Interests ............... 44 SECTION 5.14 Preferential Collection of Claims Against Company ..... 44 ARTICLE SIX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ................................................... 44 SECTION 6.1 Company May Consolidate, Etc., Only on Certain Terms ... 44 SECTION 6.2 Successor Substituted .................................. 45 ARTICLE SEVEN SUPPLEMENTAL INDENTURES .................................... 45 SECTION 7.1 Supplemental Indentures Without Consent of Holders of Securities .......................................... 45 SECTION 7.2 Supplemental Indentures With Consent of Holders of Securities .......................................... 46 SECTION 7.3 Execution of Supplemental Indentures ................... 47 SECTION 7.4 Effect of Supplemental Indentures ...................... 48 -iii- SECTION 7.5 Reference in Securities to Supplemental Indentures ..... 48 SECTION 7.6 Notice of Supplemental Indentures ...................... 48 ARTICLE EIGHT COVENANTS .................................................. 48 SECTION 8.1 Payment of Principal, Premium and Interest ............. 48 SECTION 8.2 Maintenance of Offices or Agencies ..................... 48 SECTION 8.3 Money for Security Payments to Be Held in Trust ........ 49 SECTION 8.4 Existence .............................................. 50 SECTION 8.5 Maintenance of Properties .............................. 50 SECTION 8.6 Payment of Taxes and Other Claims ...................... 51 SECTION 8.7 Registration and Listing ............................... 51 SECTION 8.8 Statement by Officers as to Default .................... 51 SECTION 8.9 Delivery of Certain Information ........................ 52 SECTION 8.10 Resale of Certain Securities; Reporting Issuer ........ 52 SECTION 8.11 Waiver of Certain Covenants ........................... 52 SECTION 8.12 Withholding Taxes ..................................... 53 SECTION 8.13 Judgment Currency ..................................... 54 ARTICLE NINE REDEMPTION OF SECURITIES .................................... 54 SECTION 9.1 Right of Redemption .................................... 54 SECTION 9.2 Applicability of Article ............................... 55 SECTION 9.3 Election to Redeem; Notice to Trustee .................. 55 SECTION 9.4 Selection by Trustee of Securities to Be Redeemed ...... 55 SECTION 9.5 Notice of Redemption ................................... 55 SECTION 9.6 Deposit of Redemption Price ............................ 56 SECTION 9.7 Securities Payable on Redemption Date .................. 56 SECTION 9.8 Securities Redeemed in Part ............................ 57 -iv- SECTION 9.9 Conversion Arrangement on Call for Redemption .......... 57 ARTICLE TEN CONVERSION OF SECURITIES ..................................... 58 SECTION 10.1 Conversion Privilege and Conversion Rate .............. 58 SECTION 10.2 Exercise of Conversion Privilege ...................... 58 SECTION 10.3 Fractions of Shares ................................... 60 SECTION 10.4 Adjustment of Conversion Rate ......................... 60 SECTION 10.5 Notice of Adjustments of Conversion Rate .............. 65 SECTION 10.6 Notice of Certain Corporate Action .................... 65 SECTION 10.7 Company to Reserve Common Stock ....................... 66 SECTION 10.8 Taxes on Conversions .................................. 66 SECTION 10.9 Covenant as to Common Stock ........................... 67 SECTION 10.10 Cancellation of Converted Securities ................. 67 SECTION 10.11 Provision in Case of Consolidation, Merger or Sale of Assets ....................................... 67 SECTION 10.12 Responsibility of Trustee for Conversion Provisions .. 68 ARTICLE ELEVEN SUBORDINATION OF SECURITIES ............................... 68 SECTION 11.1 Securities Subordinate to Senior Debt ................. 68 SECTION 11.2 No Payments in Certain Circumstances; Payment Over of Proceeds Upon Dissolution, Etc ........ 69 SECTION 11.3 Trustee to Effectuate Subordination ................... 70 SECTION 11.4 No Waiver of Subordination Provisions ................. 71 SECTION 11.5 Notice to Trustee ..................................... 71 SECTION 11.6 Reliance on Judicial Order or Certificate of Liquidating Agent ..................................... 72 SECTION 11.7 Trustee Not Fiduciary for Holders of Senior Debt ...... 72 SECTION 11.8 Reliance by Holders of Senior Debt on Subordination Provisions .............................. 72 SECTION 11.9 Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights ...................... 73 -v- SECTION 11.10 Article Applicable to Paying Agents .................. 73 SECTION 11.11 Certain Conversions and Repurchases Deemed Payment ... 73 ARTICLE TWELVE REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL ..................................... 74 SECTION 12.1 Right to Require Repurchase ........................... 74 SECTION 12.2 Conditions to the Company's Election to Pay the Repurchase Price in Common Stock .................. 75 SECTION 12.3 Notices; Method of Exercising Repurchase Right, Etc ... 75 ARTICLE THIRTEEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE ............................................... 78 SECTION 13.1 Company to Furnish Trustee Names and Addresses of Holders ............................................ 78 SECTION 13.2 Preservation of Information ........................... 78 SECTION 13.3 No Recourse Against Others ............................ 79 SECTION 13.4 Reports by Trustee .................................... 79 SECTION 13.5 Reports by Company .................................... 79 EXHIBITS Exhibit A ................................................................. A-1 Exhibit B ................................................................. B-1 Exhibit C ................................................................. C-1 -vi- GRAPHIC 5 p66543box.gif GRAPHIC begin 644 p66543box.gif M1TE&.#EA#``,`/?^``````$!`0("`@,#`P0$!`4%!08&!@<'!P@("`D)"0H* M"@L+"PP,#`T-#0X.#@\/#Q`0$!$1$1(2$A,3$Q04%!45%186%A<7%Q@8&!D9 M&1H:&AL;&QP<'!T='1X>'A\?'R`@("$A(2(B(B,C(R0D)"4E)28F)B7IZ>GM[>WQ\?'U]?7Y^?G]_?X"`@(&!@8*" M@H.#@X2$A(6%A8:&AH>'AXB(B(F)B8J*BHN+BXR,C(V-C8Z.CH^/CY"0D)&1 MD9*2DI.3DY24E)65E9:6EI>7EYB8F)F9F9J:FIN;FYRGI^?GZ"@ MH*&AH:*BHJ.CHZ2DI*6EI::FIJ>GIZBHJ*FIJ:JJJJNKJZRLK*VMK:ZNKJ^O MK["PL+&QL;*RLK.SL[2TM+6UM;:VMK>WM[BXN+FYN;JZNKN[N[R\O+V]O;Z^ MOK^_O\#`P,'!P<+"PL/#P\3$Q,7%Q<;&QL?'Q\C(R,G)RWM_?W^#@X.'AX>+BXN/CX^3DY.7EY>;FYN?GY^CHZ.GIZ>KJZNOK MZ^SL[.WM[>[N[N_O[_#P\/'Q\?+R\O/S\_3T]/7U]?;V]O?W]_CX^/GY^?KZ M^OO[^_S\_/W]_?[^_O___R'Y!`$``/X`+``````,``P`!P@Z`/\)'$APX)L? 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EX-4.16

                                                                    Exhibit 4.16

                             ASM INTERNATIONAL N.V.


                                  $100,000,000

                                Principal Amount

             5% Convertible Subordinated Notes due November 15, 2005

                               Purchase Agreement

                                November 14, 2001



                            CIBC WORLD MARKETS CORP.

             5% Convertible Subordinated Notes due November 15, 2005

                            of ASM INTERNATIONAL N.V.

                            CIBC WORLD MARKETS CORP.


                                November 14, 2001



CIBC World Markets Corp.
425 Lexington Avenue, 6th Floor
New York, New York 10017

Dear Sirs and Madams:

         ASM International N.V., a public limited liability company organized
under the laws of the Kingdom of the Netherlands (the "COMPANY"), proposes to
issue and sell to CIBC World Markets Corp. ("CIBC" or the "INITIAL PURCHASER")
an aggregate of $100,000,000 in principal amount of its 5% Convertible
Subordinated Notes due November 15, 2005 (the "FIRM NOTES"), subject to the
terms and conditions set forth herein. The Company also proposes to issue and
sell to the Initial Purchaser not more than an additional $15,000,000 in
aggregate principal amount of its 5% Convertible Subordinated Notes due November
15, 2005 (the "ADDITIONAL NOTES"), if requested by the Initial Purchaser as
provided in Section 2 hereof. The Firm Notes and the Additional Notes are herein
collectively referred to as the "NOTES." The Notes are to be issued pursuant to
the provisions of an indenture (the "INDENTURE"), to be dated as of the Closing
Date (as hereinafter defined), between the Company and Citibank, N.A., as
trustee (the "TRUSTEE"), pursuant to which the Notes, as provided therein, will
be convertible at the option of the holders thereof into the Company's common
shares, E0.04 par value per share (the "COMMON SHARES"). The Notes and the
Common Shares issuable upon conversion thereof are herein collectively referred
to as the "SECURITIES." The Securities and the Indenture are more fully
described in the Offering Circular (as hereinafter defined). Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Indenture.

    1.   OFFERING CIRCULAR. The Notes will be offered and sold to the Initial
Purchaser pursuant to one or more exemptions from the registration requirements
under the Securities Act of 1933, as amended (the "ACT"). The Company has
prepared a preliminary Offering Circular, dated November 5, 2001 (the
"PRELIMINARY OFFERING Circular"), and a final Offering Circular, dated November
14, 2001 (the "OFFERING CIRCULAR"), relating to the Notes.


                                     - 1 -

         Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Notes (and all securities issued
in exchange therefor, in substitution thereof or upon conversion thereof) shall
bear the following legend:

         "THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS
         NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
         AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE
         TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
         EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
         THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
         PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
         THEREUNDER OR OTHER EXEMPTIONS THEREFROM.

         THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE
         MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
         (A)(1) TO A PERSON THAT THE TRANSFEROR REASONABLY BELIEVES IS A
         QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
         SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
         QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
         OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
         SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO
         AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
         MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
         SECURITIES ACT THAT PRIOR TO SUCH TRANSFER PROVIDES TO THE TRUSTEE FOR
         THE NOTES A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
         AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTES (THE
         FORM OF THE LETTER CAN BE OBTAINED FROM THE TRUSTEE OF THE NOTES), (4)
         PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
         ACT (IF AVAILABLE) (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
         ASM INTERNATIONAL N.V.) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
         STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
         APPLICABLE SECURITIES LAWS


                                     - 2 -

         OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.

         THIS NOTE, ANY COMMON SHARES ISSUABLE UPON ITS CONVERSION AND ANY
         RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME
         TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE
         AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
         REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
         THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER
         OF THIS NOTE AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS
         NOTE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR
         SUPPLEMENT."

         2. AGREEMENTS TO SELL AND PURCHASE.

                  (a) On the basis of the representations, warranties and
         covenants contained in this Agreement, and subject to the terms and
         conditions contained herein, the Company agrees to issue and sell to
         the Initial Purchaser, and the Initial Purchaser agrees to purchase
         from the Company, $100,000,000 principal amount of Firm Notes at a
         purchase price equal to 100% of the principal amount thereof (the
         "PURCHASE PRICE").

                  (b) On the basis of the representations and warranties
         contained in this Agreement, and subject to its terms and conditions,
         (i) the Company agrees to issue and sell the Additional Notes and (ii)
         the Initial Purchaser shall have a right, but not the obligation, to
         purchase the Additional Notes, from the Company at the Purchase Price.
         Additional Notes may be purchased solely for the purpose of covering
         over-allotments made in connection with the offering of the Firm Notes.
         The Initial Purchaser may exercise its right to purchase Additional
         Notes in whole or in part from time to time by giving written notice
         thereof to the Company at any time within 45 days after the date of
         this Agreement. Such notice shall specify the aggregate principal
         amount of Additional Notes to be purchased pursuant to such exercise
         and the date for payment and delivery thereof. The date specified in
         any such notice shall be a business day (i) no earlier than the Closing
         Date, (ii) no later than ten business days after such notice has been
         given and (iii) no earlier than two business days after such notice has
         been given.

         3. TERMS OF OFFERING. The Initial Purchaser has advised the Company
that the Initial Purchaser will make offers (the "EXEMPT RESALES") of the Notes
purchased hereunder on the terms set forth in the Offering Circular, as amended
or supplemented,


                                     - 3 -

solely to persons whom the Initial Purchaser reasonably believes to be
"qualified institutional buyers" as defined in Rule 144A under the Act
("ELIGIBLE PURCHASERS"). The Initial Purchaser will offer the Notes to Eligible
Purchasers initially at a price equal to 100% of the principal amount thereof.
Such price may be changed at any time without notice.

         This Agreement, the Indenture, and the Notes are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS."

         4. DELIVERY AND PAYMENT.

                  (a) Delivery of, and payment of the Purchase Price for, the
         Firm Notes shall be made at the offices of Gibson, Dunn & Crutcher LLP,
         200 Park Avenue, New York, NY 10166, or such other location as may be
         mutually acceptable. Such delivery and payment shall be made at 9:00
         a.m., New York City time, on November 19, 2001 or at such other time on
         the same date or such other date as the Initial Purchaser and the
         Company shall agree in writing. The time and date of such delivery and
         the payment for the Firm Notes are herein called the "CLOSING DATE."

                  (b) Delivery of, and payment for, any Additional Notes to be
         purchased by the Initial Purchaser shall be made at the offices of
         Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166 at
         9:00 a.m., New York City time, on the date specified in the exercise
         notice given by the Initial Purchaser pursuant to Section 2(b) or such
         other time on the same or such other date as the Initial Purchaser and
         the Company shall agree in writing. The time and date of delivery and
         payment for any Additional Notes are hereinafter referred to as an
         "OPTION CLOSING DATE."

                  (c) One or more of the Notes in definitive global form,
         registered in the name of Cede & Co., as nominee of the Depository
         Trust Company ("DTC"), having an aggregate principal amount
         corresponding to the aggregate principal amount of the Notes
         (collectively, the "GLOBAL NOTE"), shall be delivered by the Company to
         the Initial Purchaser (or as the Initial Purchaser directs) in each
         case with any transfer taxes thereon duly paid by the Company against
         payment by the Initial Purchaser of the Purchase Price thereof by wire
         transfer in same day funds to the order of the Company. The Global Note
         shall be made available to the Initial Purchaser for inspection not
         later than 9:30 a.m., New York City time, on the business day
         immediately preceding the Closing Date.

         5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the
Initial Purchaser as follows:


                                     - 4 -

                  (a) To advise the Initial Purchaser promptly and, if requested
         by the Initial Purchaser, to confirm such advice in writing of (i) the
         issuance by any state securities commission of any stop order
         suspending the qualification or exemption from qualification of any
         Notes for offering or sale in any jurisdiction designated by the
         Initial Purchaser pursuant to Section 5(e), or the initiation of any
         proceeding by any state securities commission or any other federal or
         state regulatory authority for such purpose and (ii) the happening of
         any event during the period referred to in Section 5(c) below that
         makes any statement of a material fact made in the Preliminary Offering
         Circular or the Offering Circular untrue or that requires any additions
         to or changes in the Preliminary Offering Circular or the Offering
         Circular in order to make the statements therein not misleading. The
         Company shall use all reasonable efforts to prevent the issuance of any
         stop order or order suspending the qualification or exemption of any
         Notes under any state securities or Blue Sky laws and, if at any time
         any state securities commission or state regulatory authority shall
         issue an order suspending the qualification or exemption of any Notes
         under any state securities or Blue Sky laws, the Company shall use all
         reasonable efforts to obtain the withdrawal or lifting of such order at
         the earliest possible time.

                  (b) To furnish the Initial Purchaser and those persons
         identified by the Initial Purchaser to the Company as many copies of
         the Preliminary Offering Circular and the Offering Circular, any
         documents incorporated by reference therein, and any amendments or
         supplements thereto, as the Initial Purchaser may reasonably request
         for the time period specified in Section 5(c). Subject to the Initial
         Purchaser's compliance with its representations and warranties and
         agreements set forth in Section 7 hereof, the Company consents to the
         use of the Preliminary Offering Circular and the Offering Circular, any
         documents incorporated by reference therein, and any amendments and
         supplements thereto required pursuant hereto, by the Initial Purchaser
         in connection with Exempt Resales.

                  (c) During such period as in the opinion of counsel for the
         Initial Purchaser an Offering Circular is required by law to be
         delivered in connection with Exempt Resales by the Initial Purchaser,
         (i) not to make any amendment or supplement to the Offering Circular of
         which the Initial Purchaser shall not previously have been advised or
         to which the Initial Purchaser shall reasonably object after being so
         advised and (ii) to prepare promptly upon the Initial Purchaser's
         reasonable request any amendment or supplement to the Offering Circular
         that may be necessary or advisable in connection with such Exempt
         Resales.

                  (d) If, during the period referred to in Section 5(c) above,
         any event shall occur or condition shall exist as a result of which, in
         the opinion of


                                     - 5 -

         counsel to the Initial Purchaser, it becomes necessary to amend or
         supplement the Offering Circular in order to make the statements
         therein, in the light of the circumstances when the Offering Circular
         is delivered to an Eligible Purchaser, not misleading, or if, in the
         opinion of counsel to the Initial Purchaser, it is necessary to amend
         or supplement the Offering Circular to comply with any applicable law,
         forthwith to prepare an appropriate amendment or supplement to the
         Offering Circular so that the statements therein, as so amended or
         supplemented, will not, in the light of the circumstances when it is so
         delivered, be misleading, or so that the Offering Circular will comply
         with applicable law, and to furnish to the Initial Purchaser and such
         other persons as the Initial Purchaser may designate such number of
         copies thereof as the Initial Purchaser may reasonably request.

                  (e) Prior to the sale of all Notes pursuant to Exempt Resales
         as contemplated hereby, to cooperate with the Initial Purchaser and
         counsel to the Initial Purchaser in connection with the registration or
         qualification of the Notes for offer and sale to the Initial Purchaser
         and pursuant to Exempt Resales under the state securities or Blue Sky
         laws in such states as the Initial Purchaser may reasonably request and
         to continue such registration or qualification in effect so long as
         required for Exempt Resales and to file such consents to service of
         process or other documents as may be necessary in order to effect such
         registration or qualification; provided, however, that the Company
         shall not be required in connection therewith to qualify as a foreign
         corporation in any jurisdiction in which it is not now so qualified or
         to take any action that would subject it to general consent to service
         of process or taxation, other than as to matters and transactions
         relating to the Preliminary Offering Circular, the Offering Circular or
         Exempt Resales, in any jurisdiction in which it is not now so subject.

                  (f) So long as the Notes are outstanding, (i) to mail and make
         generally available as soon as practicable after the end of each fiscal
         year to the record holders of the Notes a financial report of the
         Company and its Subsidiaries (as defined in Section 6(b) hereof) on a
         consolidated basis (and a similar financial report of all
         unconsolidated Subsidiaries, if any), it being agreed that all such
         financial reports will include a consolidated balance sheet, a
         consolidated statement of operations, a consolidated statement of cash
         flows and a consolidated statement of shareholders' equity as of the
         end of and for such fiscal year, together with comparable information
         as of the end of and for the preceding year, certified by the Company's
         independent public accountants and (ii) to mail and make generally
         available as soon as practicable after the end of each quarterly period
         (except for the last quarterly period of each fiscal year) to such
         holders, a consolidated balance sheet, a consolidated statement of
         operations and a consolidated statement of cash flows (and similar
         financial reports of all unconsolidated Subsidiaries, if any) as of the
         end of and for such period, and for


                                     - 6 -

         the period from the beginning of such year to the close of such
         quarterly period, together with comparable information for the
         corresponding periods of the preceding year; provided, however, the
         Company's filing of the information specified herein with the
         Securities and Exchange Commission (the "COMMISSION") by EDGAR shall
         satisfy this provision with respect to such information.

                  (g) So long as the Notes are outstanding, to furnish to the
         Initial Purchaser as soon as available copies of all reports or other
         communications furnished by the Company to its security holders or
         furnished to or filed with the Commission or any national securities
         exchange on which any class of securities of the Company is listed and
         such other publicly available information concerning the Company and/or
         its Subsidiaries as the Initial Purchaser may reasonably request;
         provided, however, the Company's filing of information specified herein
         with the Commission by EDGAR shall satisfy this provision with respect
         to such information.

                  (h) So long as any of the Notes remain outstanding and during
         any period in which the Company is not subject to Section 13 or 15(d)
         of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
         ACT"), to make available to any holder of Securities in connection with
         any sale thereof and any prospective purchaser of such Securities from
         such holder the information ("RULE 144A INFORMATION") required by Rule
         144A(d)(4) under the Act.

                  (i) Whether or not the transactions contemplated in this
         Agreement are consummated or this Agreement is terminated, to pay or
         cause to be paid all expenses incident to the performance of the
         obligations of the Company under this Agreement, including: (i) the
         fees, disbursements and expenses of counsel to the Company and
         accountants of the Company in connection with the sale and delivery of
         the Notes to the Initial Purchaser and pursuant to Exempt Resales, and
         all other fees and expenses in connection with the preparation,
         printing, filing and distribution of the Preliminary Offering Circular,
         the Offering Circular, any documents incorporated by reference and all
         amendments and supplements to any of the foregoing (including financial
         statements), including the mailing and delivering of copies thereof to
         the Initial Purchaser and persons designated by it in the quantities
         specified herein; (ii) all costs and expenses related to the transfer
         and delivery of the Notes to the Initial Purchaser and pursuant to
         Exempt Resales, including any transfer or other taxes payable thereon;
         (iii) all costs of printing or producing this Agreement, the other
         Operative Documents and any other agreements or documents in connection
         with the offering, purchase, sale or delivery of the Securities; (iv)
         all expenses in connection with the registration or qualification of
         the Securities for offer and sale under the securities or Blue Sky laws
         of the several states and all costs of printing


                                     - 7 -

         or producing any preliminary and supplemental Blue Sky memoranda in
         connection therewith (including the filing fees and fees and
         disbursements of counsel for the Initial Purchaser in connection with
         such registration or qualification and memoranda relating thereto); (v)
         the cost of printing certificates representing the Securities; (vi) all
         expenses and listing fees in connection with the application for
         quotation of the Notes in The PORTAL Market of the National Association
         of Securities Dealers, Inc. ("PORTAL"); (vii) the fees and expenses of
         the Trustee and the Trustee's counsel in connection with the Indenture
         and the Notes; (viii) the costs and charges of any transfer agent,
         registrar and/or depositary (including DTC); (ix) any fees charged by
         rating agencies for the rating of the Notes; (x) all expenses and
         listing fees in connection with the application for listing the Common
         Shares issuable upon conversion of the Notes on the Nasdaq Stock
         Market's National Market (the "NASDAQ NATIONAL MARKET"); (xi) provided
         that the Initial Purchaser has paid the fees, disbursements and
         expenses of counsel to the Initial Purchaser in connection with the
         sale and delivery of the Notes to the Initial Purchaser and pursuant to
         Exempt Resales, up to $70,000 of such fees, disbursements and expenses
         to be reimbursed by the Company; and (xii) and all other costs and
         expenses incident to the performance of the obligations of the Company
         hereunder for which provision is not otherwise made in this Section.

                  (j) To use all reasonable efforts to effect the inclusion of
         the Notes in PORTAL and to maintain the listing of the Notes on PORTAL
         for so long as the Notes are outstanding.

                  (k) To obtain the approval of DTC for "book-entry" transfer of
         the Notes, and to comply with all of its agreements set forth in the
         representation letters of the Company to DTC relating to the approval
         of the Notes by DTC for "book-entry" transfer.

                  (l) To cause the Common Shares issuable upon conversion of the
         Notes to be duly included for quotation on the Nasdaq National Market
         prior to the Firm Closing Date, subject to notice of official issuance.
         The Company will ensure that such Common Shares remain included for
         quotation on the Nasdaq National Market or any other national
         securities exchange following the Firm Closing Date for so long as any
         Common Shares remain registered under the Exchange Act.

                  (m) The Company shall not offer, pledge, sell, contract to
         sell, sell any option or contract to purchase, purchase any option or
         contract to sell, grant any option, right or warrant to purchase, or
         otherwise transfer or dispose of, directly or indirectly, any Common
         Shares (other than the issuance of Common Shares upon conversion of the
         Notes and the issuance of Common Shares pursuant to the Equity Line
         Financing Agreement, dated as of July 6, 2000, between the Company and
         Canadian Imperial Holdings Inc., as amended as of March 9, 2001


                                     - 8 -

         (the "EQUITY LINE")) or any securities convertible into or exercisable
         or exchangeable for Common Shares, for a period of 60 days after the
         date hereof without the prior written consent of CIBC. Notwithstanding
         the foregoing, during such period (i) the Company may grant securities
         convertible into or exercisable or exchangeable for Common Shares
         pursuant to the Company's existing stock option or stock purchase plans
         and (ii) the Company may issue Common Shares upon the conversion or
         exchange of a convertible or exchangeable security outstanding on the
         date hereof. The Company shall, prior to or concurrently with the
         execution of this Agreement, deliver an agreement executed by each of
         the directors and executive officers of the Company who beneficially
         own more than 1.0% of the Company's outstanding Common Shares to the
         effect that such person will not, during the period commencing on the
         date such person signs such agreement and ending 60 days after the date
         hereof, without the prior written consent of CIBC, (i) engage in any of
         the transactions described in the first sentence of this paragraph
         (whether such shares or any such securities are now owned by such
         individual or are hereafter acquired) or (ii) enter into any swap or
         other arrangement that transfers to another, in whole or in part, any
         of the economic consequences associated with the ownership of any
         Common Shares (whether any such transactions described in clause (i) or
         (ii) are to be settled by the delivery of Common Shares or such other
         securities, in cash or otherwise). In addition, in such agreement each
         of such directors and executive officers of the Company will have
         agreed not to make any demand for or exercise any right with respect to
         the registration of any Common Shares or any securities convertible
         into or exercisable or exchangeable for Common Shares during the period
         commencing on the date such person signs such agreement and ending 60
         days after the date hereof without the prior written consent of CIBC.

                  (n) Not to sell, offer for sale or solicit offers to buy or
         otherwise negotiate in respect of any security (as defined in the Act)
         that would be integrated with the sale of the Notes to the Initial
         Purchaser or pursuant to Exempt Resales in a manner that would require
         the registration of any such sale of the Notes under the Act.

                  (o) Not to voluntarily claim, and to actively resist any
         attempts to claim, the benefit of any usury laws against the holders of
         any Notes.

                  (p) To use all reasonable efforts to do and perform all things
         required or necessary to be done and performed under this Agreement by
         it prior to the Closing Date and to satisfy all conditions precedent to
         the delivery of the Notes.

                  (q) The Company will apply the net proceeds from the offering
         of the Securities in the manner set forth under "Use of Proceeds" in
         the Offering Circular.


                                     - 9 -

                  (r) If any payment of any sum due under this Agreement from
         the Company is made to or received by the Initial Purchaser or any
         controlling person of the Initial Purchaser in a currency other than
         freely transferable United States dollars, whether by judicial judgment
         or otherwise, the obligations of the Company, as the case may be, under
         this Agreement shall be discharged only to the extent of the net amount
         of freely transferable United States dollars that the Initial Purchaser
         or such controlling person, as the case may be, in accordance with
         normal bank procedures, are able to lawfully purchase with such amount
         of such other currency on the date of payment. To the extent that the
         Initial Purchaser or such controlling person is not able to purchase
         sufficient United States dollars with such amount of such other
         currency on the date of payment to discharge the obligations of the
         Company, as the case may be, to the Initial Purchaser or such
         controlling person, the obligations of the Company, as the case may be,
         to the Initial Purchaser or such controlling person, as the case may
         be, shall not be discharged with respect to such difference, and any
         such undischarged amount will be due as a separate obligation and shall
         not be affected by payment of or judgment being obtained for any other
         sums due under or in respect of this Agreement.

                  (s) The Company covenants and agrees with the Initial
         Purchaser that in any suit (whether in a court in the United States,
         the Netherlands or elsewhere) seeking enforcement of this Agreement,
         (i) no defense (other than a procedural defense) given or allowed by
         the laws of any other state or country shall be interposed in any suit,
         action or proceeding hereon unless such defense is also given or
         allowed by the laws of the State of New York or of the United States,
         (ii) if the plaintiffs thereon seek that a judgment otherwise awarded
         to the plaintiffs be awarded in either United States dollars or
         Netherlands currency, subject to Netherlands foreign currency control
         regulations, the Company will not interpose any defense or objection to
         or otherwise oppose the award of a judgment, if any, in such currencies
         except to the extent that such a judgment would violate the laws of the
         Netherlands, and (iii) if the plaintiffs therein seek to have any
         judgment (or any aspect thereof) awarded in Netherlands currency
         linked, for the period from entry of such judgment until actual payment
         thereof in full has been made, to changes in the United States dollar
         exchange rate with respect to the currency of the Netherlands, the
         Company will not interpose any defense or objection to or otherwise
         oppose inclusion of such linkage in any such judgment except to the
         extent that such a judgment would violate the laws of the Netherlands.
         The Company agrees that it will not initiate or seek to initiate any
         action, suit or proceeding, in the Netherlands or in any other
         jurisdiction other than in the United States, seeking damages or for
         the purpose of obtaining any injunction or declaratory judgment against
         the enforcement of, or declaratory judgment concerning any alleged
         breach by the Company of, or other claim by the Initial Purchaser in
         respect of, this Agreement or any of the Initial Purchaser's


                                     - 10 -

         rights under this Agreement, including, without limitation, any action,
         suit or proceeding challenging the enforceability of or seeking to
         invalidate in any respect the submission by the Company hereunder to
         the jurisdiction of federal or New York state courts or the designation
         of the laws of the State of New York as the law applicable to this
         Agreement.

         6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchaser that:

                  (a) The Preliminary Offering Circular and the Offering
         Circular (including the information incorporated by reference therein,
         collectively the "INCORPORATED DOCUMENTS") do not, and any supplement
         or amendment to them will not, contain any 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, except
         that the representations and warranties contained in this paragraph (a)
         shall not apply to statements in or omissions from the Preliminary
         Offering Circular or the Offering Circular (or any supplement or
         amendment thereto) based upon information relating to the Initial
         Purchaser furnished to the Company in writing by the Initial Purchaser
         expressly for use therein. No stop order preventing the use of the
         Preliminary Offering Circular or the Offering Circular, or any
         amendment or supplement thereto, or any order asserting that any of the
         transactions contemplated by this Agreement are subject to the
         registration requirements of the Act, has been issued. The Incorporated
         Documents, at the time they were or hereafter are filed or last
         amended, as the case may be, with the Commission, complied and will
         comply in all material respects with the requirements of the Exchange
         Act.

                  (b) Each of the Company and the subsidiaries of the Company
         listed on Schedule A hereto (the "SUBSIDIARIES") has been duly
         incorporated, is validly existing as a corporation in good standing
         under the laws of its jurisdiction of incorporation. Other than the
         Subsidiaries and NuTool, Inc., the Company does not control, directly
         or indirectly, or hold greater than a 5% interest in, any other
         corporation or other business organization. Each of the Company and its
         Subsidiaries has the corporate power and authority to carry on its
         business as described in the Offering Circular and to own, lease and
         operate its properties, and each is duly qualified and is in good
         standing as a foreign corporation authorized to do business in each
         jurisdiction in which the nature of its business or its ownership or
         leasing of property requires such qualification, except where the
         failure to be so qualified would not have a material adverse effect on
         the business, financial condition or results of operations of the
         Company and its Subsidiaries, taken as a whole (a "MATERIAL ADVERSE
         EFFECT").


                                     - 11 -

                  (c) All outstanding shares of capital stock of the Company
         have been duly authorized and validly issued and are fully paid and
         non-assessable. There are no preemptive or similar rights to subscribe
         for or to purchase or acquire any shares of capital stock of the
         Company or its Subsidiaries, and there are no restrictions upon the
         voting or transfer of the Common Shares, in either case pursuant to the
         Company's charter or by-laws or other governing documents or any
         agreement or other instrument to or by which the Company or any of its
         Subsidiaries is a party or is bound, except for rights pursuant to
         Netherlands law and the Articles of Association of the Company which
         have been waived. The Company has the authorized and outstanding
         capital stock as set forth in the Offering Circular, and except as
         described in the Offering Circular there have been no changes in the
         outstanding capital stock of the Company since the date set forth under
         the heading "Capitalization" in the Preliminary Offering Circular and
         the Offering Circular, except to the extent that certain outstanding
         options and warrants set forth in the footnotes thereto may have been
         exercised.

                  (d) All of the outstanding shares of capital stock of each of
         the Company's Subsidiaries have been duly authorized and validly issued
         and are fully paid and non-assessable, and, except as set forth in the
         Offering Circular, are owned by the Company, directly or indirectly
         through one or more Subsidiaries, free and clear of any security
         interest, claim, lien, encumbrance or adverse interest of any nature
         (each, a "LIEN").

                  (e) This Agreement has been duly authorized, executed and
         delivered by the Company.

                  (f) The Indenture has been duly authorized by the Company and,
         when duly executed and delivered by the Company, and assuming the due
         authority, execution and delivery by the Trustee, will be a valid and
         binding agreement of the Company, enforceable against the Company in
         accordance with its terms except as (i) the enforceability thereof may
         be limited by bankruptcy, insolvency or similar laws affecting
         creditors' rights generally and (ii) rights of acceleration and the
         availability of equitable remedies may be limited by equitable
         principles of general applicability.

                  (g) The Notes have been duly authorized and, when duly
         executed, delivered and authenticated in accordance with the provisions
         of the Indenture and when delivered and paid for by the Initial
         Purchaser in accordance with the terms of this Agreement, the Notes
         will be entitled to the benefits of the Indenture and will be valid and
         binding obligations of the Company, enforceable in accordance with
         their terms except as (i) the enforceability thereof may be limited by
         bankruptcy, insolvency or similar laws affecting creditors' rights
         generally and (ii) rights of acceleration and the availability of
         equitable remedies may be limited by equitable principles of general
         applicability. On the Closing


                                     - 12 -

         Date, the Notes will conform as to legal matters to the description
         thereof contained in the Offering Circular.

                  (h) The Notes are convertible into Common Shares in accordance
         with the terms of the Indenture; the Common Shares initially issuable
         upon conversion of the Notes have been duly authorized and reserved for
         issuance upon such conversion and, when issued upon such conversion,
         will be validly issued, fully paid and non-assessable, will conform in
         all material respects to the description thereof contained in the
         Offering Circular and will be duly authorized for listing on the Nasdaq
         National Market, subject to notice of official issuance. Neither the
         Notes nor the Common Shares issuable upon conversion of the Notes will
         be issued in violation of any preemptive rights, co-sale rights, rights
         of first refusal or other similar rights to subscribe for or to
         purchase or acquire any securities of the Company, or any restriction
         upon the voting or transfer of any securities of the Company, pursuant
         to the Company's charter or by-laws or any agreement or other
         instrument to or by which the Company or any of its Subsidiaries is a
         party or is bound. Except as disclosed in the Offering Circular, there
         is no outstanding option, warrant or other right calling for the
         issuance of, and there is no commitment, plan or arrangement to issue,
         any shares of capital stock of the Company or any of its Subsidiaries
         or any security convertible into, or exercisable or exchangeable for,
         any such capital stock. The certificates evidencing the Common Shares
         issuable upon conversion of the Notes will be in due and proper legal
         form.

                  (i) Neither the Company nor any of its Subsidiaries is (i) in
         violation of its respective charter or by-laws, (ii) in default in the
         performance of any material obligation, agreement, covenant or
         condition contained in any indenture, loan agreement, mortgage, lease
         or other agreement or instrument that is material to the Company and
         its Subsidiaries, taken as a whole, to which the Company or any of its
         Subsidiaries is a party or by which the Company or any of its
         Subsidiaries or their respective property is bound or (iii) in
         violation of any franchise, license, permit, judgment, decree, order,
         statute, rule or regulation, where the consequences of such violation
         would have a Material Adverse Effect.

                  (j) The execution, delivery and performance of this Agreement
         and the other Operative Documents by the Company, compliance by the
         Company with all provisions hereof and thereof and the consummation of
         the transactions contemplated hereby and thereby will not (i) require
         any consent, approval, authorization or other order of, or
         qualification with, any court or governmental body or agency, including
         the Euronext Amsterdam ("EURONEXT AMSTERDAM") (except such as may be
         required under the securities or Blue Sky laws of the various states),
         (ii) conflict with or constitute a breach of any of the terms or
         provisions of, or a default under, the charter or by-laws of the
         Company or any of


                                     - 13 -

         its Subsidiaries or any indenture, loan agreement, mortgage, lease or
         other agreement or instrument that is material to the Company and its
         Subsidiaries, taken as a whole, to which the Company or any of its
         Subsidiaries is a party or by which the Company or any of its
         Subsidiaries or their respective property is bound, (iii) violate or
         conflict with any applicable law or any rule, regulation, judgment,
         order or decree of any court or any governmental body or agency having
         jurisdiction over the Company, any of its Subsidiaries or their
         respective property, including any rule or regulation of the NASD,
         Nasdaq or Euronext Amsterdam, (iv) result in the imposition or creation
         of (or the obligation to create or impose) a Lien under, any 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 or their
         respective property is bound, or (v) result in the termination,
         suspension or revocation of any Authorization (as defined below) of the
         Company or any of its Subsidiaries or result in any other impairment of
         the rights of the holder of any such Authorization.

                  (k) There are no legal or governmental proceedings (including
         proceedings by or before Euronext Amsterdam or any other administrative
         authority) pending or known by the Company to be threatened to which
         the Company or any of its Subsidiaries is or could reasonably be
         expected to be a party or to which any of their respective property is
         or could reasonably be subject that could reasonably be expected to
         result, singly or in the aggregate, in a Material Adverse Effect or
         adversely affect the consummation of the transactions contemplated by
         this Agreement.

                  (l) Each of the Company and its Subsidiaries is in compliance
         in all material respects with all material foreign, federal, state and
         local rules, laws and regulations relating to the use, treatment,
         storage and disposal of hazardous or toxic substances or wastes,
         pollutants or contaminants and protection of health or the environment
         ("ENVIRONMENTAL LAW") which are applicable to its business; (ii)
         neither the Company nor any of its Subsidiaries has received any
         written notice from any governmental authority or third party of an
         asserted claim under Environmental Laws; (iii) each of the Company and
         its Subsidiaries has received all material permits, licenses and other
         approvals required of it under applicable Environmental Laws to conduct
         its business and is in compliance with all material terms and
         conditions of any such permit, license or approval; (iv) to the
         Company's knowledge, no facts currently exist that will require the
         Company or its Subsidiaries to make future material capital
         expenditures to comply with Environmental Laws; and (v) no property
         which is or has been owned, leased or occupied by the Company or its
         Subsidiaries has been designated as a Superfund site pursuant to the
         Comprehensive Environmental Response, Compensation of Liability Act of
         1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA 180") or
         otherwise designated as a contaminated site under applicable state or


                                     - 14 -

         local law. Neither the Company nor any of its Subsidiaries has been
         named as a "potentially responsible party" under CERCLA 1980. In the
         ordinary course of its business, the Company periodically reviews the
         effect of Environmental Laws on the business, operations and properties
         of the Company and its Subsidiaries, in the course of which the Company
         identifies and evaluates associated costs and liabilities (including,
         without limitation, any capital or operating expenditures required for
         clean-up, closure of properties or compliance with Environmental Laws,
         or any permit, license or approval, 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, singly or in the
         aggregate, have a Material Adverse Effect.

                  (m) Neither the Company nor any of its Subsidiaries has
         violated any provisions of the Foreign Corrupt Practices Act or the
         rules and regulations promulgated thereunder, except for such
         violations which, singly or in the aggregate, would not have a Material
         Adverse Effect. None of the Company, its Subsidiaries or any director,
         officer or employee of the Company or its Subsidiaries has, in the
         course of such person's actions for, or on behalf of, the Company or
         its Subsidiaries, used any corporate funds for any unlawful
         contribution, gift, entertainment or other unlawful expense relating to
         political activity or made any direct or indirect unlawful payment to
         any foreign or domestic government official or employee from corporate
         funds; and none of the Company, its Subsidiaries, or to the Company's
         knowledge, any director, officer, employee, agent or other person
         acting on behalf of the Company or its Subsidiaries, has, in the course
         of such person's actions for, or on behalf of, the Company or its
         Subsidiaries made any bribe, rebate, payoff, influence payment,
         kickback or other unlawful payment.

                  (n) Each of the Company and its Subsidiaries has such permits,
         licenses, consents, exemptions, franchises, authorizations and other
         approvals (each, an "AUTHORIZATION") of, and has made all filings with
         and given all notices to, all governmental or regulatory authorities
         and self-regulatory organizations and all courts and other tribunals,
         including without limitation under any applicable Environmental Laws,
         as are necessary to own, lease, license and operate its respective
         properties and to conduct its business, except where the failure to
         have any such Authorization or to make any such filing or notice would
         not, singly or in the aggregate, have a Material Adverse Effect. Each
         such Authorization is valid and in full force and effect and each of
         the Company and its Subsidiaries is in compliance with all the material
         terms and conditions thereof and with the rules and regulations of the
         authorities and governing bodies having jurisdiction with respect
         thereto; and no event has occurred (including without limitation the
         receipt of any notice from any authority or governing body) that allows
         or, after notice or lapse of time or both, would allow, revocation,
         suspension or termination of any


                                     - 15 -

         such Authorization or results or, after notice or lapse of time or
         both, would result in any other impairment of the rights of the holder
         of any such Authorization; except, in each case, where such failure to
         be valid and in full force and effect or to be in compliance, the
         occurrence of any such event or the presence of any such restriction
         would not, singly or in the aggregate, have a Material Adverse Effect.

                  (o) The Company and its Subsidiaries have good and marketable
         title in fee simple to all real property and good and marketable title
         to all personal property owned by them that is material to the business
         of the Company and its Subsidiaries, in each case free and clear of all
         Liens and defects, except such as are described in the Offering
         Circular or such as do not materially affect the value of such property
         and do not interfere with the use made and proposed to be made of such
         property by the Company and its Subsidiaries; and any real property and
         buildings held under lease by the Company and its Subsidiaries are held
         by them under valid, subsisting and enforceable leases with such
         exceptions as are not material and do not interfere with the use made
         and proposed to be made of such property and buildings by the Company
         and its Subsidiaries, in each case except as described in the Offering
         Circular.

                  (p) The Company and its Subsidiaries own or possess, or can
         acquire on reasonable terms, all patents, patent applications, patent
         rights, licenses, inventions, copyrights, copyright applications,
         know-how (including trade secrets and other unpatented and/or
         unpatentable proprietary or confidential information, systems or
         procedures), trademarks, service marks, logos and trade names
         ("INTELLECTUAL PROPERTY") necessary for or currently employed by them
         in connection with the business now operated by them except where the
         failure to own or possess or otherwise to be able to acquire such
         intellectual property would not, singly or in the aggregate, have a
         Material Adverse Effect; neither the Company nor any of its
         Subsidiaries has received any notice of infringement of or conflict
         with asserted rights of others with respect to any intellectual
         property that, singly or in the aggregate, if the subject of an
         unfavorable decision, ruling or finding, would have a Material Adverse
         Effect; and neither the Company nor any of its Subsidiaries has given
         notice of, or is aware of, any third parties that are infringing or are
         in conflict with any rights of the Company or any of its Subsidiaries
         in any intellectual property that, singly or in the aggregate, if the
         subject of an unfavorable decision, ruling or finding, would have a
         Material Adverse Effect; in each case except as described in the
         Offering Circular.

                  (q) Each agreement described in the Preliminary Offering
         Circular, the Offering Circular or the Incorporated Documents is in
         full force and effect and is valid and enforceable by the Company or a
         Subsidiary, as applicable, in accordance with its terms, assuming the
         due authorization, execution and delivery thereof by each of the other
         parties thereto except as (i) the enforceability


                                     - 16 -

         thereof may be limited by bankruptcy, insolvency or similar laws
         affecting creditors' rights generally and (ii) to the extent that
         rights to indemnity or contribution thereunder may be limited by
         federal and state securities laws or the public policy underlying such
         laws. None of the Company, any of its Subsidiaries, or to the Company's
         knowledge, any other party is in default in the observance or
         performance of any term or obligation to be performed by it under such
         agreement, and no event has occurred that with notice or lapse of time
         or both would constitute such a default, in any such case where such
         default or event would have a Material Adverse Effect. No default
         exists, and no event has occurred that with notice or lapse of time or
         both would constitute a default, in the due performance and observance
         of any term, covenant or condition, by the Company or any of its
         Subsidiaries of any other agreement or instrument to which the Company
         or any of its Subsidiaries is a party or by which any of them or their
         respective properties or business may be bound or affected where such
         default or event would have a Material Adverse Effect.

                  (r) Except as disclosed in the Offering Circular, no
         relationship, direct or indirect, exists between or among the Company
         or any of its Subsidiaries on the one hand, and the directors,
         officers, shareholders, customers or suppliers of the Company or any of
         its Subsidiaries on the other hand, that would be required by the Act
         to be described in the Offering Circular if the Offering Circular were
         a prospectus included in a registration statement on Form S-1 filed
         with the Commission.

                  (s) There is no (i) significant labor practice complaint,
         grievance or arbitration proceeding pending or threatened against the
         Company or any of its Subsidiaries before the National Labor Relations
         Board or any state or local labor relations board, (ii) strike, labor
         dispute, slowdown or stoppage pending or threatened against the Company
         or any of its Subsidiaries or (iii) union representation question
         existing with respect to the employees of the Company or any of its
         Subsidiaries, except in the case of clauses (i), (ii) and (iii) for
         such actions that singly or in the aggregate, would not have a Material
         Adverse Effect. To the Company's knowledge, no collective bargaining
         organizing activities are taking place with respect to the Company or
         any of its Subsidiaries.

                  (t) All material tax returns required to be filed by the
         Company and each of its Subsidiaries in any jurisdiction have been
         filed, other than those filings being contested in good faith, and all
         material taxes, including withholding taxes, penalties and interest,
         assessments, fees and other charges due pursuant to such returns or
         pursuant to any assessment received by the Company or any of its
         Subsidiaries have been paid, other than those being contested in good
         faith and for which adequate reserves have been provided. The Company
         has adequately reserved for all taxes that have accrued but are not yet
         due. There are no tax audits


                                     - 17 -

         or investigations pending, which if adversely determined would have a
         Material Adverse Effect, nor are there any material proposed additional
         tax assessments against the Company or any of its Subsidiaries. No
         agreements have been made, orders consented to or rulings concluded
         with any tax authority that could have a Material Adverse Effect.

                  (u) The accountants Deloitte & Touche Accountants that have
         certified the financial statements and supporting schedules included in
         the Preliminary Offering Circular and the Offering Circular are
         independent public accountants with respect to the Company, as required
         by the Act and the Exchange Act. The historical financial statements,
         together with related schedules and notes, set forth in the Preliminary
         Offering Circular and the Offering Circular comply as to form in all
         material respects with the requirements applicable to registration
         statements on Form F-3 under the Act.

                  (v) The historical financial statements, together with related
         schedules and notes forming part of the Preliminary Offering Circular
         and the Offering Circular (and any amendment or supplement thereto),
         present fairly the consolidated financial position, results of
         operations and changes in financial position of the Company and its
         Subsidiaries on the basis stated or incorporated by reference in the
         Offering Circular at the respective dates or for the respective periods
         to which they apply; such statements and related schedules and notes
         have been prepared in accordance with generally accepted accounting
         principles consistently applied throughout the periods involved, except
         as disclosed therein; and the other financial and statistical
         information and data set forth or incorporated by reference in the
         Preliminary Offering Circular and the Offering Circular (and any
         amendment or supplement thereto) are, in all material respects,
         accurately presented and prepared on a basis consistent with such
         financial statements and the books and records of the Company.

                  (w) The Company is not and, after giving effect to the
         offering and sale of the Notes and the application of the net proceeds
         thereof as described in the Offering Circular, will not be, an
         "investment company," as such term is defined in the Investment Company
         Act of 1940, as amended.

                  (x) Except pursuant to the Equity Line, there are no
         contracts, agreements or understandings between the Company and any
         person granting such person the right to require the Company to file a
         registration statement under the Act with respect to any securities of
         the Company.

                  (y) Neither the Company nor any of its Subsidiaries nor any
         agent thereof acting on the behalf of any of them has taken, and none
         of them will take, any action that might cause this Agreement or the
         issuance or sale of the Notes to violate Regulation G (12 C.F.R. Part
         207), Regulation T (12 C.F.R. Part


                                     - 18 -

         220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part
         224) of the Board of Governors of the Federal Reserve System.

                  (z) No "nationally recognized statistical rating organization"
         as such term is defined for the purpose of Rule 436(g)(1) under the Act
         (i) has imposed (or has informed the Company that it is considering
         imposing) any condition (financial or otherwise) on the Company's
         retaining any rating assigned to the Company, any securities of the
         Company or (ii) has indicated to the Company that it is considering (A)
         the downgrading, suspension, or withdrawal of, or any review for a
         possible change that does not indicate the direction of the possible
         change in, any rating so assigned or (B) any change in the outlook for
         any rating of the Company or any securities of the Company.

                  (aa) Since the respective dates as of which information is
         given in the Offering Circular, other than as set forth in the Offering
         Circular (exclusive of any amendments or supplements thereto subsequent
         to the date of this Agreement), (i) there has not occurred any material
         adverse change or any development involving a prospective material
         adverse change in the condition, financial or otherwise, or the
         earnings, business, management or operations of the Company and its
         Subsidiaries, taken as a whole, (ii) there has not been any material
         adverse change or any development involving a prospective material
         adverse change in the capital stock or in the long-term debt of the
         Company or any of its Subsidiaries, (iii) neither the Company nor any
         of its Subsidiaries has incurred any material liability or obligation,
         direct or contingent, that is material to the Company and its
         Subsidiaries, taken as a whole other than backlog orders received in
         the ordinary course of business, (iv) neither the Company nor any of
         its Subsidiaries has sustained any material loss or interference with
         their respective assets, businesses or properties (whether owned or
         leased) from fire, explosion, earthquake, flood or other calamity,
         whether or not covered by insurance, or from any labor dispute or any
         court or legislative or other governmental action, order or decree that
         would have a Material Adverse Effect; and (v) since the date of the
         latest consolidated balance sheet included in the Preliminary Offering
         Circular and the Offering Circular, except as reflected therein,
         neither the Company nor any of its Subsidiaries has (A) issued any
         securities other than the issuance of securities pursuant to the
         exercise of options granted under stock option plans or agreements
         existing prior to the date of the latest consolidated balance sheet
         included in the Preliminary Offering Circular and the Offering
         Circular, (B) entered into any material transaction not in the ordinary
         course of business or (C) declared or paid any dividend or made any
         distribution on any shares of its capital stock or redeemed, purchased
         or otherwise acquired or agreed to redeem, purchase or otherwise
         acquire any shares of its capital stock.


                                     - 19 -

                  (bb) The books, records and accounts of each of the Company
         and each of its Subsidiaries accurately and fairly reflect, in
         reasonable detail, the transactions in, and dispositions of, the assets
         of, and the results of operations of, the Company and its Subsidiaries,
         as applicable. Each of the Company and each of its Subsidiaries
         maintains a system of internal accounting controls sufficient to
         provide reasonable assurance that (i) transactions are executed in
         accordance with management's general or specific authorization, (ii)
         transactions are recorded as necessary to permit preparation of
         financial statements in accordance with generally accepted accounting
         principals and to maintain asset accountability, (iii) access to assets
         is permitted only in accordance with management's general or specific
         authorization and (iv) the recorded accountability for assets is
         compared with the existing assets at reasonable intervals and
         appropriate action is taken with respect to any differences.

                  (cc) Each of the Preliminary Offering Circular and the
         Offering Circular, as of their respective dates, contains all the
         information specified in, and meets the requirements of, Rule
         144A(d)(4) under the Act.

                  (dd) When the Notes are issued and delivered pursuant to this
         Agreement, the Notes will not be of the same class (within the meaning
         of Rule 144A under the Act) as any security of the Company that is
         listed on a national securities exchange registered under Section 6 of
         the Exchange Act or that is quoted in a United States automated
         inter-dealer quotation system.

                  (ee) No form of general solicitation or general advertising
         (as defined in Regulation D under the Act) was used by the Company, or
         any of its representatives (other than the Initial Purchaser, as to
         whom the Company makes no representation) in connection with the offer
         and sale of the Notes contemplated hereby, including without limitation
         articles, notices or other communications published in any newspaper,
         magazine, or similar medium or broadcast over television or radio, or
         any seminar or meeting whose attendees have been invited by any general
         solicitation or general advertising. No securities of the same class as
         the Notes have been issued and sold by the Company within the six-month
         period immediately prior to the date hereof.

                  (ff) The Company has not taken, nor will it take, directly or
         indirectly, any action designed to or that might reasonably be expected
         to cause or result in, or that has constituted or that might reasonably
         be expected to constitute, the stabilization or manipulation of the
         price of the Common Shares.

                  (gg) The Indenture is not required to be qualified under the
         TIA.

                  (hh) No registration under the Act of the Securities is
         required for the sale of the Securities to the Initial Purchaser as
         contemplated hereby or for the


                                     - 20 -

         Exempt Resales assuming the accuracy of the Initial Purchaser's
         representations and warranties and agreements set forth in Section 7
         hereof.

                  (ii) Each certificate signed by any officer of the Company and
         delivered to the Initial Purchaser or counsel for the Initial Purchaser
         shall be deemed to be a representation and warranty by the Company to
         the Initial Purchaser as to the matters covered thereby.

                  (jj) Neither the Company nor any of its Subsidiaries currently
         is, and the Company will use its best efforts so that none of them will
         become, a personal holding company within the meaning of Section 542 of
         the Internal Revenue Code of 1986, as amended (the "CODE"), for its
         current taxable year.

                  (kk) The Company is not and upon the consummation of the
         transactions described hereby and the application of the proceeds as
         described in the Offering Circular under the caption "Use of Proceeds"
         will not become a Passive Foreign Investment Company ("PFIC") within
         the meaning of Section 1297 of the Code and will use its best efforts
         to continue to manage its business so as to avoid PFIC status. If the
         Company becomes a PFIC, it will comply with all the requirements of the
         Code so that its shareholders will be able to elect to treat the
         Company as a "qualified electing fund" within the meaning of section
         1295 of the Code.

         The Company acknowledges that the Initial Purchaser and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchaser will rely
upon the accuracy and truth of the foregoing representations and the Company
hereby consents to such reliance.

         7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Initial
Purchaser represents and warrants to, and agrees with, the Company:

                  (a) The Initial Purchaser is a qualified institutional buyer
         as defined in Rule 144A under the Act (a "QIB"), with such knowledge
         and experience in financial and business matters as is necessary in
         order to evaluate the merits and risks of an investment in the Notes.

                  (b) The Initial Purchaser (A) is not acquiring the Securities
         with a view to any distribution thereof or with any present intention
         of offering or selling any of the Securities in a transaction that
         would violate the Act or the securities laws of any state of the United
         States or any other applicable jurisdiction and (B) will be reoffering
         and reselling the Securities only to QIBs in reliance on the exemption
         from the registration requirements of the Act provided by Rule 144A.

                  (c) The Initial Purchaser agrees that no form of general
         solicitation or general advertising (within the meaning of Regulation D
         under the


                                     - 21 -

         Act) has been or will be used by the Initial Purchaser or any of its
         representatives in connection with the offer and sale of the Securities
         pursuant hereto, including without limitation articles, notices or
         other communications published in any newspaper, magazine or similar
         medium or broadcast over television or radio, or any seminar or meeting
         whose attendees have been invited by any general solicitation or
         general advertising.

                  (d) The Initial Purchaser agrees that, in connection with
         Exempt Resales, the Initial Purchaser will solicit offers to buy the
         Securities only from, and will offer to sell the Securities only to,
         Eligible Purchasers. The Initial Purchaser further agrees that it will
         offer to sell the Securities only to, and will solicit offers to buy
         the Securities only from, Eligible Purchasers that the Initial
         Purchaser reasonably believes are QIBs, that agree that (A) the
         Securities purchased by them may be offered, resold, pledged or
         otherwise transferred within the time period referred to under Rule
         144(k) (taking into account the provisions of Rule 144(d) under the
         Act, if applicable) under the Act, as in effect on the date of the
         transfer of such Securities, only (i) to a person whom the seller
         reasonably believes is a QIB acquiring for its own account or for the
         account of a QIB in a transaction meeting the requirements of Rule 144A
         under the Act, (ii) pursuant to an exemption from registration under
         the Act provided by Rule 144 thereunder (if available), (iii) to an
         institutional "accredited investor," as defined in Rule 501(a) (1),
         (2), (3) or (7) under the Act (an "ACCREDITED INSTITUTION") that prior
         to such transfer provides to the Trustee for the Notes a signed letter
         containing certain representations and agreement relating to the
         restriction on transfer of the Notes (the form of the letter to be
         obtained from the Trustee for the Notes), (iv) pursuant to an exemption
         from registration under the Act (if available) or (v) pursuant to an
         effective registration statement and, in each case, in accordance with
         the applicable securities laws of the United States or other
         jurisdictions and (B) such Eligible Purchasers will deliver to each
         person to whom such Securities or an interest therein is transferred a
         notice substantially to the effect of the foregoing.

                  (e) The Initial Purchaser acknowledges that, for purposes of
         the opinions to be delivered to the Initial Purchaser pursuant to
         Section 9 hereof, counsel to the Company and counsel to the Initial
         Purchaser will rely upon the accuracy and truth of the foregoing
         representations and the Initial Purchaser hereby consents to such
         reliance.

         8. INDEMNIFICATION.

                  (a) The Company agrees to indemnify and hold harmless the
         Initial Purchaser, its directors, its officers and each person, if any,
         who controls the Initial Purchaser (within the meaning of Section 15 of
         the Act or Section 20 of the Exchange Act), from and against any and
         all losses, claims, damages, liabilities and judgments (including
         without limitation any legal or other expenses incurred


                                     - 22 -

         in connection with investigating or defending any matter, including any
         action that could give rise to any such losses, claims, damages,
         liabilities or judgments) caused by any untrue statement or alleged
         untrue statement of a material fact contained in the Offering Circular
         (or any amendment or supplement thereto), the Preliminary Offering
         Circular or any Rule 144A Information provided by the Company to any
         holder or prospective purchaser of Securities pursuant to Section 5(h)
         or caused by any omission or alleged omission to state therein a
         material fact required to be stated therein or necessary to make the
         statements therein not misleading, except insofar as such losses,
         claims, damages, liabilities or judgments are caused by any such untrue
         statement or omission or alleged untrue statement or omission based
         upon information relating to the Initial Purchaser furnished in writing
         to the Company by the Initial Purchaser; provided, however, that the
         foregoing indemnity agreement with respect to any Preliminary Offering
         Circular shall not inure to the benefit of the Initial Purchaser if the
         Initial Purchaser failed to deliver an Offering Circular (as then
         amended or supplemented, provided by the Company to the Initial
         Purchaser in the requisite quantity and on a timely basis to permit
         proper delivery on or prior to the Closing Date) to the person
         asserting any losses, claims, damages and liabilities and judgments
         caused by any untrue statement or alleged untrue statement of a
         material fact contained in any Preliminary Offering Circular, or caused
         by any omission or alleged omission to state therein a material fact
         required to be stated therein or necessary to make the statements
         therein not misleading, if such material misstatement or omission or
         alleged material misstatement or omission was cured in the Offering
         Circular.

                  (b) The Initial Purchaser agrees to indemnify and hold
         harmless the Company and its directors and officers and each person, if
         any, who controls (within the meaning of Section 15 of the Act or
         Section 20 of the Exchange Act) the Company to the same extent as the
         foregoing indemnity from the Company to the Initial Purchaser but only
         with reference to information relating to the Initial Purchaser
         furnished in writing to the Company by the Initial Purchaser expressly
         for use in the Preliminary Offering Circular or the Offering Circular.

                  (c) In case any action shall be commenced involving any person
         in respect of which indemnity may be sought pursuant to Section 8(a) or
         8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly
         notify the person against whom such indemnity may be sought (the
         "INDEMNIFYING PARTY") in writing and the indemnifying party shall
         assume the defense of such action, including the employment of counsel
         reasonably satisfactory to the indemnified party and the payment of all
         fees and expenses of such counsel, as they are incurred (except that in
         the case of any action in respect of which indemnity may be sought
         pursuant to both Sections 8(a) and 8(b), the Initial Purchaser shall
         not be required to assume the defense of such action pursuant to this
         Section 8(c) but may employ separate counsel and participate in the
         defense thereof, but the fees and


                                     - 23 -

         expenses of such counsel, except as provided below, shall be at the
         expense of the Initial Purchaser). Any indemnified party shall have the
         right to employ separate counsel in any such action and participate in
         the defense thereof, but the fees and expenses of such counsel shall be
         at the expense of the indemnified party unless (i) the employment of
         such counsel shall have been specifically authorized in writing by the
         indemnifying party, (ii) the indemnifying party shall have failed to
         assume the defense of such action or employ counsel reasonably
         satisfactory to the indemnified party or (iii) the named parties to any
         such action (including any impleaded parties) include both the
         indemnified party and the indemnifying party, and the indemnified party
         shall have been advised by such counsel that there may be one or more
         legal defenses available to it that are different from or additional to
         those available to the indemnifying party (in which case the
         indemnifying party shall not have the right to assume the defense of
         such action on behalf of the indemnified party). In any such case, the
         indemnifying party shall not, in connection with any one action or
         separate but substantially similar or related actions in the same
         jurisdiction arising out of the same general allegations or
         circumstances, be liable for the fees and expenses of more than one
         separate firm of attorneys (in addition to any local counsel) for all
         indemnified parties, and all such fees and expenses shall be reimbursed
         as they are incurred. Such firm shall be designated in writing by the
         Initial Purchaser, in the case of the parties indemnified pursuant to
         Section 8(a), and by the Company, in the case of parties indemnified
         pursuant to Section 8(b). The indemnifying party shall indemnify and
         hold harmless the indemnified party from and against any and all
         losses, claims, damages, liabilities and judgments by reason of any
         settlement of any action (i) effected with its written consent or (ii)
         effected without its written consent if the settlement is entered into
         more than twenty business days after the indemnifying party shall have
         received a request from the indemnified party for reimbursement for the
         fees and expenses of counsel (in any case where such fees and expenses
         are at the expense of the indemnifying party) and, prior to the date of
         such settlement, the indemnifying party shall have failed to comply
         with such reimbursement request. No indemnifying party shall, without
         the prior written consent of the indemnified party, effect any
         settlement or compromise of, or consent to the entry of judgment with
         respect to, any pending or threatened action in respect of which the
         indemnified party is or could have been a party and indemnity or
         contribution may be or could have been sought hereunder by the
         indemnified party, unless such settlement, compromise or judgment (i)
         includes an unconditional release of the indemnified party from all
         liability on claims that are or could have been the subject matter of
         such action and (ii) does not include a statement as to or an admission
         of fault, culpability or a failure to act by or on behalf of the
         indemnified party.

                  (d) To the extent the indemnification provided for in this
         Section 8 is unavailable to an indemnified party or insufficient in
         respect of any losses,


                                     - 24 -

         claims, damages, liabilities or judgments referred to therein, then
         each indemnifying party, in lieu of indemnifying such indemnified
         party, shall contribute to the amount paid or payable by such
         indemnified party as a result of such losses, claims, damages,
         liabilities and judgments (i) in such proportion as is appropriate to
         reflect the relative benefits received by the Company, on the one hand,
         and the Initial Purchaser, on the other hand, from the offering of the
         Securities or (ii) if the allocation provided by clause (i) above is
         not permitted by applicable law, in such proportion as is appropriate
         to reflect not only the relative benefits referred to in clause (i)
         above but also the relative fault of the Company, on the one hand, and
         the Initial Purchaser, on the other hand, in connection with the
         statements or omissions that resulted in such losses, claims, damages,
         liabilities or judgments, as well as any other relevant equitable
         considerations. The relative benefits received by the Company, on the
         one hand, and the Initial Purchaser, on the other hand, shall be deemed
         to be in the same proportion as the total net proceeds from the
         offering of the Securities (after the Initial Purchaser's discounts or
         commissions, but before deducting expenses) received by the Company,
         and the total discounts and commissions received by the Initial
         Purchaser bear to the total price to investors of the Securities, in
         each case as set forth on the cover page of the Offering Circular. The
         relative fault of the Company, on the one hand, and the Initial
         Purchaser, on the other hand, shall be determined by reference to,
         among other things, whether the untrue or alleged untrue statement of a
         material fact or the omission or alleged omission to state a material
         fact relates to information supplied by the Company, on the one hand,
         or the Initial Purchaser, on the other hand, and the parties' relative
         intent, knowledge, access to information and opportunity to correct or
         prevent such statement or omission.

         The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total discounts and commissions received by the Initial Purchaser
exceeds the amount of any damages that the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be


                                     - 25 -

entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.

                  (e) The remedies provided for in this Section 8 are not
         exclusive and shall not limit any rights or remedies that may otherwise
         be available to any indemnified party at law or in equity.

         9. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS. The obligations
of the Initial Purchaser to purchase the Firm Notes under this Agreement on the
Closing Date and the Additional Notes, if any, on any Option Closing Date are
subject to the satisfaction of each of the following conditions.

                  (a) All the representations and warranties of the Company
         contained in this Agreement shall be true and correct in all material
         respects (except that any representation or warranty already qualified
         as to materiality shall be true and correct in all respects) on the
         Closing Date, or on each Option Closing Date, if any, with the same
         force and effect as if made on and as of the Closing Date or on each
         Option Closing Date, if any.

                  (b) On or after the date hereof, (i) there shall not have
         occurred any downgrading, suspension or withdrawal of, nor shall any
         notice have been given of any potential or intended downgrading,
         suspension or withdrawal of, or of any review (or of any potential or
         intended review) for a possible change that does not indicate the
         direction of the possible change in, any rating of the Company or any
         securities of the Company (including without limitation the placing of
         any of the foregoing ratings on credit watch with negative or
         developing implications or under review with an uncertain direction) by
         any "nationally recognized statistical rating organization" as such
         term is defined for the purpose of Rule 436(g)(i) under the Act, (ii)
         there shall not have occurred any change, nor shall any notice have
         been given of any potential or intended change, in the outlook for any
         rating of the Company or any securities of the Company by any such
         rating organization and (iii) no such rating organization shall have
         given notice that it has assigned (or is considering assigning) a lower
         rating to the Notes than that on which the Notes were marketed.

                  (c) Since the respective dates as of which information is
         given in the Offering Circular, other than as set forth in the Offering
         Circular (exclusive of any amendments or supplements thereto after the
         date of this Agreement), (i) there shall not have occurred any change
         or any development involving a prospective change in the condition,
         financial or otherwise, or the earnings, business, management or
         operations of the Company and its Subsidiaries, taken as a whole, (ii)
         there shall not have been any change or any development involving a
         prospective change in the capital stock or in the long-term debt of the
         Company or any of its Subsidiaries, (iii) neither the Company nor any
         of its Subsidiaries shall


                                     - 26 -

         have incurred any liability or obligation, direct or contingent, and
         (iv) neither the Company nor any of its Subsidiaries shall have
         sustained any loss or interference with their respective assets,
         businesses or properties (whether owned or leased) from fire,
         explosion, earthquake, flood or other calamity, whether or not covered
         by insurance, or from any labor dispute or any court or legislative or
         other governmental action, order or decree that, in case of any event
         described in the foregoing clause (i), (ii), (iii) or (iv), would have
         a Material Adverse Effect the effect of which, in your judgment, is
         material and adverse and, in your judgment, makes it impracticable to
         market the Securities on the terms and in the manner contemplated in
         the Offering Circular.

                  (d) You shall have received on the Closing Date a certificate,
         dated the Closing Date, and on an Option Closing Date, if any, dated
         such Option Closing Date, signed by the President and the Chief
         Financial Officer of the Company, confirming the matters set forth in
         Sections 6(aa), 9(a) and 9(b) and stating that the Company has complied
         with all the agreements and satisfied all of the conditions herein
         contained and required to be complied with or satisfied on or prior to
         the Closing Date or relevant Option Closing Date, as the case may be.

                  (e) You shall have received on the Closing Date and on each
         Option Closing Date, if any, an opinion (subject to customary
         qualifications, limitations and exceptions and satisfactory to you and
         your counsel), addressed to you and dated such Closing Date or such
         Option Closing Date, as the case may be, of Stibbe, counsel for the
         Company, to the effect that:

                           (i) The Company has been duly organized and is
                  validly existing as a public limited liability company under
                  the laws of the Kingdom of the Netherlands. To such counsel's
                  knowledge, other than the Subsidiaries listed on Schedule A to
                  this Agreement and NuTool, Inc., the Company does not control,
                  directly or indirectly, or hold greater than a 5% interest in,
                  any other corporation or other business organization.

                           (ii) The Company has all requisite corporate power
                  and authority to own, lease and license its assets and
                  properties and conduct its business as described in the
                  Offering Circular and to enter into, deliver and perform this
                  Agreement and to issue and sell the Securities.

                           (iii) The authorized capital stock of the Company
                  conforms in all material respects as to legal matters to the
                  description thereof contained in the Offering Circular.


                                     - 27 -

                           (iv) The Securities have been duly authorized by the
                  Company and when executed and authenticated in accordance with
                  the provisions of the Indenture and delivered to and paid for
                  by the Initial Purchaser in accordance with the terms of this
                  Agreement (and assuming the Securities and the Indenture were
                  governed by Netherlands law), will be valid and binding
                  obligations of the Company, enforceable against the Company in
                  accordance with their terms, and will be entitled to the
                  benefits of the Indenture.

                           (v) The Common Shares to be issued upon conversion of
                  the Notes have been duly authorized and reserved and, when
                  issued upon conversion of the Notes in accordance with the
                  terms of the Notes and the Indenture, will be validly issued,
                  fully paid and non-assessable. Neither the Notes nor the
                  Common Shares issuable upon conversion of the Notes will be
                  issued in violation of any preemptive rights, rights of first
                  refusal or other similar rights to subscribe for or to
                  purchase or acquire any securities of the Company, or any
                  restriction upon the voting or transfer of any securities of
                  the Company, pursuant to the Company's charter or by-laws or,
                  to such counsel's knowledge, any agreement or other instrument
                  to or by which the Company or any of its Subsidiaries is a
                  party or is bound.

                           (vi) All necessary corporate action has been duly and
                  validly taken by the Company to authorize the execution,
                  delivery and performance of this Agreement and the issuance
                  and sale of the Securities.

                           (vii) The execution, delivery and performance of this
                  Agreement and the other Operative Documents by the Company,
                  compliance by the Company with all provisions hereof and
                  thereof and the consummation of the transactions contemplated
                  hereby and thereby will not (i) require any consent, approval,
                  authorization or other order of, or qualification with, any
                  court or governmental body or agency of the Netherlands other
                  than the filing of the Offering Circular with the Securities
                  Board of the Netherlands (Stichting Toezicht Effectenverkeer),
                  (ii) conflict with or constitute a breach of any of the terms
                  or provisions of, or a default under, the Articles of
                  Association of the Company or, to such counsel's knowledge,
                  any indenture, loan agreement, mortgage, lease or other
                  agreement or instrument that is material to the Company and
                  its Subsidiaries, taken as a whole, to which to the Company or
                  its Subsidiaries is a party or by which the Company or its
                  Subsidiaries or their respective


                                     - 28 -

                  property is bound, (iii) violate or conflict with any
                  applicable law or any rule or regulation or, to such counsel's
                  knowledge, any judgment, order or decree of any court or any
                  governmental body or agency of the Netherlands, (iv) to such
                  counsel's knowledge, result in the imposition or creation of
                  (or the obligation to create or impose) a Lien under, any
                  agreement or instrument to which the Company or its
                  Subsidiaries is a party or by which the Company or its
                  Subsidiaries or their respective property is bound, or (v) to
                  such counsel's knowledge, result in the termination,
                  suspension or revocation of any Authorization of the Company
                  or its Subsidiaries or result in any other impairment of the
                  rights of the holder of any such Authorization.

                           (viii) The Company is not (i) in violation of its
                  Articles of Association, (ii) to such counsel's knowledge, in
                  default in the performance of any obligation, agreement,
                  covenant or condition contained in any indenture, loan
                  agreement, mortgage, lease or other agreement or instrument
                  that is material to the Company and its Subsidiaries, taken as
                  a whole, to which the Company or any of its Subsidiaries is a
                  party or by which the Company or any of its Subsidiaries or
                  their property is bound or (iii) to such counsel's knowledge,
                  in violation of any franchise, license, permit, judgment,
                  decree, order, statute, rule or regulation of any court or
                  governmental body or agency of the Netherlands, where the
                  consequences of such violation would have a Material Adverse
                  Effect.

                           (ix) To such counsel's knowledge, there is no
                  litigation or governmental or other proceeding or
                  investigation, before any Netherlands court or before or by
                  any Netherlands public body or board pending or threatened
                  against, or involving the assets, properties or businesses of,
                  the Company which would have a Material Adverse Effect.

                           (x) To such counsel's knowledge, the Company owns,
                  possesses or has obtained all governmental licenses, permits,
                  certificates, consents, orders, approvals and other
                  authorizations necessary to own or lease, as the case may be,
                  and to operate its properties and to conduct its business as
                  presently conducted, except where the failure to so own,
                  possess or obtain would not have a Material Adverse Effect;
                  and to such counsel's knowledge, neither the Company nor any
                  of its Netherlands Subsidiaries has received any notice of
                  proceedings relating to revocation or modification of


                                     - 29 -

                  any such licenses, permits, certificates, consents, orders
                  approvals or authorizations.

                           (xi) The Indenture has been duly authorized. When
                  executed and delivered by the Company (and assuming the
                  Indenture were governed by Netherlands law), the Indenture
                  will be the valid and binding agreement of, the Company,
                  enforceable against the Company in accordance with its terms.

                           (xii) The statements in the Offering Circular under
                  the captions "Description of Share Capital," "Risk Factors -
                  Risks Relating to Our Business - Our anti-takeover provisions
                  and our settlement agreement with Applied Materials may
                  prevent a beneficial change of control" (to the extent
                  relating to anti-takeover provisions), "Risk Factors - Risks
                  Relating to This Offering - You may have difficulty protecting
                  your rights as an investor and in enforcing civil liabilities
                  because we are a Netherlands limited liability company" and
                  "Enforceability of Civil Liabilities" insofar as such
                  statements constitute summaries of the legal matters,
                  documents or proceedings referred to therein, fairly summarize
                  the matters referred to therein in all material respects.

                           (xiii) Under exchange control regulations currently
                  in effect, there are no authorizations or consents required
                  from any governmental or regulatory body in the Netherlands to
                  provide nonresidents of the Netherlands the right to freely
                  repatriate to non-Netherlands currency all amounts received
                  with respect to the Securities that were purchased with
                  non-Netherlands currency, whether as payment of principal or
                  interest, as a dividend, as a liquidating distribution or as
                  proceeds from the sale of such Securities, subject to
                  applicable tax withholding.

                           (xiv) To the extent that Netherlands law is
                  applicable, the Company has, as provided in Section 12 of this
                  Agreement, duly and irrevocably appointed Corporation Service
                  Company as its agent to receive service of process in any
                  action against it in any federal or state court sitting in the
                  county of New York arising out of or in connection with the
                  offering contemplated by this Agreement.

                           (xv) Under the laws of the Netherlands, the
                  submission by the Company to the jurisdiction of any federal
                  or state court sitting in the county of New York and the
                  designation of the law of the State of New York to apply to
                  the Operating Documents is binding upon the Company.


                                     - 30 -

                           (xvi) There is no rule under Netherlands law that
                  would prevent the validity and enforceability of the lock-up
                  agreements executed by the persons listed in Section 5(m) of
                  this Agreement, assuming that each of such lock-up agreements
                  has been duly executed by the relevant person and duly and
                  validly delivered by such persons, and that each such lock-up
                  agreement shall then constitute the legal, valid and binding
                  obligation of each such person enforceable against each such
                  person in accordance with its terms, except as the
                  enforceability thereof may be limited by applicable
                  bankruptcy, insolvency, reorganization, moratorium or other
                  similar laws affecting the enforcement of creditors' rights
                  generally and by general equitable principles.

                                    In addition, such counsel shall state that
                  although it has not verified, and is not passing upon and does
                  not assume any responsibility for, the accuracy, completeness
                  or fairness of the statements contained in the Offering
                  Circular (other than with regard to the opinions set forth in
                  paragraph (xii) above), such counsel has participated in
                  conferences with officers and other representatives of the
                  Company, representatives of the independent public accountants
                  for the Company and representatives of the Initial Purchaser
                  and counsel for the Initial Purchaser, at which the contents
                  of the Offering Circular and related matters were discussed
                  and, although such counsel is not passing upon, and does not
                  assume any responsibility for, the accuracy, completeness or
                  fairness of the statements contained in the Offering Circular
                  (other than with regard to the opinions set forth in paragraph
                  (xii) above), and have not made any independent check or
                  verification thereof, during the course of such participation,
                  no facts have come to such counsel's attention that would
                  cause such counsel to believe that the Offering Circular, as
                  of its date or as of the Closing Date (or relevant Option
                  Closing Date, as the case may be), contained or contains an
                  untrue statement of a material fact or omitted or omits to
                  state any material fact necessary to make the statements
                  therein, in light of the circumstances under which they were
                  made, not misleading (it being understood that such counsel
                  need not comment with respect to the financial statements,
                  schedules and other financial and statistical data included or
                  incorporated by reference in the Offering Circular).

                  (f) You shall have received on the Closing Date and on each
         Option Closing Date, if any, an opinion (subject to customary
         qualifications, limitations and exceptions and satisfactory to you and
         your counsel), addressed to you and dated such Closing Date or such
         Option Closing Date, as the case may be,



                                     - 31 -

         of Quarles & Brady Streich Lang LLP, United States counsel for the
         Company, to the effect that:


                           (i) Assuming that the law of the State of Arizona
                  were to govern, the Securities, when executed and
                  authenticated in accordance with the provisions of the
                  Indenture and delivered to and paid for by the Initial
                  Purchaser in accordance with the terms of this Agreement, will
                  be valid and binding obligations of the Company, enforceable
                  against the Company in accordance with their terms, and will
                  be entitled to the benefits of the Indenture.

                           (ii) The execution, delivery and performance of this
                  Agreement and the other Operative Documents by the Company,
                  compliance by the Company with all provisions hereof and
                  thereof and the consummation of the transactions contemplated
                  hereby and thereby will not (i) require any consent, approval,
                  authorization or other order of, or qualification with, any
                  court or governmental body or agency of the United States,
                  (ii) to such counsel's knowledge, conflict with or constitute
                  a breach of any of the terms or provisions of, or a default
                  under, any indenture, loan agreement, mortgage, lease or other
                  agreement or instrument that has been deemed a material
                  contract under the standard of Section 4 to the instructions
                  as to the exhibits for Form 20-F promulgated by the Commission
                  and has accordingly been filed with the Commission, (iii)
                  violate any applicable law or any rule or regulation or, to
                  such counsel's knowledge, any judgment, order or decree of any
                  court or any governmental body or agency of the United States,
                  (iv) to such counsel's knowledge, result in the imposition or
                  creation of (or the obligation to create or impose) a Lien
                  under, any agreement or instrument to which the Company or its
                  Subsidiaries is a party or by which the Company or its
                  Subsidiaries or their respective property is bound, or (v) to
                  such counsel's knowledge, result in the termination,
                  suspension or revocation of any Authorization of the Company
                  or its Subsidiaries or result in any other material impairment
                  of the rights of the holder of any such Authorization.

                           (iii) To such counsel's knowledge except as disclosed
                  in the Offering Circular, there is no litigation or
                  governmental or other proceeding or investigation, before any
                  court or before or by any public body or board pending or
                  threatened against, or involving the assets, properties or
                  businesses of, the Company which would have a Material Adverse
                  Effect.


                                     - 32 -

                           (iv) Assuming that the law of the State of Arizona
                  were to govern, when executed and delivered by the Company,
                  the Indenture will be the valid and binding agreement of the
                  Company, enforceable against the Company in accordance with
                  its terms.

                           (v) The Company is not an "investment company" as
                  such term is defined in the Investment Company Act of 1940, as
                  amended.

                           (vi) The statements in the Offering Circular under
                  the captions "Description of the Notes," the first, third,
                  fourth, seventh, eighth and tenth paragraphs under "Plan of
                  Distribution," "Taxation - Summary of United States Federal
                  Income Tax Considerations," "Risk Factors - Risks Relating to
                  Our Business - Claims or litigation regarding intellectual
                  property rights could seriously harm our business or require
                  us to incur significant costs" and "Risk Factors - Risks
                  Relating to Our Business - Our anti-takeover provisions and
                  our settlement agreement with Applied Materials may prevent a
                  beneficial change of control" (to the extent relating to
                  Applied Materials, Inc.), insofar as such statements
                  constitute summaries of the legal matters, documents or
                  proceedings referred to therein, fairly summarize the matters
                  referred to therein in all material respects.

                           (vii) Assuming (i) the Initial Purchaser is a
                  "qualified institutional buyer" within the meaning of Rule
                  144A of the Act and (ii) the accuracy of the representations
                  and warranties and compliance with the agreements of the
                  Company in Section 6(ee) of this Agreement and of the Initial
                  Purchaser in Section 7 of this Agreement, it is not necessary
                  in connection with the offer, sale and delivery of the
                  Securities to the Initial Purchaser under this Agreement or in
                  connection with the initial resale of the Securities by the
                  Initial Purchaser in accordance with Section 7 of the Purchase
                  Agreement and the Offering Circular to register the Securities
                  under the Act, or to qualify the Indenture under the Trust
                  Indenture Act, it being understood that no opinion need be
                  expressed as to any subsequent resale of any of the Notes or
                  the Common Shares issuable upon conversion of any of the
                  Notes.

                           (viii) Each of the lock-up agreements executed by the
                  persons listed in Section 5(m) of this Agreement, to the
                  extent such matters are governed by the law of the State of
                  Arizona, has been duly and validly delivered by each such
                  person and constitutes the legal, valid and binding obligation
                  of each such person enforceable


                                     - 33 -

                  against each such person in accordance with its terms, except
                  as the enforceability thereof may be limited by bankruptcy,
                  insolvency, reorganization, moratorium or other similar laws
                  affecting the enforcement of creditors' rights generally and
                  by general equitable principles, whether applied by a court of
                  law or equity.

                           In addition, such counsel shall state that although
                  it has not verified, and is not passing upon and does not
                  assume any responsibility for, the accuracy, completeness or
                  fairness of the statements contained in the Offering Circular
                  (other than with regard to the opinions set forth in paragraph
                  (vi) above), such counsel has participated in conferences with
                  officers and other representatives of the Company,
                  representatives of the independent public accountants for the
                  Company and representatives of the Initial Purchaser and
                  counsel for the Initial Purchaser, at which the contents of
                  the Offering Circular and related matters were discussed and,
                  although such counsel is not passing upon, and does not assume
                  any responsibility for, the accuracy, completeness or fairness
                  of the statements contained in the Offering Circular (other
                  than with regard to the opinions set forth in paragraph (vi)
                  above), and have not made any independent check or
                  verification thereof, during the course of such participation,
                  no facts have come to such counsel's attention that have
                  caused such counsel to believe that the Offering Circular, as
                  of its date or as of the Closing Date (or relevant Option
                  Closing Date, as the case may be), contained or contains an
                  untrue statement of a material fact or omitted or omits to
                  state any material fact necessary to make the statements
                  therein, in light of the circumstances under which they were
                  made, not misleading (it being understood that such counsel
                  need not comment with respect to the financial statements,
                  schedules and other financial and statistical data included or
                  incorporated by reference in the Offering Circular).

                  (g) You shall have received on the Closing Date and on each
         Option Closing Date, if any, an opinion (subject to customary
         qualifications, limitations and exceptions and satisfactory to you and
         your counsel), addressed to you and dated such Closing Date or such
         Option Closing Date, as the case may be, of Baker & McKenzie,
         Netherlands tax counsel for the Company, to the effect that:


                           (i) The statements in the Offering Circular under the
                  caption "Taxation," insofar as such statements constitute a
                  summary of the Netherlands tax laws referred to therein, are
                  accurate


                                     - 34 -

                  and fairly summarize the matters referred to therein in all
                  material respects.

                           (ii) No capital duty, stamp duty, or other issuance
                  or transfer taxes or duties, other than Netherlands capital
                  duty payable by the Company, are payable in connection with or
                  as a result of (i) the sale and delivery of the Securities
                  being sold pursuant to this Agreement or (ii) the execution,
                  delivery or performance of this Agreement.

                           (iii) Neither the holders of the Securities to be
                  issued in the offering contemplated by this Agreement nor the
                  Initial Purchaser will be deemed resident, domiciled, carrying
                  on business or subject to taxation (other than withholding
                  tax) in the Netherlands solely by reason of the holding of the
                  Securities, the execution, delivery or performance of this
                  Agreement or the direct or indirect receipt of any dividends
                  or distributions on capital stock from the Company, provided
                  that neither the holders of the Securities nor the Initial
                  Purchaser have a substantial interest or deemed substantial
                  interest in the Company (as the concept of "substantial
                  interest" is described in the Offering Circular under the
                  caption "Taxation").

                  (h) You shall have received on the Closing Date and on each
         Option Closing Date, if any, an opinion (subject to customary
         qualifications, limitations and exceptions and satisfactory to you and
         your counsel), each addressed to you and dated such Closing Date or
         such Option Closing Date, as the case may be, of each counsel listed in
         paragraphs A to F below, with respect to each Subsidiary or
         Subsidiaries set forth next to such counsel's name, substantially to
         the effect that:


                           (i) Such Subsidiary is validly existing, and, to the
                  extent such concept exists in such Subsidiary's jurisdiction,
                  is in good standing, under the laws of its jurisdiction. To
                  such counsel's knowledge, other than the Subsidiaries listed
                  on Schedule A to this Agreement, such Subsidiary does not
                  control, directly or indirectly, or hold greater than a 5%
                  interest in, any other corporation or other business
                  organization.

                           (ii) Such Subsidiary has all requisite corporate
                  power and authority to own, lease and license its assets and
                  properties and conduct its business as described in the
                  Offering Circular.


                                     - 35 -

                           (iii) Such Subsidiary is duly qualified and is in
                  good standing as a foreign corporation authorized to do
                  business in the jurisdictions listed in such opinion.

                           (iv) All of the outstanding shares of capital stock
                  of such Subsidiary have been duly authorized and validly
                  issued and are fully paid and non-assessable, and to our
                  knowledge based on review of corporate stock registries are
                  owned by the Company, directly or indirectly, free and clear
                  of any security interest, claim, lien, encumbrance or adverse
                  interest of any nature.

                           (v) The execution, delivery and performance of this
                  Agreement and the other Operative Documents by the Company,
                  compliance by the Company with all provisions hereof and
                  thereof and the consummation of the transactions contemplated
                  hereby and thereby will not (i) require any consent, approval,
                  authorization or other order of, or qualification with, any
                  court or governmental body or agency of such Subsidiary's
                  jurisdiction, (ii) conflict with or constitute a breach of any
                  of the terms or provisions of, or a default under, the charter
                  or by-laws of such Subsidiary or, to such counsel's knowledge,
                  any indenture, loan agreement, mortgage, lease or other
                  agreement or instrument that has been deemed a material
                  contract of the Company under the standard of Section 4 to the
                  instructions as to the exhibits for Form 20-F promulgated by
                  the Commission and accordingly has been filed with the
                  Commission, (iii) violate or conflict with any applicable law
                  or any rule or regulation or, to such counsel's knowledge, any
                  judgment, order or decree of any court or any governmental
                  body or agency of such Subsidiary's jurisdiction, (iv) to such
                  counsel's knowledge, result in the imposition or creation of
                  (or the obligation to create or impose) a Lien under, any
                  agreement or instrument to which such Subsidiary is a party or
                  by which such Subsidiary or its respective property is bound,
                  or (v) to such counsel's knowledge, result in the termination,
                  suspension or revocation of any Authorization of such
                  Subsidiary or result in any other material impairment of the
                  rights of the holder of any such Authorization.

                           (vi) To such counsel's knowledge, there is no
                  litigation or governmental or other proceeding or
                  investigation, before any court in the jurisdiction of such
                  Subsidiary or before or by any public body or board in the
                  jurisdiction of such Subsidiary pending or threatened against,
                  or involving the assets, properties or


                                     - 36 -

                  businesses of, the Company or such Subsidiary which would have
                  a Material Adverse Effect.

                           (vii) To such counsel's knowledge, such Subsidiary
                  owns, possesses or has obtained all governmental licenses,
                  permits, certificates, consents, orders, approvals and other
                  authorizations necessary to own or lease, as the case may be,
                  and to operate its properties and to conduct its business as
                  presently conducted, except where the failure to so own,
                  possess or obtain would not have a Material Adverse Effect;
                  and to such counsel's knowledge, neither the Company nor such
                  Subsidiary has received any notice of proceedings relating to
                  revocation or modification of any such licenses, permits,
                  certificates, consents, orders approvals or authorizations.

                           (viii) There are no exchange control regulations of
                  such Subsidiary's jurisdiction that would limit the ability of
                  a shareholder to convert dividend payments made by such
                  Subsidiary into other currencies which are freely transferable
                  out of such Subsidiary's jurisdiction.

                           (ix) There is no tax, duty, levy, impost, deduction,
                  charge or withholding imposed or, to our knowledge, pending or
                  proposed, by such Subsidiary's jurisdiction or any political
                  subdivision thereof or taxing authority therein or any
                  federation or organization or similar entity of which it is a
                  member either on or by virtue of any payment of dividends or
                  distributions on capital stock by such Subsidiary; and neither
                  the holders of the Securities nor the Initial Purchaser will
                  be deemed resident, domiciled, carrying on business or subject
                  to taxation in such Subsidiary's jurisdiction solely by reason
                  of the holding of the Securities or the direct or indirect
                  receipt of any dividends or distributions on capital stock
                  from such Subsidiary.

                           (A) Stibbe, counsel for the Company with respect to
                  ASM Europe B.V. (such counsel may include such opinion with
                  the opinion rendered by such counsel pursuant to Section 9(e)
                  hereof).

                           (B) Quarles & Brady Streich Lang LLP, counsel for the
                  Company with respect to ASM America, Inc. (such counsel may
                  include such opinion with the opinion rendered by such counsel
                  pursuant to Section 9(f) hereof).


                                     - 37 -

                           (C) Jennifer Cheung & Co., local counsel for the
                  Company in Hong Kong, with respect to ASM Pacific Technology
                  Limited, ASM Assembly Automation Limited, ASM Assembly
                  Materials Limited and ASM Pacific Investment Limited.

                           (D) Sumio Takeuchi Law Offices, local counsel for the
                  Company in Japan, with respect to ASM Japan, K.K.

                           (E) Conyers, Dill & Pearman, local counsel for the
                  Company in the Cayman Islands, with respect to ASM Pacific
                  Technology Limited and ASM Pacific International Marketing
                  Limited.

                           (F) Smeets Thesseling van Bokhorst, local counsel for
                  the Company in the Netherlands Antilles, with respect to
                  Advanced Semiconductor Materials (Netherlands Antilles) N.V.

                  (i) The Initial Purchaser shall have received on the Closing
         Date and on each Option Closing Date, an opinion, dated the Closing
         Date, of Gibson, Dunn & Crutcher LLP, counsel for the Initial
         Purchaser, in form and substance reasonably satisfactory to the Initial
         Purchaser.

                  (j) The Initial Purchaser shall have received, at the time
         this Agreement is executed and at the Closing Date and each Option
         Closing Date, if any, letters dated the date hereof or the Closing Date
         or an Option Closing Date, as the case may be, from Deloitte & Touche
         Accountants, independent public accountants, in form and substance
         satisfactory to the Initial Purchaser containing the information and
         statements of the type ordinarily included in accountants' "comfort
         letters" with respect to the financial statements and certain financial
         information contained and incorporated by reference in the Offering
         Circular.

                  (k) The Notes shall have been approved by the National
         Association of Securities Dealers, Inc. for trading and duly listed in
         PORTAL.

                  (l) The Initial Purchaser shall have received a counterpart,
         conformed as executed, of the Indenture which shall have been entered
         into by the Company and the Trustee.

                  (m) The Company shall not have failed at or prior to the
         Closing Date or each Option Closing Date, if any, as the case may be,
         to perform or comply with all of the agreements contained herein and
         required to be performed or complied with by the Company at or prior to
         the Closing Date or Option Closing Date, as the case may be.


                                     - 38 -

                  (n) The Representatives shall have received lock-up agreements
         executed by each person identified in Section 5(m).

                  (o) The Initial Purchaser shall have received on the Closing
         Date and on each Option Closing Date a certificate of the transfer
         agent of ASM Pacific Technology Ltd. ("ASMPT"), dated as of a date that
         is within three business days prior to such Closing Date or Option
         Closing Date, setting forth the total number of outstanding shares of
         capital stock of ASMPT and the number of such shares that are owned of
         record by ASM Netherlands Antilles N.V., and based on the information
         set forth in such certificate, ASM Netherlands Antilles N.V. shall own
         a majority of the outstanding shares of capital stock of ASMPT;
         provided, however, that if such a certificate is not available, the
         Initial Purchaser shall have received instead on each Closing Date and
         on each Option Closing Date a certificate, addressed to the Initial
         Purchaser and dated such Closing Date or Option Closing Date, of the
         chief executive officer or the chief financial officer of the Company
         stating that ASM International N.V. directly and through ASM
         Netherlands Antilles N.V. owns a majority of the outstanding shares of
         capital stock of ASMPT.

                  (p) The management board of the Company shall have adopted a
         resolution appointing an agent for service of process in New York as
         contemplated by Section 12 of this Agreement, and the Initial Purchaser
         shall have received on each Closing Date and on each Option Closing
         Date a certificate, addressed to the Initial Purchaser and dated such
         Closing Date or Option Closing Date, of the chief financial officer of
         the Company, certifying that such resolution has been duly adopted, has
         not been rescinded or modified and remains in full force and effect.

                  (q) The Company shall have furnished or caused to be furnished
         to the Initial Purchaser such further certificates or documents as the
         Initial Purchaser shall have reasonably requested.

         10. EFFECTIVENESS OF AGREEMENT AND TERMINATION.

                  (a) This Agreement may be terminated at any time on or prior
         to the Closing Date by the Initial Purchaser by written notice to the
         Company if any of the following has occurred: (i) any outbreak or
         escalation of hostilities, any act of terrorism, any declaration of war
         by the Congress of the United States or the Netherlands government, or
         any other national or international calamity or crisis or change in
         economic conditions or in the financial markets of the United States or
         the Netherlands or elsewhere that, in your judgment, is material and
         adverse and, in your judgment, makes it impracticable to market the
         Securities on the terms and in the manner contemplated in the Offering
         Circular, (ii) the suspension or material limitation of trading, or the
         material disruption in the settlement of such trading, in securities or
         other instruments on the New York Stock Exchange,


                                     - 39 -

         the American Stock Exchange, the Chicago Board of Options Exchange, the
         Chicago Mercantile Exchange, the Chicago Board of Trade, the Nasdaq
         National Market or Euronext Amsterdam or limitation on prices for
         securities or other instruments on any such exchange or the Nasdaq
         National Market, (iii) the suspension of trading of any securities of
         the Company on any exchange (including Euronext Amsterdam) or in the
         over-the-counter market, (iv) the enactment, publication, decree or
         other promulgation of any federal, state or Netherlands statute,
         regulation, rule or order of any court or other governmental authority
         that in your judgment has had a Material Adverse Effect, (v) the
         declaration of a banking moratorium by either federal, New York state
         or Netherlands authorities or (vi) the taking of any action by any
         federal, state, local or Netherlands government or agency in respect of
         its monetary or fiscal affairs that in your judgment has a material
         adverse effect on the financial markets in the United States or the
         Netherlands.

                  (b) If on the Closing Date, or an Option Closing Date, if any,
         as the case may be, the Initial Purchaser shall fail or refuse to
         purchase the Notes and arrangements satisfactory to the Initial
         Purchaser and the Company for the purchase of such Notes are not made
         within 48 hours after such default, this Agreement will terminate
         without liability on the part the Company. In any such case that does
         not result in termination of this Agreement, either you or the Company
         shall have the right to postpone the Closing Date, or such Option
         Closing Date, as the case may be, but in no event for longer than seven
         days, in order that the required changes, if any, in the Offering
         Circular or any other documents or arrangements may be effected. Any
         action taken under this paragraph shall not relieve the Initial
         Purchaser from liability in respect of any default of the Initial
         Purchaser under this Agreement.

         11. MISCELLANEOUS.

                  (a) Notices given pursuant to any provision of this Agreement
         shall be addressed as follows: (i) if to the Company to ASM
         International N.V., Jan van Eycklaan 10, 3723 BC Bilthoven, The
         Netherlands, Attention: Robert de Bakker, with copies to Stibbe,
         Strawinskylaan 2001, 1077 ZZ Amsterdam, the Netherlands, Attention:
         Maurits van den Wall Bake and to Quarles & Brady Streich Lang LLP, One
         Renaissance Square, 2 North Central, Phoenix, Arizona 85004, Attention:
         P. Robert Moya; and (ii) if to the Initial Purchaser, c/o CIBC World
         Markets Corp., 2420 Sand Hill Road, Suite 300, Menlo Park, CA 94025,
         Attention: Charlie Bullock, with a copy to Barbara L. Becker, Gibson,
         Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166, in any case
         to such other address as the person to be notified may have requested
         in writing.

                  (b) The respective indemnities, contribution agreements,
         representations, warranties and other statements of the Company and the
         Initial


                                     - 40 -

         Purchaser set forth in or made pursuant to this Agreement shall remain
         operative and in full force and effect and will survive delivery of and
         payment for the Securities regardless of (i) any investigation, or
         statement as to the results thereof, made by or on behalf of the
         Initial Purchaser, the officers or directors of the Initial Purchaser,
         any person controlling the Initial Purchaser, the Company, the officers
         or directors of the Company, or any person controlling the Company,
         (ii) acceptance of the Securities and payment for them hereunder and
         (iii) termination of this Agreement.

                  (c) If for any reason the Notes are not delivered by or on
         behalf of the Company as required herein (other than as a result of any
         termination of this Agreement pursuant to Section 10), the Company
         agrees to reimburse the Initial Purchaser for all out-of-pocket
         expenses (including the fees and disbursements of counsel) incurred by
         it. Notwithstanding any termination of this Agreement, the Company
         shall be liable for all expenses which it has agreed to pay pursuant to
         Section 5(i). The Company also agrees to reimburse the Initial
         Purchaser and the officers, directors and each person, if any, who
         controls the Initial Purchaser within the meaning of Section 15 of the
         Act or Section 20 of the Exchange Act for any and all fees and expenses
         (including without limitation the fees and expenses of counsel)
         incurred by it in connection with enforcing their rights under this
         Agreement (including without limitation its rights under Section 8).

                  (d) Except as otherwise provided, this Agreement has been and
         is made solely for the benefit of and shall be binding upon the
         Company, the Initial Purchaser, the Initial Purchaser's directors and
         officers, any controlling persons referred to herein, the directors of
         the Company and their respective successors and assigns, all as and to
         the extent provided in this Agreement, and no other person shall
         acquire or have any right under or by virtue of this Agreement. The
         term "successors and assigns" shall not include a purchaser of any of
         the Securities from the Initial Purchaser merely because of such
         purchase.

                  (e) This Agreement shall be governed and construed in
         accordance with the laws of the State of New York, including without
         limitation, Section 5-1401 of the New York General Obligations Law.

                  (f) This Agreement may be signed in various counterparts,
         which together shall constitute one and the same instrument.

         12. AGENT FOR SERVICE, SUBMISSION TO JURISDICTION, WAIVER OF
             IMMUNITIES.

                  By the execution and delivery of this Agreement, the Company
         hereby designates and appoints Corporation Service Company, as the
         authorized agent of the Company, upon whom process may be served in


                                     - 41 -

         any suit, proceeding or other action against the Company instituted by
         the Initial Purchaser or by any person controlling the Initial
         Purchaser as to which the Initial Purchaser or any such controlling
         person is a party and based upon this Agreement, or in any other action
         against the Company in any federal or state court sitting in the County
         of New York, arising out of the offering made by the Offering Circular
         or any purchase or sale of securities in connection therewith. The
         Company expressly accepts jurisdiction of any such court in respect of
         any such suit, proceeding or other action and, without limiting other
         methods of obtaining jurisdiction, expressly submits to nonexclusive
         personal jurisdiction of any such court in respect of any such suit,
         proceeding or other action. Such designation and appointment shall be
         irrevocable, unless and until a successor authorized agent in the
         County and State of New York reasonably acceptable to the Initial
         Purchaser shall have been appointed by the Company, such successor
         shall have accepted such appointment and written notice thereof shall
         have been given to the Initial Purchaser. The Company further agrees
         that service of process upon its authorized agent or successor (and
         written notice of said service to the Company mailed by certified mail
         or delivered, as provided in Section 11(a) hereto) shall be deemed in
         every respect personal service of process upon the Company in any such
         suit, proceeding or other action. In the event that service of any
         process or notice of motion or other application to any such court in
         connection with any such motion in connection with any such action or
         proceeding cannot be made in the manner described above, such service
         may be made in the manner set forth in conformance with the Hague
         Convention on the Service Abroad of Judicial and Extrajudicial
         Documents on Civil and Commercial Matters or any successor convention
         or treaty. The Company hereby irrevocably waives any objection that it
         may have or hereafter have to the laying of venue of any such action or
         proceeding arising out of or based on the Securities or this Agreement
         or otherwise relating to the offering, issuance and sale of the
         Securities in any federal or state court sitting in the County of New
         York and hereby further irrevocably waives any claim that any such
         action or proceeding in any such court has been brought in an
         inconvenient forum. The Company agrees that any final judgment after
         exhaustion of all appeals or the expiration of time to appeal in any
         such action or proceeding arising out of the sale of the Securities or
         this Agreement rendered by any such federal court or state court shall
         be conclusive, and subject to the limitations on enforcement set forth
         in the opinion referred to in Section 9(e) hereof, may be enforced in
         any other jurisdiction by suit on the judgment or in any other manner
         provided by law. Nothing contained in this Agreement shall affect or
         limit the right of the Initial Purchaser to serve any process or notice
         of motion or other application in any other manner permitted by law or
         limit or affect the right of the Initial Purchaser to bring


                                     - 42 -

         any action or proceeding against the Company or any of its property in
         the courts of any other jurisdiction. The Company further agrees to
         take any and all action, including the execution and filing of all such
         instruments and documents, as may be necessary to continue such
         designations and appointments or such substitute designations and
         appointments in full force and effect for a period of six years from
         the date hereof. The Company hereby agrees with the Initial Purchaser
         to the exclusive jurisdiction of the courts of the State of New York,
         or the federal courts sitting in the County of New York, in connection
         with any action brought by the Company.


                                     - 43 -

         Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchaser by signing in the space provided
below.



                                        Very truly yours,

                                        ASM INTERNATIONAL N.V.


                                        By:
                                           ------------------------------------
                                           Name:
                                           Title:

CIBC WORLD MARKETS CORP.


By:
   ------------------------------------
   Name:
   Title:


                                     - 44 -

                                   SCHEDULE A
                                  SUBSIDIARIES

ASM Netherlands Antilles N.V.

ASM Pacific Technology Ltd. (subsidiary of ASM Netherlands Antilles N.V.)

ASM Assembly Automation Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Assembly Materials Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Assembly Products B.V. (subsidiary of ASM Pacific Technology Ltd.)

ASM Assembly Technology Co, Ltd. (subsidiary of ASM Pacific Technology Ltd.)


ASM Pacific International Marketing Ltd. (subsidiary of ASM Pacific Technology
Ltd.)

ASM Pacific Investments Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Pacific KOR Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Assembly Equipment Bangkok Limited (subsidiary of ASM Pacific Technology
Ltd.)

ASM Technology Singapore Pte. Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Technology (M) Sdn. Bhd. (subsidiary of ASM Pacific Technology Ltd.)

Capital Equipment Distribution Ltd. (subsidiary of ASM Pacific Technology Ltd.)

Shenzhen ASM Micro Electronic Technology Co. Ltd. (subsidiary of ASM Pacific
Technology Ltd.)

ASM Precision Machinery Manufactory Ltd. (subsidiary of ASM Pacific Technology
Ltd.)

ASM Assembly Equipment (M) Sdn. Bhd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Assembly Equipment Trading (Shanghai Co. Ltd.) (subsidiary of ASM Pacific
Technology Ltd.)

ASM Pacific (Bermuda) Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM Asia Ltd. (subsidiary of ASM Pacific Technology Ltd.)

ASM America Inc.

ASM Pacific Assembly Products Inc. (subsidiary of ASM America Inc.)

ASM Japan K.K.

ASM Microchemistry Oy NanoPhotonics AG ASM Europe B.V.

ASM France SARL (subsidiary of ASM Europe B.V.)

ASM Belgium N.V. (subsidiary of ASM Europe B.V.)

ASM United Kingdom Sales B.V. (subsidiary of ASM Europe B.V.)

ASM Germany Sales B.V. (subsidiary of ASM Europe B.V.)

ASM Italia SRL (subsidiary of ASM Europe B.V.)

ASM China Ltd.

ASM Wafer Process Equipment Ltd.

ASM Far East Marketing Ltd. (subsidiary of ASM Wafer Process Equipment Ltd.)

ASM Korea Ltd.

ASM Wafer Processing Equipment Singapore Pte. Ltd.

EX-4.17

                                                                    EXHIBIT 4.17









                             ASM INTERNATIONAL N.V.,
                                    AS ISSUER


                                 CITIBANK, N.A.,
                         A NATIONAL BANKING ASSOCIATION,
                                   AS TRUSTEE







                                    INDENTURE


                          DATED AS OF NOVEMBER 19, 2001








             5% CONVERTIBLE SUBORDINATED NOTES DUE NOVEMBER 15, 2005

         INDENTURE, dated as of November 19, 2001, between ASM International
N.V., a public limited liability company duly organized and existing under the
laws of the Kingdom of the Netherlands, having its principal office at Jan van
Eycklaan 10, 3723 BC Bilthoven, the Netherlands (herein called the "COMPANY"),
and Citibank, N.A., a national banking association, as Trustee hereunder (herein
called the "TRUSTEE").

                             RECITALS OF THE COMPANY

         The Company has duly authorized the creation of an issue of its 5%
Convertible Subordinated Notes due November 15, 2005 (herein called the
"SECURITIES"), of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.

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

         NOW, THEREFORE, THIS INDENTURE WITNESSETH:

         For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:

                                   ARTICLE ONE

                        DEFINITIONS AND OTHER PROVISIONS
                             OF GENERAL APPLICATION

SECTION 1.1       DEFINITIONS.

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

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

         (b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States; and

         (c) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.


                                      -1-

         "ACT," when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.


         "ADDITIONAL SECURITIES" means Securities initially issued subsequent to
the date of this Indenture.

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

         "AGGREGATE CURRENT MARKET PRICE" has the meaning specified in Section
10.4(e).

         "APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, to the extent
applicable to such transaction and as in effect from time to time.

         "AUTHENTICATING AGENT" means any Person authorized pursuant to Section
5.12 to act on behalf of the Trustee to authenticate Securities.

         "AVERAGE SALES PRICE PER SHARE" means, with respect to the Common Stock
of the Company, for any day, (1) the average of the high and low sales price per
share regular way on a national securities exchange or, (2) if the Common Stock
is not listed on a national securities exchange, the average of the high and low
sales price per share regular way on The Nasdaq National Market, or (3) if the
Common Stock is not quoted on The Nasdaq National Market or listed or admitted
to trading on any national securities exchange, the average of the high and low
sales prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose.

         "BENEFICIAL OWNER" means a "beneficial owner" as defined in Rules 13d-3
and 13d-5 under the Exchange Act.

         "BOARD OF DIRECTORS" means either the Management Board of the Company
or any duly authorized committee of that board.

         "BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company (or an officer of the Company serving an equivalent function) to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, shall have been delivered to the
Trustee.

         "BUSINESS DAY," when used with respect to any Place of Payment, Place
of Conversion or any other place, as the case may be, means each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in such Place of Payment, Place of


                                      -2-

Conversion or other place, as the case may be, are authorized or obligated by
law or executive order to close; provided, however, that a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close shall not be a Business Day for purposes of Section 9.6
or Section 10.5.

         "CASH EQUIVALENTS" means (1) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than six
months from the date of acquisition, (2) certificates of deposit and eurodollar
time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million and a Thompson Bank Watch Rating
of "B" or better, (3) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (1) above
entered into with any financial institution meeting the qualifications specified
in clause (2) above, (4) commercial paper having the highest rating obtainable
from Moody's Investors Service, Inc. or Standard & Poor's Ratings Services and
in each case maturing within six months after the date of acquisition and (5)
money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1)-(4) of this definition.

         "CHANGE IN CONTROL" means the occurrence at any time, after the
original issuance of the Securities, of any transaction or event (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with
which all or substantially all of the Common Stock is exchanged for, converted
into, acquired for or constitute solely the right to receive, consideration
which is not all or substantially all common stock that:

                  (1) is listed on, or immediately after such transaction or
         event will be listed on, a United States national securities exchange;
         or

                  (2) is approved, or immediately after the transaction or event
         will be approved, for quotation on The Nasdaq National Market or any
         similar United States system of automated dissemination of quotations
         of securities prices.

provided, however, that a Change in Control shall not be deemed to have occurred
if the Average Sales Price Per Share on any five Trading Days within the period
of 10 consecutive Trading Days ending immediately prior to the date of the
Change in Control shall equal or exceed 105% of the Conversion Price of the
Securities in effect on each such Trading Day. For the purposes of this
definition, "beneficial owner," has the meaning attributed to it in Rules 13d-3
under the Exchange Act, whether or not applicable.

         "CODE" has the meaning specified in Section 2.1.

         "COMBINED CASH AND TENDER AMOUNT" has the meaning specified in Section
10.4(e).

         "COMBINED TENDER AND CASH AMOUNT" has the meaning specified in Section
10.4(f).


                                      -3-

         "COMMISSION" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.

         "COMMON STOCK" means the Common Shares, par value E0.04 per share, of
the Company at the date of this Indenture or as such stock may be reconstituted
from time to time. Subject to the provisions of Section 10.11, shares issuable
on conversion or repurchase of Securities shall include only shares of Common
Stock or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of Securities shall include shares of all such classes, and the
shares of each such class then so issuable shall be substantially in the
proportion that the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.

         "COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.

         "COMPANY NOTICE" has the meaning specified in Section 12.3(a).

         "COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Management Board, its
Vice Chairman of the Management Board, its Chief Executive Officer, its
President or a Vice President, and by its principal financial officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (or
an officer of the Company serving an equivalent function), and delivered to the
Trustee.

         "COMPLETION DATE" has the meaning specified in Section 10.4(f).

         "CONSTITUENT PERSON" has the meaning specified in Section 10.11.

         "CONVERSION AGENT" means any Person authorized by the Company to
convert Securities in accordance with Article Ten. The Company has initially
appointed the Trustee as its Conversion Agent.

         "CONVERSION PRICE" means the amount equal to U.S. $1,000 divided by the
Conversion Rate.

         "CONVERSION RATE" has the meaning specified in Section 10.1.

         "CONVERSION SHARES" has the meaning specified in Section 10.4(m).

         "CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered (which at the date of this Indenture


                                      -4-

is located at 111 Wall Street, Corporate Trust Department, 14th Floor, New York,
New York 10043, Attn: Jennifer Cheng (Account of ASM International N.V.)).

         "CORPORATION" means a corporation, company, association, joint-stock
company or business trust.

         "DEFAULTED INTEREST" has the meaning specified in Section 2.8.

         "DEPOSITARY" means, with respect to any Registered Securities, a
clearing agency that is registered as such under the Exchange Act and is
designated by the Company to act as Depositary for such Registered Securities
(or any successor securities clearing agency so registered).

         "DESIGNATED SENIOR DEBT" means the E90,000,000 Multicurrency Revolving
Facilities Agreement, dated as of June 27, 2001, between the Company, the
Guarantors named therein, ABN Amro Bank N.V. and Deutsche Bank AG as Arrangers,
ABN Amro Bank N.V. as Facility Agent, and Deutsche Bank AG as Security Agent, as
such agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof, and any other obligations of the Company
under any particular Senior Debt in which the instrument creating or evidencing
the same, or the assumption or guarantee thereof, or related agreements or
documents to which the Company is a party, expressly provides that such
indebtedness shall be "Designated Senior Debt" for purposes of this Indenture
(provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt).

         "DISTRIBUTION DATE" has the meaning specified in Section 10.4(m).

         "DOLLAR" or "U.S.$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.

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

         "EVENT OF DEFAULT" has the meaning specified in Section 4.1.

         "EXCHANGE ACT" means the United States Securities Exchange Act of 1934
(or any successor statute), as amended from time to time.

         "GLOBAL SECURITY" means a Registered Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.

         "HOLDER" means the Person in whose name the Security is registered in
the Security Register.

         "INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and


                                      -5-

any such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.

         "INITIAL PURCHASER" means CIBC World Markets Corp.

         "INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities.

         "MATURITY," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article Thirteen or otherwise.

         "MEMBER" means any member of, or participant in, the Depositary.

         "NON-ELECTING SHARE" has the meaning specified in Section 10.11.

         "NOTICE OF DEFAULT" has the meaning specified in Section 4.1.

         "OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Management Board, a Vice Chairman of the Management Board, the Chief
Executive Officer, the President or a Vice President and by the principal
financial officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary (or an officer of the Company serving an equivalent
function) of the Company, and delivered to the Trustee.

         "OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for or employed by the Company and who shall be acceptable to the
Trustee.

         "OUTSTANDING," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:

                  (1) Securities theretofore cancelled by the Trustee or
         delivered to the Trustee for cancellation;

                  (2) Securities for the payment or redemption of which money in
         the necessary amount has been theretofore deposited with the Trustee or
         any Paying Agent (if other than the Company) in trust or set aside and
         segregated in trust by the Company (if the Company shall act as its own
         Paying Agent) for the Holders of such Securities (provided that, if
         such Securities are to be redeemed, notice of such redemption has been
         duly given pursuant to this Indenture or provision therefor
         satisfactory to the Trustee has been made); and

                  (3) Securities that have been paid pursuant to Section 2.7 or
         in exchange for or in lieu of which other Securities have been
         authenticated and delivered pursuant to this Indenture, other than any
         such Securities in respect of which there shall have been


                                      -6-

         presented to the Trustee proof satisfactory to it that such Securities
         are held by a bona fide purchaser in whose hands such Securities are
         valid obligations of the Company;

provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such determination as to the presence of a quorum or upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities that a Responsible Officer of the Trustee actually knows to be
so owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.

         "PAYING AGENT" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company and, except
as otherwise specifically set forth herein, such term shall include the Company
if it shall act as its own Paying Agent. The Company has initially appointed the
Trustee as its Paying Agent.

         "PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.

         "PLACE OF CONVERSION" has the meaning specified in Section 2.2.

         "PLACE OF PAYMENT" has the meaning specified in Section 2.2.

         "PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.

         "PURCHASE AGREEMENT" means (i) with respect to the Securities issued in
the date of this Indenture, the Purchase Agreement, dated as of November 14,
2001, between the Company and the Initial Purchaser, as such agreement may be
amended from time to time and (ii) with respect to any Additional Securities,
any purchase or underwriting agreement entered into by the Company and the
initial purchasers or underwriters with respect thereto, as such agreement may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.

         "PURCHASED SHARES" has the meaning specified in Section 10.4(f).

         "PURCHASERS" has the meaning specified in Section 9.9.


                                      -7-

         "RECORD DATE" means any Regular Record Date or Special Record Date.

         "RECORD DATE PERIOD" means the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.

         "REDEMPTION DATE," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.

         "REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.

         "REGISTERED SECURITIES" has the meaning specified in Section 2.1.

         "REGULAR RECORD DATE" for interest payable in respect of any Registered
Security on any Interest Payment Date means the May 1 and November 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date.

         "REPRESENTATIVE" means (1) the indenture trustee or other trustee,
agent or representative for any Designated Senior Debt or (2) with respect to
Designated Senior Debt that does not have any such trustee, agent or other
representative, (A) in the case of such Designated Senior Debt issued pursuant
to an agreement providing for voting arrangements as among the holders or owners
of such Designated Senior Debt, any holder or owner of such Designated Senior
Debt acting with the consent of the required Persons necessary to bind such
holders or owners of such Designated Senior Debt and (B) in the case of all
other such Designated Senior Debt, the holder or owner of such Designated Senior
Debt.

         "REPURCHASE DATE" has the meaning specified in Section 12.1.

         "REPURCHASE PRICE" has the meaning specified in Section 12.1.

         "RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Office, including without limitation any vice
president, assistant vice president, assistant treasurer, corporate trust
officer or other employee of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge and familiarity with the
particular subject.

         "RESTRICTED GLOBAL SECURITY" has the meaning specified in Section 2.1.

         "RESTRICTED SECURITIES LEGEND" means, collectively, the legends
substantially in the forms of the legends required in the form of Security
attached hereto as Exhibit A to be placed upon each Security.


                                      -8-

         "RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.

         "RULE 144A INFORMATION" has the meaning specified in Section 8.9.

         "SECURITIES" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company." From and after the issuance of any
Additional Securities (but not for purposes of determining whether such issuance
is permitted hereunder), "Securities" shall include such Additional Securities
for purposes of this Indenture. The Securities issued on the date of this
Indenture, any Securities issued in respect of the Initial Purchaser's exercise
of its over-allotment option, and the Additional Securities shall be treated as
a single class of securities under this Indenture.

         "SECURITIES ACT" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.

         "SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 2.6.

         "SENIOR DEBT" means the principal of (and premium, if any) and interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and rent payable on
or in connection with, and all fees, costs, claims, expenses and other amounts
payable in connection with, the following, whether absolute or contingent,
secured or unsecured, due or to become due, outstanding on the date of this
Indenture or thereafter created, incurred or assumed: (1) all the Company's
indebtedness evidenced by a credit or loan agreement, note, bond, debenture, or
other similar instrument whether or not the recourse of the lender is to all of
the Company's assets or to only a portion, (2) all of the Company's
indebtedness, obligations and other liabilities, contingent or otherwise, for
borrowed money, including, without limitation, overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements and
any loans or advances from banks, whether or not evidenced by notes or similar
instruments, or bonds, debentures, notes or similar instruments, whether or not
the recourse of the lender is to all of the Company's assets or to only a
portion thereof, (3) all of the Company's obligations as lessee under leases
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles, (4) all of the Company's obligations under
leases for facilities, equipment or other assets entered into for financing
purposes, whether or not capitalized, (5) all of the Company's obligations and
other liabilities, contingent or otherwise, under any lease or related document,
including a purchase agreement, in connection with the lease of real property or
improvements, or any personal property included as part of any such lease, which
provides that the Company is contractually obligated to purchase or cause a
third party to purchase the leased property and thereby guarantee a residual
value of leased property to the lessor and all of the Company's obligations
under such lease or related document to purchase or cause a third party to
purchase the leased property, whether or not such lease transaction is
characterized as an operating lease or capitalized lease in accordance with
generally accepted accounting principles, (6) all of the Company's obligations
under interest rate and currency swaps, caps, floors, collars, hedge


                                       -9-

agreements, forward contracts, or similar agreements or arrangements, (7) all of
the Company's obligations with respect to letters of credit, bank guarantees,
bankers' acceptances and similar facilities, including related reimbursement
obligations, (8) all of the Company's obligations issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business), (9)
all of the Company's obligations of the type referred to in clauses (1) through
(8) above of another Person and all dividends of another Person, the payment of
which, in either case, the Company has assumed or guaranteed or for which the
Company is responsible or liable, directly or indirectly, jointly or severally,
as obligor, guarantor or otherwise or which is secured by a lien on the
Company's property and (10) renewals, extensions, modifications, replacements,
restatements and refundings of, or any indebtedness or obligation issued in
exchange for, any such indebtedness or obligation described in clauses (1)
through (9) of this definition; provided, however, that Senior Debt shall not
include the Securities or any indebtedness or obligation if the terms of such
indebtedness or obligation (or the terms of the instrument under which such
indebtedness or obligation is issued) expressly provides that such indebtedness
or obligation is not superior in right of payment to the Securities; and
provided, further, that Senior Debt shall not include accounts payable or other
accrued liabilities or obligations incurred in the ordinary course of business
in connection with the obtaining of materials or services and any indebtedness
or obligation that the Company may owe to any direct or indirect Subsidiary.

         "SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date hereof.

         "SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Company pursuant to Section 2.8.

         "STATED MATURITY," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.

         "SUBSIDIARY" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock or
other similar interests in the corporation that ordinarily has or have voting
power for the election of directors or Persons performing similar functions,
whether at all times or only so long as no senior class of stock or other
interests has or have such voting power by reason of any contingency.

         "SUCCESSOR SECURITY" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.7 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.

         "TAXES" means all taxes, duties, assessments or other governmental
charges of whatsoever nature, including penalties, interest and any other
liabilities related thereto.


                                      -10-

         "TRADING DAYS" means (1) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business; (2) if the Common Stock is quoted on
The Nasdaq National Market or any other system of automated dissemination of
quotations of securities prices, days on which trades may be effected through
such system; or (3) if the Common Stock is not listed or admitted for trading on
any national securities exchange or quoted on The Nasdaq National Market or any
other system of automated dissemination of quotation of securities prices, days
on which the Common Stock is traded regular way in the over-the-counter market
and for which a closing bid and a closing asked price for the Common Stock are
available.

         "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.

         "TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.

         "UNITED STATES" means the United States of America (including the
several States and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction (its "possessions" including Puerto
Rico, the United States Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands).

         "VICE PRESIDENT," when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president."

         SECTION 1.2       COMPLIANCE CERTIFICATES AND OPINIONS.

         Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and, if required by the Trust Indenture Act, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (including certificates provided for in Section
8.8) shall include:

         (a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;


                                      -11-

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

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

         (d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with; provided, however, with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.

         SECTION 1.3       FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.

         In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.

         Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any other Person
stating that the information with respect to such factual matters is in the
possession of the Company or such other Person, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.

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

         SECTION 1.4       ACTS OF HOLDERS OF SECURITIES.

         (a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent or proxy duly appointed in writing by such Holders. Such action
shall become effective when such instrument or instruments is delivered to the
Trustee and, where it is hereby expressly required, to the Company. The Trustee
shall promptly deliver to the Company copies of all such instruments delivered
to the Trustee. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "ACT" of the
Holders of Securities signing such instrument or instruments.


                                      -12-

Proof of execution of any such instrument or of a writing appointing any such
agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 5.1)
conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section 1.4.

         (b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.

         (c) The principal amount and serial number of any Registered Security
held by any Person, and the date of his holding the same, shall be proved by the
Security Register.

         (d) The fact and date of execution of any such instrument or writing
and the authority of the Person executing the same may also be proved in any
other manner that the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section 1.4.

         (e) The Company may set any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted by this Indenture to be given or taken by
Holders. Promptly and in any case not later than ten days after setting a record
date, the Company shall notify the Trustee and the Holders of such record date.
If not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
thirtieth day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 13.1) prior to such first
solicitation or vote, as the case may be. With regard to any record date, the
Holders on such date (or their duly appointed agents or proxies), and only such
Persons, shall be entitled to give or take, or vote on, the relevant action,
whether or not such Holders remain Holders after such record date.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any notice,
declaration or direction referred to in the next paragraph.

         Upon receipt by the Trustee from any Holder of (1) any notice of
default or breach referred to in Section 4.1(e), if such default or breach has
occurred and is continuing and the Trustee shall not have given such a notice to
the Company, (2) any declaration of acceleration referred to in Section 4.2, if
an Event of Default has occurred and is continuing and the Trustee shall not
have given such a declaration to the Company, or (3) any direction referred to
in Section 4.12, if the Trustee shall not have taken the action specified in
such direction, then, with respect to clauses (2) and (3), a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders entitled to join in such declaration or direction, which
record date shall be the close of business on the tenth day (or, if such day is
not a Business Day, the next succeeding Business Day) following the day on which
the Trustee receives such declaration or direction, and, with respect to clause
(1), the Trustee may set any


                                      -13-

day as a record date for the purpose of determining the Holders entitled to join
in such notice of default. Promptly after such receipt by the Trustee of any
such declaration or direction referred to in clause (2) or (3), and promptly
after setting any record date with respect to clause (1), and as soon as
practicable thereafter, the Trustee shall notify the Company and the Holders of
any such record date so fixed. The Holders on such record date (or their duly
appointed agents or proxies), and only such Persons, shall be entitled to join
in such notice, declaration or direction, whether or not such Holders remain
Holders after such record date; provided, however, that, unless such notice,
declaration or direction shall have become effective by virtue of Holders of the
requisite principal amount of Securities on such record date (or their duly
appointed agents or proxies) having joined therein on or prior to the ninetieth
day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall be construed to prevent a Holder
(or a duly appointed agent or proxy thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary to
or different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. In addition, nothing in this paragraph shall be construed to render
ineffective any notice, declaration or direction of the type referred to in this
paragraph given at any time to the Trustee and the Company by Holders (or their
duly appointed agents or proxies) of the requisite principal amount of
Securities on the date such notice, declaration or direction is so given.

         (f) Except as provided in Sections 4.2 and 4.13, any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.

         SECTION 1.5       NOTICES, ETC., TO TRUSTEE AND COMPANY.

         Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of Holders of Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,

         (a) the Trustee by any Holder of Securities or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee and received at the Corporate Trust Office,
Attention: Corporate Trust Department, and shall be deemed given when received,

         (b) the Company by the Trustee or by any Holder of Securities shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing, mailed, first-class postage prepaid, or telecopied and
confirmed by mail, first-class postage prepaid, or delivered by hand or
overnight courier, addressed to the Company at Jan van Eycklaan 10, 3723 BC
Bilthoven, the Netherlands, Attention: Robert de Bakker (telecopy no.: +31 30
228 74 69), or at any other address previously furnished in writing to the
Trustee by the Company, with a copy to Quarles & Brady Streich Lang LLP, One
Renaissance Square, Two North Central


                                      -14-

Avenue, Phoenix, Arizona 85004, Attention: P. Robert Moya, and shall be deemed
given when received by the Company.

         Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.

         SECTION 1.6       NOTICE TO HOLDERS OF SECURITIES; WAIVER.

         Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given to Holders if in writing and mailed, first-class postage
prepaid, to each Holder of a Security affected by such event, at the address of
such Holder as it appears in the Security Register, not earlier than the
earliest date and not later than the latest date prescribed for the giving of
such notice.

         Neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities. In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification to Holders of Registered Securities as shall be made with
the approval of the Trustee, which approval shall not be unreasonably withheld
or delayed, shall constitute a sufficient notification to such Holders for every
purpose hereunder.

         Such notice shall be deemed to have been given when such notice is
mailed.

         Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.

         SECTION 1.7       EFFECT OF HEADINGS AND TABLE OF CONTENTS.

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

         SECTION 1.8       SUCCESSORS AND ASSIGNS.

         All covenants and agreements in this Indenture by the Company and by
the Trustee shall bind its successors and assigns, whether so expressed or not.

         SECTION 1.9       SEPARABILITY CLAUSE.

         In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.


                                      -15-

         SECTION 1.10      BENEFITS OF INDENTURE.

         Except as provided in the next sentence, nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors and assigns hereunder and the Holders of
Securities, any benefit or legal or equitable right, remedy or claim under this
Indenture. The provisions of Article Eleven are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Debt.

         SECTION 1.11      GOVERNING LAW.

         THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA,
INCLUDING, WITHOUT LIMITATION, THE NEW YORK GENERAL OBLIGATIONS LAW
SECTION5-1401.

         SECTION 1.12      LEGAL HOLIDAYS.

         In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on which a
Holder of a Security has a right to convert his Security shall not be a Business
Day at a Place of Payment or Place of Conversion, as the case may be, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal of, premium, if any, or interest on, or the payment of the
Repurchase Price (whether the same is payable in cash or in shares of Common
Stock) with respect to, or delivery for conversion of, such Security need not be
made at such Place of Payment or Place of Conversion, as the case may be, on or
by such day, but may be made on or by the next succeeding Business Day at such
Place of Payment or Place of Conversion, as the case may be, with the same force
and effect as if made on the Interest Payment Date, Redemption Date or
Repurchase Date, or at the Stated Maturity or by such last day for conversion;
provided, however, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repurchase Date,
Stated Maturity or last day for conversion, as the case may be.

         SECTION 1.13      CONFLICT WITH TRUST INDENTURE ACT.

         If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Until such time as this Indenture shall be qualified under the Trust Indenture
Act, this Indenture, the Company and the Trustee shall be deemed for all
purposes hereof to be subject to and governed by the Trust Indenture Act to the
same extent as would be the case if this Indenture were so qualified on the date
hereof.


                                      -16-

         SECTION 1.14      COUNTERPARTS.

         This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.

         SECTION 1.15.     CONSENT TO JURISDICTION.

         The Company hereby irrevocably submits to the non-exclusive
jurisdiction of any New York State or Federal court sitting in New York City and
any appellate court from any thereof for the purposes of (and solely for the
purposes of) any suit, action or other proceeding arising out of or relating to
this Indenture or any of the transactions contemplated hereby, and the Company
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court or in such
Federal court. The Company hereby (to the fullest extent they may effectively do
so) irrevocably waives and agrees not to assert, by way of motion, as a defense,
or otherwise in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
whatsoever, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper, or that
this Indenture or the subject matter hereof may not be enforced in such courts.
The Company hereby irrevocably appoints Corporation Service Company (the
"PROCESS AGENT"), with an office on the date hereof at 1177 Avenue of the
Americas, 17th Floor, New York, NY 10036-2721, United States, as their agent to
receive on behalf of the Company and its property service of copies of the
summons and complaint and any other process which may be served in any such
suit, action or proceeding and in any suit, action or proceeding arising out of
or relating to this Indenture to which the Company is a party. Such service may
be made by mailing or delivering a copy of such process to the Company in care
of the Process Agent at the Process Agent's above address, and the Company
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, the Company also
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by the mailing of copies of such process to the Company at
its address specified in Section 1.5. The Company agrees that a final judgment
in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Section 1.15 shall affect the right of the Trustee to
serve legal process in any other manner permitted by law or affect the right of
the Trustee to bring any action or proceeding against the Company or its
property in the courts of any other jurisdictions.

                                   ARTICLE TWO

                                 THE SECURITIES

         SECTION 2.1       FORM GENERALLY.

         The Securities and the Trustee's Certificate of Authentication shall be
in substantially the form set forth in Exhibit A hereto, which Exhibit is a part
of this Indenture, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such


                                      -17-

legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or the Internal Revenue Code of l986, as
amended, and regulations thereunder (the "CODE"), or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. All Securities shall be issued in registered form,
as opposed to bearer form, and shall sometimes be referred to as the "REGISTERED
SECURITIES."

         The Securities shall be printed, lithographed, typewritten or engraved
or produced by any combination of these methods on steel engraved borders, if so
required by any securities exchange upon which the Securities may be listed, or
may be produced in any other manner permitted by the rules of any such
securities exchange, or, if the Securities are not listed on a securities
exchange, in any other manner approved by the Company, all as determined by the
officers executing such Securities, as evidenced by their execution thereof.

         Upon their original issuance, Securities shall be issued in the form of
one or more Global Securities without interest coupons and shall be registered
in the name of DTC, as Depositary, or its nominee and deposited with the
Trustee, as custodian for DTC, for credit by DTC to the respective accounts of
beneficial owners of the Securities represented thereby (or such other accounts
as they may direct). Such Global Security, together with its Successor
Securities that are Global Securities, are collectively herein called the
"RESTRICTED GLOBAL SECURITY."

         SECTION 2.2       TITLE AND TERMS.

         The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is initially limited to U.S.$100,000,000 (or
such greater amount necessary to reflect (i) exercise of the Initial Purchaser's
over-allotment option in compliance with the Purchase Agreement and/or (ii) the
issuance of Additional Securities in an aggregate principal amount of up to
$35,000,000, in which case the maximum aggregate principal amount of the
Securities shall be $150,000,000), except for Securities authenticated and
delivered in exchange for, or in lieu of, other Securities pursuant to Section
2.5, 2.6, 2.7, 7.5, 9.8, 10.2 or 12.3(e).

         The Securities shall be known and designated as the "5% Convertible
Subordinated Notes due November 15, 2005" of the Company. Their Stated Maturity
shall be November 15, 2005 and they shall bear interest on their principal
amount from November 19, 2001, payable semiannually in arrears on May 15 and
November 15 in each year, commencing May 15, 2002, at the rate of 5% per annum
until the principal thereof is due and at the rate then in effect on any overdue
principal and, to the extent permitted by law, on any overdue interest;
provided, however, that payments shall only be made on Business Days as provided
in Section 1.12.

         The principal of, premium, if any, and interest on the Securities shall
be payable as provided in the form of Securities attached hereto as Exhibit A,
and the Repurchase Price, whether payable in cash or in shares of Common Stock,
shall be payable at such places as are identified in the Company Notice given
pursuant to Section 12.3 (any city in which any Paying Agent is located being
herein called a "PLACE OF PAYMENT").


                                      -18-

         The Securities shall be redeemable at the option of the Company, as
provided in Article Nine and in the form of Securities attached hereto as
Exhibit A.

         The Securities shall be convertible as provided in Article Ten (any
city in which any Conversion Agent is located being herein called a "PLACE OF
CONVERSION").

         The Securities shall be subordinated in right of payment to Senior Debt
of the Company as provided in Article Eleven.

         The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article Twelve.

         SECTION 2.3       DENOMINATIONS.

         The Securities shall be issuable only in registered form, without
coupons, in denominations of U.S.$1,000 and integral multiples thereof.

         SECTION 2.4       EXECUTION, AUTHENTICATION, DELIVERY AND DATING.

         The Securities shall be executed on behalf of the Company by its
Chairman of the Management Board, its Vice Chairman of the Management Board, its
Chief Executive Officer, its President, one of its Vice Presidents, its Chief
Financial Officer, its Treasurer or its Controller under a facsimile of its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries (or an officer of the Company serving an equivalent
function). Any such signature may be manual or facsimile.

         Securities bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.

         At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee or to its order for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities as provided in this Indenture and not otherwise.

         Each Security shall be dated the date of its authentication.

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


                                      -19-

         SECTION 2.5       GLOBAL SECURITIES; TEMPORARY SECURITIES.

         (a)      GLOBAL SECURITIES

                  (1) Each Global Security authenticated under this Indenture
         shall be registered in the name of the Depositary designated by the
         Company for such Global Security or a nominee thereof and delivered to
         such Depositary or a nominee thereof or custodian therefor, and each
         such Global Security shall constitute a single Security for all
         purposes of this Indenture.

                  (2) Notwithstanding any other provision in this Indenture, no
         Global Security may be exchanged in whole or in part for Securities
         registered, and no transfer of a Global Security in whole or in part
         may be registered, in the name of any Person other than the Depositary
         for such Global Security or a nominee thereof unless (A) such
         Depositary (i) has notified the Company that it is unwilling or unable
         to continue as Depositary for such Global Security or (ii) has ceased
         to be a clearing agency registered as such under the Exchange Act or
         announces an intention permanently to cease business or does in fact do
         so or (B) there shall have occurred and be continuing an Event of
         Default with respect to such Global Security.

                  (3) If any Global Security is to be exchanged for other
         Securities or cancelled in whole, it shall be surrendered by or on
         behalf of the Depositary or its nominee to the Trustee, as Security
         Registrar, for exchange or cancellation, as provided in this Article
         Two. If any Global Security is to be exchanged for other Securities or
         cancelled in part, or if another Security is to be exchanged in whole
         or in part for a beneficial interest in any Global Security, in each
         case, as provided in Section 2.6, then either (A) such Global Security
         shall be so surrendered for exchange or cancellation, as provided in
         this Article Two, or (B) the principal amount thereof shall be reduced
         or increased by an amount equal to the portion thereof to be so
         exchanged or cancelled or equal to the principal amount of such other
         Security to be so exchanged for a beneficial interest therein, as the
         case may be, by means of an appropriate adjustment made on the records
         of the Trustee, as Security Registrar, whereupon the Trustee, in
         accordance with the Applicable Procedures, shall instruct the
         Depositary or its authorized representative to make a corresponding
         adjustment to its records. Upon any such surrender or adjustment of a
         Global Security, the Trustee shall, subject to Section 2.6(c) and as
         otherwise provided in this Article Two, authenticate and make available
         for delivery any Securities issuable in exchange for such Global
         Security (or any portion thereof) to or upon the order of, and
         registered in such names as may be directed by, the Depositary or its
         authorized representative. Upon the request of the Trustee in
         connection with the occurrence of any of the events specified in the
         preceding paragraph, the Company shall promptly make available to the
         Trustee a reasonable supply of Securities that are not in the form of
         Global Securities. The Trustee shall be entitled to rely upon any
         order, direction or request of the Depositary or its authorized
         representative which is given or made pursuant to this Article Two if
         such order, direction or request is given or made in accordance with
         the Applicable Procedures.


                                      -20-

                  (4) Every Security authenticated and delivered upon
         registration of transfer of, or in exchange for or in lieu of, a Global
         Security or any portion thereof, whether pursuant to this Article Two
         or otherwise, shall be authenticated and delivered in the form of, and
         shall be, a registered Global Security, unless such Security is
         registered in the name of a Person other than the Depositary for such
         Global Security or a nominee thereof, in which case such Registered
         Security shall be authenticated and delivered in definitive, fully
         registered form, without interest coupons.

                  (5) The Depositary or its nominee, as registered owner of a
         Global Security, shall be the Holder of such Global Security for all
         purposes under the Indenture and the Registered Securities, and owners
         of beneficial interests in a Global Security shall hold such interests
         pursuant to the Applicable Procedures. Accordingly, any such owner's
         beneficial interest in a Global Security shall be shown only on, and
         the transfer of such interest shall be effected only through, records
         maintained by the Depositary or its nominee or its Agent Members, and
         such owners of beneficial interests in a Global Security shall not be
         considered the owners or holders thereof.

         (b)      TEMPORARY SECURITIES

         Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Registered Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Registered
Securities may determine, as evidenced by their execution of such Securities.

         If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 8.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.

         SECTION 2.6    REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
                        RESTRICTIONS ON TRANSFER.

         (a) The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 8.2 being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered


                                      -21-

Securities. The Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose
of registering Registered Securities and transfers and exchanges of Registered
Securities as herein provided.

         Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 8.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.

         At the option of the Holder, and subject to the other provisions of
this Section 2.6, Securities may be exchanged for other Securities of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, and subject to the other provisions
of this Section 2.6, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities the Holder making
the exchange is entitled to receive. Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.

         All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, subject to the other provisions of this Section 2.6, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.

         No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 2.7, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 2.5, 7.5, 9.8,
10.2 or 12.3(e) (other than where the shares of Common Stock are to be issued or
delivered in a name other than that of the Holder of the Security) not involving
any transfer and other than any stamp and other duties, if any, that may be
imposed in connection with any such transfer or exchange by the United States or
any political subdivision thereof or therein, which shall be paid by the
Company.

         In the event of a redemption of the Securities, the Company shall not
be required (1) to register the transfer of or exchange Securities for a period
of 15 days immediately preceding the date notice is given identifying the serial
numbers of the Securities called for such redemption or (2) to register the
transfer of or exchange any Security, or portion thereof, called for redemption.

         (b) RESTRICTED SECURITIES LEGENDS. All Securities shall bear the
applicable Restricted Securities Legend subject to the following:

                  (1) subject to the following clauses of this Section 2.6(b), a
         Security or any portion thereof that is exchanged, upon transfer or
         otherwise, for a Global Security or any


                                      -22-

         portion thereof shall bear the Restricted Securities Legend borne by
         such Global Security while represented thereby;

                  (2) subject to the following clauses of this Section 2.6(b), a
         new Security that is not a Global Security and is issued in exchange
         for another Security (including a Global Security) or any portion
         thereof, upon transfer or otherwise, shall bear the Restricted
         Securities Legend borne by such other Security;

                  (3) any Securities that are sold or otherwise disposed of
         pursuant to an effective registration statement under the Securities
         Act, together with their Successor Securities, shall not bear a
         Restricted Securities Legend; the Company shall inform the Trustee in
         writing of the effective date of any such registration statement
         registering the Securities under the Securities Act and shall notify
         the Trustee at any time when prospectuses may not be delivered with
         respect to Securities to be sold pursuant to such registration
         statement. The Trustee shall not be liable for any action taken or
         omitted to be taken by it in good faith in accordance with the
         aforementioned registration statement;

                  (4) at any time after the Securities may be freely transferred
         without registration under the Securities Act or without being subject
         to transfer restrictions pursuant to the Securities Act, a new Security
         that does not bear a Restricted Securities Legend may be issued in
         exchange for or in lieu of a Security (other than a Global Security) or
         any portion thereof that bears such a legend if the Trustee has
         received a certificate regarding the unrestricted nature of the
         Securities, satisfactory to the Trustee and duly executed by the Holder
         of such legended Security or his attorney duly authorized in writing,
         and after such date and receipt of such certificate, the Trustee shall
         authenticate and make available for delivery such a new Security in
         exchange for or in lieu of such other Security as provided in this
         Article Two;

                  (5) a new Security that does not bear a Restricted Securities
         Legend may be issued in exchange for or in lieu of a Security (other
         than a Global Security) or any portion thereof that bears such a legend
         if, in the Company's judgment, placing such a legend upon such new
         Security is not necessary to ensure compliance with the registration
         requirements of the Securities Act, and the Trustee, at the direction
         of the Company, shall authenticate and make available for delivery such
         a new Security as provided in this Article Two; and

                  (6) notwithstanding the foregoing provisions of this Section
         2.6(b), a Successor Security of a Security that does not bear a
         particular form of Restricted Securities Legend shall not bear such
         form of legend unless the Company has reasonable cause to believe that
         such Successor Security is a "restricted security" within the meaning
         of Rule 144, in which case the Trustee, at the direction of the
         Company, shall authenticate and make available for delivery a new
         Security bearing a Restricted Securities Legend in exchange for such
         Successor Security as provided in this Article Two.


                                      -23-

         (c) Neither the Trustee, the Paying Agent nor any of their agents shall
(1) have any duty to monitor compliance with or with respect to any federal or
state or other securities or tax laws or (2) have any duty to obtain
documentation on any transfers or exchanges other than as specifically required
hereunder.

         SECTION 2.7       MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.

         If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.

         If there be delivered to the Company and to the Trustee:

         (a) evidence to their satisfaction of the destruction, loss or theft of
any Security, and

         (b) such security or indemnity as may be satisfactory to the Company
and the Trustee to save each of them and any agent of either of them harmless,

then, in the absence of actual notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and make available for delivery, in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.

         In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security, upon satisfaction of the conditions set forth in the preceding
paragraph.

         Upon the issuance of any new Security under this Section 2.7, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto (other than any
stamp and other duties, if any, that may be imposed in connection therewith by
the United States or any political subdivision thereof or therein, which shall
be paid by the Company) and any other expenses (including the fees and expenses
of the Trustee) connected therewith.

         Every new Security issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.

         The provisions of this Section 2.7 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies of any Holder with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.


                                      -24-

         SECTION 2.8       PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.

         Interest on any Security 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 Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.

         Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date ("DEFAULTED INTEREST")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:

         (a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security, the date of the
proposed payment and the Special Record Date, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided in this
clause. The Special Record Date for the payment of such Defaulted Interest shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 15 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).

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

         Subject to the foregoing provisions of this Section 2.8 and Section
2.6, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.


                                      -25-

         Interest on any Security that is converted in accordance with Section
10.2 during a Record Date Period shall be payable in accordance with the
provisions of Section 10.2.

         SECTION 2.9       PERSONS DEEMED OWNERS.

         Prior to due presentment of a 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 such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 2.8) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.

         SECTION 2.10      CANCELLATION.

         All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered to the Trustee shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.10. The Trustee shall dispose of all
cancelled Securities in accordance with applicable law and its customary
practices in effect from time to time.

         SECTION 2.11      COMPUTATION OF INTEREST.

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

         SECTION 2.12      CUSIP NUMBERS.

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


                                      -26-

                                  ARTICLE THREE

                           SATISFACTION AND DISCHARGE

         SECTION 3.1       SATISFACTION AND DISCHARGE OF INDENTURE.

         This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, or registration of transfer or
exchange, or replacement of Securities herein expressly provided for in the form
of Securities attached hereto as Exhibit A and the Company's obligations to the
Trustee pursuant to Section 5.7), and the Trustee, at the expense of the
Company, shall execute proper instruments in form and substance satisfactory to
the Trustee acknowledging satisfaction and discharge of this Indenture, when

         (a)      either

                  (1) all Securities theretofore authenticated and delivered
         (other than (A) Securities that have been destroyed, lost or stolen and
         that have been replaced or paid as provided in Section 2.7 and (B)
         Securities for whose payment money has theretofore been deposited in
         trust or segregated and held in trust by the Company and thereafter
         repaid to the Company or discharged from such trust, as provided in
         Section 8.3) have been delivered to the Trustee for cancellation; or

                  (2) all such Securities not theretofore delivered to the
         Trustee or its agent for cancellation (other than Securities referred
         to in clauses (A) and (B) of clause (a)(1) above)

                  (i)      have become due and payable, or

                  (ii) will have become due and payable at their Stated Maturity
         within one year, or

                  (iii) are to be called for redemption within one year under
         arrangements satisfactory to the Trustee for the giving of notice of
         redemption by the Trustee in the name, and at the expense, of the
         Company,

         and the Company, in the case of clause (i), (ii) or (iii) above, has
         deposited or caused to be deposited with the Trustee as trust funds
         (immediately available to the Holders in the case of clause (i) above)
         an amount sufficient to pay and discharge the entire principal,
         premium, if any, and interest on such Securities not theretofore
         delivered to the Trustee for cancellation, to the date of such deposit
         (in the case of Securities that have become due and payable) or to the
         Stated Maturity or Redemption Date, as the case may be;

         (b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and


                                      -27-

         (c) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.

         Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.7, the obligations of
the Company to any Authenticating Agent under Section 5.12, if money shall have
been deposited with the Trustee pursuant to clause (a)(2) of this Section 3.1,
the obligations of the Trustee under Section 3.2 and the last paragraph of
Section 8.3, and the obligations of the Company and the Trustee under Section
2.6 and Article Ten shall survive. Funds held in trust pursuant to this Section
3.1 are not subject to the provisions of Article Eleven.

         SECTION 3.2       APPLICATION OF TRUST MONEY.

         Subject to the provisions of the last paragraph of Section 8.3, all
money deposited with the Trustee pursuant to Section 3.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Persons entitled
thereto, of the principal, premium, if any, and interest for whose payment such
money has been deposited with the Trustee.

         All moneys deposited with the Trustee pursuant to Section 3.1 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.

                                  ARTICLE FOUR

                                    REMEDIES

         SECTION 4.1       EVENTS OF DEFAULT.

         "EVENT OF DEFAULT," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Eleven or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):

         (a) default in the payment of the principal of or premium, if any, on
any Security at its Maturity, whether or not the such payment is prohibited by
the subordination provisions of this Indenture; or

         (b) default in the payment of any interest if any, upon any Security
when it becomes due and payable, and continuance of such default for a period of
30 days, whether or not such payment is prohibited by the subordination
provisions of this Indenture; or

         (c) default in the delivery of shares of Common Stock, together with
cash instead of fractional shares of Common Stock, when such shares of Common
Stock or cash instead of


                                      -28-

fractional shares are required to be delivered upon conversion of a Security,
and such failure continues for ten days after such delivery date; or

         (d) failure by the Company to give the Company Notice in accordance
with Section 12.3, whether or not such notice is prohibited by the subordination
provisions of this Indenture; or

         (e) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in the performance or
breach of which is specifically dealt with elsewhere in this Section 4.1), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "NOTICE OF DEFAULT" hereunder; or

         (f) with respect to any indebtedness of the Company having an
outstanding principal amount of $10,000,000 or more in the aggregate for all
such indebtedness, an event of default that has caused the lender to declare
such indebtedness to be due and payable prior to its scheduled maturity; or

         (g) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or (2) a
decree or order adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable federal or state law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive
days; or

         (h) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or similar relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Significant Subsidiary in furtherance of
any such action.


                                      -29-

         SECTION 4.2       ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.

         If an Event of Default (other than an Event of Default specified in
Section 4.1(g) or 4.1(h)) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration, such principal
and all accrued interest thereon shall become immediately due and payable. If an
Event of Default specified in Section 4.1(g) or 4.1(h) occurs, the principal of,
and accrued interest on, all the Securities shall ipso facto become immediately
due and payable without any declaration or other Act of the Holder or any act on
the part of the Trustee.

         At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article Four provided, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:

         (a) the Company has paid or deposited with the Trustee a sum sufficient
to pay

                  (1) all overdue interest on all Securities,

                  (2) the principal of and premium, if any, on any Securities
         that have become due otherwise than by such declaration of acceleration
         and any interest thereon at the rate borne by the Securities,

                  (3) to the extent permitted by applicable law, interest upon
         overdue interest at the rate then in effect, and

                  (4) all sums paid or advanced by the Trustee hereunder and the
         reasonable compensation, expenses, disbursements and advances of the
         Trustee, its agents and its counsel; and

         (b) all Events of Default, other than the non-payment of the principal
of, and any premium and interest on, Securities that have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 4.13.

         No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.


                                      -30-

         SECTION 4.3   COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
                       TRUSTEE.

         The Company covenants that if:

         (a) default is made in the payment of any interest on any Security when
it becomes due and payable and such default continues for a period of 30 days,
or

         (b) default is made in the payment of the principal of or premium, if
any, on any Security at the Maturity thereof,

the Company will upon demand of the Trustee pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest on any overdue
principal, premium, if any, and, to the extent permitted by applicable law, on
any overdue interest at the rate then in effect, and in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and its counsel.

         If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.

         If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.

         SECTION 4.4       TRUSTEE MAY FILE PROOFS OF CLAIM.

         In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or the
creditors of either, the Trustee (irrespective of whether the principal of, and
any interest on, the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,

         (a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities and
take such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed


                                      -31-

in such matter, and to file such other papers or documents, in each of the
foregoing cases, as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel) and of
the Holders of Securities allowed in such judicial proceeding, and

         (b) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of
Securities to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
Securities, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel and any other amounts due the Trustee under Section 5.7.

         Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official.

         SECTION 4.5   TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
                       SECURITIES.

         All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, be for
the ratable benefit of the Holders of the Securities in respect of which
judgment has been recovered.

         SECTION 4.6       APPLICATION OF MONEY COLLECTED.

         Subject to Article Eleven, any money collected by the Trustee pursuant
to this Article Four shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal, premium, if any, or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:

         FIRST: To the payment of all amounts due the Trustee under Section 5.7;

         SECOND: To the payment of the amounts then due and unpaid for principal
of, premium, if any, or interest on, the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively; and


                                      -32-

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

         SECTION 4.7       LIMITATION ON SUITS.

         No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:

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

         (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;

         (c) such Holder or Holders have offered to the Trustee indemnity or
security reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;

         (d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and

         (e) the Trustee has not received any direction inconsistent with such
written request from the Holders of a majority of the aggregate principal amount
of the Outstanding Securities during the 60 day period referred to in (d) above;

it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.

         SECTION 4.8   UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
                       PREMIUM AND INTEREST AND TO CONVERT.

         Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
2.8) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repurchase, on the Redemption
Date or Repurchase Date, as the case may be), and to convert such Security in
accordance with Article Ten, and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.


                                      -33-

         SECTION 4.9       RESTORATION OF RIGHTS AND REMEDIES.

         If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.

         SECTION 4.10      RIGHTS AND REMEDIES CUMULATIVE.

         Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 2.7, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.

         SECTION 4.11      DELAY OR OMISSION NOT WAIVER.

         No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article Four or by
law to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or (subject to the
limitations contained in this Indenture) by the Holders of Securities, as the
case may be.

         SECTION 4.12      CONTROL BY HOLDERS OF SECURITIES.

         The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that

         (a) such direction shall not be in conflict with any rule of law or
with this Indenture, and

         (b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction.

         SECTION 4.13      WAIVER OF PAST DEFAULTS.

         The Holders, either (a) through the written consent of not less than a
majority in principal amount of the Outstanding Securities or (b) by the
adoption of a resolution, at a meeting of


                                      -34-

Holders of the Outstanding Securities at which a quorum is present, by the
Holders of at least a majority in principal amount of the Outstanding Securities
represented at such meeting, may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default (1) in
the payment of the principal of, premium, if any, interest or the Repurchase
Price on any Security or (2) in respect of a covenant or provision hereof that
under Article Seven cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.

         Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.

         SECTION 4.14      UNDERTAKING FOR COSTS.

         All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 4.14 shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by any
Holder of any Security for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security on or after the respective Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or Repurchase Date, as the case
may be) or for the enforcement of the right to convert any Security in
accordance with Article Ten.

         SECTION 4.15      WAIVER OF STAY, USURY OR EXTENSION LAWS.

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


                                      -35-

                                  ARTICLE FIVE

                                   THE TRUSTEE

         SECTION 5.1       CERTAIN DUTIES AND RESPONSIBILITIES.

         (a)      Except during the continuance of an Event of Default,

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

                  (2) in the absence of bad faith on its part, the Trustee may
         conclusively rely, as to the truth of the statements and the
         correctness of the opinions expressed therein, upon certificates or
         opinions furnished to the Trustee and conforming to the requirements of
         this Indenture; but in the case of any such certificates or opinions
         that by any provision hereof are specifically required to be furnished
         to the Trustee, the Trustee shall be under a duty to examine the same
         to determine whether or not they conform to the requirements of this
         Indenture but not to verify the contents thereof.

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

         (c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct (as finally determined
by a court of competent jurisdiction), except that

                  (1) this paragraph (c) shall not be construed to limit the
         effect of paragraph (a) of this Section 5.1;

                  (2) the Trustee shall not be liable for any error of judgment
         made in good faith by a Responsible Officer, unless it shall be finally
         determined by a court of competent jurisdiction that the Trustee was
         grossly negligent in ascertaining the pertinent facts;

                  (3) the Trustee shall not be liable with respect to any action
         taken or omitted to be taken by it in good faith in accordance with the
         direction of the Holders of a majority in principal amount of the
         Outstanding Securities relating to the time, method and place of
         conducting any proceeding for any remedy available to the Trustee, or
         exercising any trust or power conferred upon the Trustee, under this
         Indenture; and

                  (4) no provision of this Indenture shall require the Trustee
         to expend or risk its own funds or otherwise incur any financial
         liability in the performance of any of its duties hereunder, or in the
         exercise of any of its rights or powers, if it shall have


                                      -36-

         reasonable grounds for believing that repayment of such funds or
         adequate indemnity against such risk or liability is not reasonably
         assured to it.

         (d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 5.1.

         SECTION 5.2       NOTICE OF DEFAULTS.

         Within 90 days after the occurrence of any default hereunder as to
which a Responsible Officer of the Trustee has actually received written notice
from the Issuer, Paying Agent or a Holder, the Trustee shall give to all Holders
of Securities, in the manner provided in Section 1.6, notice of such default,
unless such default shall have been cured or waived. For the purpose of this
Section 5.2, the term "default" means any event that is, or after notice or
lapse of time or both would become, an Event of Default.

         SECTION 5.3       CERTAIN RIGHTS OF TRUSTEE.

         Subject to the provisions of Section 5.1:

         (a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;

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

         (c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate and shall not be liable for any action taken,
suffered or omitted in accordance with such certificate or for any delay in
acting while waiting for such certificate, provided that the Trustee has
submitted a written request for such certificate;

         (d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;

         (e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or


                                      -37-

indemnity, reasonably satisfactory to the Trustee, against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction;

         (f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;

         (g) The Trustee shall not be considered to have knowledge of an Event
of Default unless a Responsible Officer of the Trustee receives written notice
of such event from the Issuer, the Paying Agent or a Holder; and

         (h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, experts,
custodians, nominees or attorneys, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, expert, custodian,
nominee or attorney appointed with due care by it hereunder.

         SECTION 5.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.

         The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture, of the Securities or of the Common Stock issuable upon the conversion
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.

         SECTION 5.5 MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER INDENTURES.

         The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.

         The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.

         SECTION 5.6       MONEY HELD IN TRUST.

         Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder.



                                      -38-




         SECTION 5.7       COMPENSATION AND REIMBURSEMENT.

         The Company agrees:

         (a) to pay, or cause to be paid, to the Trustee from time to time such
reasonable compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);

         (b) to reimburse, or to cause to be reimbursed, the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents,
experts, custodians, nominees and counsel or under or in connection with any
amendments, supplements or modifications hereto), except any such expense,
disbursement or advance as may be attributable to its gross negligence or bad
faith (as finally determined by a court of competent jurisdiction); and

         (c) to indemnify the Trustee (and its directors, officers, employees
and agents) for, and to hold it harmless against, any and all loss, damage,
claim, liability, judgment, fine, penalty, settlement, cost or expense,
including taxes (other than taxes based on the income of the Trustee), incurred
without gross negligence, bad faith or willful misconduct on its part (as
finally determined by a court of competent jurisdiction), arising out of or in
connection with the acceptance or administration of this trust or the exercise
or performance of any action, duty or obligation hereunder, including the
reasonable costs, expenses and reasonable attorneys' fees of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.

         When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 4.1(g) or Section 4.1(h) with respect
to the Company, the expenses (including the reasonable fees and disbursements of
its experts, agents and counsel) and the compensation for the services are
intended to constitute expenses of the administration under any applicable
federal or state bankruptcy, insolvency or other similar law.

         No direction of any Holder shall affect the right of the Trustee to
collect amounts owed to it under this Indenture.

         The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 5.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.

         The provisions of this Section 5.7 shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.


                                      -39-

         SECTION 5.8       CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.

         There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, having a
combined capital and surplus (or for such purposes, the combined capital and
surplus of any parent holding company) of at least U.S. $25,000,000, subject to
supervision or examination by federal or state authority, in good standing and
having an established place of business or agency in the Borough of Manhattan,
The City of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 5.8, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 5.8, it shall resign as soon as practicable
in the manner and with the effect hereinafter specified in this Article and a
successor shall be appointed pursuant to Section 5.9.

         SECTION 5.9       RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.

         (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 5.10.

         (b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 5.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee or the
Company may petition any court of competent jurisdiction for the appointment of
a successor Trustee.

         (c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and the Company. If the instrument of acceptance by a successor Trustee
required by Section 5.10 shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the removed Trustee or the
Company may petition any court of competent jurisdiction for the appointment of
a successor Trustee.

         (d)      If at any time:

                  (1) the Trustee shall cease to be eligible under Section 5.8
         and shall fail to resign after written request therefor by the Company
         or by any Holder of a Security who has been a bona fide Holder of a
         Security for at least six months, or

                  (2) the Trustee shall become incapable of acting or shall be
         adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
         property shall be appointed or any public officer shall take charge or
         control of the Trustee or of its property or affairs for the purpose of
         rehabilitation, conservation or liquidation,


                                      -40-

then, (i) in any such case the Company may remove the Trustee, or (ii) in the
case of clause (d)(1) above only and subject to Section 4.14, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.

         (e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of this Section 5.9 and Section 5.10. If, within one
year after such resignation, removal or incapability, or occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 5.10, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner required by this Section 5.9 and Section
5.10, any Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.

         (f) The successor Trustee shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders of Securities in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.

         SECTION 5.10      ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.

         Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee. Such retiring Trustee shall, upon payment of
its charges, promptly execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.

         No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.


                                      -41-

         SECTION 5.11   MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
                        BUSINESS.

         Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
(provided such corporation shall be otherwise eligible under this Article),
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.

         SECTION 5.12      AUTHENTICATING AGENTS.

         The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Agents acceptable to the Company with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon exchange or substitution pursuant to this
Indenture.

         Securities authenticated by an Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder, and every reference in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be subject to acceptance
by the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any state thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent and subject to supervision or examination by government or other fiscal
authority. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 5.12, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 5.12.

         Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent (provided such corporation shall be otherwise eligible
under this Section 5.12), without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.

         An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at


                                      -42-

any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 5.12, the Trustee may appoint a successor
Authenticating Agent, which shall be subject to acceptance by the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 5.12.

         The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 5.12.

         If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 5.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:


                                       -43

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


         By:  Citibank, N.A.,
         as Authenticating Agent



         By _____________________________
                  Authorized Signature

         SECTION 5.13      DISQUALIFICATION; CONFLICTING INTERESTS.

         If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign as Trustee hereunder, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.

         SECTION 5.14      PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.

         If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).

                                   ARTICLE SIX

              CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

         SECTION 6.1       COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.

         The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge with or into it or convey, transfer, sell or lease
such Person's properties and assets substantially as an entirety to it, unless:

         (a) the Person formed by such consolidation or into or with which the
Company is merged, or the Person to which the Company's properties and assets
are conveyed, transferred, sold or leased, shall be (1) a corporation, limited
liability company, partnership or trust organized and validly existing under the
laws of the United States of America, any state thereof or the District of
Columbia or (2) organized under the laws of a jurisdiction outside the United
States of America and have common stock or American Depositary Shares
representing such common stock traded on a national securities exchange in the
United States, including The Nasdaq Stock Market, Inc., and, in each case, if
other than the Company, shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if any, and
interest on all of


                                  -44-

the Securities as applicable, and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;

         (b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and

         (c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with, together with any documents required under
Section 7.3.

         SECTION 6.2       SUCCESSOR SUBSTITUTED.

         Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company in accordance with
Section 6.1, the successor Person formed by such consolidation or into or with
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.

                                  ARTICLE SEVEN

                             SUPPLEMENTAL INDENTURES

         SECTION 7.1   SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF
                       SECURITIES.

         Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto for any of the
following purposes:

         (a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants and obligations of the Company
herein and in the Securities as permitted by this Indenture; or

         (b) to add to the covenants of the Company for the benefit of the
Holders of Securities or to surrender any right or power herein conferred upon
the Company; or

         (c) to secure the Securities; or


                                      -45-

         (d) to make provision with respect to the conversion rights of Holders
of Securities pursuant to Section 10.11; or

         (f) to comply with the requirements of the Trust Indenture Act or the
rules and regulations of the Commission thereunder in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by this Indenture or otherwise; or

         (g) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee; or

         (h) to cure any ambiguity, to correct or supplement any provision
herein that may be inconsistent with any other provision herein or that is
otherwise defective, or to make any other provisions with respect to matters or
questions arising under this Indenture as the Company and the Trustee may deem
necessary or desirable (provided such action pursuant to this clause (h) shall
not, in the judgment of the Company, adversely affect the interests of the
Trustee or the Holders of Securities in any material respect).

         Upon Company Request accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 7.3 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained.

         SECTION 7.2   SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF
                       SECURITIES.

         With either (a) the written consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities, by the Act of said
Holders delivered to the Company and the Trustee, or (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a
quorum is present, by the Holders of a majority in principal amount of the
Outstanding Securities represented at such meeting, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent or affirmative vote of the Holder of each Outstanding Security
affected thereby,

                  (l) change the Stated Maturity of the principal of, or any
         installment of interest on, any Security, or reduce the principal
         amount, any premium or the rate of interest payable thereon, or change
         the place at which or the coin or currency in which any Security or the
         interest or any premium thereon or any other amount in respect thereof
         is payable; or

                  (2) reduce the amount payable on any Security upon redemption
         at the Company's option; or


                                      -46-

                  (3) impair the right to institute suit for the enforcement of
         any payment in respect of any Security on or after the Stated Maturity
         thereof (or, in the case of redemption or any repurchase, on or after
         the Redemption Date or Repurchase Date, as the case may be); or

                  (4) except as permitted by Section 10.11, adversely affect the
         right to convert any Security as provided in Article Ten; or

                  (5) modify the provisions of this Indenture with respect to
         the subordination of the Securities in a manner adverse to the Holders
         of any Securities; or

                  (6) reduce the percentage in principal amount of the
         Outstanding Securities the consent of whose Holders is required for any
         supplemental indenture to modify or amend any provision of this
         Indenture or the consent of whose Holders is required for any waiver
         (of compliance with certain provisions of this Indenture or certain
         defaults hereunder and their consequences) provided for in this
         Indenture; or

                  (7) modify any of the provisions of this Section 7.2 except to
         increase any percentage contained herein or therein or to provide that
         certain other provisions of this Indenture cannot be modified or waived
         without the consent of the Holder of each Outstanding Security affected
         thereby; or

                  (8) amend or modify the provisions of Article Twelve in a
         manner adverse to the Holders after the Holder's right to require the
         Company to repurchase the Securities upon a Change in Control arises.

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

         The quorum at any meeting called to adopt a resolution shall be Holders
representing a majority in aggregate principal amount of Securities at the time
Outstanding.

         SECTION 7.3       EXECUTION OF SUPPLEMENTAL INDENTURES.

         In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Sections 5.1 and 5.3) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that such supplemental
indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.


                                      -47-

         SECTION 7.4       EFFECT OF SUPPLEMENTAL INDENTURES.

         Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
appertaining thereto shall be bound thereby.

         SECTION 7.5       REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.

         Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.

         SECTION 7.6       NOTICE OF SUPPLEMENTAL INDENTURES.

         Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 7.2, the Company
shall give notice to all Holders of Securities of such fact, setting forth in
general terms the substance of such supplemental indenture, in the manner
provided in Section 1.6. Any failure of the Company to give such notice, or any
defect therein, shall not in any way impair or affect the validity of any such
supplemental indenture.

                                  ARTICLE EIGHT

                                    COVENANTS

         SECTION 8.1       PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.

         The Company covenants and agrees that it will duly and punctually pay
the principal of and premium, if any, and interest on the Securities in
accordance with the terms of the Securities and this Indenture. The Company
shall deposit or cause to be deposited with the Trustee, no later than 10:00
a.m. Eastern time on the date of the Stated Maturity of any Security or no later
than 10:00 a.m. Eastern time on the due date for any installment of interest,
all payments so due, which payments shall be in immediately available funds on
the date of such Stated Maturity or due date, as the case may be.

         SECTION 8.2       MAINTENANCE OF OFFICES OR AGENCIES.

         The Company hereby appoints the Corporate Trust Office or such other
office or agency of the Trustee as its agent in the Borough of Manhattan, The
City of New York, where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer or exchange,
where Securities may be surrendered for conversion, and


                                      -48-

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

         The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents for any or all of
such purposes; provided, however, that until all of the Securities have been
delivered to the Trustee for cancellation, or moneys sufficient to pay the
principal of, premium, if any, and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 8.3, the Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment and conversion, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee, and
notice to the Holders in accordance with Section 1.6, of the appointment or
termination of any such agents and of the location and any change in the
location of any such office or agency.

         If at any time the Company shall fail to maintain any such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made and notices and demands may be served
on the Corporate Trust Office.

         SECTION 8.3       MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.

         If the Company will act as its own Paying Agent, it shall, on or before
each due date of the principal of, premium, if any, or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and the Company will promptly notify the Trustee of its
action or failure so to act.

         Whenever the Company shall have one or more Paying Agents, it will, no
later than 10:00 a.m. Eastern time on each due date of the principal of,
premium, if any, or interest on any Securities, deposit with the Trustee a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held for the benefit of the Persons entitled to such principal,
premium, if any, or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of any failure so to act.

         The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 8.3,
that such Paying Agent will:

         (a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;

         (b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal, premium,
if any, or interest; and


                                      -49-

         (c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by
such Paying Agent.

         The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.

         Anything contained herein to the contrary notwithstanding, any money
held by the Trustee or any Paying Agent in trust for the payment and discharge
of the principal of, premium, if any, or interest on any Security that remains
unclaimed for two years after the date when each payment of such principal,
premium, or interest has become payable shall, upon the request of the Company,
be repaid by the Trustee to the Company as its absolute property free from
trust, and the Trustee shall thereupon be released and discharged with respect
thereto and the Holders shall look only to the Company for the payment of the
principal, premium or interest on such Security. The Trustee shall not be liable
to the Company or any Holder for interest on funds held by it for the payment
and discharge of the principal, premium or interest on any of the Securities to
any Holder. The Company shall not be liable for any interest on the sums paid to
it pursuant to this paragraph and shall not be regarded as a trustee of such
money.

         SECTION 8.4       EXISTENCE.

         Subject to Article Six, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.

         SECTION 8.5       MAINTENANCE OF PROPERTIES.

         The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 8.5 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.


                                      -50-

         SECTION 8.6       PAYMENT OF TAXES AND OTHER CLAIMS.

         The Company will pay or discharge, or cause to be paid or discharged,
before the same may become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, (b) all
claims for labor, materials and supplies that, if unpaid, might by law become a
lien or charge upon the property of the Company or any Subsidiary, and (c) all
stamps and other duties, if any, that may be imposed by the United States, the
Netherlands or any political subdivision thereof or therein in connection with
the issuance, transfer, exchange or conversion of any Securities or with respect
to this Indenture; provided, however, that, in the case of clauses (a) and (b),
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (1) if the failure to do so
will not, in the aggregate, have a material adverse impact on the Company or (2)
if the amount, applicability or validity is being contested in good faith by
appropriate proceedings.

         SECTION 8.7       REGISTRATION AND LISTING.

         Within a reasonable time after the issuance of the Global Security, the
Company (a) will effect all registrations with, and obtain all approvals by, all
governmental authorities that may be necessary under any United States federal
or state law (including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) before the shares of Common Stock issuable upon
conversion of Securities may be lawfully issued and delivered, and qualified or
listed as contemplated by clause (b) (it being understood that the Company shall
not be required to register the Securities under the Securities Act); and (b)
will cause the shares of Common Stock required to be issued and delivered upon
conversion of Securities, prior to such issuance or delivery, to be approved for
quotation on The Nasdaq National Market or, if the Common Stock is not then
approved for quotation on The Nasdaq National Market, list the Common Stock or
qualify the Common Stock for quotation on each national securities exchange or
quotation system on which outstanding Common Stock is listed or quoted at the
time of such delivery. Nothing in this Section 8.7 will limit the application of
Section 8.11.

         SECTION 8.8       STATEMENT BY OFFICERS AS TO DEFAULT.

         The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the Company's principal
executive, principal financial or principal accounting officer), stating whether
or not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they have knowledge.

         The Company will deliver to the Trustee, forthwith upon becoming aware
of any default in the performance or observance of any covenant, agreement or
condition contained in this Indenture, or any Event of Default, an Officers'
Certificate specifying with particularity such default or Event of Default and
further stating what action the Company has taken, is taking or proposes to take
with respect thereto.


                                      -51-

         Any notice required to be given under this Section 8.8 shall be
delivered to the Trustee at the Corporate Trust Office.

         SECTION 8.9       DELIVERY OF CERTAIN INFORMATION.

         At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Security or the holder of
shares of Common Stock issued upon conversion thereof, the Company will promptly
furnish or cause to be furnished Rule 144A Information to such Holder of
Securities or such holder of shares of Common Stock issued upon conversion of
Securities, or to a prospective purchaser of any such security designated by any
such Holder or holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the Securities Act (or
any successor provision thereto) in connection with the resale of any such
security; provided, however, that the Company shall not be required to furnish
such information in connection with any request made on or after the date that
is two years from the later of (a) the date such a security (or any such
predecessor security) was last acquired from the Company or (b) the date such a
security (or any such predecessor security) was last acquired from an
"affiliate" of the Company within the meaning of Rule 144 under the Securities
Act (or any successor provision thereto). "RULE 144A INFORMATION" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).

         SECTION 8.10      RESALE OF CERTAIN SECURITIES; REPORTING ISSUER.

         During the period beginning on the last date of original issuance of
the Securities and ending on the date that is two years from such date, the
Company will not, and will not permit any of its subsidiaries or other
"affiliates" (as defined under mule 144 under the Securities Act or any
successor provision thereto) controlled by it to, resell (a) any Securities that
constitute "restricted securities" under Rule 144 or (b) any securities into
which the Securities have been converted under this Indenture that constitute
"restricted securities" under Rule 144 that, in either case, have been
reacquired by any of them. The Trustee shall have no responsibility in respect
of the Company's performance of its agreement in the preceding sentence.

         SECTION 8.11      WAIVER OF CERTAIN COVENANTS.

         The Company may omit in any particular instance to comply with any
covenant or conditions set forth in Sections 8.5 and 8.6, inclusive (other than
a covenant or condition which under Article Seven cannot be modified or amended
without the consent of the Holder of each Outstanding Security affected), if
before the time for such compliance the Holders shall, through the written
consent of, not less than a majority in principal amount of the Outstanding
Securities, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee or any Paying or Conversion Agent in respect of any
such covenant or condition shall remain in full force and effect.


                                      -52-

         SECTION 8.12      WITHHOLDING TAXES.

         (a) All payments in respect of the Securities shall be made without
withholding or deduction for or on account of any present or future Taxes,
imposed or levied by or on behalf of the Netherlands or any relevant
jurisdiction or any political subdivision or authority thereof or therein having
power to tax, unless the Company with respect to the Securities is compelled by
law to deduct or withhold such Taxes. In such event, the Company, with respect
to the Securities, will pay to the Holder of a Security, as additional interest,
such additional amounts as may be necessary in order that the net amounts paid
to such Holder of such Security to ensure that the net amounts received by the
Holder of such Security who, with respect to any such Tax, is not resident in,
or a citizen of, such jurisdiction, after such withholding or deduction shall
equal the respective amounts that would have been receivable in respect of the
Security in the absence of such withholding or deduction; provided, however,
that no such additional amounts will be payable for or on account of:

                  (i) Any Taxes which would not have been imposed but for (a)
         the existence of any present or former connection between such Holder
         or Beneficial Owner of such Security and the taxing jurisdiction or any
         political subdivision or territory or possession thereof or area
         subject to its jurisdiction other than the mere purchase, holding or
         disposition of any Security, or the receipt of payments in respect
         thereof or enforcement of rights thereunder, including, without
         limitation, such Holder being or having been a citizen or resident
         thereof or being or having been present or engaged in trade or business
         therein or having or having had a permanent establishment therein or
         (b) the presentation of a Security (where presentation is required) for
         payment on a date more than 30 days after (x) the date on which such
         payment first became due and payable or (y) the date on which payment
         thereof is made available, whichever occurs later;

                  (ii) Any estate, inheritance, gift, sale, transfer, personal
         property or similar tax, assessment or other governmental charge;

                  (iii) Any Taxes which are payable other than by withholding
         from payment of (or in respect of) principal of, premium, if any, or
         any interest on, Securities;

                  (iv) Any Taxes that are imposed or withheld by reason of the
         failure to comply by the Holder or the Beneficial Owner of the Security
         with a request of the Company addressed to the Holder (a) to provide
         information, documents or other evidence concerning the nationality,
         residence or identity of the Holder or such Beneficial Owner or (b) to
         make and deliver any declaration or other similar claim (other than a
         claim for refund of any Taxes withheld by the Company) or satisfy any
         information or reporting requirements, which, in the case of (a) or
         (b), is required or imposed by a statute, treaty, regulation or
         administrative practice of the taxing jurisdiction as a precondition to
         exemption from all or part of such Taxes; or

                  (v) Any combination of items (i), (ii), (iii) and (iv) above.


                                      -53-

         Such additional amounts will also not be payable where, had the
Beneficial Owner of the Security been the Holder of the Security, such Person
would not have been entitled to payment of additional amounts by reason of
clauses (i) to (iv) inclusive above.

         (b) The Company will also (i) make such withholding or deduction
compelled by applicable law and (ii) remit the full amount deducted or withheld
to the relevant authority in accordance with applicable law. The Company will
furnish copies of such receipts evidencing the payment of any Taxes so deducted
or withheld in such form as provided in the normal course by the taxing
authority imposing such Taxes and as is reasonably available to the Company to
the Trustee within 60 days after the date of receipt of such evidence. The
Trustee will make such evidence available to the Holders of Securities upon
request.

         (c) The Company will indemnify and reimburse the Trustee for any Taxes
and any losses, liabilities, claims, damages, settlements, costs, and fees and
expenses it may incur in connection with any failure of the Company to make
payment of Taxes when due.

         (d) The foregoing obligations shall survive any termination, defeasance
or discharge of this Indenture.

         SECTION 8.13      JUDGMENT CURRENCY.

         The Company agrees to indemnify the Trustee and each Holder of a
Security against any loss incurred by any of them as a result of any judgment or
order being given or made for any amount due under this Indenture or the
Securities and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than Dollars and as a result of any variation as
between (i) the rate of exchange at which the Dollar amount is converted into
the Judgment Currency for the purpose of such judgment or order and (ii) the
spot rate of exchange in the City of New York at which any such person on the
date of payment of such judgment or order is able to purchase Dollars with the
amount of the Judgment Currency actually received by such person. The foregoing
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, Dollars.

                                  ARTICLE NINE

                            REDEMPTION OF SECURITIES

         SECTION 9.1       RIGHT OF REDEMPTION.

         The Securities may be redeemed in accordance with the provisions of the
form of Securities attached hereto as Exhibit A.


                                      -54-

         SECTION 9.2       APPLICABILITY OF ARTICLE.

         Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of the Securities or this Indenture,
shall be made in accordance with such provision and this Article Nine.

         SECTION 9.3       ELECTION TO REDEEM; NOTICE TO TRUSTEE.

         In case of any redemption at the election of the Company of any of the
Securities, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date.

         SECTION 9.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.

         If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee at least three
Business Days prior to the date that the notice described in Section 9.5 is
given from the Outstanding Securities not previously called for redemption by
lot or such method as the Trustee may deem fair and appropriate.

         If any Registered Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
that have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such selection.

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

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

         SECTION 9.5       NOTICE OF REDEMPTION.

         Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date, and such notice shall be irrevocable.

         All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:

         (a) the Redemption Date,


                                      -55-

         (b) the Redemption Price, and accrued interest, if any,

         (c) if less than all Outstanding Securities are to be redeemed, the
aggregate principal amount of Securities to be redeemed,

         (d) that on the Redemption Date the Redemption Price, and accrued
interest, if any, will become due and payable upon each such Security to be
redeemed, and that interest thereon shall cease to accrue on and after said
date,

         (e) the Conversion Rate, the date on which the right to convert the
Securities to be redeemed will terminate and the places where such Securities
may be surrendered for conversion, and

         (f) the place or places where such Securities are to be surrendered for
payment of the Redemption Price and accrued interest, if any.

         Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name of and at the expense of the Company. Notice of
redemption of Securities to be redeemed at the election of the Company received
by the Trustee shall be given by the Trustee to each Paying Agent in the name of
and at the expense of the Company.

         SECTION 9.6       DEPOSIT OF REDEMPTION PRICE.

         Not less than one Business Day prior to any Redemption Date, the
Company shall deposit with the Trustee (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 8.3) an amount
of money (which shall be in immediately available funds on such Redemption Date)
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities that
are to be redeemed on that date other than any Securities called for redemption
on that date that have been converted prior to the date of such deposit.

         If any Security called for redemption is converted, any money deposited
with the Trustee or so segregated and held in trust for the redemption of such
Security shall (subject to any right of the Holder or such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 2.8) be paid to the Company on Company Request or, if then held by the
Company, shall be discharged from such trust.

         SECTION 9.7       SECURITIES PAYABLE ON REDEMPTION DATE.

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


                                      -56-

Redemption Date; provided, however, that installments of interest on Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Date according to their terms and the
provisions of Section 2.8.

         If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal amount of, premium, if any, and,
to the extent permitted by applicable law, accrued interest on such Security
shall, until paid, bear interest from the Redemption Date at the rate then in
effect, and such Security shall remain convertible until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.

         SECTION 9.8       SECURITIES REDEEMED IN PART.

         Any Security that is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 8.2 (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 his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and make available for delivery to the Holder of such Security, a new Registered
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.

         SECTION 9.9       CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.

         In connection with any redemption of the Securities, the Company may
arrange for the purchase and conversion of any Securities by an agreement with
one or more investment bankers or other purchasers (the "PURCHASERS") to
purchase such Securities by paying to the Trustee in trust for the Holders, on
or before the Redemption Date, an amount not less than the applicable Redemption
Price, together with interest accrued and unpaid to the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
Nine, the obligation of the Company to pay the Redemption Price, together with
interest accrued and unpaid to the Redemption Date, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
Purchasers. If such an agreement is entered into (a copy of which shall be filed
with the Trustee prior to the close of business on the second Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be acquired
by such Purchasers from such Holders and (notwithstanding anything to the
contrary contained in this Article Nine) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it by the Purchasers to the Holders in the same manner as it would
monies deposited with it by the Company for the redemption of Securities.
Without the Trustee's prior written consent, no arrangement between the Company
and such Purchasers for


                                      -57-

the purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such Purchasers, including the costs and
expenses, including reasonable legal fees, incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.

                                   ARTICLE TEN

                            CONVERSION OF SECURITIES

         SECTION 10.1      CONVERSION PRIVILEGE AND CONVERSION RATE.

         Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof that is U.S.$l,000 or an integral multiple of U.S.$1,000 may be
converted into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Common Stock of the Company at
the Conversion Rate, determined as hereinafter provided, in effect at the time
of conversion. Such conversion right shall commence upon the original issuance
of the Securities and expire at the close of business on November 15, 2005,
unless the Security has been previously redeemed or repurchased, subject, in the
case of conversion of any Global Security, to any Applicable Procedures. In case
a Security or portion thereof is called for redemption at the election of the
Company or the Holder thereof exercises his right to require the Company to
repurchase the Security, such conversion right in respect of the Security, or
portion thereof so called, shall expire at the close of business on the Business
Day immediately preceding the Redemption Date or the Repurchase Date, as the
case may be, unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be (in each case subject, as
aforesaid, to any Applicable Procedures with respect to any Global Security).

         The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "CONVERSION RATE") shall be initially 53.0504
shares of Common Stock for each U.S.$l,000 principal amount of Securities. The
Conversion Rate shall be adjusted in certain instances as provided in this
Article Ten.

         SECTION 10.2      EXERCISE OF CONVERSION PRIVILEGE.

         In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 8.2, accompanied by a duly
signed and completed conversion notice substantially in the form attached hereto
as Exhibit C stating that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof
to be converted. Each Security surrendered for conversion (in whole or in part)
during the period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening


                                      -58-

of business on such Interest Payment Date shall (except in the case of any
Security or portion thereof that has been called for redemption on a Redemption
Date, or is to be repurchased on a Repurchase Date, with the consequence that
the conversion right of such Security would terminate between such Regular
Record Date and the close of business on such Interest Payment Date) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security (or part thereof,
as the case may be) being surrendered for conversion. The interest so payable on
such Interest Payment Date, with respect to any Security (or portion thereof, if
applicable) that is surrendered for conversion during the period from the close
of business on any Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date, shall be paid to the Holder
of such Security as of such Regular Record Date. Interest payable in respect of
any Security surrendered for conversion on or after an Interest Payment Date
shall be paid to the Holder of such Security as of the next preceding Regular
Record Date, notwithstanding the exercise of the right of conversion. Except as
provided in this paragraph and subject to the last paragraph of Section 2.8, no
cash payment or adjustment shall be made upon any conversion on account of any
interest accrued from the Interest Payment Date next preceding the conversion
date, in respect of any Security (or part thereof, as the case may be)
surrendered for conversion, or on account of any dividends on the Common Stock
issued upon conversion. The Company's delivery to the Holder of the number of
shares of Common Stock (and cash in lieu of fractions thereof, as provided in
this Indenture) into which a Security is convertible and any rights and warrants
pursuant to Section 10.4(m) will be deemed to satisfy the Company's obligation
to pay the principal amount of the Security.

         Securities shall be deemed to have been converted on the day of
surrender of such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons entitled to receive the Common
Stock issuable upon conversion shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As promptly as practicable
on or after the conversion date, the Company shall issue and deliver to the
Trustee, for delivery to the Holder, a certificate or certificates for the
number of full shares of Common Stock issuable upon conversion, together with
payment in lieu of any fraction of a share, as provided in Section 10.3.

         All shares of Common Stock delivered upon such conversion of Securities
shall bear restrictive legends substantially in the form of the legends required
to be set forth on the Securities pursuant to Section 2.6 and shall be subject
to the restrictions on transfer provided in such legends. Neither the Trustee
nor any agent maintained for the purpose of such conversion shall have any
responsibility for the inclusion or content of any such restrictive legends on
such Common Stock; provided, however, that the Trustee or any agent maintained
for the purpose of such conversion shall have provided to the Company or to the
Company's transfer agent for such Common Stock, prior to or concurrently with a
request to the Company to deliver such Common Stock, written notice that the
Securities delivered for conversion are Securities.

         In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof, at the expense of the Company, a
new Registered Security or Securities of


                                      -59-

authorized denominations in an aggregate principal amount equal to the
unconverted portion of the principal amount of such Security. A Security may be
converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of U.S.$1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to U.S.$l,000
or any integral multiple of U.S.$l,000 in excess thereof.

         SECTION 10.3      FRACTIONS OF SHARES.

         No fractional shares of Common Stock shall be issued upon conversion of
any Security or Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall calculate and pay a cash
adjustment in respect of such fraction (calculated to the nearest 1/100th of a
share) in an amount equal to the same fraction of the Average Sales Price Per
Share at the close of business on the day of conversion.

         SECTION 10.4      ADJUSTMENT OF CONVERSION RATE.

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

         (a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company payable in shares of
Common Stock, the Conversion Rate 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 (subject to paragraph (l) of
this Section 10.4) immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.

         (b) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the current market price per
share (determined as provided in paragraph (h) of this Section 10.4) of the
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than any rights, options or
warrants (1) that by their terms will also be issued to any Holder upon
conversion of a Security into shares of Common Stock without any action required
by the Company or any other Person or (2) that are only exercisable upon the
occurrence of a specified triggering event and such triggering event has not
occurred), the Conversion Rate in effect at the opening of business on the day
following

                                      -60-

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 of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current market price
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, such increase
to become effective (subject to paragraph (l) of this Section 10.4) immediately
after the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (b), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights, options or warrants in respect of shares of Common
Stock held in the treasury of the Company.

         (c) In case outstanding shares of Common Stock shall be subdivided 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
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 or combination becomes
effective.

         (d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness, shares of any
class of capital stock, or other property (including cash or assets or
securities, but excluding (1) any rights, options or warrants referred to in
paragraph (b) of this Section 10.4, (2) any dividend or distribution paid in
cash, except as set forth in paragraphs (e) and (f) of this Section 10.4, (3)
any dividend or distribution referred to in paragraph (a) of this Section 10.4
and (4) any merger or consolidation to which Section 10.11 applies), the
Conversion Rate shall be adjusted 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 the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (h)
of this Section 10.4) 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) of the portion of the assets, shares or evidences of indebtedness 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 effective (subject to paragraph (l) of this Section 10.4) immediately
prior to the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.

         (e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding cash portions of distribution
referred to in Section 10.4(d)


                                      -61-

and any cash that is distributed upon a merger or consolidation to which Section
10.11 applies) in an aggregate amount that, combined together with (1) the
aggregate amount of any other cash distributions to all holders of its Common
Stock made exclusively in cash within the 365-day period preceding the date of
payment of such distribution and in respect of which no adjustment pursuant to
this paragraph (e) has been made and (2) the aggregate of any cash plus the fair
market value (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 offer by the Company or any Subsidiary for all or any
portion of the Common Stock concluded within the 365-day period preceding the
date of payment of such distribution and in respect of which no adjustment
pursuant to paragraph (f) of this Section 10.4 has been made (the "COMBINED CASH
AND TENDER AMOUNT") exceeds 10% of the product of the current market price per
share (determined as provided in paragraph (h) of this Section 10.4) of the
Common Stock on the date for the determination of holders of shares of Common
Stock entitled to receive such distribution times the number of shares of Common
Stock outstanding on such date (the "AGGREGATE CURRENT MARKET PRICE"), then, and
in each such case, immediately after the close of business on such date for
determination, subject to paragraph (l) of Section 10.4, the Conversion Rate
shall be adjusted 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 (A) the numerator of which shall be equal to the
current market price per share (determined as provided in paragraph (h) of this
Section 10.4) of the Common Stock on the date fixed for such determination less
an amount equal to the quotient of (i) the excess of such combined cash and
tender amount over 10% of such aggregate current market price divided by (ii)
the number of shares of Common Stock outstanding on such date fixed for
determination and (B) the denominator of which shall be equal to the current
market price per share (determined as provided in paragraph (h) of this Section
10.4) of the Common Stock on such date fixed for determination.

         (f) In case a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock shall be completed for an aggregate
consideration consisting of cash and/or property 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 (1) 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), of consideration payable in respect of any other tender offer by
the Company or any Subsidiary for all or any portion of the Common Stock
concluded within the 365-day period preceding the completion of such tender
offer and in respect of which no adjustment pursuant to this paragraph (f) has
been made and (2) the aggregate amount of any distributions to all holders of
the Company's Common Stock made exclusively in cash within the 365-day period
preceding the completion of such tender offer and in respect of which no
adjustment pursuant to paragraph (e) of this Section 10.4 has been made (the
"COMBINED TENDER AND CASH AMOUNT") exceeds 10% of the product of the current
market price per share of the Common Stock (determined as provided in paragraph
(h) of this Section 10.4) as of the completion of such tender offer (the
"COMPLETION DATE") times the number of shares of Common Stock outstanding
(including any tendered shares) as of the Completion Date, then, and in each
such case, immediately prior to the opening of business on the day after the
date of the Completion Date, the Conversion Rate shall be adjusted so that the
same shall equal the rate determined by dividing the Conversion Rate


                                      -62-

immediately prior to close of business on the Completion Date by a fraction (A)
the numerator of which shall be equal to (i) the product of (x) the current
market price per share of the Common Stock (determined as provided in paragraph
(h) of this Section 10.4) on the Completion Date multiplied by (y) the number of
shares of Common Stock outstanding (including any tendered shares) on the
Completion Date less (ii) the combined tender and cash amount, and (B) the
denominator of which shall be equal to the product of (x) the current market
price per share of the Common Stock (determined as provided in paragraph (h) of
this Section 10.4) as of the Completion Date multiplied by (y) the number of
shares of Common Stock outstanding (including any tendered shares) as of the
Completion Date less the number of all shares validly tendered and not withdrawn
as of the Completion Date (the shares deemed so accepted up to any such maximum,
being referred to as the "PURCHASED SHARES").

         (g) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 10.11 applies) shall be deemed to involve (1) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (d) of this Section 10.4), and (2) a subdivision or combination, as
the case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section 10.4).

         (h) For the purpose of any computation under paragraphs (b), (d), (e)
or (f) of this Section 10.4, the current market price per share of Common Stock
on any date shall be calculated by the Company and be deemed to be the average
of the daily Average Sales Prices Per Share for the five consecutive Trading
Days selected by the Company commencing not more than 10 Trading Days before,
and ending not later than, the earlier of the day in question and the day before
the "ex date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date," when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.

         (i) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(i)) would require an increase or decrease of at least one percent in such rate;
provided, however, that any adjustments which by reason of this paragraph (i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.

         (j) The Company may make such increases in the Conversion Rate, for the
remaining term of the Securities or any shorter term, in addition to those
required by paragraphs (a), (b),


                                      -63-

(c), (d), (e) and (f) of this Section 10.4, as it considers to be advisable in
order to avoid or diminish any income tax liability to any holders of shares of
Common Stock resulting from any dividend or distribution of Common Stock or
issuance of rights or warrants to purchase or subscribe for Common Stock or from
any event treated as such for income tax purposes.

         To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) days 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; provided, however, that such
increase shall not be taken into account for purposes of determining whether the
Average Sales Price Per Share of the Common Stock exceeds the Conversion Price
by 105% in connection with an event which would otherwise be a Change in
Control. Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the increase to the Holders of
Securities in the manner provided in Section 1.6 at least fifteen (15) days
prior to the date the increased Conversion Rate takes effect, and such notice
shall state the increased Conversion Rate and the period during which it will be
in effect.

         (k) Notwithstanding the foregoing provisions of this Section 10.4, no
adjustment of the Conversion Rate shall be required to be made (1) upon the
issuance of shares of Common Stock pursuant to any present or future plan for
the reinvestment of dividends, (2) because of a tender or exchange offer of the
character described in Rule 13e-4(h) (5) under the Exchange Act or any successor
rule thereto or (3) as a result of a rights plan or poison pill implemented by
the Company.

         (l) In any case in which this Section 10.4 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and on and before such adjustment shall have become effective (1) defer
paying any cash payment pursuant to Section 10.3 hereof or issuing to the Holder
of such Security the number of shares of Common Stock issuable upon such
conversion in excess of the number of shares of Common Stock issuable thereupon
only on the basis of the Conversion Rate prior to adjustment, and (2) not later
than five Business Days after such adjustment shall have become effective, pay
to such Holder the appropriate cash payment pursuant to Section 10.3 hereof and
issue to such Holder the additional shares of Common Stock issuable on such
conversion. Notwithstanding the foregoing, no adjustment of the Conversion Rate
shall be made if the event giving rise to such adjustment does not occur.

         (m) In the event that the Company distributes rights or warrants (other
than those referred to in paragraph (b) above) pro rata to holders of Common
Stock, so long as any such rights or warrants have not expired or been redeemed
by the Company, the Company shall make proper provision so that the Holder of
any Security surrendered for conversion will be entitled to receive upon such
conversion, in addition to the Common Stock issuable upon conversion of the
Securities (the "CONVERSION SHARES"), a number of rights and warrants to be
determined as follows: (i) if such conversion occurs on or prior to the date for
the distribution to the holders of rights or warrants of separate certificates
evidencing such rights or warrants (the "DISTRIBUTION


                                      -64-

DATE"), the same number of rights or warrants to which a holder of a number of
shares of Common Stock equal to the number of Conversion Shares is entitled at
the time of such conversion in accordance with the terms and provisions of and
applicable to the rights or warrants, and (ii) if such conversion occurs after
such Distribution Date, the same number of rights or warrants to which a holder
of the number of shares of Common Stock into which the principal amount of such
Security so converted was convertible immediately prior to such Distribution
Date would have been entitled on such Distribution Date in accordance with the
terms and provisions of and applicable to the rights or warrants.

         SECTION 10.5      NOTICE OF ADJUSTMENTS OF CONVERSION RATE.

         Whenever the Conversion Rate is adjusted as herein provided:

         (a) the Company shall compute the adjusted Conversion Rate in
accordance with Section 10.4 and shall prepare a certificate signed by the Chief
Financial Officer of the Company setting forth the adjusted Conversion Rate and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Trustee and with the
Conversion Agent; and

         (b) upon each such adjustment, a notice stating that the Conversion
Rate has been adjusted and setting forth the adjusted Conversion Rate shall be
required, and as soon as practicable after it is required, such notice shall be
provided by the Company to all Holders in accordance with Section 1.6.

Neither the Trustee nor the Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours. Unless and until a Responsible Officer of the Trustee and Conversion
Agent receive notice of an adjusted Conversion Rate, the Trustee and the
Conversion Agent may rely without inquiry on the Conversion Rate most recently
in effect.

         SECTION 10.6      NOTICE OF CERTAIN CORPORATE ACTION.

         In case:

         (a) the Company shall declare a dividend (or any other distribution) on
its Common Stock payable (i) otherwise than exclusively in cash or (ii)
exclusively in cash in an amount that would require any adjustment pursuant to
Section 10.4; or

         (b) the Company shall authorize the granting to the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or

         (c) of any reclassification of the Common Stock of the Company, or of
any consolidation, merger or share exchange to which the Company is a party and
for which approval


                                      -65-

of any stockholders of the Company is required, or of the conveyance, sale,
transfer or lease of all or substantially all of the assets of the Company; or

         (d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;

then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 8.2, and shall cause
to be provided to all Holders in accordance with Section 1.6, at least 20 days
(or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (1)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined or
(2) the date on which such reclassification, consolidation, merger, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such notice or the notice
referred to in the following paragraph nor any defect therein shall affect the
legality or validity of the proceedings described in clauses (a) through (d) of
this Section 10.6. If at the time the Trustee shall not be the Conversion Agent,
a copy of such notice shall also forthwith be filed by the Company with the
Trustee.

         The Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 8.2, and shall
cause to be provided to all Holders in accordance with Section 1.6, notice of
any tender offer by the Company or any Subsidiary for all or any portion of the
Common Stock at or about the time that such notice of tender offer is provided
to the public generally.

         SECTION 10.7      COMPANY TO RESERVE COMMON STOCK.

         The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all Outstanding Securities.

         SECTION 10.8      TAXES ON CONVERSIONS.

         Except as provided in the next sentence, the Company will pay any and
all taxes and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant hereto. The Company
shall not, however, be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the


                                      -66-

Person requesting such issue has paid to the Company the amount of any such tax
or duty or has established to the satisfaction of the Company that such tax or
duty has been paid.

         SECTION 10.9      COVENANT AS TO COMMON STOCK.

         The Company agrees that all shares of Common Stock that may be
delivered upon conversion of Securities, upon such delivery, will be newly
issued shares and will have been duly authorized and validly issued and will be
fully paid and nonassessable and, except as provided in Section 10.8, the
Company will pay all taxes, liens and charges with respect to the issue thereof.

         SECTION 10.10     CANCELLATION OF CONVERTED SECURITIES.

         All Securities delivered for conversion shall be delivered to the
Trustee or its agent to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 2.10.

         SECTION 10.11 PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS.

         In case of any consolidation or merger of the Company with or into any
other Person, any merger of another Person with or into the Company (other than
a merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets of
the Company, the Person formed by such consolidation or resulting from such
merger or that acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then Outstanding shall have the right thereafter, during the
period such Security shall be convertible as specified in Section 1l.l, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately prior to
such consolidation, merger, conveyance, sale, transfer or lease, assuming such
holder of Common Stock of the Company (a) is not a Person with which the Company
consolidated or merged with or into or that merged into or with the Company or
to which such conveyance, sale, transfer or lease was made, as the case may be
(a "CONSTITUENT PERSON"), or an Affiliate of a Constituent Person and (b) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer, or lease is not the same for each share of Common
Stock of the Company held immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease by others than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have
been exercised ("NON-ELECTING SHARE"), then for the purpose of this Section
10.11 the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease by the holders
of each Non-electing Share shall be deemed to be the kind and amount so
receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments that, for events subsequent



                                      -67-

to the effective date of such supplemental indenture, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section 10.11 shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or leases.
Notice of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security as provided in Section 1.6 promptly upon
such execution.

         Neither the Trustee nor the Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property or cash receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, conveyance, transfer, sale or lease or to any such adjustment but may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, an Officers' Certificate or an Opinion of
Counsel with respect thereto, which the Company shall cause to be furnished to
the Trustee upon request.

         SECTION 10.12     RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.

         The Trustee, subject to the provisions of Section 5.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist that may require
any adjustment of the Conversion Rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same, or whether a supplemental indenture need be entered into. Neither the
Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any Common Stock, or of any other securities or property or cash,
that may at any time be issued or delivered upon the conversion of any Security;
and it or they do not make any representation with respect thereto. Neither the
Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent
shall be responsible for any failure of the Company to make or calculate any
cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of
any Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 5.1, and any Conversion Agent shall not be responsible for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article.

                                 ARTICLE ELEVEN

                           SUBORDINATION OF SECURITIES

         SECTION 11.1      SECURITIES SUBORDINATE TO SENIOR DEBT.

         The Company covenants and agrees, and each Holder of a Security by his
acceptance thereof likewise covenants and agrees, that to the extent and in the
manner hereinafter set forth in this Article (subject to the provisions of
Article Three) the indebtedness represented by the Securities and the payment of
the principal of (and premium, if any) and interest on, and any payment of the
Repurchase Price with respect to, each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to the prior payment
in full in cash or Cash Equivalents of all Senior Debt.





                                      -68-



      SECTION 11.2 NO PAYMENTS IN CERTAIN CIRCUMSTANCES; PAYMENT OVER OF
                   PROCEEDS UPON DISSOLUTION, ETC.

      No payment on account of principal of, premium, if any, or interest on, or
redemption or repurchase of, the Securities shall be made if, at the time of
such payment: (a) a default in the payment of principal, premium, if any, or
interest or other amounts due on or in connection with any Senior Debt,
including any default under any redemption or repurchase obligation, occurs and
is continuing (or, in the case of Senior Debt for which there is a period of
grace, in the event of such a default that continues beyond the period of grace,
if any, specified in the instrument or lease evidencing such Senior Debt and the
Trustee has received written notice of such default), unless and until such
default shall have been cured or waived or shall have ceased to exist; or (b) a
default, other than a payment default, on Designated Senior Debt occurs and is
continuing that then permits holders of such Designated Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default (a
"PAYMENT BLOCKAGE NOTICE") from the Company, a holder of Designated Senior Debt
or a Representative. Notwithstanding the foregoing, the Company may make, and
the Trustee may receive and shall apply, any payment in respect of the
Securities (for principal, premium, if any, or interest or repurchase) if such
payment was made prior to the occurrence of any of the contingencies specified
in clauses (a) and (b) above.

      If the Trustee receives any Payment Blockage Notice pursuant to clause (b)
above, no subsequent Payment Blockage Notice shall be effective for purposes of
this Section 11.2 unless and until (1) at least 365 days shall have elapsed
since the effectiveness of the immediately prior Payment Blockage Notice and (2)
all scheduled payments of principal, premium, if any, and interest on the
Securities that have come due have been paid in full in cash. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such existing nonpayment default has been cured
for a period of at least 90 days.

      The Company may and shall resume payments on and distributions in respect
of the Securities (including missed payments, if any) upon the earlier of: (A)
the date upon which the default is cured or waived, or (B) in the case of a
default referred to in clause (b) of the second preceding paragraph, 179 days
after notice is received if the maturity of such Designated Senior Debt has not
been accelerated such that such debt is then presently payable, unless this
Indenture otherwise prohibits the payment or distribution at the time of such
payment or distribution.

      Upon (i) any acceleration of the principal amount due on the Securities or
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding up or total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, premium, if any, sinking
fund and interest or other amounts due, or to become due, upon or in connection
with all Senior Debt shall first be paid in full in cash or Cash Equivalents, or
payment thereof provided for in cash or Cash Equivalents in accordance with its
terms, before any payment is made on account of the principal of, premium, if
any, or interest on, or repurchase of, the indebtedness evidenced by the
Securities, and upon any such dissolution or winding up or liquidation or
reorganization any


                                      -69-

payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee under this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, as the case may be, directly to the holders of Senior
Debt (pro rata to each such holder on the basis of the respective amounts of
Senior Debt held by such holder) or their representatives, to the extent
necessary to pay all Senior Debt in full, in cash or Cash Equivalents, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt, before any payment or distribution is made to the Holders of the
Securities or to the Trustee under this Indenture.

      In the event that, contrary to the foregoing, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities (other than junior securities, as defined in Section 11.11), shall be
received by the Trustee or the Holders of the Securities before all Senior Debt
is paid in full in cash or Cash Equivalents or provision made for such payment
in accordance with its terms, such payment or distribution shall be paid over or
delivered to the holders of such Senior Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Debt have been issued, as
their respective interests may appear, for application to the payment of all
Senior Debt remaining unpaid to the extent necessary to pay all such Senior Debt
in full in cash or Cash Equivalents in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Debt.

      Subject to the payment in full in cash or Cash Equivalents of all Senior
Debt, the Holders of the Securities (together with the holders of any other
indebtedness of the Company that is subordinated in right of payment to the
payment in full of all Senior Debt that is not subordinated in right of payment
to the Securities and that by its terms grants such right of subrogation to the
holders thereof) shall be subrogated to the rights of the holders of Senior Debt
to receive payments or distribution of assets of the Company made on the Senior
Debt until the principal of, premium, if any, and interest on, or amounts
payable upon repurchase of, the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this Article to the
holders of Senior Debt by the Holders of the Securities or the Trustee, shall,
as between the Company, its creditors other than the holders of Senior Debt, and
the Holders of Securities, be deemed to be a payment by the Company to the
holders of or on account of Senior Debt, it being understood that the provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of Senior Debt, on the other hand.

      SECTION 11.3 TRUSTEE TO EFFECTUATE SUBORDINATION.

      Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination


                                      -70-

provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes and releases the Trustee from all claims and liabilities
with respect to such action.

      SECTION 11.4 NO WAIVER OF SUBORDINATION PROVISIONS.

      No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder of any Senior Debt or by
any non-compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.

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

      SECTION 11.5 NOTICE TO TRUSTEE.

      The Company shall give prompt written notice to the Trustee of any fact
known to the Company that would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder of Senior Debt or from any trustee,
agent or representative therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 5.1, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
the Trustee shall not have received the notice provided for in this Section 11.5
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including without limitation the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to such date.

      Subject to the provisions of Section 5.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt


                                      -71-

(or a trustee, agent or representative therefor) to establish that such notice
has been given by a holder of Senior Debt (or a trustee, agent or representative
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Eleven, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Eleven, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.

      SECTION 11.6 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
                   AGENT.

      Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 5.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.

      SECTION 11.7 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.

      The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth
in this Article Eleven, and no implied covenants or obligations with respect to
holders of Senior Debt shall be read into this Indenture against the Trustee.

      SECTION 11.8 RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION
                   PROVISIONS.

      Each Holder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Debt, whether such Senior Debt
was created or acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior Debt, and such
holder of Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt. Such holders of the Company's Senior Debt are
intended by the parties to the


                                      -72-

Indenture to be third party creditor beneficiaries under this Indenture for the
purposes of enforcing the provisions of this Article Eleven.

      SECTION 11.9 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
                   TRUSTEE'S RIGHTS.

      The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Eleven with respect to any Senior Debt that may at any
time be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.

      Nothing in this Article Eleven shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 5.7.

      SECTION 11.10 ARTICLE APPLICABLE TO PAYING AGENTS.

      In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Eleven in addition to or in place of the Trustee;
provided, however, that Section 11.9 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.

      SECTION 11.11 CERTAIN CONVERSIONS AND REPURCHASES DEEMED PAYMENT.

      For the purposes of this Article Eleven only, (a) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article Ten or upon the repurchase of Securities in accordance with Article
Twelve shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (b) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section 11.11, the term
"junior securities" means (1) shares of any stock of any class of the Company
and any cash, property or securities into which the Securities are convertible
pursuant to Article Ten and (2) securities of the Company that are subordinated
in right of payment to all Senior Debt that may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in this
Article Eleven. Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article Ten or to exchange
such Security for Common Stock in accordance with Article Twelve if the Company
elects to satisfy the obligations under Article Twelve by the delivery of Common
Stock.


                                      -73-

                                 ARTICLE TWELVE

           REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A
                               CHANGE IN CONTROL

      SECTION 12.1 RIGHT TO REQUIRE REPURCHASE.

      In the event that a Change in Control shall occur, then each Holder shall
have the right, at the Holder's option, but subject to the provisions of Section
12.2, to require the Company to repurchase, and upon the exercise of such right
the Company shall repurchase, all of such Holder's Securities not theretofore
called for redemption, or any portion of the principal amount thereof that is
equal to U.S.$1,000 or any greater integral multiple of U.S.$1,000, on the date
(the "REPURCHASE DATE") that is fixed by the Company at a cash purchase price
equal to 101% of the principal amount of the Securities to be repurchased plus
interest accrued to the Repurchase Date (the "REPURCHASE PRICE"); provided,
however, that installments of interest on Securities whose Stated Maturity is on
or prior to the Repurchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Date according to their terms and the provisions of Section 2.8.
The Repurchase Date will be determined by the Company in the following manner:
(i) the Company will give notice of the Change in Control as contemplated in
Section 12.3(a); (ii) each Holder electing to exercise the repurchase right must
deliver, on or before the thirtieth (30th) day (or such greater period as may be
required by applicable law) after the date of the Company's notice provided in
provision (i) above: (A) irrevocable written notice to the trustee of such
Holder's exercise of its repurchase right, and (B) the Securities with respect
to which such repurchase right is being exercised; and (iii) the Company will
make the repurchase on a date that is no later than 45 days after the Holder has
delivered the notice provided in proviso (ii) above. Such right to require the
repurchase of the Securities shall not continue after a discharge of the Company
from its obligations with respect to the Securities in accordance with Article
Three unless a Change in Control shall have occurred prior to such discharge. At
the option of the Company, the Repurchase Price may be paid in cash or, subject
to the fulfillment by the Company of the conditions set forth Section 12.2, by
delivery of shares of Common Stock or in a combination of cash and Common Stock
having a fair market value equal to the Repurchase Price. Whenever in this
Indenture (including Sections 2.2, 4.1(a) and 4.8) there is a reference, in any
context, to the principal of any Security as of any time, such reference shall
be deemed to include reference to the Repurchase Price that has become and
remains payable in respect of such Security to the extent that such Repurchase
Price is, was or would be so payable at such time, and express mention of the
Repurchase Price in any provision of this Indenture shall not be construed as
excluding the Repurchase Price in those provisions of this Indenture when such
express mention is not made; provided, however, that for the purposes of Article
Eleven such reference shall be deemed to include reference to the Repurchase
Price only to the extent the Repurchase Price is payable in cash.

      For purposes of this Section 12.1, the fair market value of shares of
Common Stock shall be determined by the Company and shall be equal to 95% of the
average of the closing price per share of the Common Stock on The Nasdaq
National Market or the principal exchange on which


                                      -74-

the Common Stock is traded for each of the five consecutive Trading Days
immediately preceding and including the third Trading Day prior to the
Repurchase Date.

      SECTION 12.2 CONDITIONS TO THE COMPANY'S ELECTION TO PAY THE REPURCHASE
                   PRICE IN COMMON STOCK.

      The Company may elect to pay the Repurchase Price by delivery of shares of
Common Stock pursuant to Section 12.1 if and only if the following conditions
shall have been satisfied:

      (a) As to each Holder, the Repurchase Price shall be paid only in cash in
the event any shares of Common Stock to be issued to such Holder upon repurchase
of Securities hereunder (1) require registration under any federal securities
law before such shares may be freely transferable without being subject to any
transfer restrictions under the Securities Act upon repurchase and if such
registration is not completed or does not become effective prior to the
Repurchase Date or (2) require registration with or approval of any governmental
authority under any state law or any other federal law before such shares may be
validly issued or delivered upon repurchase and if such registration is not
completed or does not become effective or such approval is not obtained prior to
the Repurchase Date;

      (b) Payment of the Repurchase Price may not be made in Common Stock unless
such stock is, or shall have been, approved for quotation on The Nasdaq National
Market or listed or quoted on a national securities exchange or other quotation
system, in either case, prior to the Repurchase Date; and

      (c) All shares of Common Stock that may be issued upon repurchase of
Securities will be issued out of the Company's authorized but unissued Common
Stock will and, upon issue, be duly and validly issued and fully paid and
non-assessable and free of any preemptive rights.

      If all of the conditions set forth in this Section 12.2 are not satisfied
in accordance with the terms thereof, the Repurchase Price shall be paid by the
Company only in cash.

      SECTION 12.3 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.

      (a) Unless the Company shall have theretofore called for redemption all of
the Outstanding Securities, on or before the thirtieth day after the occurrence
of a Change in Control, the Company or, at the request and expense of the
Company on or before the thirtieth day after such occurrence, the Trustee, shall
give to all Holders of Securities, in the manner provided in Section 1.6, notice
(the "COMPANY NOTICE") of the occurrence of the Change in Control and of the
repurchase right set forth herein arising as a result thereof. The Company shall
also deliver a copy of such notice of a repurchase right to the Trustee.

      Each notice of a repurchase right shall state:

            (1) the Repurchase Date,


                                      -75-

            (2) the date by which the repurchase right must be exercised,

            (3) the Repurchase Price, and whether the Repurchase Price shall be
      paid by the Company in cash or by delivery of shares of Common Stock,

            (4) a description of the procedure that a Holder must follow to
      exercise a repurchase right, and the place or places where such Securities
      are to be surrendered for payment of the Repurchase Price and accrued
      interest, if any,

            (5) that on the Repurchase Date, the Repurchase Price, and accrued
      interest, if any, will become due and payable upon each such Security
      designated by the Holder to be repurchased and that interest thereon shall
      cease to accrue on and after said date,

            (6) the Conversion Rate then in effect, the date on which the right
      to convert the principal amount of the Securities to be repurchased will
      terminate and the place or places where such Securities may be surrendered
      for conversion,

            (7) the place or places that the Notice of Election of Holder to
      Require Repurchase attached hereto as Exhibit B, shall be delivered, and
      the form of such notice, and

            (8) the CUSIP number or numbers of such Securities.

      No failure of the Company to give the foregoing notices or defect therein
shall limit any Holder's right to exercise a repurchase right or affect the
validity of the proceedings for the repurchase of Securities.

      If any of the foregoing provisions or other provisions of this Article
Twelve are inconsistent with applicable law, such law shall govern.

      (b) To exercise a repurchase right, a Holder shall deliver to the Trustee
on or before the thirtieth day (or such greater period as may be required by
applicable law) after the date of the Company Notice (1) written notice of the
Holder's exercise of such right, which notice shall set forth the name of the
Holder, the principal amount of the Securities to be repurchased (and, if any
Security is to repurchased in part, the serial number thereof, the portion of
the principal amount thereof to be repurchased and the name of the Person in
which the portion thereof to remain Outstanding after such repurchase is to be
registered) and a statement that an election to exercise the repurchase right is
being made thereby, and, in the event that the Repurchase Price shall be paid in
shares of Common Stock, the name or names (with addresses) in which the
certificate or certificates for shares of Common Stock shall be issued, and (2)
the Securities with respect to which the repurchase right is being exercised.
Such written notice shall be irrevocable, except that the right of the Holder to
convert the Securities with respect to which the repurchase right is being
exercised shall continue until the close of business on the Business Day
immediately preceding the Repurchase Date.


                                      -76-

      (c) In the event a repurchase right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid to the Trustee the
Repurchase Price in cash or shares of Common Stock, as provided above, for
payment to the Holder on the Repurchase Date or, if shares of Common Stock are
to be paid, as promptly after the Repurchase Date as practicable, together with
accrued and unpaid interest to the Repurchase Date payable with respect to the
Securities as to which the purchase right has been exercised; provided, however,
that installments of interest that mature on or prior to the Repurchase Date
shall be payable in cash to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Date.

      (d) If any Security (or portion thereof) surrendered for repurchase shall
not be so paid on the Repurchase Date, the principal amount of such Security (or
portion thereof, as the case may be) shall, until paid, bear interest to the
extent permitted by applicable law from the Repurchase Date at the rate then in
effect per annum, and each Security shall remain convertible into Common Stock
until the principal of such Security (or portion thereof, as the case may be)
shall have been paid or duly provided for.

      (e) Any Security that is to be repurchased only in part shall be
surrendered to the Trustee (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 his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, containing
identical terms and conditions, each in an authorized denomination in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.

      (f) Any issuance of shares of Common Stock in respect of the Repurchase
Price shall be deemed to have been effected immediately prior to the close of
business on the Repurchase Date and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such repurchase shall be deemed to have become on the Repurchase Date the
holder or holders of record of the shares represented thereby; provided,
however, that any surrender for repurchase on a date when the stock transfer
books of the Company shall be closed shall constitute the Person or Persons in
whose name or names the certificate or certificates for such shares are to be
issued as the record holder or holders thereof for all purposes at the opening
of business on the next succeeding day on which such stock transfer books are
open. No payment or adjustment shall be made for dividends or distributions on
any Common Stock issued upon repurchase of any Security declared prior to the
Repurchase Date.

      (g) No fractions of shares shall be issued upon repurchase of Securities.
If more than one Security shall be repurchased from the same Holder and the
Repurchase Price shall be payable in shares of Common Stock, the number of full
shares that shall be issuable upon such repurchase shall be computed on the
basis of the aggregate principal amount of the Securities so repurchased.
Instead of any fractional share of Common Stock that would otherwise be issuable
on the repurchase of any Security or Securities, the Company will deliver to the
applicable Holder its check for the current market value of such fractional
share. The current market value


                                      -77-

of a fraction of a share is determined by multiplying the current market price
of a full share by the fraction and rounding the result to the nearest cent. For
purposes of this Section 12.3, the current market price of a share of Common
Stock is the average of the high and low sales price per Share of the Common
Stock on the Trading Day immediately preceding the Repurchase Date.

      (h) Any issuance and delivery of certificates for shares of Common Stock
on repurchase of Securities shall be made without charge to the Holder of
Securities being repurchased for such certificates or for any tax or duty in
respect of the issuance or delivery of such certificates or the securities
represented thereby; provided, however, that the Company shall not be required
to pay any tax or duty that may be payable in respect of (1) income of the
Holder or (2) any transfer involved in the issuance or delivery of certificates
for shares of Common Stock in a name other than that of the Holder of the
Securities being repurchased, and no such issuance or delivery shall be made
unless and until the Person requesting such issuance or delivery has paid to the
Company the amount of any such tax or duty or has established, to the
satisfaction of the Company, that such tax or duty has been paid.

      (i) All Securities delivered for repurchase shall be delivered to the
Trustee to be canceled at the direction of the Trustee, which shall dispose of
the same as provided in Section 2.10.

                                ARTICLE THIRTEEN

         HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE

      SECTION 13.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.

      The Company will furnish or cause to be furnished to the Trustee:

      (a) semi-annually, not more than 15 days after the Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities as of such Regular Record Date, and

      (b) at such other times as the Trustee may reasonably request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;

provided, however, that no such list need be furnished so long as the Trustee is
acting as Security Registrar.

      SECTION 13.2 PRESERVATION OF INFORMATION.

      (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 13.1 and the names and
addresses of Holders received by the Trustee in its


                                      -78-

capacity as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 13.1 upon receipt of a new list so furnished.

      (b) After this Indenture has been qualified under the Trust Indenture Act,
the rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.

      (c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.

      SECTION 13.3 NO RECOURSE AGAINST OTHERS.

      An incorporator or any past, present or future director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. Such waiver and release shall be part of the consideration for the
issue of the Securities.

      SECTION 13.4 REPORTS BY TRUSTEE.

      (a) After this Indenture has been qualified under the Trust Indenture Act,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided therein. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days
after each May 15 following the date of this Indenture, deliver to Holders a
brief report, dated as of such May 15, that complies with the provisions of such
Section 313(a).

      (b) After this Indenture has been qualified under the Trust Indenture Act,
a copy of each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each stock exchange upon which the Securities are
listed, with the Commission and with the Company. The Company will promptly
notify the Trustee when the Securities are listed on any stock exchange.

      SECTION 13.5 REPORTS BY COMPANY.

      After this Indenture has been qualified under the Trust Indenture Act, the
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided therein; provided, however, that any such information, documents
or reports required to be filed with the Commission pursuant to Section 13 or
15(d) of the Exchange Act shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission.


                                      -79-

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


                                      -80-

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

                                      ASM International N.V.,


                                      By _________________________
                                         Name:
                                         Title:

                                      Citibank, N.A.,
                                      a national banking association, as Trustee


                                      By _________________________
                                         Name:
                                         Title:


                                      -81-

                                TABLE OF CONTENTS



                                                                             PAGE
                                                                             ----
                                                                          
ARTICLE ONE  DEFINITIONS AND OTHER PROVISIONS
      OF GENERAL APPLICATION ..............................................    1

      SECTION 1.1  Definitions ............................................    1

      SECTION 1.2  Compliance Certificates and Opinions ...................   11

      SECTION 1.3  Form of Documents Delivered to the Trustee .............   12

      SECTION 1.4  Acts of Holders of Securities ..........................   12

      SECTION 1.5  Notices, Etc., to Trustee and Company ..................   14

      SECTION 1.6  Notice to Holders of Securities; Waiver ................   15

      SECTION 1.7  Effect of Headings and Table of Contents ...............   15

      SECTION 1.8  Successors and Assigns .................................   15

      SECTION 1.9  Separability Clause ....................................   15

      SECTION 1.10  Benefits of Indenture .................................   16

      SECTION 1.11  Governing Law .........................................   16

      SECTION 1.12  Legal Holidays ........................................   16

      SECTION 1.13  Conflict with Trust Indenture Act .....................   16

      SECTION 1.14  Counterparts ..........................................   17

      SECTION 1.15  Consent to Jurisdiction ...............................   17

ARTICLE TWO  THE SECURITIES ...............................................   17

      SECTION 2.1  Form Generally .........................................   17

      SECTION 2.2  Title and Terms ........................................   18

      SECTION 2.3  Denominations ..........................................   19

      SECTION 2.4  Execution, Authentication, Delivery and Dating .........   19

      SECTION 2.5  Global Securities; Temporary Securities ................   20



                                       -i-

                                                                          
      SECTION 2.6  Registration, Registration of Transfer and Exchange;
                   Restrictions on Transfer ...............................   21

      SECTION 2.7  Mutilated, Destroyed, Lost or Stolen Securities ........   24

      SECTION 2.8  Payment of Interest; Interest Rights Preserved .........   25

      SECTION 2.9  Persons Deemed Owners ..................................   26

      SECTION 2.10  Cancellation ..........................................   26

      SECTION 2.11  Computation of Interest ...............................   26

      SECTION 2.12  CUSIP Numbers .........................................   26

ARTICLE THREE  SATISFACTION AND DISCHARGE .................................   27

      SECTION 3.1  Satisfaction and Discharge of Indenture ................   27

      SECTION 3.2  Application of Trust Money .............................   28

ARTICLE FOUR  REMEDIES ....................................................   28

      SECTION 4.1  Events of Default ......................................   28

      SECTION 4.2  Acceleration of Maturity; Rescission and Annulment .....   30

      SECTION 4.3  Collection of Indebtedness and Suits for Enforcement
                   by Trustee .............................................   31

      SECTION 4.4  Trustee May File Proofs of Claim .......................   31

      SECTION 4.5  Trustee May Enforce Claims without Possession
                   of Securities ..........................................   32

      SECTION 4.6  Application of Money Collected .........................   32

      SECTION 4.7  Limitation on Suits ....................................   33

      SECTION 4.8  Unconditional Right of Holders to Receive Principal,
                   Premium and Interest and to Convert ....................   33

      SECTION 4.9  Restoration of Rights and Remedies .....................   34

      SECTION 4.10  Rights and Remedies Cumulative ........................   34

      SECTION 4.11  Delay or Omission Not Waiver ..........................   34

      SECTION 4.12  Control by Holders of Securities ......................   34

      SECTION 4.13  Waiver of Past Defaults ...............................   34




                                      -ii-

                                                                          
      SECTION 4.14  Undertaking for Costs .................................   35

      SECTION 4.15  Waiver of Stay, Usury or Extension Laws ...............   35

ARTICLE FIVE  THE TRUSTEE .................................................   36

      SECTION 5.1  Certain Duties and Responsibilities ....................   36

      SECTION 5.2  Notice of Defaults .....................................   37

      SECTION 5.3  Certain Rights of Trustee ..............................   37

      SECTION 5.4  Not Responsible for Recitals or Issuance of Securities .   38

      SECTION 5.5  May Hold Securities, Act as Trustee under Other
                   Indentures .............................................   38

      SECTION 5.6  Money Held in Trust ....................................   38

      SECTION 5.7  Compensation and Reimbursement .........................   39

      SECTION 5.8  Corporate Trustee Required; Eligibility ................   40

      SECTION 5.9  Resignation and Removal; Appointment of Successor ......   40

      SECTION 5.10  Acceptance of Appointment by Successor ................   41

      SECTION 5.11  Merger, Conversion, Consolidation or Succession
                    to Business ...........................................   42

      SECTION 5.12  Authenticating Agents .................................   42

      SECTION 5.13  Disqualification; Conflicting Interests ...............   44

      SECTION 5.14  Preferential Collection of Claims Against Company .....   44

ARTICLE SIX  CONSOLIDATION, MERGER, CONVEYANCE,
      TRANSFER OR LEASE ...................................................   44

      SECTION 6.1  Company May Consolidate, Etc., Only on Certain Terms ...   44

      SECTION 6.2  Successor Substituted ..................................   45

ARTICLE SEVEN  SUPPLEMENTAL INDENTURES ....................................   45

      SECTION 7.1  Supplemental Indentures Without Consent of Holders
                   of Securities ..........................................   45

      SECTION 7.2  Supplemental Indentures With Consent of Holders
                   of Securities ..........................................   46

      SECTION 7.3  Execution of Supplemental Indentures ...................   47

      SECTION 7.4  Effect of Supplemental Indentures ......................   48




                                      -iii-

                                                                          
      SECTION 7.5  Reference in Securities to Supplemental Indentures .....   48

      SECTION 7.6  Notice of Supplemental Indentures ......................   48

ARTICLE EIGHT  COVENANTS ..................................................   48

      SECTION 8.1  Payment of Principal, Premium and Interest .............   48

      SECTION 8.2  Maintenance of Offices or Agencies .....................   48

      SECTION 8.3  Money for Security Payments to Be Held in Trust ........   49

      SECTION 8.4  Existence ..............................................   50

      SECTION 8.5  Maintenance of Properties ..............................   50

      SECTION 8.6  Payment of Taxes and Other Claims ......................   51

      SECTION 8.7  Registration and Listing ...............................   51

      SECTION 8.8  Statement by Officers as to Default ....................   51

      SECTION 8.9  Delivery of Certain Information ........................   52

      SECTION 8.10  Resale of Certain Securities; Reporting Issuer ........   52

      SECTION 8.11  Waiver of Certain Covenants ...........................   52

      SECTION 8.12  Withholding Taxes .....................................   53

      SECTION 8.13  Judgment Currency .....................................   54

ARTICLE NINE  REDEMPTION OF SECURITIES ....................................   54

      SECTION 9.1  Right of Redemption ....................................   54

      SECTION 9.2  Applicability of Article ...............................   55

      SECTION 9.3  Election to Redeem; Notice to Trustee ..................   55

      SECTION 9.4  Selection by Trustee of Securities to Be Redeemed ......   55

      SECTION 9.5  Notice of Redemption ...................................   55

      SECTION 9.6  Deposit of Redemption Price ............................   56

      SECTION 9.7  Securities Payable on Redemption Date ..................   56

      SECTION 9.8  Securities Redeemed in Part ............................   57




                                      -iv-

                                                                          
      SECTION 9.9  Conversion Arrangement on Call for Redemption ..........   57

ARTICLE TEN  CONVERSION OF SECURITIES .....................................   58

      SECTION 10.1  Conversion Privilege and Conversion Rate ..............   58

      SECTION 10.2  Exercise of Conversion Privilege ......................   58

      SECTION 10.3  Fractions of Shares ...................................   60

      SECTION 10.4  Adjustment of Conversion Rate .........................   60

      SECTION 10.5  Notice of Adjustments of Conversion Rate ..............   65

      SECTION 10.6  Notice of Certain Corporate Action ....................   65

      SECTION 10.7  Company to Reserve Common Stock .......................   66

      SECTION 10.8  Taxes on Conversions ..................................   66

      SECTION 10.9  Covenant as to Common Stock ...........................   67

      SECTION 10.10  Cancellation of Converted Securities .................   67

      SECTION 10.11  Provision in Case of Consolidation, Merger or
                     Sale of Assets .......................................   67

      SECTION 10.12  Responsibility of Trustee for Conversion Provisions ..   68

ARTICLE ELEVEN  SUBORDINATION OF SECURITIES ...............................   68

      SECTION 11.1  Securities Subordinate to Senior Debt .................   68

      SECTION 11.2  No Payments in Certain Circumstances;
                    Payment Over of Proceeds Upon Dissolution, Etc ........   69

      SECTION 11.3  Trustee to Effectuate Subordination ...................   70

      SECTION 11.4  No Waiver of Subordination Provisions .................   71

      SECTION 11.5  Notice to Trustee .....................................   71

      SECTION 11.6  Reliance on Judicial Order or Certificate of
                    Liquidating Agent .....................................   72

      SECTION 11.7  Trustee Not Fiduciary for Holders of Senior Debt ......   72

      SECTION 11.8  Reliance by Holders of Senior Debt on
                    Subordination Provisions ..............................   72

      SECTION 11.9  Rights of Trustee as Holder of Senior Debt;
                    Preservation of Trustee's Rights ......................   73




                                       -v-

                                                                          
      SECTION 11.10  Article Applicable to Paying Agents ..................   73

      SECTION 11.11  Certain Conversions and Repurchases Deemed Payment ...   73

ARTICLE TWELVE  REPURCHASE OF SECURITIES AT THE OPTION OF THE
      HOLDER UPON A CHANGE IN CONTROL .....................................   74

      SECTION 12.1  Right to Require Repurchase ...........................   74

      SECTION 12.2  Conditions to the Company's Election to Pay
                    the Repurchase Price in Common Stock ..................   75

      SECTION 12.3  Notices; Method of Exercising Repurchase Right, Etc ...   75

ARTICLE THIRTEEN  HOLDERS LISTS AND REPORTS BY TRUSTEE AND
      COMPANY; NON-RECOURSE ...............................................   78

      SECTION 13.1  Company to Furnish Trustee Names and Addresses
                    of Holders ............................................   78

      SECTION 13.2  Preservation of Information ...........................   78

      SECTION 13.3  No Recourse Against Others ............................   79

      SECTION 13.4  Reports by Trustee ....................................   79

      SECTION 13.5  Reports by Company ....................................   79

EXHIBITS

Exhibit A .................................................................  A-1

Exhibit B .................................................................  B-1

Exhibit C .................................................................  C-1




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