Exhibit 4.3


 


POWER-ONE, INC.


as Issuer


 


and


 


THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A.


as
Trustee


 


Indenture


 


dated as
of May 8, 2009


 


$36,375,000


 


6.0%/8.0%/10.0%
Convertible Senior Notes due 2019


 

















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1. DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  11

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
  12

  
	
  Section 1.04

  	
  Rules of Construction

  	
  12

  
	
  Section 1.05

  	
  Acts of Holders

  	
  13

  
	
   

  	
   

  
	
  ARTICLE 2. THE NOTES

  	
  13

  
	
   

  	
   

  
	
  Section 2.01

  	
  Form, Dating and Denominations;
  Legends

  	
  13

  
	
  Section 2.02

  	
  Execution and Authentication

  	
  14

  
	
  Section 2.03

  	
  Registrar, Paying Agent and
  Conversion Agent

  	
  15

  
	
  Section 2.04

  	
  Paying Agent To Hold Money In Trust

  	
  16

  
	
  Section 2.05

  	
  Noteholder Lists

  	
  16

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
  16

  
	
  Section 2.07

  	
  Replacement Notes

  	
  17

  
	
  Section 2.08

  	
  Outstanding Notes

  	
  18

  
	
  Section 2.09

  	
  Treasury Notes

  	
  18

  
	
  Section 2.10

  	
  Temporary Notes

  	
  18

  
	
  Section 2.11

  	
  Cancellation

  	
  19

  
	
  Section 2.12

  	
  CUSIP Numbers

  	
  19

  
	
  Section 2.13

  	
  Book-entry Provisions For Global
  Notes

  	
  19

  
	
  Section 2.14

  	
  Special Transfer Provisions

  	
  20

  
	
  Section 2.15

  	
  Record Date

  	
  21

  
	
   

  	
   

  
	
  ARTICLE 3. PURCHASES AND
  REDEMPTIONS

  	
  21

  
	
   

  	
   

  
	
  Section 3.01

  	
  Purchase At the Option of the
  Holder Upon a Fundamental Change

  	
  21

  
	
  Section 3.02

  	
  Effect of Fundamental Change
  Purchase Notice

  	
  25

  
	
  Section 3.03

  	
  Deposit of Fundamental Change
  Purchase Price

  	
  26

  
	
  Section 3.04

  	
  Right of Redemption

  	
  26

  
	
  Section 3.05

  	
  Notices to Trustee

  	
  27

  
	
  Section 3.06

  	
  Selection of Notes to be Redeemed

  	
  27

  
	
  Section 3.07

  	
  Notice of Redemption

  	
  27

  
	
  Section 3.08

  	
  Effect of Notice of Redemption

  	
  29

  
	
  Section 3.09

  	
  Deposit of Redemption Price

  	
  29

  
	
  Section 3.10

  	
  Purchase of Notes at Option of the
  Holder

  	
  29

  
	
  Section 3.11

  	
  Notes Purchased or Redeemed In Part

  	
  33

  
	
  Section 3.12

  	
  Covenant To Comply With Securities
  Laws Upon Repurchase of Notes

  	
  34

  
	
   

  	
   

  
	
  ARTICLE 4. COVENANTS

  	
  34

  
	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
  34

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  35

  



 


i

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.03

  	
  Existence

  	
  35

  
	
  Section 4.04

  	
  Rule 144A Information and
  Annual Reports

  	
  35

  
	
  Section 4.05

  	
  Reports to Trustee

  	
  36

  
	
  Section 4.06

  	
  Stay, Extension and Usury Laws

  	
  36

  
	
  Section 4.07

  	
  Incurrence of Debt

  	
  36

  
	
  Section 4.08

  	
  Limitations on Liens

  	
  37

  
	
  Section 4.09

  	
  Limitation on Unlisting of Common
  Stock

  	
  37

  
	
  Section 4.10

  	
  Limitation on Modifying Junior
  Convertible Preferred Stock

  	
  37

  
	
   

  	
   

  
	
  ARTICLE 5. CONSOLIDATION,
  MERGER, SALE OR LEASE OF ASSETS

  	
  37

  
	
   

  	
   

  
	
  Section 5.01

  	
  Consolidation, Merger, Sale or
  Lease of Assets by the Company

  	
  37

  
	
   

  	
   

  
	
  ARTICLE 6. DEFAULT AND
  REMEDIES

  	
  38

  
	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
  38

  
	
  Section 6.02

  	
  Acceleration

  	
  39

  
	
  Section 6.03

  	
  Other Remedies

  	
  40

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
  40

  
	
  Section 6.05

  	
  Control by Majority

  	
  40

  
	
  Section 6.06

  	
  Limitation on Suits

  	
  40

  
	
  Section 6.07

  	
  Rights of Holders to Receive
  Payment

  	
  41

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
  41

  
	
  Section 6.09

  	
  Trustee May File Proofs of
  Claim

  	
  41

  
	
  Section 6.10

  	
  Priorities

  	
  41

  
	
  Section 6.11

  	
  Restoration of Rights and Remedies

  	
  42

  
	
  Section 6.12

  	
  Undertaking for Costs

  	
  42

  
	
  Section 6.13

  	
  Rights and Remedies Cumulative

  	
  42

  
	
  Section 6.14

  	
  Delay or Omission Not Waiver

  	
  42

  
	
   

  	
   

  
	
  ARTICLE 7. THE TRUSTEE

  	
  42

  
	
   

  	
   

  
	
  Section 7.01

  	
  General

  	
  42

  
	
  Section 7.02

  	
  Certain Rights of Trustee

  	
  43

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
  45

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
  45

  
	
  Section 7.05

  	
  Notice of Default

  	
  45

  
	
  Section 7.06

  	
  Reports by Trustee to Holders

  	
  45

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
  45

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
  46

  
	
  Section 7.09

  	
  Successor Trustee by Merger

  	
  47

  
	
  Section 7.10

  	
  Eligibility

  	
  47

  
	
  Section 7.11

  	
  Money Held in Trust

  	
  47

  
	
   

  	
   

  
	
  ARTICLE 8. DISCHARGE

  	
  47

  
	
   

  	
   

  
	
  Section 8.01

  	
  Satisfaction and Discharge of the
  Indenture

  	
  47

  
	
  Section 8.02

  	
  Application of Trust Money

  	
  48

  
	
  Section 8.03

  	
  Repayment to Company

  	
  48

  
	
  Section 8.04

  	
  Reinstatement

  	
  48

  



 


ii

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 9. AMENDMENTS,
  SUPPLEMENTS AND WAIVERS

  	
  49

  
	
   

  	
   

  
	
  Section 9.01

  	
  Amendments Without Consent of
  Holders

  	
  49

  
	
  Section 9.02

  	
  Amendments With Consent of Holders

  	
  50

  
	
  Section 9.03

  	
  Effect of Consent

  	
  51

  
	
  Section 9.04

  	
  Trustee’s Rights and Obligations

  	
  51

  
	
  Section 9.05

  	
  Conformity With Trust Indenture Act

  	
  51

  
	
  Section 9.06

  	
  Payments for Consents

  	
  51

  
	
   

  	
   

  
	
  ARTICLE 10. CONVERSION

  	
  51

  
	
   

  	
   

  
	
  Section 10.01

  	
  Conversion Privilege

  	
  51

  
	
  Section 10.02

  	
  Conversion Procedure

  	
  52

  
	
  Section 10.03

  	
  Fractional Shares

  	
  53

  
	
  Section 10.04

  	
  Taxes On Conversion

  	
  54

  
	
  Section 10.05

  	
  Company To Provide Common Stock and
  Junior Convertible Preferred Stock

  	
  54

  
	
  Section 10.06

  	
  Adjustment for Change In Capital
  Stock

  	
  54

  
	
  Section 10.07

  	
  Adjustment for Rights Issue

  	
  55

  
	
  Section 10.08

  	
  Adjustment for Other Distributions

  	
  56

  
	
  Section 10.09

  	
  Adjustment for Cash Dividends

  	
  57

  
	
  Section 10.10

  	
  Adjustment for Certain Tender
  Offers or Exchange Offers

  	
  58

  
	
  Section 10.11

  	
  Provisions Governing Adjustment to
  Conversion Rate

  	
  58

  
	
  Section 10.12

  	
  Disposition Events

  	
  60

  
	
  Section 10.13

  	
  Discretionary Adjustment

  	
  61

  
	
  Section 10.14

  	
  When Adjustment May Be
  Deferred

  	
  61

  
	
  Section 10.15

  	
  When No Adjustment Required

  	
  62

  
	
  Section 10.16

  	
  Notice of Adjustment

  	
  62

  
	
  Section 10.17

  	
  Notice of Certain Transactions

  	
  62

  
	
  Section 10.18

  	
  Right of Conversion

  	
  63

  
	
  Section 10.19

  	
  Company Determination Final

  	
  63

  
	
  Section 10.20

  	
  Trustee’s Adjustment Disclaimer

  	
  63

  
	
  Section 10.21

  	
  Simultaneous Adjustments

  	
  63

  
	
  Section 10.22

  	
  Successive Adjustments

  	
  64

  
	
  Section 10.23

  	
  Rights Issued in Respect of Common
  Stock Issued Upon Conversion

  	
  64

  
	
   

  	
   

  
	
  ARTICLE 11. PAYMENT OF
  INTEREST

  	
  64

  
	
   

  	
   

  
	
  Section 11.01

  	
  Interest Payments

  	
  64

  
	
  Section 11.02

  	
  Defaulted Interest

  	
  64

  
	
  Section 11.03

  	
  Interest Rights Preserved

  	
  65

  
	
   

  	
   

  
	
  ARTICLE 12. MISCELLANEOUS

  	
  65

  
	
   

  	
   

  
	
  Section 12.01

  	
  Trust Indenture Act of 1939

  	
  65

  
	
  Section 12.02

  	
  Noteholder Communications;
  Noteholder Actions

  	
  66

  
	
  Section 12.03

  	
  Notices

  	
  66

  
	
  Section 12.04

  	
  Communication by Holders with Other
  Holders

  	
  67

  
	
  Section 12.05

  	
  Certificate and Opinion as to
  Conditions Precedent

  	
  68

  
	
  Section 12.06

  	
  Statements Required in Certificate
  or Opinion

  	
  68

  



 


iii

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 12.07

  	
  Legal Holiday

  	
  68

  
	
  Section 12.08

  	
  Rules by Trustee, Paying
  Agent, Conversion Agent and Registrar

  	
  68

  
	
  Section 12.09

  	
  Governing Law

  	
  68

  
	
  Section 12.10

  	
  No Adverse Interpretation of Other
  Agreements

  	
  68

  
	
  Section 12.11

  	
  Successors and Assigns

  	
  69

  
	
  Section 12.12

  	
  Duplicate Originals

  	
  69

  
	
  Section 12.13

  	
  Separability

  	
  69

  
	
  Section 12.14

  	
  Table of Contents and Headings

  	
  69

  
	
  Section 12.15

  	
  No Liability of Directors,
  Officers, Employees, Incorporators, Members and Stockholders

  	
  69

  
	
  Section 12.16

  	
  Waiver of Jury Trial

  	
  69

  
	
  Section 12.17

  	
  Force Majeure

  	
  69

  



 


iv

















 


EXHIBIT A                           Form of Note


 


EXHIBIT B                            Restricted Common
Stock Legend and IAI Common Stock Legend


 


EXHIBIT C                            Form of
Certificate of Designation for Junior Convertible Preferred Stock


 


v

















 


CROSS
REFERENCE TABLE*


 






*Note: This Cross
Reference Table shall not, for any purpose, be deemed to be part of the
Indenture.


 


	
  TIA Section

  	
   

  	
  Indenture
  Section

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  	
   

  
	
  (a)(2)

  	
   

  	
  7.10

  	
   

  
	
  (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
  (b)

  	
   

  	
  7.08; 7.10

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  311(a)

  	
   

  	
  N.A.

  	
   

  
	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  312(a)

  	
   

  	
  2.05

  	
   

  
	
  (b)

  	
   

  	
  12.04

  	
   

  
	
  (c)

  	
   

  	
  12.04

  	
   

  
	
  313(a)

  	
   

  	
  7.06

  	
   

  
	
  (b)(1)

  	
   

  	
  N.A.

  	
   

  
	
  (b)(2)

  	
   

  	
  7.06

  	
   

  
	
  (c)

  	
   

  	
  12.03

  	
   

  
	
  (d)

  	
   

  	
  7.06

  	
   

  
	
  314(a)

  	
   

  	
  4.04; 4.05;
  12.03

  	
   

  
	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
  (c)(1)

  	
   

  	
  12.05

  	
   

  
	
  (c)(2)

  	
   

  	
  12.05

  	
   

  
	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
  (e)

  	
   

  	
  12.06

  	
   

  
	
  (f)

  	
   

  	
  N.A.

  	
   

  
	
  315(a)

  	
   

  	
  7.01

  	
   

  
	
  (b)

  	
   

  	
  7.05; 12.02

  	
   

  
	
  (c)

  	
   

  	
  7.01

  	
   

  
	
  (d)

  	
   

  	
  7.01

  	
   

  
	
  (e)

  	
   

  	
  6.11

  	
   

  
	
  316(a) (last
  sentence)

  	
   

  	
  2.08

  	
   

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
  (b)

  	
   

  	
  6.07

  	
   

  
	
  317(a)(1)

  	
   

  	
  6.08

  	
   

  
	
  (a)(2)

  	
   

  	
  6.09

  	
   

  
	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  318(a)

  	
   

  	
  12.01

  	
   

  



 


	
  N.A. means not
  applicable

  	
   

  	
   

  	
   

  



 


vi
















 


INDENTURE, dated as of May 8,
2009, between Power-One, Inc., a Delaware corporation, as the “Company”
and The Bank of New York Mellon Trust Company, N.A., a national banking
corporation, as Trustee.


 


RECITALS


 


The Company has duly
authorized the execution and delivery of the Indenture to provide for the
initial issuance of $36,375,000 aggregate principal amount of the Company’s
6.0%/8.0%/10.0% Convertible Senior Notes Due 2019 (the “Notes”).  All things necessary to make the Indenture a
valid agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee and duly issued
by the Company, the valid obligations of the Company as hereinafter
provided.  This Indenture is subject to,
and will be governed by, the provisions of the Trust Indenture Act that are
required to be a part of and govern indentures qualified under the Trust
Indenture Act.


 


THIS
INDENTURE WITNESSETH


 


For and in consideration
of the premises and the purchase of the Notes by the Holders thereof, the
parties hereto covenant and agree, for the equal and proportionate benefit of
all Holders, as follows:


 


ARTICLE 1.


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01           Definitions.


 


“Affiliate” means, with
respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such
Person.  For purposes of this definition,
“control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”) with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Securities, by contract or otherwise; provided, however,
that, notwithstanding the foregoing, neither the Initial Purchasers nor any of
their Permitted Transferees will be deemed to be Affiliates of the Company or
its Subsidiaries.


 


“Agent” means any
Registrar, Paying Agent or Conversion Agent.


 


“Agent Member” means a
member of, or a participant in, the Depositary.


 


“Applicable Procedures”
means, with respect to any transfer or exchange of beneficial ownership
interests in a Global Note, the rules and procedures of the Depositary, in
each case to the extent applicable to such transfer or exchange.


 

















 


“Beneficially Own” and “Beneficial
Ownership” shall have the meaning set forth in Rule 13d-3 of the rules and
regulations under the Exchange Act.


 


“Beneficial Owner” means
any Person that Beneficially Owns a beneficial interest in a Global Note held
in accordance with the rules and procedures of the Depositary.


 


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


 


“Board of Directors”
means the board of directors or comparable governing body of the Company, or
any committee thereof duly authorized to act on its behalf.


 


“Board Resolution” means
a resolution duly adopted by the Board of Directors which is certified by the
Secretary or an Assistant Secretary of the Company and remains in full force
and effect as of the date of its certification.


 


“Business Day” means any
day except a Saturday, Sunday or other day on which commercial banks in New
York City or the Corporate Trust Office are authorized or obligated to close.


 


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


 


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


 


“Certificated Note” means
a Note in registered individual form without interest coupons.


 


“Change in Control” means
the occurrence of a Fundamental Change of the type described in the clauses (i), (ii), (iii) or (iv) of the
definition of “Fundamental Change” contained in Section 3.01(a).


 


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


 


“Closing Price” of the
Common Stock on any date means the closing sale price per share (or if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average
ask prices) on that date as reported in composite transactions for the
principal U.S. securities exchange on which the Common Stock is listed or
admitted for trading or, if the Common Stock is not listed or admitted for
trading on a U.S. national  or regional
securities exchange, as reported on the quotation system on which such security
is quoted.  If the Common Stock is not
listed or admitted for trading on a U.S. national or regional securities
exchange and not reported on a quotation system on the relevant date, the “closing
price” will be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by the National
Quotation Bureau or similar organization. 
If the Common Stock is not so quoted, the last reported sale price will
be the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized
investment banking firms selected by the Company for this purpose.


 


2

















 


“Common Stock” means the
common stock of the Company, $0.001 par value, as it exists on the date of this
Indenture and any shares of any class or classes of Capital Stock of the
Company resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which are not subject to redemption by the Company; provided,
however, that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable on conversion of Notes shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.


 


“Company” means the party
named as such in the first paragraph of the Indenture or any successor obligor
under the Indenture and the Notes pursuant to Section 5.01.


 


“Consolidated
EBITDA” means for any period, without duplication, Consolidated Net Income for
such period, plus, to the extent reflected as a charge in the statement
of such Consolidated Net Income for such period, the sum of (i) taxes, (ii) Fixed
Charges, (iii) amortization or write-off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness, (iv) depreciation and amortization, (v) amortization
of intangibles (including but not limited to goodwill) and organization costs, (vi) any
extraordinary charges, (vii) losses on Dispositions outside the ordinary
course of business, (viii) charges in respect of excess or obsolete
inventory in excess of $1,000,000 in any fiscal quarter, (ix) solely in
connection with the closure of a single facility site after the Issue Date,
charges incurred prior to April 4, 2011 relating to severance, the
termination of leases (including required repairs to such facility site) and
costs relating to the transportation of equipment located at such closing
facility site to other facilities, not in excess of $15.0 million in the
aggregate after the Issue Date, and (x) any other non-cash charges
(excluding any such charge incurred in the ordinary course of business that
constitutes an accrual of, or a reserve for, cash charges for any future
period), and minus, to the extent included in determining Consolidated
Net Income for such period, (A) any extraordinary gains, (B) gains on
Dispositions outside of the ordinary course of business, (C) any other
non-cash items increasing Consolidated Net Income for such period (excluding
any items that represent the reversal of any accrual of, or cash reserved for,
anticipated cash charges in any prior period that are described in the
parenthetical to clause (x)  above and (D) interest income.


 


“Consolidated
Net Income” means for any period, the net income of the Company and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.


 


“Continuing Director”
means a director who either was a member of the Board of Directors on the Issue
Date or who becomes a member of the Board of Directors subsequent to that date
and who was nominated or elected by at least a majority of the directors who
were Continuing Directors at the time of such nomination or election or whose
election to the Board of Directors was recommended or endorsed by at least a
majority of the directors who were Continuing Directors at the time of such
nomination or election, in each case either by a specific vote or by approval
of a proxy statement issued by the Company on behalf of the entire Board of
Directors in which such individual is named as a nominee of the Board of
Directors for election as director.


 


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


 


3

















 


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


 


“Conversion Rate” means
740.7407407 shares of Common Stock per $1,000 principal amount of Notes,
subject to adjustment pursuant to Article 10.


 


“Corporate Trust Office”
means the office of the Trustee at which the trust created by this Indenture is
principally administered, which at the date of the Indenture is located at The
Bank of New York Mellon Trust Company, N.A., 700 South Flower Street, 5th Floor, Los Angeles, California 90017,
Attention:  Corporate Unit, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from
time to time by notice to the Holders and the Company).


 


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


 


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


 


“Depositary” means DTC or
the nominee thereof, or any successor thereto.


 


“Disposition” means any
sale, conveyance, assignment, transfer or other disposal of any of the Company’s
or its Subsidiary’s property, business or assets.


 


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


 


“Exchange” means the
NASDAQ Global Market or any other U.S. national securities exchange.


 


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


 


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


 


“Fair Market Value”
means, with respect to any Notes of a Beneficial Owner  to
be redeemed pursuant to Section 3.10:


 


(i)            if such Beneficial Owner is able to
obtain on the Business Day prior to delivery of the Option Purchase Notice in
respect of such Beneficial Owner’s Notes in accordance with Section 3.10(a) a
firm price quote from one or more Brokers pursuant to which such Broker(s) offers
to purchase on such date all, but not less than all, of the Notes that such
Beneficial Owner wishes to redeem, the highest purchase price (net of
commissions) quoted; or


 


4

















 


(ii)           if such Beneficial Owner is unable to
obtain any price quotes as contemplated in clause (i) of this definition
(including, for the avoidance of doubt, as a result of any Broker failing to
respond to such Beneficial Owner’s inquiry for, or to provide, a firm price
quote with respect to such Notes), then the Fair Market Value of such Notes
shall conclusively be deemed to be an amount less than 110% of the sum of (x) the
Option Purchase Price plus (y) accrued and unpaid interest, if any, on
such Notes.


 


“Fixed Charges” means, with respect to any specified Person for
any period, the sum, without duplication, of:


 


(i)            the consolidated interest expense of
such Person and its Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated
with capital lease obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers’ acceptance financings,
and net of the effect of all payments made or received pursuant to hedging
obligations in respect of interests rates; plus


 


(ii)           the aggregate amount of interest, on
a consolidated basis, of such Person and its Subsidiaries that was capitalized
during such period; plus


 


(iii)          any interest on Indebtedness of
another Person that is guaranteed by such Person or one of its Subsidiaries or
secured by a Lien on assets of such Person or one of its Subsidiaries, whether
or not such Guarantee or Lien is called upon; plus


 


(iv)          the product of (a) all dividends,
whether paid or accrued and whether or not in cash, on any series of preferred
stock of such Person or any of its Subsidiaries, other than dividends on
capital stock payable solely in capital stock of the Company or to the Company
or a Subsidiary of the Company, times
(b) a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined federal, state and local statutory tax
rate of such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP.


 


“GAAP” means generally
accepted accounting principles in the United States of America as in effect
from time to time.


 


“Global Note” means a
Note in registered global form without interest coupons that is deposited with
the Depositary or its custodian and registered in the name of the Depositary or
its nominee.


 


“Global Note Legend”
means the legend set forth in Exhibit A.


 


“Guarantee
Obligation” means as to any Person, any obligation, contingent or otherwise of
such Person guaranteeing any Indebtedness of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including,
without limitation, any obligation of the guaranteeing Person (i) to
purchase any such Indebtedness or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (a) for the
purchase or payment of any such Indebtedness or (b) to maintain working
capital or equity capital of the primary obligor or otherwise 


 


5

















 


to maintain the net worth or
solvency of the primary obligor so as to enable such primary obligor to pay
such Indebtedness, (iii) to purchase property, securities or services for
the purpose of assuring the owner of any such Indebtedness of the ability of
the primary obligor to make payment of such Indebtedness or (iv) otherwise
to protect the owner of any such Indebtedness against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include (x) any
liability by endorsement of instruments for deposit or collection or similar
transactions in the ordinary course of business, (y) indemnification
obligations of the Company or any of its Subsidiaries entered into in the
ordinary course of business or (z) obligations of the Company or any of
its Subsidiaries under arrangements entered into in the ordinary course of
business whereby the Company or such Subsidiary sells goods or inventory to
other Persons under agreements obligating the Company or such Subsidiary to
repurchase such goods or inventory, at a price not exceeding the original sale
price, upon the occurrence of certain specified events. The amount of any
Guarantee Obligation of any guaranteeing Person at any time shall be deemed to
be the lower of (1) an amount equal to the stated or determinable amount
of the Indebtedness in respect of which such Guarantee Obligation is made at
such time and (2) the maximum amount for which such guaranteeing Person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation at such time, unless such Indebtedness and such maximum amount for
which such guaranteeing Person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such guaranteeing
Person’s maximum reasonably anticipated liability in respect thereof as
determined by the Company in good faith at such time; provided, however, that
for purposes of this definition the liability of the guaranteeing Person with
respect to any obligation as to which a third Person or Persons are jointly or
jointly and severally liable as a guarantor or otherwise as contemplated hereby
and have not defaulted on its or their portions thereof shall be only as to its
pro rata portion of such obligation.


 


“Hedging
Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, raw materials, equity
or debt instruments, or economic, financial or pricing indices or measures of
economic, financial or pricing risk or value or any similar transaction or any
combination of these transactions.


 


“Holder” or “Noteholder”
means the registered holder of any Note.


 


“IAI Certificated Note”
means a Certificated Note that bears the IAI Note Legend.


 


“IAI Common Stock Legend”
means the legend set forth in Exhibit B.


 


“IAI Global Note” means a
Global Note that bears the IAI Note Legend representing Notes initially issued
and sold pursuant to the Purchase Agreement to the Initial Purchasers, all of
which are Institutional Accredited Investors.


 


“IAI Note” means a Note
that bears the IAI Note Legend.


 


“IAI Note Legend” means the
legend set forth in Exhibit A.


 


“Indebtedness” means of any Person at any date, without
duplication, (i) all indebtedness of such Person for borrowed money; (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments and all obligations of such Person upon which interest
charges are 


 


6

















 


customarily
paid; (iii) all obligations of such Person under conditional sale or other
title retention agreements related to assets or other property acquired by such
Person; (iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, excluding current accounts payable
incurred in the ordinary course of business and any earn-out obligations not
recorded as liabilities under GAAP; (v) the portion of the obligations of
such Person as lessee under any lease of any asset or other property which, in
conformity with GAAP as in effect on the Issue Date, that is required to be
capitalized on a balance sheet of such Person; (vi) all Guarantee
Obligations of such Person; (vii) all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; (viii) all net obligations of such Person under
Hedging Agreements; and (ix) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty, or in respect of bankers’ acceptances.


 


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


 


“Initial Purchasers”
means the Purchasers named as such in the Purchase Agreement.


 


“Institutional Accredited
Investor” means an institutional “accredited investor” as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.


 


“Interest Payment Date”
means each May 8 and November 8 of each year, commencing November 8,
2009.


 


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


 


“Junior Convertible
Preferred Stock” means shares of Junior Convertible Preferred Stock of the
Company issued pursuant to the Certificate of Designation in the form attached
as Exhibit C.


 


“Lien” means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).


 


“Make-Whole Amount”
means, with respect to any Note being repurchased pursuant to Section 3.01,
the excess, if any, of (i) the present value on the date of such
repurchase of (a) 100% of the principal amount of such Note, assuming such
Note were redeemed on May 8, 2014 pursuant to Section 3.04(b), plus (b) all
required interest payments due on such Note through May 8, 2014 assuming
such Note were redeemed on May 8, 2014 pursuant to Section 3.04(b),
computed using a 3.125% discount rate over (ii) the principal amount of
such Note.


 


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


 


7

















 


“Maturity Date” means May 8,
2019.


 


“Maximum Voting Power”
means, at the time of determination, the total number of votes which may be
cast by all capital stock on a matter subject to the vote of the Common Stock
and any other security that constitute Voting Securities of the Company voting
together as a single class after giving effect to any limitation on voting
power governing Voting Securities of the Company.


 


“Notes” has the meaning
assigned to such term in the Recitals.


 


“Officer” means the
chairman of the Board of Directors, the president or chief executive officer,
any vice president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary, of the Company.


 


“Officers’ Certificate”
means a certificate signed in the name of the Company (i) by the chairman
of the Board of Directors, the president or chief executive officer or a vice
president and (ii) by the chief financial officer, the chief accounting
officer, the treasurer or any assistant treasurer or the secretary or any
assistant secretary.


 


“OID Note Legend” means
the legend set forth in Exhibit A.


 


“Opinion of Counsel”
means a written opinion signed by legal counsel, satisfactory to the Trustee,
who may be an employee of or counsel to the Company.


 


“Paying Agent” refers to
a Person engaged to perform the obligations of the Trustee in respect of
payments made or funds held hereunder in respect of the Notes.


 


 “Permitted Indebtedness Amount” means, as of
any date, the greater of (i) $127.0 million and (ii) an amount equal
to 3.0 times the Company’s Consolidated EBITDA for the immediately preceding
four consecutive completed fiscal quarters for which financial statements of
the Company prepared in accordance with GAAP are available.


 


“Permitted
Liens” means:


 


(i)            Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;


 


(ii)           Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;


 


(iii)          Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, landlords operators, repairmen and other
similar Liens incurred in the ordinary course of business;


 


(iv)          easements, rights-of-way zoning
restrictions, reservations, encroachments and other similar encumbrances in
respect of real property, which do not, in the opinion of the Company,
materially impair the use of such property in the operation of the business of
the Company or the value of such property;


 


8

















 


(v)           leases or subleases granted to others
in the ordinary course of business that do not materially interfere with the
business of the Company and its Subsidiaries;


 


(vi)          Liens incurred or deposits made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance, and other types of social security, including any Liens
securing letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds or other similar
obligations (exclusive of obligations for the payment of borrowed money);


 


(vii)         Liens incurred or deposits made to
secure liability to insurance carriers under insurance or self-insurance
arrangements, including liens of judgments thereunder that are not currently
dischargeable;


 


(viii)        Liens on any property held in trust
pursuant to defeasance or covenant defeasance provisions governing Indebtedness
of the Company arising in connection with any defeasance or covenant defeasance
of such Indebtedness;


 


(ix)           Liens to secure (or encumbering
deposits securing) obligations arising from warranty or contractual service
obligations of the Company or any of its Subsidiaries, including rights of
offset and setoff; and


 


(x)            Liens securing Indebtedness
permitted to be incurred under Section 4.08.


 


“Permitted Transfer”
means any transfer of the Notes not prohibited under Section 8.1 of the
Purchase Agreement.


 


“Permitted Transferee”
has the meaning given such term in the Purchase Agreement.


 


“Person” means an
individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or political
subdivision or an agency or instrumentality thereof.


 


“Public Sale” has the
meaning set forth in the Purchase Agreement.


 


“Purchase Agreement”
means that certain Securities Purchase Agreement, dated as of April 23,
2009, among the Company and the Initial Purchasers.


 


“Purchase at Holder’s
Option” means a repurchase of Notes at Holders option in accordance with Section 3.10.


 


“Redemption Date” means
the date specified by the Company for redemption of the Notes in accordance
with Section 3.07.


 


“Redemption Price” means,
with respect to a Note to be redeemed by the Company in accordance with Section 3.04,
100% of the then outstanding principal amount of such Note to be redeemed.


 


9
















 


“Register” has the
meaning assigned to such term in Section 2.03.


 


“Registrar” means a
Person engaged to maintain the Register.


 


“Registration Rights
Agreement” means the Registration Rights Agreement dated as of May 8,
2009, among the Company and the Initial Purchasers.


 


“Regular Record Date” for
the interest payable on any Interest Payment Date means the April 23 or October 23
(whether or not a Trading Day) next preceding such Interest Payment Date.


 


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


 


“Restricted Certificated
Note” means a Certificated Note that bears the Restricted Note Legend.


 


“Restricted Common Stock
Legend” means the legend set forth in Exhibit B.


 


“Restricted Global Note”
means a Global Note that bears the Restricted Note Legend representing Notes
transferred pursuant to Rule 144A and in accordance with the Purchase
Agreement.


 


“Restricted Note” means a
Note that bears the Restricted Note Legend.


 


“Restricted Note Legend”
means the legend set forth in Exhibit A.


 


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


 


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


 


“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder.


 


“Subsidiary” means with
respect to any Person, any corporation, association or other business entity of
which more than 50% of the outstanding Voting Securities is owned, directly or
indirectly, by, or, in the case of a partnership, the sole general partner or
the managing partner or the only general partners of which are, such Person and
one or more Subsidiaries of such Person (or a combination thereof).  Unless otherwise specified, “Subsidiary”
means a Subsidiary of the Company.


 


A “Termination of Trading”
will be deemed to have occurred if, for a period of 10 consecutive Business
Days, the Common Stock (or other common stock into which the Notes are then
convertible) is neither listed for trading on a U.S. national securities exchange
nor approved for 


 


10

















 


trading on an established
U.S. automated interdealer quotation system and no American Depositary Shares
or similar instruments for such common stock are so listed or approved for
listing in the United States.


 


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


 


“Trustee” means the party
named as such in the first paragraph of the Indenture or any successor trustee
under the Indenture pursuant to Article 7.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended.


 


 “Unexpected Delisting” means any delisting of
the Common Stock from the NASDAQ Global Market directly as a result of the
execution of the Purchase Agreement and the consummation of the transactions
contemplated thereby.


 


“Voting Securities”
means, with respect to any Person, securities of any class or kind having the
power to vote generally for the election of directors, managers or other voting
members of the governing body of such Person.


 


Section 1.02           Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
  “Act”

  	
   

  	
  1.05

  	
   

  
	
  “Aggregate Amount”

  	
   

  	
  10.10

  	
   

  
	
  “Average Sale Price”

  	
   

  	
  10.08

  	
   

  
	
  “Bankruptcy Default”

  	
   

  	
  6.01

  	
   

  
	
  “beneficial owner”

  	
   

  	
  3.01(a)

  	
   

  
	
  “Brokers”

  	
   

  	
  3.10

  	
   

  
	
  “Company Order”

  	
   

  	
  2.02

  	
   

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Defaulted Interest”

  	
   

  	
  11.02

  	
   

  
	
  “Disposition Event”

  	
   

  	
  10.12

  	
   

  
	
  “Distributed Assets”

  	
   

  	
  10.08(a)

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Expiration Date”

  	
   

  	
  10.10

  	
   

  
	
  “Expiration Time”

  	
   

  	
  10.10

  	
   

  
	
  “Fundamental Change”

  	
   

  	
  3.01(a)

  	
   

  
	
  “Fundamental Change
  Purchase Date”

  	
   

  	
  3.01(a)

  	
   

  
	
  “Fundamental Change
  Purchase Notice”

  	
   

  	
  3.01(c)

  	
   

  
	
  “Fundamental Change
  Purchase Price”

  	
   

  	
  3.01(a)

  	
   

  
	
  “Legal Holiday”

  	
   

  	
  12.07

  	
   

  



 


11

















 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
  “Option Purchase Date”

  	
   

  	
  3.10(a)

  	
   

  
	
  “Option Purchase Notice”

  	
   

  	
  3.10(b)

  	
   

  
	
  “Option Purchase Price”

  	
   

  	
  3.10(a)

  	
   

  
	
  “Primary Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Purchased Shares”

  	
   

  	
  10.10

  	
   

  
	
  “QIB”

  	
   

  	
  2.01(b)

  	
   

  
	
  “Reference Period”

  	
   

  	
  10.08(a)

  	
   

  
	
  “Reference Property”

  	
   

  	
  10.12

  	
   

  
	
  “Restricted Securities”

  	
   

  	
  2.14

  	
   

  
	
  “Rights”

  	
   

  	
  10.23

  	
   

  
	
  “Shareholders Rights Plan”

  	
   

  	
  10.23

  	
   

  
	
  “Special Record Date”

  	
   

  	
  11.02

  	
   

  
	
  “Trigger Event”

  	
   

  	
  10.11

  	
   

  



 


Section 1.03
   Incorporation by Reference of Trust Indenture Act.Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.  The following Trust Indenture Act terms used
in this Indenture have the following meanings:


 


“Commission” means the
Securities and Exchange Commission.


 


“indenture securities”
means the Notes.


 


“indenture security holder”
means a Noteholder.


 


“indenture to be
qualified” means this Indenture.


 


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


 


“obligor” on the
indenture securities means the Company.


 


All other Trust Indenture
Act terms used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or defined by
Securities Exchange Commission rule have the meanings assigned to them by
such definitions.


 


Section 1.04   Rules of
Construction.  Unless the context
otherwise requires or except as otherwise expressly provided,


 


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


 


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


 


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


 


12

















 


(d)           all references to Sections or
Articles or Exhibits refer to Sections or Articles or Exhibits of or to
the Indenture unless otherwise indicated;


 


(e)           references to agreements or
instruments, or to statutes or regulations, are to such agreements or
instruments as amended, restated or supplemented from time to time, or statutes
or regulations, as amended from time to time (or to successor statutes and
regulations);


 


(f)            in the event that a transaction
meets the criteria of more than one category of permitted transactions or
listed exceptions the Company may classify such transaction as it, in its sole
discretion, determines;


 


(g)           “or” is not exclusive;


 


(h)           “including” means including, without
limitation; and


 


(i)            words in the singular include the
plural, and words in the plural include the singular.


 


Section 1.05   Acts
of Holders.  Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments (which may take the form of an electronic writing or
messaging or otherwise be in accordance with customary procedures of the
Depositary or the Trustee) of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing (which may be in
electronic form); and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent (either of which may be in electronic
form) shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


ARTICLE 2.


 


THE NOTES


 


Section 2.01           Form,
Dating and Denominations; Legends.


 


(a)           The Notes and the Trustee’s
certificate of authentication will be substantially in the form attached as Exhibit A.  The terms and provisions contained in the
form of the Note attached as Exhibit A constitute and are hereby expressly
made a part of the Indenture.  The Notes
may have notations, legends or endorsements required by law, rules of or
agreements with national securities exchanges to which the Company is subject,
or usage.  Each Note will be dated the
date of its authentication.  The Notes
will be issuable only in denominations of $2,000 in principal amount and any
integral multiple of $1,000 in excess thereof.


 


(b)           Restricted Notes.  All of the Notes are initially being offered
and sold pursuant to the Purchase Agreement to the Initial Purchasers, all of
which are Institutional 


 


13

















 


Accredited Investors, and
are initially being issued in the form of an IAI Global Note (which will bear
the Global Note Legend, the OID Legend and the IAI Note Legend set forth in Exhibit A
hereto), which shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided and deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary’s nominee, Cede &
Co.  All Notes transferred by Initial
Purchasers to qualified institutional buyers as defined in Rule 144A
(collectively, “QIBs” or individually, each a “QIB”) in reliance on Rule 144A
under the Securities Act and in accordance with the Purchase Agreement, shall
be issued in the form of one or more Restricted Global Notes (which will bear
the Global Note Legend, the OID Legend and the Restricted Note Legend set forth
in Exhibit A hereto), which shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided and deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee, as custodian
for the Depositary, and registered in the name of its nominee, Cede & Co.
The aggregate principal amount of each of the IAI Global Notes and the
Restricted Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee as hereinafter provided, subject
in each case to compliance with the Applicable Procedures.


 


(c)           Global Notes in General.  Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, purchases or conversions of such Notes.  Any adjustment of the aggregate principal
amount of a Global Note to reflect the amount of any increase or decrease in
the amount of outstanding Notes represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.06 and shall be made on the records of the Trustee and the
Depositary.


 


Agent Members shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary or under the Global Note, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall (A) prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (B) impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.


 


(d)           Book Entry Provisions.  The Company shall use its reasonable efforts
to execute and the Trustee shall, in accordance with this Section 2.01(d),
authenticate and deliver one or more Global Notes that (i) shall be
registered in the name of the Depositary, (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (iii) shall
bear the Global Note Legend and the OID Legend substantially to the effect set
forth in Exhibit A.  This Section 2.01(d) shall
only apply to Global Notes deposited with or on behalf of the Depositary.


 


Section 2.02           Execution and Authentication.  An Officer shall sign the Notes for the
Company by manual or facsimile signature attested by the manual or facsimile
signature of the Secretary or an Assistant Secretary of the Company.  Typographic and other minor errors or defects



 


14

















 


in any such facsimile
signature shall not affect the validity or enforceability of any Note which has
been authenticated and delivered by the Trustee.


 


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


 


A Note shall not be valid
until an authorized signatory of the Trustee manually signs the certificate of
authentication on the Note.  The
signature shall be conclusive evidence that the Note has been authenticated under
this Indenture.


 


The Trustee shall
authenticate and make available for delivery Notes for original issue in the
aggregate principal amount of $36,375,000 upon receipt of a written order or
orders of the Company signed by an Officer of the Company (a “Company Order”).  The Company Order shall specify the amount of
Notes to be authenticated, shall provide that all such Notes will be
represented initially by a Global Note and the date on which each original
issue of Notes is to be authenticated. 
The initial aggregate principal amount of Notes outstanding at any time
may not exceed $36,375,000 except as provided in Section 2.07 and except
as provided in the next succeeding paragraph.


 


The Trustee shall act as
the initial authenticating agent. 
Thereafter, the Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Notes.  An
authenticating agent may authenticate Notes whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same
rights as an Agent to deal with the Company or an Affiliate of the Company.


 


The Notes shall be
issuable only in registered form without coupons and only in denominations of
$2,000 principal amount and any integral multiple of $1,000 in excess thereof.


 


Section 2.03           Registrar, Paying Agent and
Conversion Agent.  The Company shall
maintain one or more offices or agencies where Notes may be presented for
registration of transfer or for exchange (each, a “Registrar”), one or more
offices or agencies where Notes may be presented for payment (each, a “Paying
Agent”), one or more offices or agencies where Notes may be presented for
conversion (each, a “Conversion Agent”) and one or more offices or agencies where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served.  The Company
will at all times maintain a Paying Agent, Conversion Agent, Registrar and an
office or agency where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served in the United States.  One of the Registrars (the “Primary Registrar”)
shall keep a register of the Notes and of their transfer and exchange (the “Register”).  The entries in the Register shall be conclusive, absent manifest error,
and the Company shall treat each Person whose name is recorded in the Register
as the owner of such Note as the owner thereof for all purposes of this
Indenture notwithstanding any notice to the contrary.


 


The Company shall enter
into an appropriate agency agreement with any Agent not a party to this
Indenture.  The agreement shall implement
the provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture.  If the Company fails to maintain a Registrar,
Paying Agent, Conversion Agent or agent for service of notices and demands in
any place required by this Indenture, or fails to give the 


 


15

















 


foregoing notice, the
Trustee shall act as such.  The Company
or any Affiliate of the Company may act as Paying Agent (except for the
purposes of Article 8).


 


The Company hereby
initially designates the Trustee as Paying Agent, Registrar, and Conversion
Agent, and the Corporate Trust Office of the Trustee as such office or agency
of the Company for each of the aforesaid purposes.


 


Section 2.04           Paying Agent To Hold Money In
Trust.  Prior to 11:00 a.m., New
York City time, on each date on which the principal amount of or interest, if
any, on any Notes is due and payable, the Company shall deposit with a Paying
Agent a sum sufficient to pay such principal amount or interest, if any, so
becoming due.  A Paying Agent shall hold
in trust for the benefit of Noteholders or the Trustee all money held by the
Paying Agent for the payment of principal amount of or interest, if any, on the
Notes, and shall notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment.  If the Company or an Affiliate of the Company
acts as Paying Agent, it shall, before 11:00 a.m., New York City time, on
each date on which a payment of the principal amount of or interest on any
Notes is due and payable, segregate the money and hold it as a separate trust
fund.  The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the
Trustee may at any time during the continuance of any default, upon written
request to a Paying Agent, require such Paying Agent to pay forthwith to the
Trustee all sums so held in trust by such Paying Agent.  Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money.


 


Section 2.05           Noteholder Lists.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Noteholders.  If
the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee
on or before each semiannual interest payment date, and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Noteholders.


 


Section 2.06           Transfer and Exchange.  Subject to compliance with any applicable
additional requirements contained in Section 2.14, when a Note is
presented to a Registrar with a request to register a transfer thereof or
exchange such Note for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met; provided,
however, that every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by an assignment form in the
applicable form included in Exhibit A, and in form satisfactory to the
Registrar duly executed by the Holder thereof or its attorney duly authorized
in writing.  To permit registration of
transfers and exchanges, upon surrender of any Note for registration of
transfer or exchange at an office or agency maintained pursuant to Section 2.03,
the Company shall execute and the Trustee shall authenticate Notes of a like
aggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto, and provided, that this sentence shall not apply to any
exchange pursuant to Section 2.10, Section 3.11, Section 9.03(b) or
Section 10.02(g) not involving any transfer.  No transfer shall be effective unless recorded in the Register.


 


16

















 


The Company, Registrar or
the Trustee, as the case may be, shall not be required to register the transfer
of or to exchange any Note (i) for a period of 20 calendar days before
selecting, pursuant to Section 3.06, Notes to be redeemed or (ii) during
a period beginning at the opening of business 20 calendar days before the
mailing of a notice of redemption under Section 3.07 and ending at the
close of business on the day of such mailing or (iii) that has been
selected for redemption or for which a Fundamental Change Purchase Notice or
Purchase Notice has been delivered pursuant to Section 3.01 or 3.10, and
not withdrawn, in accordance with this Indenture, except, in the case of a
partial redemption, purchase or repurchase, that portion of such Note not being
redeemed or repurchased.


 


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


 


Any Registrar appointed
pursuant to Section 2.03 shall provide to the Trustee such information as
the Trustee may reasonably require in connection with the delivery by such
Registrar of Notes upon transfer or exchange of Notes.


 


Each Holder of a Note
agrees to indemnify the Company and the Trustee against any liability that may
result from the transfer, exchange or assignment of such Holder’s Note in
violation of any provision of this Indenture and/or applicable United States
federal or state securities law.


 


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


 


Section 2.07           Replacement Notes.  If any mutilated Note is surrendered to the
Company, a Registrar or the Trustee, or the Company, a Registrar and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, and there is delivered to the Company, the applicable
Registrar and the Trustee such security or indemnity as will be required by
them to save each of them harmless, then, in the absence of notice to the
Company, such Registrar or the Trustee that such Note has been acquired by a
protected purchaser, the Company shall execute, and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such mutilated
Note or in lieu of any such destroyed, lost or stolen Note, a replacement Note
of like tenor and principal amount, bearing a number not contemporaneously outstanding.


 


In case any such
mutilated, destroyed, lost or stolen Note has become or is about to become due
and payable, or is about to be purchased by the Company pursuant to Article 3,
the Company in its discretion may, instead of issuing a replacement Note, pay
or purchase such Note, as the case may be.


 


Upon the issuance of any
replacement Notes under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be 


 


17

















 


imposed in relation
thereto and any other reasonable expenses (including the reasonable fees and
expenses of the Trustee or the Registrar) in connection therewith.


 


Every replacement Note
issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.


 


The provisions of this Section 2.07
are (to the extent lawful) exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.


 


Section 2.08           Outstanding Notes.  Notes outstanding at any time are all Notes
authenticated by the Trustee, except for those canceled by it, those converted
pursuant to Article 10, those delivered to it for cancellation or
surrendered for transfer or exchange and those described in this Section 2.08
as not outstanding.


 


If a Note is replaced
pursuant to Section 2.07, it ceases to be outstanding unless the Company
receives proof satisfactory to it that the replaced Note is held by a protected
purchaser.


 


If a Paying Agent holds
at 11:00 a.m., New York City time, on the Maturity Date Cash sufficient to
pay the principal amount of the Notes payable on that date, then on and after
the Maturity Date, such Notes shall cease to be outstanding and the principal
amount thereof shall cease to bear interest.


 


Subject to the
restrictions contained in Section 2.09, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.


 


Section 2.09           Treasury Notes.  In determining whether the Holders of the
required principal amount of Notes have concurred in any notice, direction,
waiver or consent, Notes owned by the Company or any other obligor on the Notes
or by any Affiliate of the Company or of such other obligor shall be
disregarded, except that, for purposes of determining whether the Trustee shall
be protected in relying on any such notice, direction, waiver or consent, only
Notes which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.  Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to the Notes and that the pledgee is not the Company or any other
obligor on the Notes or any Affiliate of the Company or of such other
obligor.  Any Notes or shares of Common
Stock issued upon the conversion of Notes that are purchased or owned by the
Company or any Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act in a transaction
that results in such Notes or shares of Common Stock, as the case may be, no
longer being “restricted securities” (as defined under Rule 144).


 


Section 2.10           Temporary Notes.  Until definitive Notes are ready for
delivery, the Company may prepare and execute, and, upon receipt of a Company
Order, the Trustee shall authenticate and deliver, temporary Notes.  Temporary Notes shall be substantially in the
form of definitive Notes but 


 


18

















 


may have variations that
the Company considers appropriate for temporary Notes and shall be reasonably
acceptable to the Trustee.  Without
unreasonable delay, the Company shall prepare and, upon receipt of a Company
Order, the Trustee shall authenticate and deliver definitive Notes in exchange
for temporary Notes.


 


Section 2.11           Cancellation.  The Company at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Notes surrendered to them for transfer, exchange,
payment or conversion.  The Trustee and
no one else shall cancel, in accordance with its standard procedures (subject
to the record retention requirements of the Exchange Act), all Notes
surrendered for transfer, exchange, payment, conversion, replacement or
cancellation and upon written request of the Company shall deliver written
certification of such cancellation of Notes to the Company.


 


Section 2.12           CUSIP Numbers.  The Company in issuing any Notes may use one
or more “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of purchase as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as contained
in any notice of a purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such purchase shall not be
affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
of any change in the “CUSIP” numbers.


 


Section 2.13           Book-entry
Provisions For Global Notes.


 


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


 


(b)           In connection with the transfer of a
Global Note in its entirety to beneficial owners pursuant to Section 2.13(a),
such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall, upon
receipt of a Company Order, authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in such
Global Note, an equal aggregate principal amount of Certificated Notes of
authorized denominations.


 


(c)           Any Certificated Note constituting a
Restricted Certificated Note or an IAI Certificated Note delivered in exchange
for an interest in a Global Note pursuant to Section 2.13(a) shall,
except as otherwise provided by Section 2.14, bear the OID Legend and the
Restricted Note Legend or the IAI Note Legend, as applicable.


 


19
















 


(d)                                 The Holder of any Global Note may grant
proxies and otherwise authorize any Person to take any action that a Holder is
entitled to take under this Indenture or the Notes.


 


Section 2.14                                Special Transfer Provisions.


 


(a)                                  The Initial Purchasers may only transfer
Notes in accordance with the Purchase Agreement, provided that  such transfers also comply with the transfer restrictions
set forth in the IAI Note Legend.  Unless
and until the Trustee receives written notice from the Company or a Holder that
a transfer of a Note has not been made in compliance with the Purchase
Agreement, the Trustee may assume without inquiry that such transfer was made
in accordance with the Purchase Agreement.


 


(b)                                 Notwithstanding any other provisions of
this Indenture, but except as provided in Section 2.14(c), a Global Note
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.


 


(c)                                  Every Note that bears or is required
under this Section 2.14(c) to bear the Restricted Note Legend or the
IAI Note Legend, and any Common Stock that bears or is required under this Section 2.14(c) to
bear the Restricted Common Stock Legend or the IAI Common Stock Legend
(collectively, the “Restricted Securities”) shall be subject to the
restrictions on transfer set forth in the Restricted Note Legend, the IAI Note
Legend, the Restricted Common Stock Legend or the IAI Common Stock Legend, as
the case may be, unless such restrictions on transfer shall be waived by
written consent of the Company, and the holder of each such Restricted
Security, by such Notes holder’s acceptance thereof, agrees to be bound by all
such restrictions on transfer.  As used
in this Section 2.14(c), the term “transfer” encompasses any sale, pledge,
loan, transfer or other disposition whatsoever of any Restricted Security or
any interest therein.


 


Any certificate
evidencing such Note (and all securities issued in exchange therefor or
substitution thereof), and any stock certificate representing shares of Common
Stock issued upon conversion of any Note, shall bear a Restricted Note Legend,
IAI Note Legend, Restricted Common Stock Legend or IAI Common Stock Legend, as
the case may be, unless such Note or such shares of Common Stock have been sold
pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
transfer) or pursuant to Rule 144 or any similar provision then in force,
or such shares of Common Stock have been issued upon conversion of Notes that
have been transferred pursuant to a registration statement that has been
declared effective under the Securities Act or pursuant to Rule 144 under
the Securities Act, or unless otherwise agreed by the Company in writing, with
written notice thereof to the Trustee.


 


Any Note (or security
issued in exchange or substitution therefor) as to which such restrictions on
transfer shall have expired in accordance with their terms or as to which
conditions for removal of the Restricted Note Legend or IAI Note Legend, as the
case may be, set forth therein have been satisfied may, upon surrender of such
Note for exchange to the Registrar in accordance with the provisions of Section 2.06,
be exchanged for a new Note or Notes, of like tenor and aggregate principal
amount, which shall not bear the Restricted Note Legend or IAI Note Legend, as 


 


20

















 


the case may
be.  If the Restricted Note surrendered
for exchange is represented by a Global Note bearing the Restricted Note Legend
or IAI Note Legend, as the case may be, the principal amount of the legended
Global Note shall be reduced by the appropriate principal amount and the
principal amount of a Global Note without the Restricted Note Legend or IAI
Note Legend, as the case may be, shall be increased by an equal principal
amount.  If a Global Note without the
Restricted Note Legend is not then outstanding, the Company shall execute and
the Trustee, upon receipt of a Company Order, shall authenticate and deliver an
unlegended Global Note to the Depositary.


 


Any such shares of Common
Stock as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
Restricted Common Stock Legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the Restricted Common Stock Legend
required by this Section 2.14.


 


(d)                                 By its acceptance of any Note bearing the
Restricted Note Legend or the IAI Note Legend, as the case may be, each Holder
of such a Note acknowledges the restrictions on transfer of such Note set forth
in this Indenture and in the Restricted Note Legend or the IAI Note Legend, as
the case may be, and agrees that it will transfer such Note only as provided in
this Indenture.


 


(e)                                  The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section 2.13
or this Section 2.14.  The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time during normal hours of
operation of the Registrar upon the giving of reasonable notice to the
Registrar.


 


Section 2.15                                Record Date.  The record date for purposes of determining
the identity of Holders of the Notes entitled to vote or consent to any action
by vote or consent authorized or permitted under this Indenture shall be
determined as provided for in Section 316(c) of the Trust Indenture
Act.


 


ARTICLE 3.


 


PURCHASES AND
REDEMPTIONS


 


Section 3.01                                Purchase At the Option of the Holder Upon
a Fundamental Change.


 


(a)                                   If there shall have occurred a
Fundamental Change, each Holder shall have the right, at such Holder’s option,
to require the Company to purchase for Cash all or any portion of such Holder’s
Notes in integral multiples of $1,000 principal amount on a date selected by
the Company (the “Fundamental Change Purchase Date”), which Fundamental Change
Purchase Date shall be no later than 35 Trading Days after the occurrence of
such Fundamental Change, unless such 35 Trading Days would not provide Holders
with at least 20 Trading Days’ notice, in which event the Fundamental Change
Purchase Date shall be the day that provides the shortest period necessary to
provide 20 Trading Days’ notice, at a purchase price equal to the sum of (x) 100%
of 


 


21

















 


the principal amount of
the Notes to be purchased, plus (y) in the case of a Fundamental Change
set forth in clause (i), (ii), (iii) or (iv) below only, the Make-Whole
Amount, plus (z) accrued and unpaid interest to, but excluding, the
Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.01(c); provided that if the Fundamental Change Purchase
Date is after a Regular Record Date and on or prior to the Interest Payment
Date to which it relates, interest accrued to the Interest Payment Date will be
paid to Holders of the Notes as of the preceding Regular Record Date. The
Company shall determine the Make-Whole Amount.


 


A “Fundamental Change”
shall be deemed to have occurred at such time as any of the following events
shall occur:


 


(i)             any “person” or “group”, other than the Company, its
Subsidiaries or any employee benefits plan of the Company or its Subsidiaries,
files, or is required by applicable law to file, a Schedule 13D or Schedule TO
(or any successor schedule, form or report) pursuant to the Exchange Act,
disclosing that such person has become the direct or indirect beneficial owner
of shares with a majority of the total voting power of the Company’s
outstanding Voting Securities; unless such beneficial ownership arises solely
as a result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to the applicable rules and regulations under
the Exchange Act;


 


(ii)          the Company consolidates with or merges with or into
another Person (other than a Subsidiary of the Company), or sells, conveys,
transfers, leases or otherwise disposes of all or substantially all of the
consolidated properties and assets of the Company and its Subsidiaries to any
Person (other than a Subsidiary of the Company) or any Person (other than a
Subsidiary of the Company) consolidates with or merges with or into the
Company, provided that none of the circumstances set forth in this clause (ii) will
be a Fundamental Change if Persons that beneficially own the Voting Securities
of the Company immediately prior to the transaction own, directly or
indirectly, shares with a majority of the total voting power of all outstanding
Voting Securities of the surviving or transferee person immediately after the
transaction in substantially the same proportion as their ownership of the
Company’s Voting Securities immediately prior to the transaction;


 


(iii)       Continuing Directors cease to constitute at least a
majority of the Board of Directors;


 


(iv)      the Company’s stockholders or Board of Directors
adopts a plan for the liquidation or dissolution of the Company; or


 


(v)         upon the occurrence of a Termination of Trading (other
than in connection with an Unexpected Delisting).


 


For
purposes of defining a Fundamental Change:


 


(x)                                   the term “person” and the term “group”
have the meanings given by Section 13(d) and 14(d) of the
Exchange Act or any successor provisions;


 


22

















 


(y)                                 the term “group” includes any group
acting for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 13d-5(b)(1) under the Exchange Act or any
successor provision; and


 


(z)                                   the term “beneficial owner” is determined
in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any
successor provisions.


 


(b)                                 As promptly as practicable following the
date the Company publicly announces the Fundamental Change transaction, but in
no event less than 20 Trading Days prior to the anticipated effective date of a
Fundamental Change in the case of a Fundamental Change within the control of
the Company or of which the Company has at least 30 Trading Days prior notice,
the Company shall mail a written notice of Fundamental Change by first-class
mail to the Trustee and to each Holder at their addresses shown in the register
of the Registrar (and to beneficial owners as required by applicable law).  The notice shall include a form of
Fundamental Change Purchase Notice to be completed by the Noteholder and shall
state:


 


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


 


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


 


(iii)                               the date by which the Fundamental Change
Purchase Notice pursuant to this Section 3.01 must be given;


 


(iv)                              the Fundamental Change Purchase Price;


 


(v)                                 the Fundamental Change Purchase Date;


 


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


 


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


 


(viii)                        that Notes with respect to which a
Fundamental Change Purchase Notice has been given by the Holder may be
converted pursuant to Article 10 hereof only if the Fundamental Change
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


(ix)                                briefly, the procedures a Holder must
follow to exercise rights under this Section 3.01;


 


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


 


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


 


23

















 


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


 


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


 


(xiv)                         that, unless the Company defaults in
making payment of such Fundamental Change Purchase Price and interest due, if
any, interest on Notes surrendered for purchase will cease to accrue on and
after the Fundamental Change Purchase Date; and


 


(xv)                            the CUSIP number of the Notes.


 


(c)                                  A Holder may exercise its rights
specified in Section 3.01(a) by delivery of a written notice of
purchase (a “Fundamental Change Purchase Notice”) to the Paying Agent at any
time prior to the Close of Business on the Fundamental Change Purchase Date,
stating:


 


(i)                                     the certificate number of the Note which
the Holder will deliver to be purchased, if Certificated Notes have been
issued, or notice compliant with the relevant DTC procedures if the Notes are
not certificated;


 


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


 


(iii)                               that such Note shall be purchased
pursuant to the terms and conditions specified in this Section 3.01.


 


The delivery of such Note
to the Paying Agent prior to, on or after the Fundamental Change Purchase Date
(together with all necessary endorsements) at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Fundamental Change
Purchase Price therefor; provided, however, that such Fundamental Change
Purchase Price shall be so paid pursuant to this Section 3.01 only if the
Note so delivered to the Paying Agent shall conform in all respects to the
description thereof set forth in the related Fundamental Change Purchase
Notice.


 


The Company shall
purchase from the Holder thereof, pursuant to this Section 3.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral
multiple of $1,000.  Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the
purchase of such portion of such Note.


 


Any purchase by the
Company contemplated pursuant to the provisions of this Section 3.01 shall
be consummated by the delivery of the consideration to be received by the
Holder (together with accrued and unpaid interest) on or prior to the third
Business Day following the later of the Fundamental Change Purchase Date and
the time of delivery of the Note to the Paying Agent in accordance with this Section 3.01.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.01(c) shall
have the right to withdraw such Fundamental Change Purchase Notice at any time
prior to the Close of Business on the Fundamental Change Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.02.


 


24

















 


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


 


There shall be no
purchase of any Notes pursuant to this Section 3.01 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Notes, of the required Fundamental Change Purchase Notice) and is continuing an
Event of Default (other than a default in the payment of the Fundamental Change
Purchase Price).  The Paying Agent will
promptly return to the respective Holders thereof any Notes (x) with
respect to which a Fundamental Change Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance
of an Event of Default (other than a default in the payment of the Fundamental
Change Purchase Price) in which case, upon such return, the Fundamental Change
Purchase Notice with respect thereto shall be deemed to have been withdrawn.


 


Section 3.02                                Effect of Fundamental Change Purchase Notice.


 


(a)                                  Upon receipt by the Paying Agent of the
Fundamental Change Purchase Notice specified in Section 3.01(c), the
Holder of the Note in respect of which such Fundamental Change Purchase Notice
was given shall (unless such Fundamental Change Purchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to receive
solely the Fundamental Change Purchase Price, with respect to such Note.  Such Fundamental Change Purchase Price shall
be paid to such Holder, subject to receipt of funds by the Paying Agent, on or
prior to the third Business Day following the later of (x) the Fundamental
Change Purchase Date, with respect to such Note (provided the conditions in Section 3.01(c) have
been satisfied) and (y) the time of delivery of such Note to the Paying Agent
by the Holder thereof in the manner required by Section 3.01(c).  Notes in respect of which a Fundamental
Change Purchase Notice has been given by the Holder thereof may not be
converted pursuant to Article 10 hereof on or after the date of the
delivery of such Fundamental Change Purchase Notice unless such Fundamental
Change Purchase Notice has first been validly withdrawn as specified in the
following two paragraphs.


 


(b)                                 A Fundamental Change Purchase Notice may
be withdrawn by means of a written notice of withdrawal delivered to the office
of the Paying Agent in accordance with the Fundamental Change Purchase Notice
at any time prior to the Close of Business on the Fundamental Change Purchase
Date specifying:


 


(i)                                     the certificate number of the Note which
the Holder will deliver to be purchased, if Certificated Notes have been
issued, or notice compliant with the relevant DTC procedures, if the Notes are
not certificated,


 


(ii)                                  the principal amount of the Note with
respect to which such notice of withdrawal is being submitted, and


 


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


 


A written notice of
withdrawal of a Fundamental Change Purchase Notice may be in the form set forth
in the preceding paragraph.


 


25

















 


Section 3.03                                Deposit of Fundamental Change Purchase
Price.  Prior to 10:00 a.m. (New York City time)
on or prior to the third Business Day following the Fundamental Change Purchase
Date, the Company shall deposit with the Trustee or with the Paying Agent (or,
if the Company or a Subsidiary or an Affiliate of either of them is acting as
the Paying Agent, shall segregate and hold in trust as provided in Section 2.04)
an amount of money (in immediately available funds if deposited on such Trading
Day) sufficient to pay the aggregate Fundamental Change Purchase Price of all
the Notes or portions thereof which are to be purchased as of the Fundamental
Change Purchase Date.


 


If the Trustee or the
Paying Agent holds money sufficient to pay the Fundamental Change Purchase
Price of a Note on the third Business Day following the Fundamental Change
Purchase Date in accordance with the terms hereof, then, immediately after the
Fundamental Change Purchase Date, interest on such Note will cease to accrue,
whether or not the Note is delivered to the Trustee or the Paying Agent, and
all other rights of the holder shall terminate, other than the right to receive
the Fundamental Change Purchase Price upon delivery of the Note.


 


Section 3.04                                Right of Redemption.


 


(a)                                  Subject to Section 3.04(c), (d) and
(e), the Company shall have the right, at the Company’s option, during the
period beginning on November 8, 2011 and ending on May 8, 2014, at
any time during such period, and from time to time during such period, to
redeem all or any part of the Notes at a price payable in Cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date in the event that the Closing Price for each of 20 or more
Trading Days in a period of 30 consecutive Trading Days ending on the day prior
to mailing of a notice of redemption to Holders of the Notes in accordance with
Section 3.07 shall have exceeded 300% of the applicable Conversion Price,
provided, however, that the Company shall have made at least five scheduled
semi-annual interest payments (including the interest payments on November 8,
2011) in the full amount required by this Indenture with respect to the Notes
prior to redeeming any Notes pursuant to this Section 3.04(a).


 


(b)                                 Subject to Section 3.04(c), (d) and
(e), the Company shall have the right, at the Company’s option, after May 8,
2014, at any time, and from time to time, to redeem all or any part of Notes at
a price payable in Cash equal to the Redemption Price plus accrued and unpaid
interest, if any, to, but excluding, the Redemption Date.


 


(c)                                  In no event shall any Redemption Date be
a Legal Holiday. Furthermore, if the Redemption Date with respect to a Note is
after the close of business on a record date for the payment of an installment
of interest and on or before the related interest payment date, then accrued
and unpaid interest to, but excluding, such interest payment date shall be
paid, on such interest payment date, to the Holder of record of such Note
(without any surrender of such Note by such Holder) at the close of business on
such record date, and the Holder surrendering such Note for redemption shall
receive only the Redemption Price and shall not be entitled to any such
interest unless such Holder was also the Holder of record of such Note at the
close of business on such record date.


 


(d)                                 The Company shall not have the right to
redeem any Note pursuant to this Section 3.04 unless at the time of the
mailing of the applicable redemption notice either (x) the shelf
registration statement referred to in Section 2.2 of the Registration
Rights Agreement is effective and 


 


26

















 


available for resales of
the Common Stock issuable upon conversion of the Notes or (y) the shares
of Common Stock into which the Notes are convertible into may be sold by all
Holders and Beneficial Owners of the Notes under Rule 144 under the
Securities Act without volume or other limitation.  Notwithstanding anything contained in the
Registration Rights Agreement to the contrary, the Company also agrees to keep
such shelf registration statement effective and available for resales of the
Common Stock contemplated thereby without limitation until and including the
Redemption Date specified in such redemption notice.


 


(e)                                  Notes in denominations larger than $1,000
principal amount may be redeemed pursuant to this Section 3.04 in part but
only in integral multiples of $1,000 principal amount.


 


Section 3.05                                Notices to Trustee. 
If the Company elects to redeem Notes pursuant to Section 3.04 and
paragraph 7 of the Notes, it shall notify the Trustee of the Redemption Date,
the applicable provision of this Indenture pursuant to which the redemption is
to be made and the aggregate principal amount of Notes to be redeemed, which
notice shall be provided to the Trustee by the Company at least 15 days prior
to the mailing, in accordance with Section 3.07, of the notice of
redemption (unless a shorter notice period shall be satisfactory to the
Trustee).


 


Section 3.06                                Selection of Notes to be Redeemed. 
If the Company has elected to redeem less than all the Notes pursuant to
Section 3.04 and paragraph 7 of the Notes, the Trustee shall, within five
Business Days after receiving the notice specified in Section 3.05, select
the Notes to be redeemed by lot, on a pro rata basis
or in accordance with any other method the Trustee considers fair and
appropriate.  The Trustee shall make such
selection from Notes then outstanding and not already to be redeemed by virtue
of having been previously called for redemption.  The Trustee may select for redemption
portions of the principal amount of Notes that have denominations larger than
$1,000 principal amount.  Notes and
portions of them the Trustee selects for redemption shall be in amounts of
$1,000 principal amount or integral multiples of $1,000 principal amount.  The Trustee shall promptly notify the Company
in writing of the Notes selected for redemption and the principal amount
thereof to be redeemed.


 


The
Registrar need not register the transfer of or exchange any Notes that have
been selected for redemption, except the unredeemed portion of the Notes being
redeemed in part.  As provided in Section 2.06,
the Registrar need not register the transfer of or exchange any Security for a
period of 20 days before selecting, pursuant to this Section 3.06, Notes
to be redeemed.


 


Section 3.07                                Notice of Redemption.  (A) At
least 20 Business Days but not more than 30 Business Days before a Redemption
Date with respect to a redemption pursuant to Section 3.04(a) and (B) at
least 30 days but not more than 60 days before a Redemption Date with respect
to a redemption pursuant to Section 3.04(b), the Company shall mail, or
cause to be mailed, by first-class mail a notice of redemption to each Holder
whose Notes are to be redeemed, at the address of such Holder appearing in the
security register.


 


The
notice shall identify the Notes and the aggregate principal amount thereof to
be redeemed pursuant to the redemption and shall state:


 


(i)                                     the Redemption Date;


 


27

















 


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


 


(iii)                               the Conversion Rate;


 


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


 


(v)                                 that the right to convert the Notes
called for Redemption will terminate at the close of business on the Business
Day immediately preceding the Redemption Date, unless there shall be a Default
in the payment of the Redemption Price or accrued and unpaid interest, if any,
payable as provided in this Indenture upon redemption;


 


(vi)                              that Holders who want to convert Notes
into shares of Common Stock or shares of Junior Convertible Preferred Stock
must satisfy the requirements of Article 10;


 


(vii)                           the paragraph of the Notes pursuant to
which the Notes are to be redeemed;


 


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


 


(ix)                                that, unless there shall be a Default in
the payment of the Redemption Price or accrued and unpaid interest, if any,
payable as herein provided upon redemption (including, where the Redemption
Date is after a record date for the payment of an installment of interest and on
or before the related interest payment date, the payment, on such interest
payment date, of accrued and unpaid interest to, but excluding, such interest
payment date to the Holder of record at the close of business on such record
date), interest on Notes called for redemption ceases to accrue on and after
the Redemption Date, except as otherwise provided herein, and all rights of the
Holders of such Notes shall terminate on and after the Redemption Date, other
than the right to receive, upon surrender of such Notes and in accordance with
this Indenture, the amounts due hereunder on such Notes upon redemption (and
the rights of the Holder(s) of record of such Notes to receive, on the
applicable interest payment date, accrued and unpaid interest in accordance
herewith in the event the Redemption Date is after a record date for the
payment of an installment of interest and on or before the related interest
payment date); and


 


(x)                                   the CUSIP number or numbers, as the case
may be, of the Notes.


 


The
right, pursuant to Article 10, to convert Notes called for redemption
shall terminate at the close of business on the Business Day immediately
preceding the Redemption Date, unless there shall be a Default in the payment
of the Redemption Price or accrued and unpaid interest, if any, payable as
herein provided upon redemption.


 


28
















 


At the
Company’s request, upon 5 days’ notice prior to the date of delivery of the
notice of redemption, the Trustee shall mail the notice of redemption in the
Company’s name and at the Company’s expense; provided, however, that the form
and content of such notice shall be prepared by the Company.


 


Section 3.08                                Effect of Notice of Redemption. 
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the Redemption Date at the specified Redemption Price
(together with accrued and unpaid interest, if any, payable as provided herein)
and, on and after such Redemption Date (unless there shall be a Default in the
payment of such consideration), except as otherwise provided herein, such Notes
shall cease to bear interest, and all rights of the Holders of such Notes shall
terminate, other than the right to receive such consideration upon surrender of
such Notes to the Paying Agent.


 


If any
Note shall not be fully and duly paid in accordance herewith upon redemption,
the principal of, and accrued and unpaid interest on, such Note shall, until
paid, bear interest at the rate borne by such Note on the principal amount of
such Note, and such Note shall continue to be convertible pursuant to Article 10.


 


Notwithstanding
anything herein to the contrary, there shall be no purchase of any Note
pursuant to a redemption if there has occurred (prior to, on or after, as the
case may be, the mailing of the notice of redemption specified in Section 3.07)
and is continuing an Event of Default (other than a Default in the payment of
the consideration payable as herein provided upon redemption).  The Paying Agent will promptly return to the
respective Holders thereof any Notes held by it during the continuance of such
an Event of Default.


 


Section 3.09                                Deposit of Redemption Price. 
Prior to 11:00 a.m. (New York City time) on or prior to the
Business Day prior to the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided in Section 2.04) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to
pay the consideration payable as herein provided upon redemption with respect
to all Notes to be redeemed on that date. 
The Paying Agent shall return to the Company, as soon as practicable,
any money not required for that purpose.


 


Section 3.10                                Purchase of Notes at Option of the Holder.


 


(a)                                  At the option of the Holder thereof,
Notes (or portions thereof that are integral multiples of $1,000 in principal
amount) shall be purchased by the Company pursuant to this Section 3.10
and paragraph 9 of the Notes on May 8, 2014, May 8, 2015, May 8,
2016, May 8, 2017 and May 8, 2018 (each, an “Option Purchase Date”),
at a purchase price, payable in Cash, equal to 100% of the principal amount of
the Notes (or such portions thereof) to be so purchased (the “Option Purchase
Price”), plus accrued and unpaid interest, if any, to, but excluding, the
applicable Option Purchase Date (provided, that if such Option Purchase Date is
after the close of business on a record date for the payment of an installment
of interest and on or before the related interest payment date, then such
accrued and unpaid interest shall be paid, on such interest payment date, to
the Holder of record of such Notes (without any surrender of such Notes by such
Holder) at the close of business 


 


29

















 


on such record date and the Holder surrendering such Note for
repurchase shall receive only the Option Purchase Price and shall not be
entitled to any such interest unless such Holder was also the Holder of record
of such Note at the close of business on such record date), upon:


 


(i)                                     delivery to the Company (if it is acting
as its own Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice, by such Holder, at any time from
the opening of business on the date that is 20 Business Days prior to the
applicable Option Purchase Date until the close of business on the Business Day
immediately preceding the applicable Option Purchase Date, of an Option
Purchase Notice, in the form set forth in the Notes or any other form of
written notice substantially similar thereto, in each case, duly completed and
signed, with appropriate signature guarantee, stating:


 


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


 


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


 


(C)                                that such Note shall be purchased
pursuant to the terms and conditions specified in Section 3.10 of this
Indenture; and


 


(D)                               that the Beneficial Owner of the Notes
attempted in good faith to obtain the price quotes referred to in clause (i) of
the definition of Fair Market Value and the Fair Market Value was equal to or
less than 110% of the sum of (x) the Option Purchase Price plus (y) accrued
and unpaid interest, if any, on the Notes subject to redemption pursuant to
this Section 3.10; and


 


(ii)                                  delivery to the Company (if it is acting
as its own Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice, at any time after delivery of such
Option Purchase Notice, of such Notes (together with all necessary
endorsements), such delivery being a condition to receipt by the Holder of the
Option Purchase Price therefor plus accrued and unpaid interest, if any,
payable as herein provided upon Purchase at Holder’s Option (provided, however,
that the Holder of record of such Notes on the record date immediately
preceding such Option Purchase Date need not surrender such Notes in order to
be entitled to receive, on the Option Purchase Date, the accrued and unpaid
interest due thereon).


 


If
such Notes are held in book-entry form through the Depositary, the Option
Purchase Notice shall comply with applicable procedures of the Depositary.


 


Notwithstanding
anything herein to the contrary, any Holder that has delivered the Option
Purchase Notice contemplated by this Section 3.10(a) to the Company
(if it is acting as its own Paying Agent) or to a Paying Agent designated by
the Company for such purpose in the Option Purchase Notice shall have the right
to withdraw such Option Purchase Notice by delivery, at any 


 


30

















 


time prior to the close of business on the Business Day immediately
preceding the applicable Option Purchase Date, of a written notice of
withdrawal to the Company (if acting as its own Paying Agent) or the Paying
Agent, which notice shall contain the information specified in Section 3.10(b)(viii).


 


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


 


(b)                                 The Company shall give notice (the “Option
Purchase Notice”) on a date not more than 60 days nor less than 30 days prior
to each Option Purchase Date to each Holder at its address shown in the
register of the Registrar and to each beneficial owner as required by applicable
law.  Such notice shall state:


 


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


 


(ii)                                  the Conversion Rate then applicable to
the Notes;


 


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


 


(iv)                              that Notes with respect to which a
Purchase Notice is given by a Holder may be converted pursuant to Article 10,
if otherwise convertible in accordance with Article 10, only if such
Purchase Notice has been withdrawn in accordance with this Section 3.10 or
if there shall be a Default in the payment of such Option Purchase Price or in
accrued and unpaid interest, if any, payable as herein provided upon Purchase
at Holder’s Option;


 


(v)                                 that Notes (together with any necessary
endorsements) must be surrendered to the Paying Agent to collect payment of the
Option Purchase Price plus (if such Holder was the Holder of record of the
applicable Note at the close of business on the record date immediately preceding
the Option Purchase Date) accrued and unpaid interest, if any, payable as
herein provided upon Purchase at Holder’s Option;


 


(vi)                              that the Option Purchase Price, plus
accrued and unpaid interest, if any, to, but excluding, such Option Purchase
Date, for any Note as to which a Purchase Notice has been given and not
withdrawn will be paid as promptly as practicable, but in no event later than
such Option Purchase Date or the time of delivery of the Note as described in
clause (v) above; provided, however, that such accrued and unpaid interest
shall be paid, on the applicable interest payment date, to the Holder of record
of such Note at the close of business on the record date immediately preceding
such Option Purchase Date;


 


(vii)                           the procedures the Holder must follow to
exercise rights under this Section 3.10 (including the name and address of
the Paying Agent) and a brief description of those rights;


 


31

















 


(viii)                        that a Holder will be entitled to
withdraw its election in the Purchase Notice if the Company (if acting as its
own Paying Agent) or the Paying Agent receives, at any time prior to the close
of business on the Business Day immediately preceding the applicable Option
Purchase Date, or such longer period as may be required by law, a letter,
telegram or facsimile transmission (with confirmation of good transmission
thereof) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Notes purchased by the
Company on such Option Purchase Date pursuant to a Purchase at Holder’s Option,
(III) the certificate number(s) of such Notes to be so withdrawn, if
such Notes are in certificated form, (IV) the principal amount of the
Notes of such Holder to be so withdrawn, which amount must be $1,000 or an
integral multiple thereof and (V) the principal amount, if any, of the
Notes of such Holder that remain subject to the Purchase Notice delivered by
such Holder in accordance with this Section 3.10, which amount must be
$1,000 or an integral multiple thereof;


 


(ix)                                that on and after the applicable Option
Purchase Date (unless there shall be a Default in the payment of the
consideration payable as herein provided upon a Purchase at Holder’s Option),
interest on Notes subject to Purchase at Holder’s Option will cease to accrue,
and all rights of the Holders of such Notes shall terminate, other than the
right to receive, in accordance herewith, the consideration payable as herein
provided upon a Purchase at Holder’s Option; and


 


(x)                                   the CUSIP number or numbers, as the case
may be, of the Notes; and


 


(xi)                                the names and telephonic contact
information for no more than three registered broker-dealers affiliated with a
reputable, nationally recognized brokerage house (collectively, the “Brokers”).


 


At the
Company’s request, upon 5 days’ notice prior to the date of delivery of the
notice of redemption, the Trustee shall mail such Option Purchase Notice in the
Company’s name and at the Company’s expense; provided, however, that the form
and content of such Option Purchase Notice shall be prepared by the Company.


 


No
failure of the Company to give an Option Purchase Notice shall limit any Holder’s
right pursuant hereto to exercise its rights to require the Company to purchase
such Holder’s Notes pursuant to a Purchase at Holder’s Option.


 


(c)                                  Subject to the provisions of this Section 3.10,
the Company shall pay, or cause to be paid, the Option Purchase Price, plus
accrued and unpaid interest, if any, to, but excluding, the applicable Option
Purchase Date, with respect to each Note subject to Purchase at Holder’s Option
to the Holder thereof as promptly as practicable, but in no event later than
the applicable Option Purchase Date and the time such Note (together with all
necessary endorsements) is surrendered to the Paying Agent; provided, however,
that such accrued and unpaid interest shall be paid, on the applicable interest
payment date, to the Holder of record of such Note at the close of business on
the record date immediately preceding such Option Purchase Date.


 


32

















 


(d)                                 Prior to 11:00 a.m. (New York City
time) on or prior to the Business Day prior to the applicable Option Purchase
Date, the Company shall deposit with the Trustee or with the Paying Agent (or,
if the Company or a Subsidiary or an Affiliate of either of them is acting as
the Paying Agent, shall segregate and hold in trust as provided for in Section 2.04)
an amount of money in immediately available funds if deposited on such Business
Day sufficient to pay the Option Purchase Price, plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date, with respect to
all of the Notes that are to be purchased by the Company on such Option
Purchase Date pursuant to a Purchase at Holder’s Option.  The Paying Agent shall return to the Company,
as soon as practicable, any money not required for that purpose.


 


(e)                                  Once the Purchase Notice has been duly
delivered in accordance with this Section 3.10, the Notes to be purchased
pursuant to the Purchase at Holder’s Option shall, on the applicable Option
Purchase Date, become due and payable in accordance herewith, and, on and after
such date (unless there shall be a Default in the payment of the consideration
payable as herein provided upon a Purchase at Holder’s Option), such Notes
shall cease to bear interest, and all rights of the Holders of such Notes shall
terminate, other than the right to receive, in accordance herewith, the Option
Purchase Price (together with accrued and unpaid interest, if any, payable as
provided herein).


 


(f)                                    Notes with respect to which a Purchase
Notice has been duly delivered in accordance with this Section 3.10 may be
converted pursuant to Article 10, if otherwise convertible in accordance
with Article 10, only if such Purchase Notice has been withdrawn in
accordance with this Section 3.10 or if there shall be a Default in the
payment of the consideration payable as herein provided upon a Purchase at
Holder’s Option.


 


(g)                                 If any Note subject to Purchase at Holder’s
Option shall not be paid in accordance herewith, the principal of, and accrued
and unpaid interest on, such Note shall, until paid, bear interest, payable in
cash, at the rate borne by such Note on the principal amount of such Note, and
such Note shall continue to be convertible pursuant to Article 10.


 


(h)                                 Any Note which is to be submitted for
Purchase at Holder’s Option only in part shall be delivered pursuant to this Section 3.10
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in
writing, with a medallion guarantee), 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 Note or Notes, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Note not submitted for Purchase
at Holder’s Option.


 


Section 3.11                                Notes Purchased or Redeemed In Part. 
Any Note which is to be purchased or redeemed only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Note, of 


 


33

















 


any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Note so surrendered that is not purchased or redeemed.  If any Note selected for partial redemption
is converted in part, the principal amount of such Note subject to redemption
shall be reduced by the principal amount of the Note that is converted.


 


Section 3.12                                Covenant To Comply With Securities Laws
Upon Repurchase of Notes.  When complying with the
provisions of Section 3.01 or Section 3.10 (provided, that such offer
or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4
(which term, as used herein, includes any successor provision thereto) under
the Exchange Act at the time of such offer or purchase), and subject to any
exemptions available under applicable law, the Company shall:


 


(a)                                  comply with Rule 13e-4 and Rule 14e-1
(or any successor provision) under the Exchange Act, as applicable;


 


(b)                                 file the related Schedule TO (or any
successor schedule, form or report) if required under the Exchange Act, as
applicable;


 


(c)                                  otherwise comply with all federal and
state securities laws so as to permit the rights and obligations under
Sections 3.01 and 3.10 to be exercised in the time and in the manner
specified therein.


 


To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of Sections 3.01 and 3.10, the Company’s compliance with such laws and
regulations shall not in and of itself cause a breach of its obligations under
Sections 3.01 and 3.10.


 


ARTICLE 4.


 


COVENANTS


 


Section 4.01                                Payment of Notes.


 


(a)                                  The Company agrees to pay the principal
of and interest on the Notes on the dates and in the manner provided in the
Notes and the Indenture.  Not later than
11:00 a.m. (New York City time) on the due date of any principal of or
interest on any Notes, or any purchase price of the Notes, the Company will
deposit with the Trustee (or Paying Agent) money in immediately available funds
sufficient to pay such amounts, provided that if the Company or any Affiliate
of the Company is acting as Paying Agent, it will, on or before each due date,
segregate and hold in a separate trust fund for the benefit of the Holders a
sum of money sufficient to pay such amounts until paid to such Holders or
otherwise disposed of as provided in the Indenture.  In each case the Company will promptly notify
the Trustee of its compliance with this paragraph.


 


(b)                                 An installment of principal or interest
will be considered paid on the date due if the Trustee (or Paying Agent, other
than the Company or any Affiliate of the Company) holds on that date money
designated for and sufficient to pay the installment.  If the Company or any Affiliate of the
Company acts as Paying Agent, an installment of principal or interest will be
considered paid on the due date only if paid to the Holders.


 


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(c)                                  The Company agrees to pay interest on
overdue principal, and, to the extent lawful, overdue installments of interest
at the rate per annum specified in the Notes plus 2%.


 


(d)                                 Payments in respect of the Notes
represented by the Global Notes are to be made by wire transfer of immediately
available funds to the accounts specified by the Holders of the Global
Notes.  With respect to Certificated
Notes, the Company will make all payments by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each Holder’s registered address.


 


Section 4.02                                Maintenance of Office or Agency. 
The Company will maintain in the United States, an office or agency
where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company
in respect of the Notes and the Indenture may be served.  The Company hereby initially designates the
Corporate Trust Office of the Trustee as such office of the Company.  The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served to the Trustee.


 


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


 


Section 4.03                                Existence.  The Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence and the material rights and franchises of the
Company, except in the case of such rights and franchises, where the failure to
do so would not have a material adverse effect on the business of the Company
and its subsidiaries, taken as a whole, or the Company has otherwise determined
that it is not in the best interest of the Company to do so; and provided,
further, that this Section does not prohibit any transaction otherwise
permitted by Section 5.01.


 


Section 4.04                                Rule 144A Information and Annual
Reports.


 


(a)                                  At any time the Company is not subject to
Sections 13 or 15(d) of the Exchange Act, the Company shall, so long
as any of the Notes or any shares of Common Stock issuable upon conversion
thereof shall, at such time, constitute “restricted securities” within the
meaning of Rule 144(a)(3) under the Securities Act, promptly provide
to the Trustee and shall, upon written request, provide to any Noteholder,
beneficial owner or prospective purchaser of Notes or any shares of Common
Stock issued upon conversion of any Notes, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to
permit the resale of such Notes or shares of Common Stock pursuant to Rule 144A
under the Securities Act.


 


(b)                                 The Company shall deliver to the Trustee
copies of the Company’s annual reports (which shall contain audited financial
statements of the Company), and quarterly and current reports and of the other
information and documents (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) that the Company
is required 


 


35

















 


to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act at the time the Company is required to file such annual, quarterly
and current reports and other information and documents; provided that any such
annual, quarterly and current reports, other information or documents required
to be filed with the Commission shall be deemed delivered to the Trustee at the
same time the same is filed with the Commission. Until such time as the
Indenture has been qualified under the TIA, the Company shall be deemed to have
complied with the previous sentence to the extent that the Company shall have
filed or furnished such annual, quarterly and current reports or other
information and documents to the Commission via EDGAR (or any successor
electronic delivery procedure).  In the
event the Company is at any time no longer subject to the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act, the Company
shall continue to provide the Trustee and, upon written request, to each
Noteholder, annual, quarterly and current reports or other information and
documents containing substantially the same information as would have been
required to be filed with the Commission had the Company continued to have been
subject to such reporting requirements. 
In such event, such annual, quarterly and current reports shall be
provided at the times the Company would have been required to provide the
applicable report had it continued to have been subject to such reporting
requirements.  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on the Officers’
Certificates).


 


Section 4.05                                Reports to Trustee.


 


(a)                                  The Company will deliver to the Trustee
within 120 days after the end of each fiscal year a certificate from the
principal executive, financial or accounting officer of the Company stating
that the officer has conducted or supervised a review of the activities of the
Company and its Subsidiaries and their performance under the Indenture and
that, based upon such review, the Company has fulfilled its obligations hereunder
or, if there has been a Default, specifying the Default and its nature and
status.


 


(b)                                 The Company will deliver to the Trustee,
as soon as possible and in any event within 30 days after the Company becomes
aware or should reasonably become aware of the occurrence of a Default, an
Officers’ Certificate setting forth the details of the Default, and the action
which the Company proposes to take with respect thereto.


 


Section 4.06                                Stay, Extension and Usury Laws. 
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (in each case, to the
extent that it may lawfully do so) hereby covenants that it will not, by resort
to any such law to the extent it would hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 4.07                                Incurrence of Debt. 
The Company will not and will not permit any of its Subsidiaries to
incur, create, assume, guarantee or otherwise become liable for any
Indebtedness (an 


 


36

















 


“incurrence”; provided that accretion or amortization of original issue
discount shall not constitute an incurrence) unless after giving effect to such
incurrence the outstanding consolidated Indebtedness of the Company and its
Subsidiaries does not exceed the Permitted Indebtedness Amount.


 


Section 4.08                                Limitations on Liens. 
The Company will not and will not permit any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien of any kind, other than
Permitted Liens, upon any of their respective assets now owned or acquired on
or after the Issue Date or upon any income or profits therefrom.


 


Section 4.09                                Limitation on Unlisting of Common Stock. 
Except in connection with an Unexpected Delisting, the Company will not
permit its Common Stock to be unlisted for trading on the NASDAQ Global Market
or another Exchange for trading for a period in excess of 10 consecutive
Business Days (other than solely due to failure to comply with Nasdaq
Marketplace Rule 4310(c)(4)).


 


Section 4.10                                Limitation on Modifying Junior
Convertible Preferred Stock.  The Company
will not permit any amendment or other modification of the terms of the Junior
Convertible Preferred Stock in a manner adverse to the Holders of the Notes
without the consent of Holders of a majority in principal amount of the Notes.


 


ARTICLE 5.


 


CONSOLIDATION,
MERGER, SALE OR LEASE OF ASSETS


 


Section 5.01                                Consolidation, Merger, Sale or Lease of
Assets by the Company.


 


(a)                                  The Company, without the consent of the
Holders of any of the outstanding Notes, may not


 


(i)                                     consolidate with or merge with or into
any Person, or


 


(ii)                                  sell, convey, transfer, or otherwise
dispose of or lease all or substantially all of the consolidated assets of the
Company and its Subsidiaries as an entirety or substantially an entirety, in
one transaction or a series of related transactions, to any Person;


 


unless


 


(A)      either (x) the Company is the continuing Person
or (y) the resulting, surviving or transferee Person is a corporation,
partnership, limited liability company or trust organized and validly existing
under the laws of the United States of America, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company under the Indenture and the Notes and the
Registration Rights Agreement;


 


(B)        immediately after giving effect to the transaction, no
Event of Default and no Default has occurred and is continuing; and


 


37

















 


(C)        the Company delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that the consolidation,
merger, transfer or lease and the supplemental indenture (if any) comply with
the Indenture;


 


provided, however, that
in the event of a consolidation or merger of a wholly-owned subsidiary of the
Company with and into the Company, the Company shall not be required to deliver
such certificate or opinion.


 


(b)                                 Upon the consummation of any transaction
effected in accordance with these provisions, if the Company is not the
continuing Person, the resulting, surviving or transferee Person will succeed
to, and be substituted for, and may exercise every right and power of, the
Company under the Indenture and the Notes with the same effect as if such
successor Person had been named as the Company in the Indenture.  Upon such substitution, except in the case of
a lease, unless the successor is one or more of the Company’s Subsidiaries, the
Company will be released from its obligations under the Indenture and the
Notes.


 


ARTICLE 6.


 


DEFAULT AND
REMEDIES


 


Section 6.01                                Events of Default. 
An “Event of Default” occurs with respect to the Notes if:


 


(a)                                  the Company defaults in the payment of
the principal of any Note, or any Fundamental Change Purchase Price when the
same becomes due and payable on the Maturity Date, on the Fundamental Change
Purchase Date, upon acceleration, or otherwise;


 


(b)                                 the Company fails to provide the notice
required by Section 3.01(b) or 3.10(b) on a timely basis;


 


(c)                                  the Company defaults in the payment of
interest on any Note when the same becomes due and payable, and the default
continues for a period of 30 days;


 


(d)                                 the Company fails to deliver all cash and
any shares of Common Stock when such cash and Common Stock, if any, are
required to be delivered upon conversion of a Note and the Company does not
remedy such default within 10 days;


 


(e)                                  the Company fails to comply with any
other covenant or agreement of the Company in the Indenture, the Notes, the
Registration Rights Agreement or the Purchase Agreement and the default or
breach continues for a period of 60 consecutive days (or 120 consecutive days
in the case of a failure to comply with Section 4.04 (giving effect to any
grace period provided by Rule 12b-25 under the Exchange Act)) after
receipt of written notice to the Company by the Trustee or to the Company and
the Trustee by the Holders of 25% or more in aggregate principal amount of the
Notes then outstanding.


 


(f)                                    (i) the failure by the Company or
any Subsidiary to make any payment by the end of any applicable grace period
after maturity of any principal with respect to Indebtedness, where the amount
of such unpaid and due principal is in an aggregate amount in excess of
$10,000,000, or (ii) there is an acceleration of any principal with
respect to Indebtedness where the 


 


38

















 


amount of such
accelerated principal is in an amount in excess of $10,000,000 because of a
default with respect to such Indebtedness; in any such case of (i) or
(ii), without such Indebtedness having been paid or discharged or such
acceleration having been cured, waived, rescinded or annulled within a period
of 30 days after written notice to the Company by the Trustee or to the Company
and the Trustee by the Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding; provided, however, if any such failure or
acceleration referred to in (i) or (ii) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed not to have occurred and any acceleration hereunder as
a result of the related Event of Default shall be automatically rescinded;


 


(g)                                 the failure by the Company or any
Subsidiary to pay any judgment in excess of $10,000,00, which judgments are not
paid, discharged or stayed for a period of 30 consecutive days;


 


(h)                                 the Company or any Subsidiary, pursuant
to or under or within the meaning of any Bankruptcy Law, (i) commences a
voluntary case or proceeding; (ii) consents to the entry of an order for
relief against it in an involuntary case or proceeding or the commencement of
any case against it; (iii) consents to the appointment of any receiver,
trustee, assignee, liquidator, custodian or similar official of it or for any
substantial part of its property; (iv) makes a general assignment for the
benefit of its creditors; (v) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or (vi) consents to the filing
of such petition or the appointment of or taking possession by any receiver,
trustee, assignee, liquidator, custodian or similar official; or


 


(i)                                     a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that (i) is for relief against
the Company or any Subsidiary in an involuntary case or proceeding, or
adjudicates the Company or any Subsidiary insolvent or bankrupt; (ii) appoints
any receiver, trustee, assignee, liquidator, custodian or similar official of
the Company or any Subsidiary or for any substantial part of its property; or (iii) orders
the winding up or liquidation of the Company or any Subsidiary, and the order
or decree remains unstayed and in effect for 60 days (an event of default
specified in clause (h) or (i) a “Bankruptcy Default”).


 


Section 6.02                                Acceleration.


 


(a)                                  If an Event of Default, other than a
Bankruptcy Default with respect to the Company, occurs and is continuing under
the Indenture, the Trustee or the Holders of at least 25% in aggregate of the
outstanding principal amount of the Notes, by written notice to the Company
(and to the Trustee if the notice is given by the Holders), may, and the
Trustee at the request of such Holders shall, declare the principal of and
accrued interest on the Notes to be immediately due and payable.  Upon a declaration of acceleration, such
principal and interest will become immediately due and payable.  If a Bankruptcy Default occurs with respect
to the Company, the principal of and accrued interest on the Notes then
outstanding will become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.


 


(b)                                 The Holders of a majority in principal
amount of the outstanding Notes by written notice to the Company and to the
Trustee may waive all past defaults and rescind and annul a declaration of
acceleration with respect to such Notes and its consequences if:


 


39
















 


(i)             all existing Events of Default, other than the
nonpayment of the principal of and interest on the Notes that have become due
solely by the declaration of acceleration, have been cured or waived, and


 


(ii)          the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.


 


Section 6.03                                Other Remedies. 
If an Event of Default occurs and is continuing, the Trustee may pursue,
in its own name or as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal of and
interest on the Notes or to enforce the performance of any provision of the
Notes or the Indenture.  The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding.


 


Section 6.04                                Waiver of Past Defaults. 
Except as otherwise provided in Section 6.02, Section 6.07 or Section 9.02(b),
the Holders of a majority in principal amount of the outstanding Notes may, by
notice to the Trustee, waive an existing Default and its consequences.  Upon such waiver, the Default will cease to
exist, and any Event of Default arising therefrom will be deemed to have been
cured, but no such waiver will extend to any subsequent or other Default or
impair any right consequent thereon.


 


Section 6.05                                Control by Majority. 
The Holders of a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee.  However,
the Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of
Notes not joining in the giving of such direction, and may take any other
action it deems proper that is not inconsistent with any such direction
received from Holders of Notes.


 


Section 6.06                                Limitation on Suits. 
A Holder may not institute any proceeding, judicial or otherwise, with
respect to the Indenture or the Notes, or for the appointment of a receiver or
trustee, or for any other remedy under the Indenture or the Notes, unless:


 


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


 


(ii)                                  Holders of at least 25% in aggregate
principal amount of outstanding Notes have made written request to the Trustee
to institute proceedings in respect of the Event of Default in its own name as
Trustee under the Indenture;


 


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


 


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


 


40

















 


(v)                                 during such 60-day period, the Holders of
a majority in aggregate principal amount of the outstanding Notes have not
given the Trustee a direction that is inconsistent with such written request.


 


Section 6.07                                Rights of Holders to Receive Payment. 
Notwithstanding anything to the contrary, the right of a Holder of a
Note to receive payment of principal of or interest on its Note on or after the
Stated Maturities thereof, or to bring suit for the enforcement of any such
payment on or after such respective dates, may not be impaired or affected
without the consent of that Holder.


 


Section 6.08                                Collection Suit by Trustee. 
If an Event of Default in payment of principal or interest specified in
clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
for the whole amount of principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent lawful, overdue
installments of interest, in each case at the rate specified in the Notes, and
such further amount as is sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee hereunder.


 


Section 6.09                                Trustee May File Proofs of Claim. 
The Trustee may file proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
hereunder) and the Holders allowed in any judicial proceedings relating to the
Company or its creditors or property, and is entitled and empowered to collect,
receive and distribute any money, securities or other property payable or
deliverable upon conversion or exchange of the Notes or upon any such
claims.  Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, if the Trustee consents to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee hereunder.  Nothing in the Indenture will be deemed to
empower the Trustee to authorize or consent to, or accept or adopt on behalf of
any Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10                                Priorities.  If the
Trustee collects any money or property pursuant to this Article, it shall pay
out the money and property in the following order:


 


First: to the Trustee for
all amounts due hereunder;


 


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


 


Third: to the Company or
as a court of competent jurisdiction may direct.


 


The Trustee, upon written
notice to the Company, may fix a record date and payment date for any payment
to Holders pursuant to this Section.  At
least 15 days before such record date, the 


 


41

















 


Trustee shall mail
to each Noteholder and the Company a notice that states the record date, the
payment date and the amount to be paid.


 


Section 6.11                                Restoration of Rights and Remedies. 
If the Trustee or any Holder has instituted a proceeding to enforce any
right or remedy under the Indenture and the proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
the Holder, then, subject to any determination in the proceeding, the Company,
the Trustee and the Holders will be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Company, the Trustee and the Holders will continue as though no such proceeding
had been instituted.


 


Section 6.12                                Undertaking for Costs. 
In any suit for the enforcement of any right or remedy under the
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may require any party litigant in such suit (other than
the Trustee) to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorneys fees and expenses,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant.  This Section does not
apply to a suit by a Holder to enforce payment of principal of or interest on
any Note on the respective due dates, or a suit by Holders of more than 10% in
principal amount of the outstanding Notes.


 


Section 6.13                                Rights and Remedies Cumulative. 
No right or remedy conferred or reserved to the Trustee or to the
Holders under this Indenture is intended to be exclusive of any other right or
remedy, and all such rights and remedies are, to the extent permitted by law,
cumulative and in addition to every other right and remedy hereunder or now or
hereafter existing at law or in equity or otherwise.  The assertion or exercise of any right or
remedy hereunder, or otherwise, will not prevent the concurrent assertion or
exercise of any other right or remedy.


 


Section 6.14                                Delay or Omission Not Waiver. 
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default will impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.


 


ARTICLE 7.


 


THE TRUSTEE


 


Section 7.01                                General.


 


(a)                                  The duties and responsibilities of the
Trustee are as provided by the Trust Indenture Act and as set forth
herein.  Whether or not expressly so
provided, every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee is subject to this
Article.


 


(b)                                 Except during the continuance of an Event
of Default, the Trustee need perform only those duties that are specifically
set forth in the Indenture and no others, and no 


 


42

















 


implied covenants or
obligations will be read into the Indenture against the Trustee.  In case an Event of Default has occurred and
is continuing, the Trustee shall exercise those rights and powers vested in it
by the 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 the Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that


 


(i)                                     this Subsection shall not be construed to
limit the effect of Subsection (b) of this Section; and


 


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


 


(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.


 


Section 7.02                                Certain Rights of Trustee. 
Subject to Trust Indenture Act Sections 315(a) through (d):


 


(a)                                  In the absence of bad faith on its part,
the Trustee may rely, and will be protected in acting or refraining from
acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
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 Person.  The Trustee need not investigate any fact or
matter stated in the document, but, in the case of any document which is
specifically required to be furnished to the Trustee pursuant to any provision
hereof, the Trustee shall examine the document to determine whether it conforms
to the requirements of the Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).  The Trustee, in its discretion, may make
further inquiry or investigation into such facts or matters as it sees fit.


 


(b)                                 Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel or
both conforming to Section 12.06 and the Trustee will not be liable for
any action it takes or omits to take in good faith in reliance on the
certificate or opinion.


 


(c)                                  The Trustee may execute any of the rights
or powers hereunder or perform any duties hereunder either directly or by or
through its attorneys and agents and will not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


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


 


43

















 


(e)                                  The Trustee will not be liable for any
action it takes or omits to take in good faith that it believes to be
authorized or within its rights or powers or for any action it takes or omits
to take in accordance with the direction of the Holders in accordance with Section 6.05
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 the Indenture.


 


(f)                                    The Trustee may consult with counsel of
its selection, and the advice of such counsel or any Opinion of Counsel will 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.


 


(g)                                 No provision of the Indenture will
require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties hereunder, or in the exercise of its
rights or powers, unless it receives indemnity satisfactory to it against any
loss, liability or expense.


 


(h)                                 The Trustee shall not be deemed to have
notice or be charged with knowledge of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall have
received from the Company or from Holders of Notes evidencing not less than
twenty-five percent (25%) of the then outstanding Notes, written notice thereof
at its address set forth in Section 12.03 and such notice references the
Notes and this Indenture.


 


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


 


(j)                                     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, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
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 at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.


 


(k)                                  The Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture.


 


(l)                                     In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


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


 


44

















 


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


 


Section 7.03                                Individual Rights of Trustee. 
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the Trustee.  Any Agent may do the same with like
rights.  However, the Trustee is subject
to Trust Indenture Act Sections 310(b) and 311.


 


Section 7.04                                Trustee’s Disclaimer. 
The Trustee (i) makes no representation as to the validity or
adequacy of the Indenture or the Notes, (ii) is not accountable for the
Company’s use or application of the proceeds from the Notes and (iii) is
not responsible for any statement in the Notes other than its certificate of
authentication.


 


Section 7.05                                Notice of Default. 
If any Default or Event of Default occurs and is continuing and is known
to the Trustee, the Trustee will send notice of the Default or Event of Default
to each Holder within 90 days after it occurs, unless the Default or Event of
Default has been cured; provided that, except in the case of a default in the
payment of the principal of or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interest of the
Holders.  Notice to Holders under this Section will
be given in the manner and to the extent provided in Trust Indenture Act Section 313(c).


 


Section 7.06                                Reports by Trustee to Holders. 
Within 60 days after each January 15, beginning with January 15,
2010, the Trustee will mail to each Holder, as provided in Trust Indenture Act Section 313(c),
a brief report dated as of such January 15, if required by Trust Indenture
Act Section 313(a), and file such reports with each stock exchange upon
which its Notes are listed and with the Commission as required by Trust
Indenture Act Section 313(d).


 


Section 7.07                                Compensation and Indemnity.


 


(a)                                  The Company will pay the Trustee
compensation as agreed upon in writing for its services.  The compensation of the Trustee is not
limited by any law on compensation of a Trustee of an express trust.  The Company will reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee, including the reasonable compensation and
expenses of the Trustee’s agents and counsel.


 


(b)                                 The Company will indemnify the Trustee
and its officers, directors, employees and agents for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
willful misconduct on its part arising out of or in connection with the
acceptance or administration of the Indenture and its duties under the
Indenture and the Notes, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and of the
Trustee defending itself against any claim or liability and of complying with
any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under the Indenture and
the Notes.  The Trustee will notify the
Company promptly for any claim for which it may seek indemnity.  Failure by the Trustee to so notify the 


 


45

















 


Company will not relieve
the Company of its obligations hereunder. 
The Company will defend the claim and the Trustee will cooperate in the
defense.  The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of such
counsel.  The Company shall not be
obligated to pay for any settlement made without its consent, which consent
will not be unreasonably withheld.


 


(c)                                  To secure the Company’s payment
obligations in this Section, the Trustee will have a Lien prior to the Notes on
all money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of, and
interest on particular Notes.  Such Lien
will survive the satisfaction and discharge of this Indenture.


 


(d)                                 When the Trustee incurs expenses or
renders services after an Event of Default specified in Section 6.01(h) or
(i) hereof occurs, the expenses and the compensation for the services
(including the reasonable fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.


 


The provisions of
this Section 7.07 with respect to indemnification shall survive the
termination of this Indenture.


 


Section 7.08                                Replacement of Trustee.


 


(a)                                  (i)                                     The Trustee may resign at any time by written notice
to the Company.


 


(ii)                                  The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by written notice to the
Trustee.


 


(iii)                               If the Trustee is no longer eligible
under Section 7.10 or in the circumstances described in Trust Indenture
Act Section 310(b), any Holder that satisfies the requirements of Trust
Indenture Act Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


(iv)                              The Company may remove the Trustee if: (A) the
Trustee is no longer eligible under Section 7.10; (B) the Trustee is
adjudged a bankrupt or an insolvent; (C) a receiver or other public
officer takes charge of the Trustee or its property; or (D) the Trustee becomes
incapable of acting.


 


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


 


(b)                                 If the Trustee has been removed by the
Holders, Holders of a majority in principal amount of the Notes may appoint a
successor Trustee with the consent of the Company.  Otherwise, if the Trustee resigns or is
removed, or if a vacancy exists in the office of Trustee for any reason, the
Company will promptly appoint a successor Trustee.  If the successor Trustee does not deliver its
written acceptance within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.


 


46

















 


(c)                                  Upon delivery by the successor Trustee of
a written acceptance of its appointment to the retiring Trustee and to the
Company, (i) the retiring Trustee will transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07(c),
(ii) the resignation or removal of the retiring Trustee will become
effective, and (iii) the successor Trustee will have all the rights,
powers and duties of the Trustee under the Indenture.  Upon request of any successor Trustee, the
Company will execute any and all reasonable instruments for fully and vesting
in and confirming to the successor Trustee all such rights, powers and
trusts.  The Company will give notice of
any resignation and any removal of the Trustee and each appointment of a
successor Trustee to all Holders, and include in the notice the name of the
successor Trustee and the address of its Corporate Trust Office.


 


(d)                                 Notwithstanding replacement of the
Trustee pursuant to this Section, the Company’s obligations under Section 7.07
will continue for the benefit of the retiring Trustee.


 


(e)                                  The Trustee agrees to give the notices
provided for in, and otherwise comply with, Trust Indenture Act Section 310(b).


 


Section 7.09                                Successor Trustee by Merger. 
If the Trustee consolidates with, merges or converts into, or transfers
or sells all or substantially all of its corporate trust business (including
the administration of this Indenture) to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act will be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee in the Indenture.


 


Section 7.10                                Eligibility. 
The Indenture must always have a Trustee that satisfies the requirements
of Trust Indenture Act Section 310(a) and has a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition.


 


Section 7.11                                Money Held in Trust. 
The Trustee will not be liable for interest on any money received by it
except as it may agree with the Company. 
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article 8.


 


ARTICLE 8.


 


DISCHARGE


 


Section 8.01                                Satisfaction and Discharge of the
Indenture.


 


(a)                                  This Indenture shall cease to be of
further effect if either: (i) all outstanding Notes (other than Notes
replaced pursuant to Section 2.07) have been delivered to the Trustee for
cancellation or (ii) all outstanding Notes have become due and payable on
the Maturity Date or upon repurchase pursuant to Article 3, and the
Company irrevocably deposits, prior to the applicable date on which such
payment is due and payable, with the Trustee or the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) Cash, shares of Common Stock
in respect of converted Notes, and, if applicable as herein provided and in
accordance herewith, such other consideration, sufficient to pay all amounts
due and owing on all outstanding Notes (other than Notes replaced pursuant to Section 2.07)
on the Maturity Date or, if all Notes have been submitted 


 


47

















 


for repurchase on the
Fundamental Change Purchase Date, the Fundamental Change Purchase Date, as the
case may be; provided that, in either case, the Company pays to the Trustee all
other sums payable hereunder by the Company.


 


(b)                                 The Company may exercise its satisfaction
and discharge option with respect to the Notes only if:


 


(i)                                     no Default or Event of Default with
respect to the Notes shall exist on the date of such deposit;


 


(ii)                                  such deposit shall not result in a breach
or violation of, or constitute a Default or Event of Default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound; and


 


(iii)                               the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel (which may rely upon such
Officers’ Certificate as to the absence of Defaults and Events of Default and
as to any factual matters), each stating that all conditions precedent provided
for herein 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 7.07 shall survive and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Section 2.03, Section 2.04, Section 2.05, Section 2.06,
Section 2.07, Section 2.12, Section 3.01, Article 5, Article 10
and this Article 8, shall survive and the Company shall be required to
make all payments and deliveries required by such Sections or Articles, as
the case may be, irrespective of any prior satisfaction and discharge until the
Notes have been paid in full.


 


Section 8.02                                Application of Trust Money. 
Subject to the provisions of Section 8.03, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 8.01 and shall apply the deposited money in
accordance with this Indenture and the Notes to the payment of the principal
amount of and interest on the Notes.


 


Section 8.03                                Repayment to Company. 
The Trustee and each Paying Agent shall promptly pay to the Company upon
request any excess money (x) deposited with them pursuant to Section 8.01
and (y) held by them at any time.


 


The Trustee and each
Paying Agent shall also pay to the Company upon request any money held by them
for the payment of the principal amount of Notes or interest thereon that
remains unclaimed for two years after a right to such money has matured (which
maturity shall occur, for the avoidance of doubt, on the Maturity Date or the
Fundamental Change Purchase Date (with respect to any Notes repurchased
pursuant to Article 3)).  After
payment to the Company, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


Section 8.04                                Reinstatement. 
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting 


 


48

















 


such application, then the Company’s obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or such Paying
Agent is permitted to apply all such money in accordance with Section 8.02;
provided, however, that if the Company has made any payment of the principal
amount of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive any such payment from the money held by the Trustee or
such Paying Agent.


 


ARTICLE 9.


 


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


Section 9.01                                Amendments Without Consent of Holders. 
The Company and the Trustee may amend or supplement the Indenture or the
Notes without notice to or the consent of any Noteholder:


 


(a)                                  to cure any ambiguity, omission, defect
or inconsistency in the Indenture or the Notes, provided that such amendment or
supplement does not adversely affect the rights of Holders of the Notes;


 


(b)                                 to comply with Article 5 or Section 10.12;


 


(c)                                  to comply with the Trust Indenture Act or
any amendment thereto, or to comply with any requirements of the Commission in
connection with the qualification of the Indenture under the Trust Indenture
Act;


 


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


 


(e)                                  to provide for uncertificated Notes in
addition to or in place of certificated Notes;


 


(f)                                    to secure the Notes;


 


(g)                                 to add guarantees with respect to the
Notes;


 


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


 


(i)                                     to add any additional Events of Default;


 


(j)                                     to comply with the rules of any
applicable securities depositary; or


 


(k)                                  to make any other change that does not
materially adversely affect the rights of any Holder.


 


49
















 


Section 9.02           Amendments
With Consent of Holders.


 


(a)           Except as otherwise provided in Section 6.07
or paragraph (b) of this Section, the Company and the Trustee may amend
the Indenture and the Notes with the written consent of the Holders of a
majority in principal amount of the outstanding Notes, and the Holders of a
majority in principal amount of the outstanding Notes by written notice to the
Trustee may waive future compliance by the Company with any provision of the
Indenture or the Notes.


 


(b)           Notwithstanding the
provisions of paragraph (a) of this Section, without the consent of each
Holder affected, an amendment or waiver may not:


 


(i)         reduce the principal amount of,
Fundamental Change Purchase Price, Redemption Price or Option Purchase Price
with respect to, or any premium or interest payment on, any Note,


 


(ii)        make any Note payable in currency or
securities other than that stated in the Note,


 


(iii)       change the Stated Maturity of any
installment of principal of any Note,


 


(iv)       make any change that adversely affects
the conversion rights of Holders of any Note,


 


(v)        make any change that adversely affects
the Holders’ right to require the Company to purchase the Notes in accordance
with the terms thereof and this Indenture,


 


(vi)       impair the right to convert or receive
any principal or interest payment with respect to, a Note, or right to
institute suit for the enforcement of any payment with respect to, or
conversion of, the Notes,


 


(vii)      make any change in the percentage of the
principal amount of the Notes required for amendments or waivers, or


 


(viii)     make any change affecting the requirement
under this paragraph (b).


 


(c)           It is not necessary for Noteholders
to approve the particular form of any proposed amendment, supplement or waiver,
but is sufficient if their consent approves the substance thereof.


 


(d)           An amendment, supplement or waiver
under this Section will become effective on receipt by the Trustee of
written consents from the Holders of the requisite percentage in principal
amount of the outstanding Notes.  After
an amendment, supplement or waiver under this Section becomes effective,
the Company will send to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. 
The Company will send supplemental indentures to Holders upon
request.  Any failure of the Company to
send such notice, or any defect therein, will not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.


 


50

















 


Section 9.03           Effect
of Consent.


 


(a)           After an amendment, supplement or
waiver becomes effective, it will bind every Holder unless it is of the type
requiring the consent of each Holder affected. 
If the amendment, supplement or waiver is of the type requiring the
consent of each Holder affected, the amendment, supplement or waiver shall bind
each Holder that has consented to it and every subsequent Holder of a Note that
evidences the same debt as the Note of the consenting Holder.


 


(b)           If an amendment, supplement or waiver
changes the terms of a Note, the Trustee may require the Holder to deliver it
to the Trustee so that the Trustee may place an appropriate notation of the
changed terms on the Note and return it to the Holder, or exchange it for a new
Note that reflects the changed terms. 
The Trustee may also place an appropriate notation on any Note
thereafter authenticated.  However, the
effectiveness of the amendment, supplement or waiver is not affected by any
failure to annotate or exchange Notes in this fashion.


 


Section 9.04           Trustee’s Rights and Obligations.  The Trustee shall receive, and will be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article is authorized or permitted by the
Indenture.  If the Trustee has received
such an Opinion of Counsel, it shall sign the amendment, supplement or waiver
so long as the same does not adversely affect the rights of the Trustee.  The Trustee may, but is not obligated to,
execute any amendment, supplement or waiver that affects the Trustee’s own
rights, duties or immunities under the Indenture.


 


Section 9.05           Conformity With Trust Indenture
Act.  Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act.


 


Section 9.06           Payments for Consents.  Neither the Company nor any of its
Subsidiaries or Affiliates may, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of the Indenture or the Notes unless such consideration is either
(i) offered to be paid or agreed to be paid to all Holders of the Notes
that consent, waive or agree to amend such term or provision within the time
period set forth in the solicitation documents relating to such consent, waiver
or amendment or (ii) paid to all Holders of the Notes (notwithstanding
that some Holders may not agree to such consent, waiver or amendment).


 


ARTICLE 10.



CONVERSION


 


Section 10.01         Conversion
Privilege.


 


(a)            Subject to and upon compliance with
the provisions of this Indenture, a Holder of a Note may, at such Holder’s
option, convert such Note at any time on or prior to the Close of Business on
the Business Day immediately preceding the Maturity Date into fully paid and
non-assessable shares of Common Stock of the Company at the Conversion Rate in
effect on the Conversion Date; provided, however, that all conversions will be
subject to Section 10.01(d); and provided, further, that the Company will
pay Cash in lieu of fractional shares otherwise issuable upon conversion of
such Note, pursuant to Section 10.03.


 


51

















 


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


 


(c)           Notes with respect to which a
Fundamental Change Purchase Notice has been given by the Holder may be
converted pursuant to this Article 10 only if the Fundamental Change
Purchase Notice has been withdrawn in accordance with Section 3.02.


 


(d)           A Holder (other than the Depositary)
or a Beneficial Owner of the Notes may not convert any Notes pursuant to this Article 10
if, following such conversion, either (i) such Holder’s or such Beneficial
Owner’s, together with such Holder’s or such Beneficial Owner’s Affiliates,
aggregate voting power on a matter being voted on by holders of the Common
Stock would exceed 19.9% of the Maximum Voting Power or (ii) such Holder
or such Beneficial Owner, together with such Holder’s or such Beneficial Owner’s
Affiliates, would Beneficially Own more than 19.9% of the then outstanding
Common Stock; provided, however, that such conversion restriction shall not
apply in connection with and subject to completion of (A) a Public Sale of
the Common Stock to be issued upon such conversion, if following consummation
of such Public Sale such Holder or such Beneficial Owner  and
its respective Affiliates will not Beneficially Own in excess of 19.9% of the
then outstanding Common Stock and (B) a third party tender offer for the
Common Stock issuable thereupon.  For
purposes of the foregoing sentence, the number of shares of Common Stock
Beneficially Owned by a Holder or a Beneficial Owner of the Notes, together
with such Holder’s or such Beneficial Owner’s Affiliates, shall include the
number of shares of Common Stock issuable upon conversion of the Notes with
respect to which a conversion notice has been given, but shall exclude the
number of shares of Common Stock which would be issuable upon conversion or
exercise of (x) the Series A Preferred Stock, (y) any remaining,
unconverted portion of the Notes, and (z) any outstanding Warrants
Beneficially Owned by such Holder or such Beneficial Owner and its respective
Affiliates.


 


(e)           Subject to and upon compliance with
the provisions of this Indenture, after receiving a notice of redemption
specified in Section 3.07, a Holder of a Note may, at such Holder’s
option, convert such Note at any time on or prior to the Close of Business on
the Business Day immediately preceding the Redemption Date specified in such
notice into fully paid and non-assessable shares of Junior Convertible
Preferred Stock with a liquidation preference equal to the principal amount of
such Note.


 


Section 10.02        Conversion Procedure.


 


(a)           To convert a Note represented by a
Global Note, a Noteholder must convert by book-entry transfer to the Conversion
Agent through the facilities of the Depositary. 
To convert a Note that is represented by a Certificated Note, a
Noteholder must (1) complete and manually sign a Conversion Notice
(specifying if such conversion is for shares of Common Stock or Junior
Convertible Preferred Stock), a form of which is on the back of the Note, and
deliver such Conversion Notice to the Conversion Agent, (2) surrender the
Note to the Conversion Agent, (3) if required by the Conversion Agent,
furnish appropriate endorsement and transfer documents, and (4) if
required, pay all transfer or similar taxes. 
The Conversion Agent shall, within one (1) Business Day of any
Conversion Date, provide notice to the Company, as set forth in Section 12.03,
of the occurrence of such Conversion Date.


 


52

















 


(b)           As promptly as practicable and in any
case within three (3) Trading Days following the Conversion Date
applicable to the Notes being converted, the Company shall deliver to the
Holder, through the Conversion Agent, the shares of Common Stock or Junior
Convertible Preferred Stock, as applicable, required to be delivered upon the
conversion of such Notes and, if applicable, any Cash in lieu of fractional
shares pursuant to Section 10.03 hereof. 
The person in whose name the certificate representing any shares is
registered shall be treated as a stockholder of record on and after the
Conversion Date.


 


(c)           No payment or adjustment will be made
for dividends on, or other distributions with respect to, any Common Stock
except as provided in this Article 10. 
Upon conversion of a Note, a Noteholder will not receive, except as
described below, any separate Cash payment representing accrued interest.  Instead, accrued interest will be deemed paid
by the Common Stock or Junior Convertible Preferred Stock, as applicable, and,
if applicable, Cash in lieu of fractional shares, if any, received by the
Noteholder upon conversion.  Delivery to
the Noteholder of such shares of Common Stock or Junior Convertible Preferred
Stock, as applicable, and Cash, if any, will thus be deemed (1) to satisfy
the Company’s obligation to pay the principal amount of a Note and (2) to
satisfy the Company’s obligation to pay accrued and unpaid interest on the
Note.  As a result, upon conversion of a
Note, accrued and unpaid interest on such Note is deemed paid in full rather
than cancelled, extinguished or forfeited.


 


(d)           Holders of Notes surrendered for
conversion during the period from the Close of Business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business of
such Interest Payment Date will receive the semiannual interest payable on such
Notes on the corresponding Interest Payment Date notwithstanding the
conversion, and such Notes upon surrender must be accompanied by funds equal to
the amount of such payment; provided that no such payment need be made (x) in
connection with any conversion following the Regular Record Date immediately
preceding the Maturity Date, (y) if the Company has specified a
Fundamental Change Purchase Date that is after a Regular Record Date and on or
prior to the corresponding Interest Payment Date or (z) to the extent of
any Defaulted Interest, if any Defaulted Interest exists at the time of
conversion with respect to such Note. The Company shall not be required to
convert any Notes that are surrendered for conversion without payment of interest
as required by this paragraph.


 


(e)           If the Holder converts more than one
Note at the same time, the number of full shares of Common Stock or Junior
Convertible Preferred Stock, as applicable, that shall be delivered upon
conversion and the Cash payment, if any, in lieu of fractional shares shall be
based on the total principal amount of the Notes converted.


 


(f)            Upon surrender of a Note that is
converted in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Note in an authorized
denomination equal in principal amount to the unconverted portion of the Note
surrendered.


 


Section 10.03         Fractional Shares.  The Company will not issue a fractional share
of Common Stock upon conversion of a Note. 
Instead, the Company will deliver Cash in lieu of a fractional share
based on the Closing Price of the Common Stock on the Conversion Date (or if
the Conversion Date is not a Trading Day, the next preceding Trading Day),
rounded to the nearest whole cent.


 


53

















 


Section 10.04         Taxes On Conversion.  If a Holder converts a Note, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of any shares of Common Stock or Junior Convertible Preferred Stock, as
applicable, upon the conversion. 
However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder’s
name.  The Company may refuse to deliver
the certificates representing the Common Stock or Junior Convertible Preferred
Stock, as applicable, being issued in a name other than the Holder’s name until
the Company receives a sum sufficient to pay any tax which will be due because
the Common Stock or Junior Convertible Preferred Stock, as applicable, is to be
delivered in a name other than the Holder’s name.  Nothing herein shall preclude any tax
withholding required by law or regulations.


 


Section 10.05         Company To Provide Common Stock and
Junior Convertible Preferred Stock. 
The Company shall at all times have authorized and reserved and keep
available for issuance a sufficient number of shares of Common Stock and Junior
Convertible Preferred Stock to permit the delivery in respect of all
outstanding Notes or shares of Junior Convertible Preferred Stock, as
applicable, of the number of shares of Common Stock due upon conversion of the
Notes or Junior Convertible Preferred Stock, including as may be adjusted for
share splits, combinations or other similar transactions.


 


All shares of Common Stock and Junior Convertible
Preferred Stock delivered upon conversion of the Notes or shares of Junior
Convertible Preferred Stock, as applicable, shall be newly issued shares or
treasury shares, shall be duly and validly issued and fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.


 


The Company will comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock and
Junior Convertible Preferred Stock upon conversion of Notes or Junior
Convertible Preferred Stock, as applicable, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the Common Stock is
then listed or quoted.


 


In addition, if any shares of Common Stock or Junior
Convertible Preferred Stock which would be issuable upon conversion of Notes or
Junior Convertible Preferred Stock, as applicable, hereunder require registration
with or approval of any governmental authority before such shares of Common
Stock or Junior Convertible Preferred Stock may be issued upon such conversion,
the Company will use its reasonable best efforts to cause such shares of Common
Stock or Junior Convertible Preferred Stock to be duly registered or approved,
as the case may be.


 


Section 10.06        Adjustment for Change In Capital
Stock.


 


(a)           If the Company shall, at any time and
from time to time while any of the Notes are outstanding, issue a dividend or
make a distribution on its Common Stock payable in shares of its Common Stock
to all or substantially all holders of its Common Stock, then the Conversion
Rate at the opening of business on the Ex-Dividend Date for such dividend or
distribution will be adjusted by multiplying such Conversion Rate by a
fraction:


 


(i)         the numerator of which shall be the sum
of the number of shares of Common Stock outstanding at the Close of Business on
the Business Day immediately preceding the 


 


54

















 


Ex-Dividend
Date for such dividend or distribution, plus the total number of shares of
Common Stock constituting such dividend or other distribution; and


 


(ii)           the denominator of which shall be the
number of shares of Common Stock outstanding at the close of business on the
Business Day immediately preceding such Ex-Dividend Date.


 


If any dividend or
distribution of the type described in this Section 10.06(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared. 
Except as set forth in the preceding sentence, in no event shall the
Conversion Rate be decreased pursuant to this Section 10.06(a).


 


(b)           If the Company shall, at any time or
from time to time while any of the Notes are outstanding, subdivide or
reclassify its outstanding shares of Common Stock into a greater number of
shares of Common Stock, then the Conversion Rate in effect at the opening of
business on the day upon which such subdivision becomes effective shall be
proportionately increased, and conversely, if the Company shall, at any time or
from time to time while any of the Notes are outstanding, combine or reclassify
its outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then the Conversion Rate in effect at the opening of business on
the day upon which such combination or reclassification becomes effective shall
be proportionately decreased.  In each
such case, the Conversion Rate shall be adjusted by multiplying such Conversion
Rate by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately after giving effect to such subdivision,
combination or reclassification and the denominator of which shall be the
number of shares of Common Stock outstanding immediately prior to such
subdivision or combination.  Such
increase or reduction, as the case may be, shall become effective immediately
after the opening of business on the day upon which such subdivision,
combination or reclassification becomes effective.


 


Section 10.07         Adjustment for Rights Issue.  If the Company shall, at any time or from
time to time while the Notes are outstanding, distribute rights or warrants to
all or substantially all holders of its Common Stock entitling them, for a
period expiring within 60 days after the record date for such distribution, to
purchase shares of Common Stock at less than the average of the Closing Prices
for the five consecutive Trading Days immediately preceding the first public
announcement of the distribution, the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect at the opening of business on the Ex-Dividend Date for such distribution
by a fraction:


 


(x)                                   the
numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on the Business Day immediately preceding the Ex-Dividend
Date for such distribution, plus the total number of additional shares of
Common Stock so offered for purchase; and


 


(y)                                 the
denominator of which shall be the number of shares of Common Stock outstanding
on the close of business on the Business Day immediately preceding the
Ex-Dividend Date for such distribution, plus the number of shares of Common
Stock that the aggregate offering price of the total number of shares of Common
Stock so 


 


55

















 


offered would purchase at
the Current Market Price of the Common Stock on the declaration date for such
distribution (determined by multiplying such total number of shares of Common
Stock so offered by the exercise price of such rights or warrants and dividing
the product so obtained by such Current Market Price).


 


Such adjustment shall become effective immediately
after the opening of business on the Ex-Dividend Date for such distribution.


 


To the extent that shares of Common Stock are not
delivered pursuant to such rights or warrants or upon the expiration or
termination of such rights or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the delivery
of only the number of shares of Common Stock actually delivered.  In the event that such rights or warrants are
not so distributed, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if the Ex-Dividend Date for such
distribution had not occurred.  In
determining whether any rights or warrants entitle the holders to purchase
shares of Common Stock at less than the average of the Closing Prices for the
five consecutive Trading Days immediately preceding the first public
announcement of the relevant distribution, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into
account any consideration received for such rights and the value of such
consideration if other than Cash, to be determined in good faith by the Board
of Directors.  Except as set forth in
this paragraph, in no event shall the Conversion Rate be decreased pursuant to
this Section 10.07.


 


Section 10.08         Adjustment
for Other Distributions.


 


(a)           If the Company shall, at any time or
from time to time while the Notes are outstanding, distribute to all or
substantially all holders of its Common Stock any of its Capital Stock, assets,
or debt securities or any rights, warrants or options to
purchase securities of the Company (excluding (x) any distributions
described in Section 10.06(a) above, (y) any rights or warrants
described in Section 10.07 above and (z) any all-cash dividends or
other cash distributions referred to in Section 10.09 below) (such Capital
Stock, assets, debt securities or rights to purchase securities of the Company
being distributed hereinafter in this Section 10.08 called the “Distributed
Assets”), and subject to Section 10.08(b) below, the Conversion Rate
shall be increased so that the same shall be equal to the rate determined by
multiplying the Conversion Rate in effect immediately prior to the opening of
business on the Ex-Dividend Date with respect to such distribution by a
fraction:


 


(i)            the numerator of which will be the
Current Market Price of the Common Stock, and


 


(ii)           the denominator of which will be the
Current Market Price of the Common Stock minus the fair market value, as
determined by the Board of Directors, of the portion of Distributed Assets so
distributed applicable to one share of the Common Stock (determined on the
basis of the number of shares of Common Stock outstanding on such Ex-Dividend
Date).


 


Such increase shall become effective immediately after
the opening of business on the Ex-Dividend Date for such distribution.  In the event that such distribution is not so
made, the 


 


56

















 


Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such distribution had not been declared.  Except as set forth in the prior sentence, in
no event shall the Conversion Rate be decreased pursuant to this Section 10.08.


 


If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 10.08 by reference
to the actual or when issued trading market for any Distributed Assets
comprising all or part of such distribution, it must in doing so consider the
prices in such market over the same period (the “Reference Period”) used in
computing the Current Market Price for purposes of clause (i) above,
unless the Board of Directors determines in good faith that determining the
fair market value during the Reference Period would not be in the best interest
of the Holders.


 


(b)           With respect to an adjustment
pursuant to this Section 10.08 where there has been a payment of a
dividend or other distribution on Common Stock of shares of Capital Stock of,
or similar equity interests in, a Subsidiary or other business unit of the
Company, the Conversion Rate will be adjusted by multiplying the Conversion
Rate in effect immediately prior to the opening of business on the Ex-Dividend
Date with respect to such distribution by a fraction:


 


(i)         the numerator of which shall be (a) the
average of the closing sale prices of the capital stock or similar equity
interest distributed to holders of Common Stock applicable to one share of
Common Stock over the five Trading Days commencing on and including the fifth
Trading Day after the Ex-Dividend Date for such dividend or distribution on the
principal national securities exchange or inter-dealer quotation system on
which such securities are then listed or traded, plus (b) the average of
the Closing Prices over the five Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date for such dividend or distribution
(the “Average Sale Price”), and


 


(ii)        the denominator of which shall be the
Average Sale Price.


 


Section 10.09         Adjustment for Cash Dividends.  If the Company shall, at any time or from
time to time while any of the Notes are outstanding, by dividend or otherwise,
distribute to all or substantially all holders of its shares of Common Stock,
Cash (excluding (A) any distributions described in Section 10.10
below or (B) any dividend or distribution in connection with the Company’s
liquidation, dissolution or winding up), then the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the opening of business of the
Ex-Dividend Date for such distribution by a fraction:


 


(x)                                   the
numerator of which shall be equal to the Current Market Price per share of
Common Stock; and


 


(y)                                 the
denominator of which shall be equal to the Current Market Price per share of
Common Stock on such date, less the amount of the distribution per share of
Common Stock (subject to the immediately succeeding paragraph).


 


Such adjustment shall become effective immediately
after the opening of business on the Ex-Dividend Date for such
distribution.  In the event that such
distribution is not so made, the


 


57
















 


Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such dividend or distribution had not been declared.


 


Section 10.10                          Adjustment
for Certain Tender Offers or Exchange Offers.  In case the Company or any of its
Subsidiaries shall, at any time or from time to time, while any of the Notes
are outstanding, distribute Cash or other consideration in respect of a tender
offer or an exchange offer (that is treated as a “tender offer” under U.S.
federal securities laws) made by the Company or any Subsidiary for all or any
portion of the Common Stock, where the sum of the aggregate amount of such Cash
distributed and the aggregate fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and set forth
in a Board Resolution), as of the Expiration Date (as defined below), of such
other consideration distributed (such sum, the “Aggregate Amount”) expressed as
an amount per share of Common Stock validly tendered or exchanged, and not
withdrawn, pursuant to such tender offer or exchange offer as of the Expiration
Time (as defined below) (such tendered or exchanged shares of Common Stock, the
“Purchased Shares”) exceeds the Closing Price per share of the Common Stock on
the first Trading Day immediately following the last date (such last date, the “Expiration
Date”) on which tenders or exchanges could have been made pursuant to such
tender offer or exchange offer (as the same may be amended through the
Expiration Date), then, and in each case, immediately after the close of
business on such date, the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Trading Day immediately
following the Expiration Date by a fraction:


 


(x)                                   the
numerator of which is equal to the sum of (A) the Aggregate Amount and (B) the
product of (I) an amount equal to (1) the number of shares of Common
Stock outstanding as of the last time (the “Expiration Time”) at which tenders
or exchanges could have been made pursuant to such tender offer or exchange
offer less (2) the Purchased Shares and (II) the Closing Price per
share of the Common Stock on the first Trading Day immediately following the
Expiration Date; and


 


(y)                                 the
denominator of which shall be equal to the product of (A) the number of
shares of Common Stock outstanding as of the Expiration Time (including all
Purchased Shares) and (B) the Closing Price per share of the Common Stock
on the first Trading Day immediately following the Expiration Date.


 


An adjustment, if any, to the Conversion Rate pursuant
to this Section 10.10 shall become effective immediately prior to the
opening of business on the second Trading Day immediately following the
Expiration Date.  In the event that the
Company or a Subsidiary is obligated to purchase shares of Common Stock
pursuant to any such tender offer or exchange offer, but the Company or such
Subsidiary is permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, then the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such tender offer or exchange offer had not been made.  Except as set forth in the preceding
sentence, if the application of this Section 10.10 to any tender offer or
exchange offer would result in a decrease in the Conversion Rate, no adjustment
shall be made for such tender offer or exchange offer under this Section 10.10.


 


Section 10.11                          Provisions
Governing Adjustment to Conversion Rate. 
Rights, options or warrants distributed by the Company to all or
substantially all holders of Common Stock entitling 


 


58

















 


the holders thereof to
subscribe for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights, options or warrants,
until the occurrence of a specified event or events (“Trigger Event”): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of Section 10.06,
Section 10.07, Section 10.08, Section 10.09 or Section 10.10
(and no adjustment to the Conversion Rate under Section 10.06, Section 10.07,
Section 10.08, Section 10.09 or Section 10.10 will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights,
options and warrants shall be deemed to have been distributed and, except as
set forth in Section 10.23, an appropriate adjustment (if any is required)
to the Conversion Rate shall be made under Section 10.07 (without giving
effect to the 60 day limit on the exercisability of rights and warrants
ordinarily subject to such Section 10.07) (if and to the extent such
rights, options and warrants are exercisable for shares of Common Stock or
Common Stock equivalents) and/or Section 10.08 (if and to the extent such
rights, options and warrants are exercisable for cash and/or any shares of the
Company’s Capital Stock other than shares of Common Stock or Common Stock
equivalents).  If any such right, option
or warrant, including any such existing rights, options or warrants distributed
prior to the date of this Indenture, are subject to events, upon the occurrence
of which such rights, options or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and Ex-Dividend Date with respect to new rights, options or
warrants with such rights (and a termination or expiration of the existing
rights, options or warrants without exercise by any of the holders thereof),
except as set forth in Section 10.23. 
In addition, except as set forth in Section 10.23, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Rate under Section 10.06,
Section 10.07, Section 10.08, Section 10.09 or Section 10.10
was made, (1) in the case of any such rights, options or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case
may be, as though it were a Cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Common Stock
with respect to such rights, options or warrants (assuming such holder had
retained such rights, options or warrants), made to all or substantially all
holders of Common Stock as of the date of such redemption or repurchase, and (2) in
the case of such rights, options or warrants that shall have expired or been
terminated without exercise by any holders thereof, the Conversion Rate shall
be readjusted as if such rights, options and warrants had not been issued.  Notwithstanding the foregoing, (A) to
the extent any such rights, options or warrants are redeemed by the Company
prior to a Trigger Event or are exchanged by the Company, in either case for
shares of Common Stock, the Conversion Rate shall be appropriately readjusted
(if and to the extent previously adjusted pursuant to this Section 10.11)
as if such rights, options or warrants had not been issued, and instead the
Conversion Rate will be adjusted as if the Company had issued the shares of
Common Stock issued upon such redemption or exchange as a dividend or
distribution of shares of Common Stock subject to Section 10.06(a), (B) to
the extent any such rights, options or warrants are redeemed by the Company
prior to a Trigger Event or are exchanged by the Company, in either case for
cash, the Conversion Rate shall be appropriately readjusted (if and to the extent
previously adjusted pursuant to this Section 10.11) as if such rights,
options or warrants had not been issued, and instead the Conversion Rate will
be adjusted as if the Company 


 


59

















 


had delivered cash upon
such redemption or exchange as a dividend or distribution of cash subject to Section 10.09
(without giving effect to any of the exceptions contained therein) and (C) to
the extent any such rights, options or warrants are redeemed by the Company
prior to a Trigger Event or are exchanged by the Company, in either case for
any capital stock, assets or debt securities or any rights, warrants or options
of the Company not otherwise provided pursuant to the immediately foregoing
clauses (A) or (B), the Conversion Rate shall be appropriately readjusted
(if and to the extent previously adjusted pursuant to this Section 10.11)
as if such rights, options or warrants had not been issued, and instead the
Conversion Rate will be adjusted as if the Company had delivered capital stock,
assets or debt securities or any rights, warrants or options of the Company
upon such redemption or exchange as a distribution of capital stock, assets or
debt securities or any rights, warrants or options of the Company subject to Section 10.08
(without giving effect to any of the exceptions contained therein).


 


Section 10.12                        Disposition
Events.  If any of the following
events (any such event, a “Disposition Event”) occurs:


 


(a)                                  any
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination);


 


(b)                                 any
merger, consolidation or other combination involving the Company; or


 


(c)                                  any
sale, conveyance, lease, or other disposal of all or substantially all the
properties and assets of the Company to any other Person;


 


in each case, as a result
of which all or substantially all of the holders of Common Stock shall be
entitled to receive Cash, securities or other property for their shares of
Common Stock, the Company or the successor or purchasing Person, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that notwithstanding the provisions of Section 10.01, if
a Holder converts its Notes on or after the effective date of any such
Disposition Event, Notes will be convertible into, in lieu of the shares of
Common Stock otherwise deliverable, the same amount and type (in the same
proportions) of consideration received by holders of Common Stock in the
relevant event (collectively, “Reference Property”) received upon the
occurrence of such Disposition Event by a holder of Common Stock holding,
immediately prior to the transaction, a number of shares of Common Stock equal
to the Conversion Rate immediately prior to such Disposition Event; provided
that if the Disposition Event provides the holders of Common Stock with the
right to receive more than a single type of consideration determined based in
part upon any form of stockholder election, the Reference Property shall be
comprised of the weighted average of the types and amounts of consideration
received by the holders of the Common Stock who affirmatively make such
election.


 


If the
Conversion Rate of the Notes shall be based on Reference Property as set forth
above, the Company’s obligation to deliver the consideration described in Section 10.01
with respect to each $1,000 principal amount of Notes tendered for conversion
after the effective date of any such Disposition Event, shall, notwithstanding
anything to the contrary set forth in Section 10.01, be settled in units
of Reference Property (if applicable) and the Company shall deliver an amount
in 


 


60

















 


Reference
Property, determined as set forth in Section 10.01(a), paragraph 10
of the Note and the definition of “Conversion Rate”; provided that, in each
case, references to “shares of Common Stock” were instead references to “a unit
of Reference Property composed of the kind and amount of Cash, securities or
other property that a holder of one share of Common Stock immediately prior to
such Disposition Event would have owned or been entitled to receive.”


 


Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 10.  If, in the case of any such Disposition
Event, the stock or other securities and assets receivable thereupon by a
holder of Common Stock includes shares of stock or other securities and assets
of a Person other than the successor or purchasing Person, as the case may be,
in such Disposition Event, then such supplemental indenture shall also be
executed by such other Person and shall contain such additional provisions to
protect the interests of the Noteholders as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.


 


The
Company shall cause notice of the execution of such supplemental indenture to
be mailed to each Noteholder, at the address of such Noteholder as it appears
on the register of the Notes maintained by the Registrar, within 20 days after
execution thereof.  Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.


 


The
above provisions of this Section 10.12 shall similarly apply to successive
Disposition Events.


 


If
this Section 10.12 applies to any event or occurrence, none of Section 10.06,
Section 10.07, Section 10.08, Section 10.09 or Section 10.10
shall apply.


 


Section 10.13                        Discretionary
Adjustment.


 


(a)                                  The
Company may make such increases in the Conversion Rate, in addition to those
required by Sections 10.06, 10.07, 10.08, 10.09 and 10.10 as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.


 


(b)                                 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 20 days, the increase is irrevocable during the period and the
Board of Directors shall have made a determination that such increase would be
in the best interests of the Company, which determination shall be conclusive.  Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to holders of record
of the Notes a notice of the increase at least 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.


 


Section 10.14                        When
Adjustment May Be Deferred.  No
adjustment in the Conversion Rate need be made unless the adjustment would
require an increase or decrease of at least 1% of the 


 


61

















 


Conversion Rate.  Any adjustments that are less than 1% of the
Conversion Rate shall be carried forward and taken into account in determining
any subsequent adjustment.  In addition,
the Company shall make any carry forward adjustments not otherwise effected
upon (a) notice of a required purchase of the notes pursuant to Section 3.01
or Section 3.10, (b) if the Company shall mail a notice of redemption
pursuant to Section 3.07, (c) on May 8, 2018 and (d) on the
Business Day prior to the Maturity Date.


 


Section 10.15                        When No
Adjustment Required.


 


(a)                                  No
adjustment need be made for a transaction referred to in Section 10.06 or Section 10.07
if Noteholders participate, without conversion, in the transaction or event
that would otherwise give rise to an adjustment pursuant to such Section at
the same time as holders of the Common Stock participate with respect to such
transaction or event and on the same terms as holders of the Common Stock participate
with respect to such transaction or event as if Noteholders, at such time, held
a number of shares of Common Stock equal to the Conversion Rate at such time.


 


(b)                                 No
adjustment need be made for rights to purchase Common Stock pursuant to a Company
plan for reinvestment of dividends or interest.


 


(c)                                  No
adjustment need be made for a change in the par value or no par value of the
Common Stock.


 


(d)                                 To
the extent the Notes become convertible pursuant to this Article 10 into
Cash, no adjustment need be made thereafter as to the Cash.  Interest will not accrue on the Cash.


 


Section 10.16                          Notice
of Adjustment.  Whenever the
Conversion Rate is adjusted, the Company shall promptly mail to Noteholders a
notice of the adjustment.  The Company
shall file with the Trustee and the Conversion Agent such notice and a
certificate from the Company’s independent public accountants briefly stating
the facts requiring the adjustment and the manner of computing it.  The certificate shall be conclusive evidence
that the adjustment is correct.  Neither
the Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate except to exhibit the same to any Holder
desiring inspection thereof.


 


Section 10.17                        Notice
of Certain Transactions.  If (a) the
Company takes any action that would require an adjustment in the Conversion
Rate pursuant to Section 10.06, 10.07, 10.08, 10.09 or 10.10 (unless no
adjustment is to occur pursuant to Section 10.14 or Section 10.15), (b) the
Company takes any action that would require a supplemental indenture pursuant
to Section 10.12, or (c)  there is a liquidation or dissolution
of the Company, then the Company shall mail to Noteholders and file with the
Trustee and the Conversion Agent a notice stating the proposed Ex-Dividend Date
for a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share exchange,
transfer, liquidation or dissolution. 
The Company shall file and mail the notice at least 15 days before such
date; provided that if the Company elects to make a distribution described in Section 10.07,
Section 10.08, or Section 10.09, and in the case of Section 10.08
or Section 10.09, that has a per share value equal to more than 10% of the
Closing Price per share of Common Stock on the day preceding the declaration
date for such distribution, the Company shall give notice to Holders at least
20 Trading Days prior to the Ex-


 


62

















 


dividend Date for such
distribution.  Failure to file or mail
the notice or any defect in it shall not affect the validity of the
transaction.


 


Section 10.18                          Right
of Conversion.  Notwithstanding any
other provision in this Indenture, the Holder of any Note shall have the right
to convert its Note in accordance with this Article 10 and paragraph 10 of
the Notes and to bring an action for the enforcement of any such right to
convert, and such rights shall not be impaired or affected without the consent
of such Holder.


 


Section 10.19                          Company
Determination Final.  The Company
shall be responsible for making all calculations called for hereunder and under
the Notes.  These calculations include,
but are not limited to, the Conversion Date, the Closing Price, the Conversion
Rate and the number of shares of Common Stock, if any, to be issued upon
conversion of the Notes.  The Company
shall make all these calculations in good faith and, absent manifest error, the
Company’s calculations will be final and binding on Noteholders.  The Company shall provide a schedule of the
Company’s calculations to the Trustee, and the Trustee is entitled to rely upon
the accuracy of the Company’s calculations without independent verification.


 


Section 10.20                          Trustee’s
Adjustment Disclaimer.  The Trustee
has no duty to determine when an adjustment under this Article 10 should
be made, how it should be made or what it should be.  The Trustee shall have no duty to make any
adjustment calculations or any other calculations under this Indenture.  The Trustee has no duty to determine whether
a supplemental indenture under Section 10.12 need be entered into or
whether any provisions of any supplemental indenture are correct.  The Trustee shall not be accountable for and
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Notes or for any of the adjustments made hereby.  The Trustee shall not be responsible for the
Company’s failure to comply with this Article 10.  Each Conversion Agent shall have the same
protection under this Section 10.20 as the Trustee.


 


Section 10.21                          Simultaneous Adjustments.


 


(a)                                    For
purposes of Section 10.08, Section 10.06(a) and Section 10.07,
any dividend or distribution to which Section 10.08 is applicable that
also includes shares of Common Stock, or rights, options or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the debt securities,
assets or shares of Capital Stock other than such shares of Common Stock or
rights (and any Conversion Rate adjustment required by Section 10.08 with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock
or such rights (and any further Conversion Rate adjustment required by Section 10.06(a) and
Section 10.07 with respect to such dividend or distribution shall then be
made), except any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the
Business Day immediately preceding such Ex-Dividend Date” within the meaning of
Section 10.06(a).


 


(b)                                   The
reclassification of the Common Stock into securities including securities other
than Common Stock other than any reclassification upon an event to which Section 10.12
applies shall be deemed to involve (a) a distribution of such securities
other than the Common Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be the “Ex-Dividend Date”
within the meaning of this Section 10.08), and (b) a subdivision or 


 


63

















 


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 Section 10.06(b)).


 


Section 10.22                          Successive
Adjustments.  After an adjustment to
the Conversion Rate under this Article 10, any subsequent event requiring
an adjustment under this Article 10 shall cause an adjustment to the
Conversion Rate as so adjusted.


 


Section 10.23                          Rights
Issued in Respect of Common Stock Issued Upon Conversion.  In the event the Company adopts or implements
a shareholder rights agreement (a “Shareholder Rights Plan”), including,
without limitation, a rights agreement in existence on the date of this
Indenture, pursuant to which rights (“Rights”) are distributed to the holders
of Common Stock of the Company and such Shareholder Rights Plan provides that
each share of Common Stock issued upon conversion of the Notes at any time
prior to the distribution of separate certificates representing such Rights
will be entitled to receive such Rights, then there shall not be any adjustment
to the conversion privilege or Conversion Rate at any time prior to the
distribution of separate certificates representing such Rights.  If, however, prior to any conversion, the
Rights have separated from the Common Stock, the Conversion Rate shall be
adjusted at the time of separation as described in Section 10.11 above,
subject to readjustment upon occurrence of any of the events set forth therein.


 


ARTICLE 11.



PAYMENT OF INTEREST


 


Section 11.01                          Interest
Payments.Interest on any Note that is payable, and is punctually paid or
duly provided for, on any applicable Interest Payment Date shall be paid to the
person in whose name that Note is registered at the Close of Business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose.  Each
installment of interest payable in Cash on any Note shall be paid in same-day
funds by transfer to an account maintained by the payee located inside the United
States, if the Trustee shall have received proper wire transfer instructions
from such payee not later than the related Regular Record Date or, if no such
instructions have been received by check drawn on a bank in the United States
mailed to the payee at its address set forth on the Registrar’s books.  In the case of a Global Note, interest
payable on any applicable payment date will be paid by wire transfer of
same-day funds to the Depositary, with respect to that portion of such Global
Note held for its account by Cede & Co. for the purpose of permitting
such party to credit the interest received by it in respect of such Global Note
to the accounts of the beneficial owners thereof.


 


Section 11.02                          Defaulted
Interest.Except as otherwise specified with respect to the Note, any
interest on any Note that is payable, but is not punctually paid or duly
provided for, within 30 days following any applicable payment date (herein
called “Defaulted Interest,” which term shall include any accrued and unpaid
interest that has accrued on such defaulted amount in accordance with paragraph
1 of the Notes), shall forthwith cease to be payable to the registered Holder
thereof on the


 


64

















 


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 Notes 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 Note and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), 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 on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a special record date for the payment of
such Defaulted Interest which 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 10 days
after the receipt by the Trustee of the notice of the proposed payment (the “Special
Record Date”).  The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Notes at his address as it
appears on the list of Noteholders maintained pursuant to Section 2.05 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in whose names
the Notes 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 on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Notes 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.


 


Section 11.03                          Interest
Rights Preserved.Subject to the foregoing provisions of this Article 11
and Section 2.06, each Note delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Notes.


 


ARTICLE 12.



MISCELLANEOUS


 


Section 12.01                          Trust
Indenture Act of 1939.  The Indenture
shall incorporate and be governed by the provisions of the Trust Indenture Act
that are required to be part of and to govern indentures qualified under the
Trust Indenture Act.


 


65
















 


Section 12.02                          Noteholder Communications;
Noteholder Actions.


 


(a)           The rights of Holders to communicate
with other Holders with respect to the Indenture or the Notes are as provided
by the Trust Indenture Act, and the Company and the Trustee shall comply with
the requirements of Trust Indenture Act Sections 312(a) and
312(b).  Neither the Company nor the
Trustee will be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.


 


(b)           (i) Any request, demand,
authorization, direction, notice, consent to amendment, supplement or waiver or
other action provided by this Indenture to be given or taken by a Holder (an “act”)
may be evidenced by an instrument signed by the Holder delivered to the
Trustee.  The fact and date of the
execution of the instrument, or the authority of the person executing it, may
be proved in any manner that the Trustee deems sufficient.


 


(ii)          The Trustee may make reasonable rules for
action by or at a meeting of Holders, which will be binding on all the Holders.


 


(c)           Any act by the Holder of any Note
binds that Holder and every subsequent Holder of a Note that evidences the same
debt as the Note of the acting Holder, even if no notation thereof appears on
the Note.  Subject to paragraph (d), a
Holder may revoke an act as to its Notes, but only if the Trustee receives the
notice of revocation before the date the amendment or waiver or other
consequence of the act becomes effective.


 


(d)           The Company may, but is not obligated
to, fix a record date (which need not be within the time limits otherwise
prescribed by Trust Indenture Act Section 316(c)) for the purpose of
determining the Holders entitled to act with respect to any amendment or waiver
or in any other regard, except that during the continuance of an Event of
Default, only the Trustee may set a record date as to notices of default, any
declaration or acceleration or any other remedies or other consequences of the
Event of Default.  If a record date is
fixed, those Persons that were Holders at such record date and only those
Persons will be entitled to act, or to revoke any previous act, whether or not
those Persons continue to be Holders after the record date.  No act will be valid or effective for more
than 90 days after the record date.


 


Section 12.03         Notices.


 


(a)           Any notice or communication to the
Company will be deemed given if in writing (i) when delivered in person or
(ii) five days after mailing when mailed by first class mail, or (iii) when
transmission is confirmed verbally or by email, if sent by facsimile
transmission.  In each case the notice or
communication should be addressed as follows:


 


	
  if to the Company:

  	
   

  
	
  Power-One, Inc.

  	
   

  
	
  740 Calle Plano

  	
   

  
	
  Camarillo, CA 93012

  	
   

  
	
  Attention: General
  Counsel

  	
   

  
	
  Tel:

  	
  (805) 987-8741

  
	
  Fax:

  	
  (805) 383-5898

  
			



 


66

















 


	
  if to the Trustee:

  The Bank of New York
  Mellon Trust Company, N.A.

  700 South Flower
  Street, 5th Floor

  Los Angeles, CA 90017

  Attention: Corporate
  Unit

  	
   

  
	
  Tel:

  	
  (213) 630-6256

  
	
  Fax:

  	
  (213) 630-6298

  
			



 


The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.


 


(b)           Except as otherwise expressly
provided with respect to published notices, any notice or communication to a
Holder will be deemed given when mailed to the Holder at its address as it
appears on the Register by first class mail or, as to any Global Note
registered in the name of the Depository or its nominee, as agreed by the Company,
the Trustee and the Depository.  Copies
of any notice or communication to a Holder, if given by the Company, will be
mailed to the Trustee at the same time. 
Any defect in mailing a notice or communication to any particular Holder
will not affect its sufficiency with respect to other Holders.


 


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


 


The Trustee agrees to
accept and act upon instructions or directions pursuant to this Indenture sent
by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such
written instructions, subsequent to such transmission of written instructions,
shall provide the originally executed instructions or directions to the Trustee
in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party
providing such instructions or directions. 
If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its
discretion elects to act upon such instructions, the Trustee’s understanding of
such instructions shall be deemed controlling. 
The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction.  The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.


 


Section 12.04         Communication by Holders with Other
Holders.  Noteholders may communicate
pursuant to Section 312(b) of the Trust Indenture Act with other Noteholders
with respect to their rights under this Indenture or the Notes.  The Company, the Trustee, the Registrar, the
Paying Agent, the Conversion Agent and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.


 


67

















 


Section 12.05         Certificate and Opinion as to
Conditions Precedent.  Upon any
request or application by the Company to the Trustee to take any action under
the Indenture, the Company will furnish to the Trustee:


 


(1)                                  an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in the Indenture relating to the
proposed action have been complied with; and


 


(2)                                  an
Opinion of Counsel stating that all such conditions precedent have been
complied with.


 


Section 12.06         Statements Required in Certificate
or Opinion.  Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
the Indenture must include:


 


(1)                                  a
statement that each person signing the certificate or opinion has read the
covenant or condition and the related definitions;


 


(2)                                  a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in the certificate or opinion is
based;


 


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


 


(4)                                  a
statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with, provided that an Opinion of
Counsel may rely on an Officers’ Certificate or certificates of public
officials with respect to matters of fact.


 


Section 12.07         Legal Holiday.  A “Legal Holiday” is any day other than a
Business Day.  If any specified date
(including a date for giving notice) is a Legal Holiday, the action shall be
taken on the next succeeding day that is not a Legal Holiday, and, if the
action to be taken on such date is a payment in respect of the Notes, no
interest shall accrue for the intervening period.


 


Section 12.08         Rules by Trustee, Paying Agent,
Conversion Agent and Registrar.  The
Trustee may make reasonable rules for action by or a meeting of
Noteholders.  The Registrar, Conversion
Agent and the Paying Agent may make reasonable rules for their functions.


 


Section 12.09         Governing Law.  THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE NOTES.


 


Section 12.10         No Adverse Interpretation of Other
Agreements.  The Indenture may not be
used to interpret another indenture or loan or debt agreement of the Company or
any Subsidiary of the Company, and no such indenture or loan or debt agreement
may be used to interpret the Indenture.


 


68

















 


Section 12.11         Successors and Assigns.  All agreements of the Company in the
Indenture and the Notes will bind its successors and assigns.  All agreements of the Trustee in the
Indenture will bind its successor and assigns.


 


Section 12.12         Duplicate Originals.  The parties may sign any number of copies of
the Indenture.  Each signed copy shall be
an original, but all of them together represent the same agreement.


 


Section 12.13         Separability.  In case any provision in the Indenture or in
the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.


 


Section 12.14         Table of Contents and Headings.  The Table of Contents, Cross-Reference Table
and headings of the Articles and Sections of the Indenture have been
inserted for convenience of reference only, are not to be considered a part of
the Indenture and in no way modify or restrict any of the terms and provisions
of the Indenture.


 


Section 12.15         No Liability of Directors, Officers,
Employees, Incorporators, Members and Stockholders.  No director, officer, employee, incorporator,
member or stockholder of the Company, as such, will have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations.  Each Holder of Notes by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.


 


Section 12.16         Waiver of Jury Trial.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 12.17         Force Majeure.  In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond
its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


69

















 


SIGNATURES


 


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


 


	
   

  	
  POWER-ONE, INC.

  
	
   

  	
  as
  Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard J. Thompson

  
	
   

  	
   

  	
  Name: Richard
  J. Thompson

  
	
   

  	
   

  	
  Title: President
  and Chief Executive Officer

  



 


[Signature Page to Indenture]


 

















 


	
   

  	
  THE BANK OF NEW YORK
  MELLON TRUST COMPANY, N.A., as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Teresa Petta

  
	
   

  	
   

  	
  Name: Teresa
  Petta

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


[Signature
Page to Indenture]


 
















 


EXHIBIT A


 


[FACE OF NOTE]


 


[Global Notes Legend]


 


[The following legend
shall appear on the face of each Global Note:


 


THIS NOTE IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE
TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER
OF THIS NOTE FOR ALL PURPOSES.]


 


[OID Legend]


 


[The following legend
shall appear on the face of each Global Note:


 


THIS NOTE HAS BEEN ISSUED
WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS SECURITY
IS [          ],
[        ].  FOR INFORMATION REGARDING THE ISSUE PRICE,
THE YIELD TO MATURITY AND THE AMOUNT OF OID PER $1,000 OF PRINCIPAL AMOUNT,
PLEASE CONTACT POWER-ONE, INC., AT 740 CALLE PLANO, CAMARILLO, CALIFORNIA
93012, ATTENTION: CHIEF FINANCIAL OFFICER.]


 


[The following legend
shall appear on the face of each Global Security for which The Depository Trust
Company is to be the Depositary:


 


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


 


UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR REGISTERED NOTES IN DEFINITIVE
REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE,
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH 


 


A-1

















 


NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]


 


A-2

















 


[IAI Note Legend]


 


[The following legend
shall appear on the face of each IAI Note:


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAW.  IN NO EVENT MAY THIS NOTE BE SOLD,
ASSIGNED, PLEDGED, LOANED, HEDGED OR OTHERWISE DISPOSED OF OR ENCUMBERED
(COLLECTIVELY, A “TRANSFER”) BY AN INITIAL PURCHASER PRIOR TO MAY     ,
2010; PROVIDED, HOWEVER, THAT AN INITIAL PURCHASER MAY TRANSFER A NOTE
PRIOR TO SUCH TIME (1) TO A PERMITTED TRANSFEREE (AS DEFINED IN THE
PURCHASE AGREEMENT), PROVIDED THAT SUCH TRANSFEREE AGREES TO BE BOUND BY THE
TRANSFER PROVISIONS OF THE INDENTURE, THE PURCHASE AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT AND THE TRANSFERRING HOLDER AGREES TO CONTINUE TO
BE SO BOUND OR (2) OTHERWISE PURSUANT TO THE TERMS OF SECTION 8.1 OF
THE PURCHASE AGREEMENT.  ANY INITIAL
PURCHASER HOLDING THIS NOTE AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS
SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE SECURITY
RESELL OR OTHERWISE TRANSFER THIS NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE OTHER THAN DURING THE TIMES DESCRIBED IN
THE PURCHASE AGREEMENT AND ONLY PURSUANT TO (1) A TRANSFER TO THE COMPANY,
(2) A PERMITTED TRANSFER, (3) SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) IN
AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
(IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR (7) A TRANSFER THAT IS OTHERWISE EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT.


 


THIS NOTE AND THE COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS NOTE IS ADDITIONALLY SUBJECT TO THE TRANSFER
RESTRICTIONS CONTAINED IN THE PURCHASE AGREEMENT.


 


IN CONNECTION WITH ANY TRANSFER
OF THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE, THE
HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND
OTHER INFORMATION, INCLUDING AN “ASSIGNMENT FORM” IN THE FORM ATTACHED TO 


 


A-3

















 


THE BACK OF THIS NOTE, AS SUCH REGISTRAR OR TRANSFER
AGENT MAY REASONABLY REQUEST TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.]


 


A-4

















 


[Restricted Note Legend]


 


[The following legend
shall appear on the face of each Restricted Note:


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAW.  THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS SIX MONTHS AFTER THE LATER OF
THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED HEREBY AND THE LAST DATE ON WHICH
THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY WAS THE OWNER OF THE SECURITY (THE “RESTRICTION TERMINATION
DATE”) RESELL OR OTHERWISE TRANSFER THIS NOTE EVIDENCED HEREBY OR THE COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE OTHER THAN (1) TO THE COMPANY,
(2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT, (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR (6) A
TRANSFER THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.  THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS
OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES
ACT.  IN ANY CASE THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO
THIS NOTE OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT AS
PERMITTED BY THE SECURITIES ACT.]


 


A-5

















 


Power-One, Inc.


 


6.0%/8.0%/10.0%
Convertible Senior Notes Due 2019


 


CUSIP No. [                    ](1)


 


[$                                      ]


 


No. [                    ]


 


Power-One, Inc., a
Delaware corporation (the “Company,” which term includes any successor under
the Indenture hereinafter referred to), for value received, promises to pay to
              ,
or its registered assigns, the principal sum of
                    
DOLLARS
($            ) on May 8,
2019[, which principal amount may from time to time be increased or decreased
to such other principal amount (which, taken together with the principal
amounts of all other outstanding Notes, shall not exceed $36,375,000) by
adjustments on the Schedule of Exchanges of Notes on the other side of
this Note in accordance with the Indenture.](1)


 


[Initial Interest
Rate:  6.0% per annum which shall accrue
from the Issue Date to the first anniversary of the Issue Date;  8.0% per annum which shall accrue from the
first anniversary of the Issue Date to the second anniversary of the Issue
Date; 10.0% per annum which shall accrue from the second anniversary of the
Issue Date to the Maturity Date].


 


Interest Payment Dates: May 8
and November 8, commencing November 8, 2009.


 


Regular Record Dates: April 23
and October 23.


 


Reference is hereby made
to the further provisions of this Note set forth on the reverse hereof, which
will for all purposes have the same effect as if set forth at this place.


 






(1) Include only if the Note is a Global Note


 


A-6

















 


IN WITNESS WHEREOF, the
Company has caused this Note to be signed manually or by facsimile by its duly
authorized officers.


 


	
  Date:

  	
   

  	
   

  	
   

  	
  POWER-ONE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


A-7

















 


(Form of Trustee’s Certificate of Authentication)


 


This is one of the
6.0%/8.0%/10.0% Convertible Senior Notes Due 2019 described in the Indenture
referred to in this Note.


 


THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,

as Trustee


 


	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  



 


A-8
















 


[REVERSE SIDE OF NOTE]


 


Power-One, Inc.


 


6.0%/8.0%/10.0%
Convertible Senior Notes Due 2019


 


1.            Principal and Interest.


 


The Company promises to
pay the principal of this Note on May 8, 2019.


 


The Company promises to
pay interest on the principal amount of this Note on each Interest Payment
Date, as set forth on the face of this Note, at the rate of (i) 6.0% per
annum from the Issue Date to the first anniversary of the Issue Date, (ii) 8.0%
per annum from the first anniversary of the Issue Date to the second
anniversary of the Issue Date and (iii) 10.0% per annum from the second
anniversary of the Issue Date and thereafter (subject to adjustment as provided
below).


 


Interest will be payable
semiannually in arrears (to the holders of record of the Notes at the close of
business on the April 23 or October 23 immediately preceding the
interest payment date) on each interest payment date, commencing November 8,
2009.


 


Interest on this Note
will accrue from the most recent date to which interest has been paid on this
Note or the Note surrendered in exchange for this Note (or, if there is no
existing default in the payment of interest and if this Note is authenticated
between a regular record date and the next interest payment date, from such
interest payment date) or, if no interest has been paid, from the Issue
Date.  Interest will be computed in the
basis of a 360-day year of twelve 30-day months.


 


The Company will pay
interest on overdue principal, premium, if any, and, to the extent lawful,
interest at a rate per annum of (i) 8.0% accruing from the Issue Date to
the first anniversary of the Issue Date, (ii) 10.0% accruing from the
first anniversary of the Issue Date to the second anniversary of the Issue Date
and (iii) 12.0% from the second anniversary of the Issue Date and
thereafter.  Interest not paid when due
and any interest on principal, premium or interest not paid when due will be
paid to the Persons that are Holders on a special record date, which will
established as set forth in the Indenture referred to below.


 


Any payment required to
be made on any day that is not a Business Day will be made on the next
succeeding Business Day, without additional interest.


 


2.            Registration Rights Agreement.


 


The Holder of this Note
is entitled to the benefits of the Registration Rights Agreement, dated as of May 8,
2009, between the Company and the Initial Purchasers named therein (the “Registration
Rights Agreement”).


 


3.            Method of Payment.


 


Subject to the terms and
conditions of the Indenture, the Company shall pay interest on this Note to the
person who is the Holder of this Note at the close of business on the Regular
Record 


 


A-9

















 


Date next preceding the
related Interest Payment Date.  The
Company will pay any Cash amounts in money of the United States that at the
time of payment is legal tender for payment of public and private debts.


 


4.            Paying Agent, Conversion Agent and Registrar.


 


Initially, the Trustee
will act as Paying Agent, Conversion Agent and Registrar.  The Company may appoint and change any Paying
Agent, Conversion Agent, Registrar or co-registrar without notice, other than
notice to the Trustee.  The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar. 
The Company may maintain deposit accounts and conduct other banking
transactions with the Trustee in the normal course of business.


 


5.            Indenture.


 


This is one of the Notes
issued under an Indenture dated as of May 8, 2009 (as amended from time to
time, the “Indenture”), between the Company and The Bank of New York Mellon
Trust Company, N.A., as Trustee. 
Capitalized terms used herein are used as defined in the Indenture
unless otherwise indicated.  The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act.  The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms.  To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Note and the terms of the Indenture, the terms of the
Indenture will control.


 


The Notes are general
unsecured senior obligations of the Company.


 


6.            Purchase at the Option of the Holder upon a
Fundamental Change.


 


At the option of the
Holder and subject to the terms and conditions of the Indenture, upon the
occurrence of a Fundamental Change, the Company shall become obligated to
purchase the Notes held by such Holder on the date, at the purchase price and
as otherwise provided in the Indenture.


 


Holders have the right to
withdraw any Fundamental Change Purchase Notice by delivering to the Paying
Agent a written notice of withdrawal in accordance with the provisions of the
Indenture.


 


If Cash (and/or
securities if permitted under the Indenture) sufficient to pay the Fundamental
Change Purchase Price of, together with any accrued and unpaid interest with
respect to, all Notes or portions thereof to be purchased as of the Fundamental
Change Purchase Date is deposited with the Paying Agent on or prior to the
third Business Day following the Fundamental Change Purchase Date, interest
shall cease to accrue on such Notes (or portions thereof) immediately after such
Fundamental Change Purchase Date whether or not the Note is delivered to the
Paying Agent, and the Holder thereof shall have no other rights as such (other
than the right to receive the Fundamental Change Purchase Price and accrued and
unpaid interest upon surrender of such Notes).


 


A-10

















 


7.            Optional
Redemption.


 


Subject to the terms of
the Indenture, the Company shall have the right, at the Company’s option,
during the period beginning on November 8, 2011 and ending on May 8,
2014, at any time during such period, and from time to time during such period,
to redeem all or any part of the Notes at a price payable in Cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date in the event that the Closing Price for each of 20 or more
Trading Days in a period of 30 consecutive Trading Days ending on the day prior
to mailing of a notice of redemption to Holders of the Notes in accordance with
Section 3.07 of the Indenture shall have exceeded 300% of the applicable
Conversion Price, provided, however, that the Company shall have made at least
five semi-annual scheduled interest payments (including the interest payments
on November 8, 2011) in the full amount required by the Indenture with
respect to the Notes prior to redeeming any Notes pursuant to this
sentence.  Subject to the terms of the
Indenture, the Company shall also have the right, at the Company’s option,
after May 8, 2014, at any time, and from time to time, to redeem all or
any part of Notes at a price payable in Cash equal to the Redemption Price plus
accrued and unpaid interest, if any, to, but excluding, the Redemption
Date.  In no event shall any Redemption
Date be a Legal Holiday. Furthermore, if the Redemption Date with respect to a
Note is after the close of business on a record date for the payment of an
installment of interest and on or before the related interest payment date,
then accrued and unpaid interest to, but excluding, such interest payment date
shall be paid, on such interest payment date, to the Holder of record of such
Note (without any surrender of such Note by such Holder) at the close of
business on such record date, and the Holder surrendering such Note for
redemption shall receive only the Redemption Price and shall not be entitled to
any such interest unless such Holder was also the Holder of record of such Note
at the close of business on such record date.


 


8.            Notice
of Redemption.


 


Notice of redemption will
be mailed (a) at least 20 Business Days but not more than 30 Business Days
before a Redemption Date with respect to a redemption pursuant to the first
sentence of Section 7 of this Note and (b) at least 30 calendar days
but not more than 60 calendar days before the Redemption Date with respect to a
redemption pursuant to the second sentence of Section 7 of this Note, to
each Holder of Notes to be redeemed at its address appearing in the security
register.  Notes in denominations larger
than $1,000 principal amount may be redeemed in part but only in integral
multiples of $1,000 principal amount.


 


9.            Purchase
by the Company at the Option of the Holder.


 


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase, at
the option of each Holder, the Notes held by such Holder on May 8, 2014, May 8,
2015, May 8, 2016, May 8, 2017 and May 8, 2018 (each, an “Option
Purchase Date”) at an Option Purchase Price, payable in Cash, equal to 100% of
the principal amount of the Notes to be purchased, plus accrued and unpaid
interest, if any, to, but excluding, the applicable Option Purchase Date, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20 Business
Days prior to the applicable Option Purchase Date until the close of business
on the Business Day immediately preceding the applicable Option Purchase Date
and upon delivery of the Securities to the Paying Agent by the Holder as set
forth in the Indenture; provided, that if such Option Purchase Date is after
the close of business on a 


 


A-11

















 


record date for the
payment of an installment of interest and on or before the related interest
payment date, then such accrued and unpaid interest shall be paid on such
interest payment date to the Holder of record of such Notes (without any
surrender of such Notes by such Holder) at the close of business on such record
date and the Holder surrendering such Notes for purchase shall receive only the
Option Purchase Price and shall not be entitled to any such interest unless
such Holder was also the Holder of record of such Notes at the close of
business on such record date.


 


10.          Conversion.


 


Subject to and upon compliance
with the provisions of this Indenture, a Holder of a Note may, at such Holder’s
option, convert such Note at any time on or prior to the Close of Business on
the Business Day immediately preceding May 8, 2019 into fully paid and
non-assessable shares of Common Stock of the Company at the Conversion Rate in
effect at the time of the conversion. 
Subject to and upon compliance with the provisions of this Indenture,
after receiving a notice of redemption specified in Section 3.07 of the
Indenture, a Holder of a Note may, at such Holder’s option, convert such Note
at any time on or prior to the Close of Business on the Business Day
immediately preceding the Redemption Date specified in such notice into fully
paid and non-assessable shares of Junior Convertible Preferred Stock with a
liquidation preference equal to the principal amount of such Note. To convert a
Note represented by a Global Note, a Noteholder must convert by book-entry
transfer to the Conversion Agent through the facilities of the DTC.  To convert a Note that is represented by a
Certificated Note, a Noteholder must (1) complete and manually sign a
Conversion Notice, a form of which is attached hereto, and deliver such
Conversion Notice to the Conversion Agent, (2) surrender the Note to the
Conversion Agent, (3) if required by the Conversion Agent, furnish
appropriate endorsement and transfer documents, and (4) if required, pay
all transfer or similar taxes. The Company will not issue a fractional share of
Common Stock upon conversion of a Note but, instead, will deliver Cash in lieu
of a fractional share as described in the Indenture.


 


Upon conversion of Note,
a Holder will not receive, except as provided below or in the Indenture, any
separate Cash payment representing accrued interest. Holders of Notes
surrendered for conversion during the period from the Close of Business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business of such Interest Payment Date will receive the semiannual interest
payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion, and such Notes upon surrender must be
accompanied by funds equal to the amount of such payment; provided that no such
payment need be made (x) in connection with any conversion following the
Regular Record Date immediately preceding the Maturity Date, (y) if the
Company has specified a Fundamental Change Purchase Date that is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date
or (z) to the extent of any Defaulted Interest, if any Defaulted Interest
exists at the time of conversion with respect to such Note. The Company shall
not be required to convert any Notes that are surrendered for conversion
without payment of interest as required by this paragraph.


 


No payment or adjustment
will be made for dividends on, or other distributions with respect to, any
Common Stock except as provided for in the Indenture.


 


A-12

















 


Notes in respect of which
a Fundamental Change Purchase Notice has been given by the Holder thereof may
not be converted pursuant to the Indenture unless the Fundamental Change
Purchase Notice has first been validly withdrawn in accordance with the
Indenture.


 


11.          Defaults and Remedies.


 


If an Event of Default,
as defined in the Indenture, occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may declare all the
Notes to be due and payable, subject to certain limitations set forth in the Indenture.  If a bankruptcy or insolvency default with
respect to the Company occurs and is continuing, the Notes automatically become
due and payable.  Holders may not enforce
the Indenture or the Notes except as provided in the Indenture.  The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes.  Subject to certain limitations, Holders of a
majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of remedies.


 


12.          Amendment and Waiver.


 


Subject to certain
exceptions set forth in the Indenture, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a
majority in principal amount of the outstanding Notes.  Without notice to or the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to, among other things, cure any ambiguity, omission, defect or
inconsistency.


 


13.          Registered Form; Denominations; Transfer; Exchange.


 


The Notes are in
registered form without coupons in denominations of $2,000 principal amount and
integral multiples of $1,000 in excess thereof. 
A Holder may register the transfer or exchange of Notes in accordance
with the Indenture.  The Trustee may
require a Holder to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or permitted by the Indenture.  Pursuant to the Indenture, there are certain
periods during which the Trustee will not be required to issue, register the
transfer of or exchange any Note or certain portions of a Note.


 


14.          Persons Deemed Owners.


 


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


 


15.          Unclaimed Money or Notes.


 


The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Notes
that remains unclaimed for two years, subject to applicable unclaimed property
laws.  After return to the Company,
Holders entitled to the money or securities must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


A-13

















 


16.          Trustee Dealings with the Company.


 


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


 


17.          No Recourse Against Others.


 


A
director, officer, incorporator, agent, subsidiary, employee, member or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.  By accepting a Note, each Noteholder waives
and releases all such liability.  The
waiver and release are part of the consideration for the issue of the Notes.


 


18.          Authentication.


 


This
Note shall not be valid until an authorized officer of the Trustee manually
signs the Trustee’s Certificate of Authentication on the other side of this
Note.


 


19.          Governing Law.


 


THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS NOTE.


 


20.          Abbreviations.


 


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


 


The
Company will furnish a copy of the Indenture to any Holder upon written request
and without charge.


 


A-14

















 


[FORM OF TRANSFER
NOTICE]


 


FOR VALUE RECEIVED the
undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto


 


Insert Taxpayer
Identification No.


 


	
   

  
	
   

  
	
  Please print or
  typewrite name and address including zip code of assignee

  
	
   

  
	
   

  
	
  the within Note and all
  rights thereunder, hereby irrevocably constituting and appointing

  
	
   

  
	
   

  
	
   

  
	
  attorney to transfer
  said Note on the books of the Company with full power of substitution in the
  premises.

  



 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign exactly as
  your name appears on the other side of this Note)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
					



 






*       The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty
program acceptable to the Trustee.


 


A-15
















 


CONVERSION
NOTICE


 


To convert this Note into
shares of Common Stock, check the box: o


 


To
convert this Note into shares of Junior Convertible Preferred Stock, check the
box: o


 


To convert only part of
this Note, state the principal amount to be converted (must be $1,000 principal
amount or an integral multiple of $1,000 principal amount): $[                  ] .


 


If you want the Cash paid
to another person or the stock certificate, if any, made out in another person’s
name, fill in the form below:


 


	
   

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

  



 


	
   

  



 


	
   

  



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


and irrevocably appoint


 


	
   

  



 


agent to transfer this
Note on the books of the Company.  The
agent may substitute another to act for him or her.


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as
  your name appears on the other side of this Note)

  
	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
					



 






*       The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty
program acceptable to the Trustee.


 


A-16

















 


PURCHASE
NOTICE


 


Certificate No. of
Note:


 


If you want to elect to have
this Note purchased by the Company pursuant to the terms and conditions
specified in Section 3.01 of the Indenture, check the box: o


 


If you want to elect to have
this Note purchased by the Company pursuant to the terms and conditions
specified in Section 3.10 of the Indenture, check the box: o  If
this box has been checked, the Beneficial Owner of this Note attempted in good
faith to obtain the price quotes referred to in clause (i) of the
definition of Fair Market Value and the Fair Market Value was equal to or less
than 110% of the sum of (x) the Option Purchase Price plus (y) accrued
and unpaid interest, if any, on this Note.


 


If you want to elect to have
only part of this Note purchased by the Company pursuant to Section 3.01
or  Section 3.10 of the
Indenture, as applicable, state the principal amount to be so purchased by the
Company:


 


	
   

  	
   

  	
  $                                 

  
	
   

  	
   

  	
  (in an integral multiple
  of $1,000)

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Your Signatures:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name
  appears on the other side of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  *Signatures guaranteed by: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
					



 






*       The signature must be guaranteed by an
institution which is a member of one of the following recognized signature
guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the
Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty
program acceptable to the Trustee.


 


A-17

















 


SCHEDULE
OF EXCHANGES OF NOTES(2)


 


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


 


	
  Date
  of Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of Increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease or increase

  	
   

  	
  Signature or

  authorized signatory

  of Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(2) This schedule
should be included only if the Note is a Global Note.


 


A-18

















 


ASSIGNMENT FORM


 


To assign this Note, fill
in the form below:


 


(I) or (we)
assign and transfer this Note to


 


	
   

  	
   

  	
   

  
	
   

  	
  (Insert
  assignee’s social security or tax I.D. no.)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  



 


and irrevocably appoint                                                                            
agent to transfer this Note on the books of the Company.  The agent may substitute another to act for
him.


 




	
  Your Signature:

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Medallion Signature Guarantee:

  	
   

  
				






 


[FOR INCLUSION ONLY IF
THIS NOTE BEARS AN IAI NOTE LEGEND —] Other than pursuant to the sale or
transfer of a Note to a transferee that is not an Affiliate of the Initial
Purchaser pursuant to an effective shelf registration statement filed in connection
with Section 2.2 of the Registration Rights Agreement, dated as of May 8,
2009, between the Company and the purchasers named therein, in connection with
any transfer of any of the Notes evidenced by this certificate which are “restricted
securities” (as defined in Rule 144 (or any successor thereto) under the
Securities Act), the undersigned confirms that the Notes are being transferred
to a Person that is not an Affiliate of the Company and:


 


CHECK ONE BOX BELOW


 


	
  (1)

  	
  o

  	
  To the Company.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  In connection with a
  Permitted Transfer.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  A transfer to a
  transferee that is not an Affiliate of any Initial Purchaser pursuant to
  Rule 144 under the Securities Act.

  
	
   

  	
   

  	
   

  
	
  (4)

  	
  o

  	
  A transfer to a person
  that is not an “Affiliate” of any Initial Purchaser (as described in
  Rule 144 under the Securities Act) pursuant to Rule 144A under the
  Securities Act or pursuant to Regulation S under the Securities Act.

  
	
   

  	
   

  	
   

  
	
  (5)

  	
  o

  	
  Solely if the
  conditions required to transfer pursuant to Rule 144 under the Securities
  Act, a transfer that is otherwise exempt from registration under the
  Securities Act.

  



 


A-19

















 


Unless one of the boxes
is checked, the Registrar will refuse to register any of the Notes evidenced by
this certificate in the name of any Person other than the registered holder
thereof; provided, however, that if box (2) is checked, the Trustee may
require, prior to registering any such transfer of the Notes, such
certifications and other information, including legal opinions, as the Company
has reasonably requested in writing, by delivery to the Trustee of a standing
letter of instruction, to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.


 




	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the other side of this Note)

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Medallion Signature
  Guarantee:

  	
   

  
				






 


[FOR INCLUSION ONLY IF
THIS NOTE BEARS A RESTRICTED NOTE LEGEND —] Other than pursuant to the sale or
transfer of the Note to a transferee that is not an Affiliate of the Initial
Purchaser pursuant to an effective shelf registration statement filed in
connection with Section 2.2 of the Registration Rights Agreement, dated as
of May 8, 2009, between the Company and the purchasers named therein, in
connection with any transfer of any of the Notes evidenced by this certificate
which are “restricted securities” (as defined in Rule 144 (or any
successor thereto) under the Securities Act), the undersigned confirms that the
Notes are being transferred to a Person that is not an Affiliate of the Company
and:


 


CHECK ONE BOX BELOW


 


	
  (1)

  	
  o

  	
  to the Company; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  pursuant to and in
  compliance with Rule 144A under the Securities Act of 1933; or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  pursuant to and in
  compliance with Regulation S under the Securities Act of 1933; or

  
	
   

  	
   

  	
   

  
	
  (4)

  	
  o

  	
  pursuant to and in
  compliance with Rule 144 under the Securities Act of 1933; or

  
	
   

  	
   

  	
   

  
	
  (5)

  	
  o

  	
  pursuant to and in
  compliance with any other exemption under the Securities Act of 1933.

  



 


Unless one of the boxes
is checked, the Registrar will refuse to register any of the Notes evidenced by
this certificate in the name of any Person other than the registered holder
thereof; provided, however, that if box (3) or (4) is checked, the
Trustee may require, prior to registering any such transfer of the Notes, such
certifications and other information, and if box (4) is checked such legal
opinions, as the Company has reasonably requested in writing, by delivery to
the Trustee of a standing letter of instruction, to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act of 1933; provided that
this paragraph shall not be applicable to any Notes which are not “restricted
securities” (as defined in Rule 144 (or any successor thereto) under the
Securities Act).


 


A-20

















 




	
  Your Signature:

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the other side of this Note)

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Medallion Signature
  Guarantee:

  	
   

  
				






 


A-21

















 


EXHIBIT B


 


FORM OF RESTRICTED COMMON STOCK LEGEND AND 

IAI COMMON STOCK LEGEND


 


[IAI Common Stock Legend]


 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT.  IN
NO EVENT MAY THIS SECURITY BE SOLD, ASSIGNED, PLEDGED, LOANED HEDGED OR
OTHERWISE DISPOSED OF OR ENCUMBERED (COLLECTIVELY, A “TRANSFER”) BY AN INITIAL
PURCHASER PRIOR TO MAY 8, 2010; PROVIDED, HOWEVER, THAT AN INITIAL PURCHASER MAY TRANSFER A
NOTE PRIOR TO SUCH TIME (1) TO A PERMITTED TRANSFEREE, PROVIDED THAT SUCH
TRANSFEREE AND AGREES TO BE BOUND BY THE TRANSFER PROVISIONS OF THE INDENTURE
AND THE PURCHASE AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT AND THE
TRANSFERRING HOLDER AGREES TO CONTINUE TO BE SO BOUND OR (2) OTHERWISE
PURSUANT TO THE TERMS OF SECTION 8.1 OF THE PURCHASE AGREEMENT.  ANY
INITIAL PURCHASER HOLDING THIS NOTE AGREES THAT IT WILL NOT PRIOR TO THE
DATE THAT IS SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE
EVIDENCED HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY “AFFILIATE” (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF
THE SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EVIDENCED HEREBY OTHER THAN DURING THE TIMES DESCRIBED IN THE  PURCHASE AGREEMENT AND ONLY PURSUANT TO (1) A
TRANSFER TO THE COMPANY, (2) A PERMITTED TRANSFER,  (3) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) IN
AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
(IF APPLICABLE) UNDER THE SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR (7) A TRANSFER THAT IS OTHERWISE EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT.. 
THIS LEGEND SHALL BE REMOVED, AND
REPLACED BY A NEW LEGEND, IN EACH CASE IF APPLICABLE, UPON THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE.  IF THE PROPOSED TRANSFER IS PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY CLAUSE (5) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE 


 


B-1

















 


PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT
AS PERMITTED BY THE SECURITIES ACT.


 


THIS SECURITY IS ADDITIONALLY
SUBJECT TO THE TRANSFER RESTRICTIONS CONTAINED IN THE PURCHASE AGREEMENT.


 


IN CONNECTION WITH ANY TRANSFER
OF THIS SECURITY, THE HOLDER WILL DELIVER TO THE TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY
REQUEST TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


[Restricted Common Stock Legend]


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT.  THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS SIX MONTHS AFTER
THE LATER OF THE ORIGINAL ISSUANCE OF THIS SECURITY EVIDENCED HEREBY AND THE
LAST DATE ON WHICH THE COMPANY OR ANY “AFFILIATE” (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE SECURITY (THE “RESTRICTION
TERMINATION DATE”) RESELL OR OTHERWISE TRANSFER THIS SECURITY EVIDENCED HEREBY
OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY OTHER THAN (1) TO
THE COMPANY, (2) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR (5) A TRANSFER THAT IS OTHERWISE EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT.  THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) NOT A
U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. 
IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE
IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY
THE SECURITIES ACT.


 


B-2

















 


EXHIBIT C


 


FORM OF

CERTIFICATE OF DESIGNATION FOR

JUNIOR CONVERTIBLE PREFERRED STOCK


 


C-1