EXHIBIT 4.1


 


DUPONT
PHOTOMASKS, INC.


 


FORM
OF INDENTURE BETWEEN DUPONT PHOTOMASKS, INC. AND

JP MORGAN CHASE BANK, A NEW YORK BANKING CORPORATION,

AS TRUSTEE, INCLUDING THE FORM OF 1.25% CONVERTIBLE

SUBORDINATED NOTES DUE 2008 ATTACHED AS EXHIBIT A

THERETO


 




 





DUPONT PHOTOMASKS, INC.


 


1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY
15, 2008


 












 


INDENTURE


DATED AS OF MAY 5, 2003


 












 


JPMORGAN CHASE BANK, AS TRUSTEE




 





 

















 


TABLE OF CONTENTS


 


	
  Article
  1

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  
	
  Section 1.01.  Definitions

  
	
  Section 1.02.  Other Definitions

  
	
  Section 1.03.  Trust Indenture Act Provisions

  
	
  Section 1.04.  Rules of Construction

  
	
   

  
	
  Article
  2

  
	
  THE SECURITIES

  
	
   

  
	
  Section 2.01.  Form and Dating

  
	
  Section 2.02.  Execution and Authentication

  
	
  Section 2.03.  Registrar, Paying Agent and Conversion Agent

  
	
  Section 2.04.  Paying Agent to Hold Money in Trust

  
	
  Section 2.05.  Securityholder Lists

  
	
  Section 2.06.  Transfer and Exchange.

  
	
  Section 2.07.  Replacement Securities

  
	
  Section 2.08.  Outstanding Securities

  
	
  Section 2.09.  Treasury Securities

  
	
  Section 2.10.  Temporary Securities

  
	
  Section 2.11.  Cancellation

  
	
  Section 2.12.  Legend; Additional Transfer and Exchange Requirements.

  
	
  Section 2.13.  CUSIP Numbers

  
	
   

  
	
  Article
  3

  
	
  PURCHASES

  
	
   

  
	
  Section 3.01.  No Right to Redeem

  
	
  Section 3.02.  Purchase of Securities at Option of the Holder upon Change in Control

  
	
  Section 3.03.  Effect of Change in Control Purchase Notice

  
	
  Section 3.04.  Deposit of Change in Control Purchase Price

  
	
  Section 3.05.  Securities Purchased in Part

  
	
  Section 3.06.  Compliance with Securities Laws upon Purchase of Securities

  
	
  Section 3.07.  Repayment to the Company

  
	
   

  
	
  Article
  4

  
	
  CONVERSION

  
	
   

  
	
  Section 4.01.  Conversion Privilege

  
	
  Section 4.02.  Conversion Procedure

  
	
  Section 4.03.  Fractional Shares

  
	
  Section 4.04.  Taxes on Conversion

  



 


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  Section 4.05.  Company to Provide Stock

  
	
  Section 4.06.  Adjustment of Conversion Price

  
	
  Section 4.07.  No Adjustment

  
	
  Section 4.08.  Adjustment for Tax Purposes

  
	
  Section 4.09.  Notice of Adjustment

  
	
  Section 4.10.  Notice of Certain Transactions.

  
	
  Section 4.11.  Effect of Reclassification, Consolidation, Merger or Sale on
  Conversion Privilege

  
	
  Section 4.12.  Trustee’s Disclaimer

  
	
  Section 4.13.  Voluntary Reduction

  
	
   

  
	
  Article
  5

  
	
  SUBORDINATION

  
	
   

  
	
  Section 5.01.  Agreement of Subordination

  
	
  Section 5.02.  Payments to Holders

  
	
  Section 5.03.  Subrogation of Securities

  
	
  Section 5.04.  Authorization to Effect Subordination

  
	
  Section 5.05.  Notice to Trustee

  
	
  Section 5.06.  Trustee’s Relation to Senior Indebtedness

  
	
  Section 5.07.  No Impairment of Subordination

  
	
  Section 5.08.  Certain Conversions Deemed Payment

  
	
  Section 5.09.  Article Applicable to Paying Agents

  
	
  Section 5.10.  Senior Indebtedness Entitled to Rely

  
	
   

  
	
  Article
  6

  
	
  COVENANTS

  
	
   

  
	
  Section 6.01.  Payment of Securities

  
	
  Section 6.02.  SEC Reports

  
	
  Section 6.03.  Compliance Certificates

  
	
  Section 6.04.  Further Instruments and Acts

  
	
  Section 6.05.  Maintenance of Corporate Existence

  
	
  Section 6.06.  Rule 144A Information Requirement

  
	
  Section 6.07.  Stay, Extension and Usury Laws

  
	
  Section 6.08.  Payment of Additional Interest

  
	
   

  
	
  Article
  7

  
	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
  OR LEASE

  
	
   

  
	
  Section 7.01.  Company May Consolidate, Etc, only on Certain Terms

  
	
  Section 7.02.  Successor Substituted

  
	
   

  
	
  Article
  8

  
	
  DEFAULT AND REMEDIES

  
	
   

  
	
  Section 8.01.  Events of Default

  
	
  Section 8.02.  Acceleration

  
	
  Section 8.03.  Other Remedies

  



 


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  Section 8.04.  Waiver of Defaults and Events of Default

  
	
  Section 8.05.  Control by Majority

  
	
  Section 8.06.  Limitations on Suits

  
	
  Section 8.07.  Rights of Holders to Receive Payment and to Convert

  
	
  Section 8.08.  Collection Suit by Trustee

  
	
  Section 8.09.  Trustee May File Proofs of Claim

  
	
  Section 8.10.  Priorities

  
	
  Section 8.11.  Undertaking for Costs

  
	
   

  
	
  Article
  9

  
	
  TRUSTEE

  
	
   

  
	
  Section 9.01.  Duties of Trustee

  
	
  Section 9.02.  Rights of Trustee

  
	
  Section 9.03.  Individual Rights of Trustee

  
	
  Section 9.04.  Trustee’s Disclaimer

  
	
  Section 9.05.  Notice of Default or Events of Default

  
	
  Section 9.06.  Reports by Trustee to Holders

  
	
  Section 9.07.  Compensation and Indemnity

  
	
  Section 9.08.  Replacement of Trustee

  
	
  Section 9.09.  Successor Trustee by Merger, Etc

  
	
  Section 9.10.  Eligibility; Disqualification

  
	
  Section 9.11.  Preferential Collection of Claims against Company

  
	
   

  	
   

  
	
  Article
  10

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  
	
  Section 10.01.  Satisfaction and Discharge of Indenture

  
	
  Section 10.02.  Application of Trust Money

  
	
  Section 10.03.  Repayment to Company

  
	
  Section 10.04.  Reinstatement

  
	
   

  
	
  Article
  11

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  
	
  Section 11.01.  Without Consent of Holders

  
	
  Section 11.02.  With Consent of Holders

  
	
  Section 11.03.  Compliance with Trust Indenture Act

  
	
  Section 11.04.  Revocation and Effect of Consents

  
	
  Section 11.05.  Notation on or Exchange of Securities

  
	
  Section 11.06.  Trustee to Sign Amendments, Etc

  
	
  Section 11.07.  Effect of Supplemental Indentures

  
	
   

  
	
  Article
  12

  
	
  MISCELLANEOUS

  
	
   

  
	
  Section 12.01.  Trust Indenture Act Controls

  
	
  Section 12.02.  Notices

  
	
  Section 12.03.  Communications by Holders with Other Holders

  



 


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  Section 12.04.  Certificate and Opinion as to Conditions Precedent

  
	
  Section 12.05.  Record Date for Vote or Consent of Securityholders

  
	
  Section 12.06.  Rules by Trustee, Paying Agent, Registrar and Conversion Agent

  
	
  Section 12.07.  Legal Holidays

  
	
  Section 12.08.  Governing Law

  
	
  Section 12.09.  No Adverse Interpretation of Other Agreements

  
	
  Section 12.10.  No Recourse against Others

  
	
  Section 12.11.  Successors

  
	
  Section 12.12.  Multiple Counterparts

  
	
  Section 12.13.  Separability

  
	
  Section 12.14.  Table of Contents, Headings, Etc

  
	
   

  	
   

  
	
  EXHIBIT
  A

  	
  Form
  of Security

  
	
   

  	
   

  
	
  EXHIBIT
  B

  	
  Form
  of Certificate for Exchange or Registration of Transfer to Regulation S
  Global Security

  
	
   

  	
   

  
	
  EXHIBIT
  C

  	
  Form
  of Certificate for Exchange or Registration of Transfer to Restricted Global
  Security

  



 


iv

















 


THIS INDENTURE dated as of May 5, 2003 is
between DuPont Photomasks, Inc., a corporation duly organized under the laws of
the State of Delaware (the “Company”), and JPMorgan Chase Bank, a New
York banking corporation, as Trustee (the “Trustee”).


 


WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the issue of its 1.25% Convertible Subordinated
Notes due May 15, 2008, in an unlimited aggregate principal amount and, to
provide the terms and conditions upon which the Company’s 1.25% Convertible
Subordinated Notes due May 15, 2008 are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture; and


 


WHEREAS, all acts and things necessary to
make the Company’s 1.25% Convertible Subordinated Notes due May 15, 2008,
when executed by the Company and authenticated and delivered by the Trustee or
a duly authorized authenticating agent, as in this Indenture provided, the
valid, binding and legal obligations of the Company, and to constitute this
Indenture a valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the
Securities (as defined) have in all respects been duly authorized.


 


In consideration of the premises and the
purchase of the Securities by the Holders thereof, both parties agree as
follows for the benefit of the other and for the equal and ratable benefit of
the registered Holders of the Company’s 1.25% Convertible Subordinated Notes
due May 15, 2008.


 


ARTICLE 1


DEFINITIONS
AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.  “Additional Interest” has the meaning
specified in Section 5 of the Registration Rights Agreement.  All references herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
as of such date as provided in the Registration Rights Agreement.


 


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


 


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


 

















 


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


 


“Board of Directors” means either the board
of directors of the Company or any committee of the Board of Directors
authorized to act for it with respect to this Indenture.


 


“Business Day” means each day that is not a
Legal Holiday.


 


“Capital Stock” of any Person means any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, but excluding any debt securities convertible into such equity.


 


“Cash” or “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 Security” means a Security
that is in substantially the form attached hereto as Exhibit A and that does
not include the information or the schedule called for by footnotes 1, 2 and 4
thereof.


 


“Clearstream” means Clearstream Banking S.A.


 


“Common Stock” means the common stock of the
Company, $0.01 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 Securities 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 this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture, and thereafter “Company” shall
mean such successor Company.


 


“Company Order” means a written order or
orders of the Company signed by two Officers of the Company.


 


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“Corporate Trust Office” means the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered which office at the date of the execution of
this Indenture is located at 600 Travis, Suite 1150, Houston, Texas 77002
(DuPont Photomasks, Inc. — 1.25% Convertible Subordinated Notes due May 15,
2008) or at any other time at such other address as the Trustee may designate
from time to time by notice to the Company.


 


“Default” or “default” means, when used
with respect to the Securities, any event which is or, after notice or passage
of time or both, would be an Event of Default.


 


“Designated Senior Indebtedness” means any
particular Senior Indebtedness of the Company in which the instrument creating
or evidencing the same or the assumption or guarantee thereof (or any related
agreements or documents to which the Company is a party) expressly provides
that such Senior Indebtedness shall be “Designated Senior Indebtedness” for
purposes of this Indenture (provided  that such instrument,
agreement or other document may place limitations and conditions on the right
of such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness). If any payment made to any holder of any Designated Senior
Indebtedness or its Representative with respect to such Designated Senior
Indebtedness is rescinded or must otherwise be returned by such holder or
Representative upon the insolvency, bankruptcy or reorganization of the Company
or otherwise, the reinstated Indebtedness of the Company arising as a result of
such rescission or return shall constitute Designated Senior Indebtedness
effective as of the date of such rescission or return.


 


“Euroclear” means Euroclear Bank S.A./N.V.,
as operator of the Euroclear system, and its successors.


 


“Exchange Act” means the Securities and
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, as in effect from time to time.


 


“Final Maturity Date” means May 15, 2008.


 


“GAAP” means accounting principles generally
accepted in the United States of America as in effect as of the date of this
Indenture, including those set forth in (1) the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants, (2) the statements and pronouncements of the Financial Accounting
Standards Board, (3) such other statements by such other entity as approved by
a significant segment of the accounting profession and (4) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in registration statements filed
under the Securities Act and periodic reports required


 


3

















 


to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC.


 


“Global Security” means any of the
Restricted Global Security and the Regulation S Global Security.


 


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


 


“Indebtedness” means, with respect to any
Person, without duplication, (a) all indebtedness, obligations and other
liabilities (contingent or otherwise) of such Person (i) for borrowed money
(including obligations of such Person in respect of overdrafts, foreign
exchange contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not evidenced by
notes or similar instruments) or (ii) evidenced by credit or loan agreements,
bonds, debentures, notes or similar instruments (whether or not the recourse of
the lender is to the whole of the assets of such Person or to only a portion
thereof) (other than any accounts payable or other accrued current liability or
obligation incurred in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement obligations and
other liabilities (contingent or otherwise) of such Person with respect to
letters of credit, bank guarantees or bankers’ acceptances, (c) all obligations
and liabilities (contingent or otherwise) of such Person (i) in respect of
leases of such Person required, in conformity with GAAP, to be accounted for as
capitalized lease obligations on the balance sheet of such Person (as
determined by the Company), or (ii) under any lease or related document
(including a purchase agreement, conditional sale or other title retention
agreement) in connection with the lease of real property or improvement thereon
(or any personal property included as part of any such lease) which provides
that such Person is contractually obligated to purchase or cause a third party
to purchase the leased property or pay an agreed upon residual value of the
leased property to the lessor (whether or not such lease transaction is
characterized as an operating lease or a capitalized lease in accordance with
GAAP), (d) all obligations (contingent or otherwise) of such Person with
respect to any interest rate or other swap, cap, floor or collar agreement,
hedge agreement, forward contract, or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or agreement;
(e) all direct or indirect guarantees, agreements to be jointly liable or
similar agreements by such Person in respect of, and obligations or liabilities
of such Person to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (d), (f) any indebtedness
or other obligations described in clauses (a) through (e) secured by any
mortgage, pledge, lien or other encumbrance existing on property which is owned
or held by such Person, regardless of whether the indebtedness or other


 


4

















 


obligation secured thereby shall have been assumed by such Person, and
(g) any and all deferrals, renewals, extensions, refinancings and refundings
of, or amendments, modifications or supplements to, any indebtedness,
obligation or liability of the kind described in clauses (a) through (f).


 


“Indenture” means this Indenture as amended
or supplemented from time to time pursuant to the terms of this Indenture.


 


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


 


“Officer” means the Chairman or any
Co-Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Controller, the Secretary or any Assistant Controller or Assistant Secretary of
the Company or any of the officers of the Company designated in writing to the
Trustee by the Company.


 


“Officers’ Certificate” means a certificate
signed by two Officers; provided, however, that for purposes
of Sections 4.11 and 6.03, “Officers’ Certificate” means a certificate
signed by the Chief Executive Officer, Chief Financial Officer or Controller of
the Company and by one other Officer.


 


“Opinion of Counsel” means a written opinion
from legal counsel.  The counsel may be
an employee of or counsel to the Company or the Trustee.


 


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


 


“Principal” or “principal” of a debt
security, including the Securities, means the principal of the security plus,
when appropriate, the premium, if any, on the security.


 


“QIB” means a “qualified institutional
buyer” as defined in Rule 144A.


 


“Registration Rights Agreement” means the
Registration Rights Agreement dated, as of May 5, 2003, between the Company and
the Initial Purchasers.


 


“Regulation
S” means Regulation S under the Securities Act or any
successor for such Rule.


 


“Representative” means the (a) indenture
trustee or other trustee, agent or representative for any Senior Indebtedness
or (b) with respect to any Senior Indebtedness that does not have any such
trustee, agent or other representative, (i)


 


5

















 


in the case of such Senior Indebtedness issued pursuant to an agreement
providing for voting arrangements as among the holders or owners of such Senior
Indebtedness, any holder or owner of such Senior Indebtedness acting with the
consent of the required persons necessary to bind such holders or owners of
such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.


 


“Restricted Security” means a Security
required to bear the restricted legend set forth in the form of Security set
forth in Exhibit A of this Indenture.


 


“Rule 144” means Rule 144 under the
Securities Act or any successor to such Rule.


 


“Rule 144A” means Rule 144A under the
Securities Act or any successor to such Rule.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities” means the 1.25% Convertible
Subordinated Notes due May 15, 2008 or any of them (each, a “Security”),
as amended or supplemented from time to time, that are issued under this
Indenture.


 


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder, as in
effect from time to time.


 


“Securities Custodian” means the Trustee, as
custodian with respect to the Securities in global form, or any successor
thereto.


 


“Senior Indebtedness” means the principal
of, premium, if any, interest (including all interest accruing subsequent to
the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in any such proceeding)
and rent payable on or in connection with, and all fees, costs, expenses and
other amounts accrued or due on or in connection with, Indebtedness of the
Company, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by the Company
(including all deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing), unless in the case of any
particular Indebtedness the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities or expressly provides that
such Indebtedness is “pari passu” or “junior” to the
Securities.  Notwithstanding the
foregoing, the term Senior Indebtedness shall not include (i) any Indebtedness
of the Company to any Subsidiary of the Company (other than Indebtedness of the
Company to such Subsidiary arising by reason of guarantees by the Company of
Indebtedness of such Subsidiary to a Person that is


 


6

















 


not a Subsidiary of the Company) (ii) the Company’s convertible
subordinated notes due July 24, 2004 or (iii) the Securities.  If any payment made to any holder of any
Senior Indebtedness or its Representative with respect to such Senior
Indebtedness is rescinded or must otherwise be returned by such holder or
Representative upon the insolvency, bankruptcy or reorganization of the Company
or otherwise, the reinstated Indebtedness of the Company arising as a result of
such rescission or return shall constitute Senior Indebtedness effective as of
the date of such rescission or return.


 


“Significant Subsidiary” means, in respect
of any Person, a Subsidiary of such Person that would constitute a “significant
subsidiary” as such term is defined under Rule 1-02 of Regulation S-X under the
Securities Act and the Exchange Act.


 


“Subsidiary” means, in respect of any
Person, any corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such Person and
one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person.


 


“TIA” means the Trust Indenture Act of 1939,
as amended, and the rules and regulations thereunder as in effect on the date
of this Indenture, except as provided in Section 11.03, and except to the
extent any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another date.


 


“Trading Day” means, with respect to any
security, each Monday, Tuesday, Wednesday, Thursday and Friday, other than any
day on which securities are not generally traded on the principal exchange or
market in which such security is traded.


 


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


 


“Trust Officer” means, with respect to the
Trustee, any officer assigned to the Corporate Trust Office, and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.


 


“Unrestricted Certificated Security” means a
Certificated Security that is not a Restricted Security.


 


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“Unrestricted Global Security” means a
Global Security that is not a Restricted Security.


 


“Vice President” when used with respect to
the Company or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title “vice
president.”


 


“Voting Stock” of a Person means all classes
of Capital Stock or other interests (including partnership interests) of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.


 


Section 1.02.  Other Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.06

  
	
  “Bankruptcy Law”

  	
   

  	
  8.01

  
	
  “Change in Control”

  	
   

  	
  3.02(a)

  
	
  “Change in Control Purchase Date”

  	
   

  	
  3.02(a)

  
	
  “Change in Control Purchase Notice”

  	
   

  	
  3.02(c)

  
	
  “Change in Control Purchase Price”

  	
   

  	
  3.02(a)

  
	
  “Closing Price”

  	
   

  	
  4.06(d)

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  
	
  “Conversion Date”

  	
   

  	
  4.02

  
	
  “Conversion Price”

  	
   

  	
  4.06

  
	
  “Current Market Price”

  	
   

  	
  4.06(d)

  
	
  “Custodian”

  	
   

  	
  8.01

  
	
  “DTC”

  	
   

  	
  2.01

  
	
  “Depositary”

  	
   

  	
  2.01

  
	
  “Determination Date”

  	
   

  	
  4.06(c)

  
	
  “Event of Default”

  	
   

  	
  8.01

  
	
  “Expiration Date”

  	
   

  	
  4.06(c)

  
	
  “Expiration Time”

  	
   

  	
  4.06(c)

  
	
  “Legal Holiday”

  	
   

  	
  12.07

  
	
  “Legend”

  	
   

  	
  2.12

  
	
  “NNM”

  	
   

  	
  4.06(d)

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Blockage Notice”

  	
   

  	
  5.02

  
	
  “Primary Registrar”

  	
   

  	
  2.03

  
	
  “Purchase Agreement”

  	
   

  	
  2.01

  
	
  “Purchased Shares”

  	
   

  	
  4.06(c)

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Regulation S Global Security”

  	
   

  	
  2.01

  
	
  “Restricted Global Security”

  	
   

  	
  2.01

  



 


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  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Restricted Period”

  	
   

  	
  2.01

  
	
  “Rights Plan”

  	
   

  	
  4.06(c)

  
	
  “Triggering Distribution”

  	
   

  	
  4.06(c)

  
	
  “Trigger Event”

  	
   

  	
  4.06(c)

  
	
  “Unissued Shares”

  	
   

  	
  3.02(a)

  



 


Section 1.03.  Trust Indenture Act Provisions.  Whenever this Indenture refers to
a provision of the TIA, that provision is incorporated by reference in and made
a part of this Indenture.  The Indenture
shall also include those provisions of the TIA required to be included herein
by the provisions of the Trust Indenture Reform Act of 1990.  The following TIA terms used in this
Indenture have the following meanings:


 


“indenture securities” means the Securities;


 


“indenture security holder” means a
Securityholder;


 


“indenture to be qualified” means this
Indenture;


 


“indenture trustee” or “institutional
trustee” means the Trustee; and “obligor” on the indenture securities means the
Company or any other obligor on the Securities.


 


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


 


Section 1.04.  Rules of Construction.  Unless the context otherwise
requires:


 


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


 


(D)                               provisions apply to
successive events and transactions;


 


(E)                                 the term “merger”
includes a statutory share exchange and the term “merged” has a correlative
meaning;


 


(F)                                 the masculine gender
includes the feminine and the neuter;


 


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(G)                                references to
agreements and other instruments include subsequent amendments thereto; and


 


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


 


ARTICLE 2


THE
SECURITIES


 


Section 2.01.  Form and Dating.  The Securities and the Trustee’s certificate of
authentication shall be substantially in the respective forms set forth in
Exhibit A, which Exhibit is incorporated in and made part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage.  The
Company shall provide any such notations, legends or endorsements to the
Trustee in writing.  Each Security shall
be dated the date of its authentication. 
The Securities are being offered and sold by the Company pursuant to a
Purchase Agreement, dated April 29, 2003 (the “Purchase Agreement”), among
the Company and the Initial Purchasers, in transactions exempt from, or not
subject to, the registration requirements of the Securities Act.


 


Securities offered and sold in their initial
distribution in reliance on Regulation S shall be initially represented by one
or more global securities (collectively, the “Regulation S Global Security”)
issued in fully registered form without interest coupons, substantially in the
form of Security set forth in Exhibit A, with such applicable legends as are
provided for in Exhibit A.  Such
Regulation S Global Security shall be registered in the name of the Depository
Trust Company (“DTC”) (such depositary, or any successor thereto, being
hereinafter referred to as the “Depositary”) or its nominee and deposited
with the Securities Custodian, duly executed by the Company and authenticated
by the Trustee as hereinafter provided, for credit to the respective accounts
at the Depositary of the depositories for Euroclear Bank S.A./N.V., as operator
of Euroclear, or Clearstream.  Until
such time as the Restricted Period shall have terminated, investors may hold
beneficial interests in such Regulation S Global Securities only through
Euroclear and Clearstream, unless delivery of such beneficial interest shall be
made through the Restricted Global Security in accordance with the
certification requirements discussed below in Section 2.12(b)(iii).  After such time as the Restricted Period
shall have terminated, such certification requirements shall no longer be
required for such transfers.  As used
herein, the term “Restricted Period” means the period up to
(but not including) the 365th day following the later of (i) the date of the
commencement of the offering of Securities and (ii) the last original issuance
date of the Securities.


 


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Securities offered and sold in their initial
distribution in reliance on Rule 144A shall be issued in the form of one or
more global securities (collectively, the “Restricted Global Security”) in fully
registered form without interest coupons, substantially in the form of Security
set forth in Exhibit A, with such applicable legends as are provided for in
Exhibit A.  Such Restricted Global
Security shall be registered in the name of the Depositary or its nominee and
deposited with the Securities Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Restricted Global Security
may be increased or decreased from time to time by adjustments made on the
records of the Securities Custodian in connection with a corresponding decrease
or increase in the aggregate principal amount of the Regulation S Global
Security, as hereinafter provided.


 


Section 2.02.  Execution and Authentication.  An Officer shall sign the
Securities 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 in any such facsimile signature shall not affect the validity
or enforceability of any Security which has been authenticated and delivered by
the Trustee.


 


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


 


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


 


Securities, upon the execution of this
Indenture, or from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company.


 


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


 


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


 


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Section 2.03.  Registrar, Paying Agent and Conversion
Agent.  The Company shall
maintain one or more offices or agencies where Securities may be presented for
registration of transfer or for exchange (each, a “Registrar”), one or more
offices or agencies where Securities may be presented for payment (each, a “Paying Agent”),
one or more offices or agencies where Securities 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
Securities 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 Securities and this Indenture may be served in the
Borough of Manhattan, The City of New York. 
One of the Registrars (the “Primary Registrar”) shall keep a register
of the Securities and of their transfer and exchange.


 


The Company shall enter into an appropriate
agency agreement with any Agent that is 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 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 Section 6.01
and Article 10).


 


The Company hereby initially designates the
Trustee as Paying Agent, Primary Registrar, Securities Custodian and Conversion
Agent, and each of the Corporate Trust Office of the Trustee and the office or
agency of the Trustee in the Borough of Manhattan, The City of New York, shall
be considered one 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 due date of the principal of or interest, if any, on any
Securities, the Company shall deposit with a Paying Agent a sum sufficient to
pay such principal or interest, if any, so becoming due.  Subject to Section 5.02, a Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest, if any,
on the Securities, and shall notify the Trustee of any default by the Company
(or any other obligor on the Securities) 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 due date of the principal of or interest on any Securities, 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


 


12

















 


doing so, the Paying Agent (other than the Company) shall have no
further liability for the money.


 


Section 2.05.  Securityholder Lists.  The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders.  If the Trustee is not the 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 Securityholders.


 


Section 2.06.  Transfer and Exchange.


 


(a)                        Subject
to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register a
transfer thereof or to exchange such Security for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by an assignment form in the form included in
Exhibit A and, if applicable, a transfer certificate in the form included
in Exhibit B or C, as applicable, 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 Security 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 Securities 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, 2.12(a), 3.05, 4.02 (last
paragraph) or 11.05.


 


Neither the Company, any Registrar nor the
Trustee shall be required to exchange or register a transfer of any Securities
or portions thereof in respect of which a Change in Control Purchase Notice has
been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).


 


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


 


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


 


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


 


The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between
or among members of, or participants in, the Depositary (“Agent Members”) or other
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by 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 Securities.  If any mutilated Security 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 Security, 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 Security has
been acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.


 


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


 


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


 


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


 


Section 2.08.  Outstanding Securities.  Securities outstanding at any
time are all Securities authenticated by the Trustee, except for those canceled
by it, those converted pursuant to Article IV, 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 Security is replaced pursuant to Section
2.07, it ceases to be outstanding unless the Company receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.


 


If a Paying Agent (other than the Company or
an Affiliate of the Company) holds on a Change in Control Purchase Date or the
Final Maturity Date money sufficient to pay the principal of (including
premium, if any) and accrued interest on Securities (or portions thereof)
payable on that date, then on and after such Change in Control Purchase Date or
the Final Maturity Date, as the case may be, such Securities (or portions
thereof, as the case may be) shall cease to be outstanding and interest on them
shall cease to accrue.


 


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


 


Section 2.09.  Treasury Securities.  In determining whether the
Holders of the required principal amount of Securities have concurred in any
notice, direction, waiver or consent, Securities owned by the Company or any
other obligor on the Securities 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 Securities which a Trust Officer of the Trustee actually knows
are so owned shall be so disregarded. 
Securities 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 Securities and that the pledgee
is not the Company or any other obligor on the Securities or any Affiliate of
the Company or of such other obligor.


 


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Section 2.10.  Temporary Securities.  Until definitive Securities are
ready for delivery, the Company may prepare and execute, and, upon receipt of a
Company Order, the Trustee shall authenticate and deliver, temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Company with the consent of the Trustee considers appropriate for
temporary Securities.  Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary
Securities.


 


Section 2.11.  Cancellation.  The Company at any time may deliver Securities to the
Trustee for cancellation.  The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange,
payment or conversion.  The Trustee and
no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, payment, conversion or
cancellation.  All Securities which are
purchased or otherwise acquired by the Company or any of its Subsidiaries prior
to the Final Maturity Date shall be delivered to the Trustee for cancellation,
and the Company may not hold or resell such Securities or issue any new
Securities to replace any such Securities or any Securities that any Holder has
converted pursuant to Article 4.


 


Section 2.12.  Legend; Additional Transfer and Exchange
Requirements.


 


(a)                        If
Securities are issued upon the transfer, exchange or replacement of Securities
subject to restrictions on transfer and bearing the legends set forth on the
forms of Securities attached hereto as Exhibit A (collectively, the “Legend”),
or if a request is made to remove the Legend on a Security, the Securities so
issued shall bear the Legend, or the Legend shall not be removed, as the case
may be, unless there is delivered to the Company and the Registrar such
satisfactory evidence, which shall include an opinion of counsel if requested
by the Company or such Registrar, as may be reasonably required by the Company
and the Registrar, that neither the Legend nor the restrictions on transfer set
forth therein are required to ensure that transfers thereof will not violate
the registration requirements of the Securities Act; provided  that no
such evidence need be supplied in connection with the sale of such Security
pursuant to a registration statement that is effective at the time of such
sale.  Upon (i) provision of such
satisfactory evidence if requested, or (ii) notification by the Company to the
Trustee and Registrar of the sale of such Security pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the
written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend. If the Legend is removed from the face of a
Security and the Security is subsequently held by an Affiliate of the Company,
the Legend shall be reinstated.


 


16

















 


(b)                       Notwithstanding
any other provisions of this Indenture or the Securities (but subject to
Section 2.01), transfers of a Global Security, in whole or in part, transfers
and exchanges of interests therein of the kinds described in clauses (ii),
(iii), (iv) and (v) below and exchanges of interests in Global Securities, and transfers
or exchanges of other Securities as described in clause (vi) below, shall be
made only in accordance with this Section 2.12(b).  Transfers and exchanges subject to this Section 2.12 shall also
be subject to the other provisions of this Indenture that are not inconsistent
with this Section 2.12.


 


(i)                             Limitation
on Transfers of a Global Security. 
A Global Security may not be transferred, in whole or in part, to any
Person other than the Depositary or a nominee thereof, and no such transfer to
any such other Person may be registered; provided that this clause (i) shall
not prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. 
No transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been registered
in the name of such Person.  Nothing in
this Section 2.12(b)(i) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with the other
provisions of this Section 2.12(b).


 


(ii)                          Restricted
Global Security to Regulation S Global Security.  If the holder of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 2.12(b)(ii).  Upon receipt by the Trustee, as Registrar,
at its office in The City of New York of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited to a specified Agent Member’s account
a beneficial interest in the Regulation S Global Security in a principal amount
equal to that of the beneficial interest in the Restricted Global Security to
be so transferred, (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member
(and, if applicable, the Euroclear or Clearstream account, as the case may be)
to be credited with, and the account of the Agent Member to be debited for,
such beneficial interest and (C) a certificate in substantially the form set
forth in Exhibit B given by the holder of such beneficial interest; the
Trustee, as Registrar, shall instruct the Depositary to reduce the principal
amount of the Restricted Global Security, and to increase the principal amount
of the Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred, and to credit
or cause to be credited to the account of the Person specified in such
instructions (which during the Restricted Period


 


17

















 


shall be the
Agent Member for Euroclear or Clearstream or both, as the case may be) a
beneficial interest in the Regulation S Global Security having a principal
amount equal to the amount by which the principal amount of the Restricted
Global Security was reduced upon such transfer.


 


(iii)                       Regulation
S Global Security to Restricted Global Security.  If during the Restricted Period the holder of a beneficial
interest in the Regulation S Global Security wishes to transfer such interest
to a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Section
2.12(b)(iii).  Upon receipt by the
Trustee, as Registrar, at its office in The City of New York of (A) written
instructions given in accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be credited to a specified
Agent Member’s account a beneficial interest in the Restricted Global Security
in a principal amount equal to that of the beneficial interest in the
Regulation S Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the Agent Member to be credited with, and the account of the Agent
Member (and, if applicable, the Euroclear or Clearstream account, as the case
may be) to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Exhibit C given by the holder of such
beneficial interest, the Trustee, as Registrar, shall instruct the Depositary
to reduce the principal amount of the Regulation S Global Security and to
increase the principal amount of the Restricted Global Security, by the
principal amount of the beneficial interest in the Regulation S Global Security
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Restricted Global Security having a principal amount equal to the amount by
which the principal amount of the Regulation S Global Security, as the case may
be, was reduced upon such transfer.


 


(iv)                      Restricted
Global Security to Restricted Global Security.  If the holder of a beneficial interest in the Restricted Global
Security wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in such form, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this
Section 2.12(b)(iv).  Upon receipt
by the Trustee, as Registrar, at its office in The City of New York of
(A) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member to be debited for, such beneficial
interest and (B) a certificate in substantially the form set forth in
Exhibit C given by the holder of such beneficial interest, the Trustee, as
Security Registrar, shall instruct the Depositary to


 


18

















 


credit or
cause to be credited to the account of the Person specified in such
instructions to be credited a beneficial interest in the Restricted Global
Security having a principal amount equal to the amount specified in such
instructions.


 


(v)                         Regulation
S Global Security to Regulation S Global Security.  If the holder of a beneficial interest in
the Regulation S Global Security wishes at any time to transfer such
interest to a Person who wishes to take delivery thereof in such form, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 2.12(b)(v). 
Upon receipt by the Trustee, as Registrar, at its office in The City of
New York of (A) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member
(and, if applicable, the Euroclear or Clearstream account, as the case may be)
to be credited with, and the account of the Agent Member (and, if applicable,
the Euroclear or Clearstream account, as the case may be) to be debited for,
such beneficial interest and (B) a certificate in substantially the form
set forth in Exhibit B given by the holder of such beneficial interest,
the Trustee, as Registrar, shall instruct the Depositary to credit or cause to
be credited to the account of the Person specified in such instructions (which
during the Restricted Period shall be the Agent Member for Euroclear or
Clearstream or both, as the case may be) to be credited a beneficial interest
in the Regulation S Global Security having a principal amount equal to the
amount specified in such instructions.


 


(vi)                      Exchanges.  In the event that a Restricted Global
Security or any portion thereof is exchanged for a Regulation S Global Security
or Security other than Global Securities, such Security may in turn be
exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (i) through (v) above
and (vii) below (including the certification requirements intended to insure
that the transfers and exchanges of beneficial interests in a Global Security
comply with Rule 144A, Rule 144 or Regulation S, as the case may be) and any
Applicable Procedures, as may be from time to time adopted by the Company and
the Trustee.


 


(vii)                   Interests
in Regulation S Global Security to be Held Through Euroclear or Clearstream.  Until the termination of the Restricted
Period, interests in the Regulation S Global Security may be held only through
Agent Members acting for and on behalf of Euroclear and Clearstream, provided
that this clause (vii) shall not prohibit any transfer in accordance with
Section 2.12(b)(iii) or Section 2.12(b)(v) hereof.


 


19

















 


(c)          Each
Restricted Security and Global Security issued hereunder shall, upon issuance,
bear the legends required by Section 2.12(a) to be applied and such required
legends shall not be removed except as provided in the next sentence or
paragraph (a) of this Section 2.12.  The
legend required for a Restricted Security may be removed if there is delivered
to the Company such satisfactory evidence, which may include an opinion of independent
counsel licensed to practice law in the State of New York, as may be reasonably
required by the Company that neither such legend nor the restrictions on
transfer set forth therein are required to ensure that transfers of such
Security will not violate the registration requirements of the Securities
Act.  Upon provision of such
satisfactory evidence, the Trustee, at the written direction of the Company,
shall authenticate and deliver in exchange for such Securities another Security
or Securities having an equal aggregate principal amount that does not bear
such legend.  If such a legend required
for a Restricted Security has been removed from a Security as provided above,
no other Security issued in exchange for all or any part of such Security shall
bear such legend, unless the Company has reasonable cause to believe that such
other Security is a “restricted security” within the meaning of Rule 144 and
instructs the Trustee in writing to cause a legend to appear thereon.


 


(d)         The
provisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only to
Global Securities:


 


(i)                             Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered in the
name of any Person other than the Depositary or one or more nominees thereof, provided
that a Global Security may be exchanged for Securities registered in
the names of any person designated by the Depositary in the event that (A) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Global Security or such Depositary has ceased to be a
“clearing agency” registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days, (B) the Company has provided
the Depositary with written notice that it has decided to discontinue use of
the system of book-entry transfer through the Depositary or any successor
Depositary or (C) an Event of Default has occurred and is continuing with
respect to the Securities. Any Global Security exchanged pursuant to clauses
(A) or (B) above shall be so exchanged in whole and not in part, and any Global
Security exchanged pursuant to clause (C) above may be exchanged in whole or
from time to time in part as directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof shall be a Global
Security; provided
that any such Security so issued that is registered in the name of a
Person other than the Depositary or a nominee thereof shall not be a Global Security.


 


20

















 


(ii)                          Securities
issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Registrar. With
regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount equal to
the portion thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such exchange
to or upon the order of the Depositary or an authorized representative thereof.


 


(iii)                       Subject
to the provisions of clause (v) below, the registered Holder may grant proxies
and otherwise authorize any Person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.


 


(iv)                      In
the event of the occurrence of any of the events specified in clause (i) above,
the Company will promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form, without interest
coupons.


 


(v)                         Neither
Agent Members nor any other Persons on whose behalf Agent Members may act
(including Euroclear and Clearstream and account holders and participants
therein) shall have any rights under this Indenture with respect to any Global Security
registered in the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the case may be,
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 Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.


 


21

















 


Section 2.13.  CUSIP Numbers.  The Company in issuing the Securities 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 Securities or as
contained in any notice of a purchase and that reliance may be placed only on
the other identification numbers printed on the Securities, 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.


 


ARTICLE 3


PURCHASES


 


Section 3.01.  No Right to Redeem.  The Company is not entitled to
redeem the Securities prior to maturity.


 


Section 3.02.  Purchase of Securities at Option of the
Holder upon Change in Control.  (a)
If at any time that Securities remain outstanding there shall occur a Change in
Control, Securities shall be purchased by the Company at the option of the
Holders, as of the date that is 30 Business Days after the occurrence of the
Change in Control (the “Change in Control Purchase Date”) at a
purchase price equal to 100% of the principal amount of the Securities,
together with accrued and unpaid interest to, but excluding, the Change in
Control Purchase Date (the “Change in Control Purchase Price”), subject
to satisfaction by or on behalf of any Holder of the requirements set forth in
subsection (c) of this Section 3.02.


 


A “Change in Control” shall be deemed to have
occurred if any of the following occurs after the date hereof:


 


(1)                                  any “person” or
“group” (as such terms are defined below) is or becomes the “beneficial owner”
(as defined below), directly or indirectly, of shares of Voting Stock of the
Company representing 50% or more of the total voting power of all outstanding classes
of Voting Stock of the Company or has the power, directly or indirectly, to
elect a majority of the members of the Board of Directors of the Company; or


 


(2)                                  the Company
consolidates with, or merges with or into, another Person or the Company sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company, or any Person consolidates
with, or merges with or into, the Company, in any such event other than
pursuant to a transaction in which the Persons that “beneficially owned” (as
defined below), directly or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction “beneficially own” (as defined below),
directly or indirectly, shares of Voting Stock of the Company representing at
least


 


22

















 


a majority of the total voting power of all outstanding classes of
Voting Stock of the surviving or transferee Person; or


 


(3)                                  the holders of
Capital Stock of the Company approve any plan or proposal for the liquidation
or dissolution of the Company (whether or not otherwise in compliance with the
terms hereof).


 


For the purpose of the definition of “Change
in Control”, (i) “person” and “group” have the meanings given such terms under
Section 13(d) and 14(d) of the Exchange Act or any successor provision to
either of the foregoing, and 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 thereto),
(ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3
under the Exchange Act, as in effect on the date of this Indenture, except that
the number of shares of Voting Stock of the Company shall be deemed to include,
in addition to all outstanding shares of Voting Stock of the Company and
Unissued Shares deemed to be held by the “person” or “group” (as such terms are
defined above) or other Person with respect to which the Change in Control
determination is being made, all Unissued Shares deemed to be held by all other
Persons, and (iii) the terms “beneficially owned” and “beneficially own” shall
have meanings correlative to that of “beneficial owner”.  The term “Unissued Shares” means shares
of Voting Stock not outstanding that are subject to options, warrants, rights
to purchase or conversion privileges exercisable within 60 days of the date of
determination of a Change in Control.


 


Notwithstanding anything to the contrary set
forth in this Section 3.02(d), a Change in Control will not be deemed to have
occurred if either:


 


(1)                                  the Closing Price
(determined in accordance with Section 4.06(d) of this Indenture) of the Common
Stock for any five Trading Days during the ten Trading Days immediately
preceding the Change in Control is at least equal to 105% of the Conversion
Price in effect on such Trading Day; or


 


(2)                                  in the case of a
merger or consolidation, all of the consideration (excluding cash payments for
fractional shares and cash payments pursuant to dissenters’ appraisal rights)
in the merger or consolidation constituting the Change in Control consists of
common stock traded on a United States national securities exchange or quoted
on the Nasdaq National Market (or which will be so traded or quoted when issued
or exchanged in connection with such Change in Control) and as a result of such
transaction or transactions the Securities become convertible solely into such
common stock.


 


(b)                                 Within 15 Business
Days after the occurrence of a Change in Control, the Company shall mail a
written notice of the Change in Control to the


 


23

















 


Trustee and to each Holder (and to beneficial owners as required by
applicable law).  The notice shall
include the form of a Change in Control Purchase Notice (as defined below) to
be completed by the Holder and shall state:


 


(1)                                  the date of such
Change in Control and, briefly, the events causing such Change in Control;


 


(2)                                  the date by which the
Change in Control Purchase Notice pursuant to this Section 3.02 must be given;


 


(3)                                  the Change in Control
Purchase Date;


 


(4)                                  the Change in Control
Purchase Price;


 


(5)                                  the Holder’s right to
require the Company to purchase the Securities;


 


(6)                                  briefly, the
conversion rights of the Securities;


 


(7)                                  the name and address
of each Paying Agent and Conversion Agent;


 


(8)                                  the Conversion Price
and any adjustments thereto;


 


(9)                                  that Securities as to
which a Change in Control Purchase Notice has been given may be converted into
Common Stock pursuant to Article 4 of this Indenture only to the extent that
the Change in Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;


 


(10)                            the procedures that the
Holder must follow to exercise rights under this Section 3.02;


 


(11)                            the procedures for
withdrawing a Change in Control Purchase Notice, including a form of notice of
withdrawal; and


 


(12)                            that the Holder must
satisfy the requirements set forth in the Securities in order to convert the
Securities.


 


If any of the Securities is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depositary applicable to the
repurchase of Global Securities.


 


(c)                        A Holder
may exercise its rights specified in subsection (a) of this Section 3.02 upon
delivery of a written notice (which shall be in substantially the form included
in Exhibit A hereto and which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in the
case of Global Securities, may be delivered electronically or by other means in


 


24

















 


accordance with the Depositary’s customary procedures) of the exercise
of such rights (a “Change in Control Purchase Notice”) to any
Paying Agent at any time prior to the close of business on the Business Day
next preceding the Change in Control Purchase Date.  The notice must specify the Securities, or the portion thereof,
for which the purchase right is being exercised.


 


The delivery of such Security to any Paying
Agent (together with all necessary endorsements) at the office of such Paying
Agent shall be a condition to the receipt by the Holder of the Change in
Control Purchase Price therefor.


 


The Company shall purchase from the Holder
thereof, pursuant to this Section 3.02, a portion of a Security if the
principal amount of such portion is $1,000 or a multiple of $1,000.  Provisions of the Indenture that apply to
the purchase of all of a Security pursuant to Section 3.02 through 3.07 also
apply to the purchase of such portion of such Security.


 


Notwithstanding anything herein to the
contrary, any Holder delivering to a Paying Agent the Change in Control
Purchase Notice contemplated by this subsection (c) shall have the right to
withdraw such Change in Control Purchase Notice in whole or in a portion
thereof that is a principal amount of $1,000 or in a multiple thereof at any
time prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date by delivery of a written notice of withdrawal
to the Paying Agent in accordance with Section 3.03.


 


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


 


Anything herein to the contrary
notwithstanding, in the case of Global Securities, any Change in Control
Purchase Notice may be delivered or withdrawn and such Securities may be
surrendered or delivered for purchase in accordance with the Applicable
Procedures as in effect from time to time.


 


Section 3.03.  Effect of Change in Control Purchase
Notice.  Upon receipt by any
Paying Agent of the Change in Control Purchase Notice specified in Section
3.02(c), the Holder of the Security in respect of which such Change in Control
Purchase Notice was given shall (unless such Change in Control Purchase Notice
is withdrawn as specified below) thereafter be entitled to receive the Change
in Control Purchase Price with respect to such Security.  Such Change in Control Purchase Price shall
be paid to such Holder promptly following the later of (a) the Change in
Control Purchase Date with respect to such Security (provided the conditions in
Section 3.02(c) have been satisfied) and (b) the time of delivery of such
Security to a Paying Agent by the Holder thereof in the manner required by
Section 3.02(c).  Securities in respect
of which a Change in Control Purchase Notice has been given by the Holder thereof
may not be converted into shares of Common Stock pursuant to Article 4 on or
after the date


 


25

















 


of the delivery of such Change in Control Purchase Notice unless such
Change in Control Purchase Notice has first been validly withdrawn.


 


A Change in Control Purchase Notice may be
withdrawn by means of a written notice (which may be delivered by mail,
overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically
or by other means in accordance with the Depositary’s customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to the
close of business on the Business Day immediately preceding the Change in
Control Purchase Date, specifying the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or a multiple of
$1,000 in excess thereof) with respect to which such notice of withdrawal is
being submitted.


 


Section 3.04.  Deposit of Change in Control Purchase
Price.  On or before 11:00
a.m. New York City time on the Change in Control Purchase Date, the Company
shall deposit with the Trustee or with a Paying Agent (other than the Company
or an Affiliate of the Company) an amount of money (in immediately available
funds if deposited on such Change in Control Purchase Date) sufficient to pay
the aggregate Change in Control Purchase Price of all the Securities or
portions thereof that are to be purchased as of such Change in Control Purchase
Date.  The manner in which the deposit
required by this Section 3.04 is made by the Company shall be at the option of
the Company, provided that such deposit shall be made in a manner such
that the Trustee or a Paying Agent shall have immediately available funds on
the Change in Control Purchase Date.


 


If a Paying Agent holds, in accordance with
the terms hereof, money sufficient to pay the Change in Control Purchase Price
of any Security for which a Change in Control Purchase Notice has been tendered
and not withdrawn in accordance with this Indenture then, on the Change in
Control Purchase Date, such Security will cease to be outstanding and the
rights of the Holder in respect thereof shall terminate (other than the right
to receive the Change in Control Purchase Price as aforesaid).  The Company shall publicly announce the
principal amount of Securities purchased as a result of such Change in Control
on or as soon as practicable after the Change in Control Purchase Date.


 


Section 3.05.  Securities Purchased in Part.  Any Security that is to be
purchased only in part shall be surrendered at the office of a Paying Agent,
and promptly after the Change in Control Purchase Date the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder, in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased.


 


26

















 


Section 3.06.  Compliance with Securities Laws upon
Purchase of Securities.  In
connection with any offer to purchase or purchase of Securities under Section
3.02, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any
successor to either such Rule), if applicable, under the Exchange Act, (ii)
file the related Schedule TO (or any successor or similar schedule, form or
report) if required under the Exchange Act, and (iii) otherwise comply with all
federal and state securities laws in connection with such offer to purchase or
purchase of Securities, all so as to permit the rights of the Holders and
obligations of the Company under Section 3.02 through 3.05 to be exercised in
the time and in the manner specified therein.


 


Section 3.07.  Repayment to the Company.  To the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.04 exceeds the
aggregate Change in Control Purchase Price together with interest, if any,
thereon of the Securities or portions thereof that the Company is obligated to
purchase, then promptly after the Change in Control Purchase Date the Trustee
or a Paying Agent, as the case may be, shall return any such excess cash to the
Company.


 


ARTICLE 4


CONVERSION


 


Section 4.01.  Conversion Privilege.  Subject to the further provisions
of this Article 4 and paragraph 6 of the Securities, a Holder of a Security may
convert the principal amount of such Security (or any portion thereof equal to
$1,000 or any multiple of $1,000 in excess thereof) into Common Stock at any
time prior to the close of business on the Final Maturity Date, at the
Conversion Price then in effect; provided, however, that, if such
Security is submitted or presented for purchase pursuant to Article 3, such
conversion right shall terminate at the close of business on the Business Day
immediately preceding the Change in Control Purchase Date, for such Security or
such earlier date as the Holder presents such Security for purchase (unless the
Company shall default in making the Change in Control Purchase Price payment
when due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Security is purchased, as
the case may be).  The number of shares
of Common Stock issuable upon conversion of a Security shall be determined by
dividing the principal amount of the Security or portion thereof surrendered
for conversion by the Conversion Price in effect on the Conversion Date.  The initial Conversion Price is set forth in
paragraph 6 of the Securities and is subject to adjustment as provided in this
Article 4.


 


Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


 


27

















 


A Security in respect of which a Holder has
delivered a Change in Control Purchase Notice pursuant to Section 3.02(c)
exercising the option of such Holder to require the Company to purchase such
Security may be converted only if such Change in Control Purchase Notice is
withdrawn by a written notice of withdrawal delivered to a Paying Agent prior
to the close of business on the Business Day immediately preceding the Change
in Control Purchase Date in accordance with Section 3.03.


 


A Holder of Securities is not entitled to any
rights of a holder of Common Stock until such Holder has converted its
Securities to Common Stock, and only to the extent such Securities are deemed
to have been converted into Common Stock pursuant to this Article 4.


 


Section 4.02.  Conversion Procedure.  To convert a Security, a Holder
must (i) complete and manually sign the conversion notice on the back of the
Security and deliver such notice to a Conversion Agent, (ii) surrender the
Security to a Conversion Agent, (iii) furnish appropriate endorsements and
transfer documents if required by a Registrar or a Conversion Agent, and (iv)
pay any transfer or similar tax, if required. 
The date on which the Holder satisfies all of those requirements is the
“Conversion
Date.”  As soon as
practicable after the Conversion Date, the Company shall deliver to the Holder
through a Conversion Agent a certificate for the number of whole shares of
Common Stock issuable upon the conversion and cash in lieu of any fractional
shares pursuant to Section 4.03. 
Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be
surrendered for conversion in accordance with the Applicable Procedures as in
effect from time to time.


 


The person in whose name the Common Stock
certificate is registered shall be deemed to be a stockholder of record on the
Conversion Date; provided, however, that no surrender of a Security
on any date when the stock transfer books of the Company shall be closed shall
be effective to constitute the person or persons entitled to receive the shares
of Common Stock upon such conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such shares of Common
Stock as the record holder or holders thereof for all purposes at the close of business
on the next succeeding day on which such stock transfer books are open; provided,
further,
that such conversion shall be at the Conversion Price in effect on the
Conversion Date as if the stock transfer books of the Company had not been
closed.  Upon conversion of a Security,
such person shall no longer be a Holder of such Security.  No payment or adjustment will be made for
dividends or distributions on shares of Common Stock issued upon conversion of
a Security.


 


28

















 


Securities so surrendered for conversion (in
whole or in part) during the period from the close of business on any regular
record date to the opening of business on the next succeeding interest payment
date (excluding Securities or portions thereof presented for purchase upon a
Change in Control on a Change in Control Purchase Date during the period
beginning at the close of business on a regular record date and ending at the
opening of business on the first Business Day after the next succeeding
interest payment date, or if such interest payment date is not a Business Day,
the second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
interest payment date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
this Indenture relating to the payment of defaulted interest by the
Company.  Except as otherwise provided
in this Section 4.02, no payment or adjustment will be made for accrued
interest on a converted Security.  If
the Company defaults in the payment of interest payable on such interest
payment date, the Company shall promptly repay such funds to such Holder.


 


Nothing in this Section shall affect the
right of a Holder in whose name any Security is registered at the close of
business on a record date to receive the interest payable on such Security on
the related interest payment date in accordance with the terms of this
Indenture and the Securities. If a Holder converts more than one Security at
the same time, the number of shares of Common Stock issuable upon the
conversion shall be based on the aggregate principal amount of Securities
converted.


 


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


 


Section 4.03.  Fractional Shares.  The Company will not issue fractional shares of Common
Stock upon conversion of Securities.  In
lieu thereof, the Company will pay an amount in cash for the current market
value of the fractional shares.  The
current market value of a fractional share shall be determined, (calculated to
the nearest 1/1000th of a share) by multiplying the Closing Price (determined
as set forth in Section 4.06(d)) of the Common Stock on the Trading Day immediately
prior to the Conversion Date by such fractional share and rounding the product
to the nearest whole cent.


 


Section 4.04.  Taxes on Conversion.  If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon such conversion.  However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name
other than the Holder’s name.  The
Conversion Agent may


 


29

















 


refuse to deliver the certificate representing the Common Stock being
issued in a name other than the Holder’s name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax
withholding required by law or regulation.


 


Section 4.05.  Company to Provide Stock.  The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.


 


All shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares, shall be duly
authorized, validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.


 


The Company will endeavor promptly to comply
with all federal and state securities laws regulating the offer and delivery of
shares of Common Stock upon conversion of Securities, if any, and will list or
cause to have quoted such shares of Common Stock on each national securities
exchange or on the Nasdaq National Market or other over-the-counter market or
such other market on which the Common Stock is then listed or quoted; provided,
however,
that if rules of such automated quotation system or exchange permit the Company
to defer the listing of such Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
automated quotation system or exchange at such time.  Any Common Stock issued upon conversion of a Security hereunder
which at the time of conversion was a Restricted Security will also be a
Restricted Security.


 


Section 4.06.  Adjustment of Conversion Price.  The conversion price as stated in
paragraph 6 of the Securities (the “Conversion Price”) shall be adjusted from
time to time by the Company as follows:


 


(a)                        In case
the Company shall (i) pay a dividend on its Common Stock in shares of Common
Stock, (ii) make a distribution on its Common Stock in shares of Common Stock,
(iii) subdivide its outstanding Common Stock into a greater number of shares,
or (iv) combine its outstanding Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior thereto shall be adjusted so that
the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive that number of shares of Common Stock which it would have
owned had such Security been converted immediately prior to the happening of
such event.  An adjustment made pursuant
to this subsection


 


30

















 


(a) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of subdivision or combination.


 


(b)                       In case the
Company shall issue rights or warrants to all or substantially all holders of
its Common Stock entitling them (for a period commencing no earlier than the
record date described below and expiring not more than 60 days after such
record date) to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a conversion
price per share) less than the Current Market Price per share of Common Stock
(as determined in accordance with subsection (d) of this Section 4.06) on the
record date for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price in effect immediately prior thereto
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to such record
date by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares which
the aggregate offering price of the total number of shares of Common Stock so
offered (or the aggregate conversion price of the convertible securities so
offered, which shall be determined by multiplying the number of shares of
Common Stock issuable upon conversion of such convertible securities by the
conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the Current Market Price per share
(as defined in subsection (d) of this Section 4.06) of Common Stock on such
record date, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered (or into which the convertible securities so
offered are convertible).  Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately after such record date.  If at the end of the period during which
such rights or warrants are exercisable not all rights or warrants shall have
been exercised, the adjusted Conversion Price shall be immediately readjusted
to what it would have been based upon the number of additional shares of Common
Stock actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued).


 


(c)                        In case
the Company shall distribute to all or substantially all holders of its Common
Stock any shares of Capital Stock of the Company (other than Common Stock),
evidences of indebtedness or other non-cash assets (including securities of any
person other than the Company but excluding (1) dividends or distributions paid
exclusively in cash or (2) dividends or distributions referred to in subsection
(a) of this Section 4.06), or shall distribute to all or substantially all
holders of its Common Stock rights or warrants to subscribe for or purchase any
of its securities (excluding those rights and warrants referred to in
subsection (b) of this Section 4.06 and also excluding the


 


31

















 


distribution of rights to all holders of Common Stock pursuant to the
adoption of a stockholders rights plan or the detachment of such rights under
the terms of such stockholder rights plan), then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the current Conversion Price by a fraction of which
the numerator shall be the Current Market Price per share (as defined in
subsection (d) of this Section 4.06) of the Common Stock on the record date
mentioned below less the fair market value on such record date (as determined
by the Board of Directors, whose determination shall be conclusive evidence of
such fair market value and which shall be evidenced by an Officers’ Certificate
delivered to the Trustee) of the portion of the Capital Stock, evidences of
indebtedness or other non-cash assets so distributed or of such rights or
warrants applicable to one share of Common Stock (determined on the basis of
the number of shares of Common Stock outstanding on the record date), and of
which the denominator shall be the Current Market Price per share (as defined
in subsection (d) of this Section 4.06) of the Common Stock on such record
date.  Such adjustment shall be made
successively whenever any such distribution is made and shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such distribution.


 


In the event the then fair market value (as
so determined) of the portion of the Capital Stock, evidences of indebtedness
or other non-cash assets so distributed or of such rights or warrants applicable
to one share of Common Stock is equal to or greater than the Current Market
Price per share of the Common Stock on such record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each holder of a
Security shall have the right to receive upon conversion the amount of Capital
Stock, evidences of indebtedness or other non-cash assets so distributed or of
such rights or warrants such holder would have received had such holder
converted each Security on such record date. 
In the event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such dividend or distribution had not been declared.  If the Board of Directors determines the
fair market value of any distribution for purposes of this Section 4.06(c) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used
in computing the Current Market Price of the Common Stock.


 


Upon conversion of the Securities into Common
Stock, to the extent that the Company’s preferred shares rights plan (“Rights Plan”)
is still in effect upon such conversion, or in the event that the Company
implements any other Rights Plan, to the extent such Rights Plan has been
implemented and is still in effect upon such conversion, the holders of
Securities will receive, in addition to the Common Stock, the rights described
therein (whether or not the rights have separated from the Common Stock at the
time of conversion), subject to the limitations set forth in the Rights
Plan.  Any distribution of rights or
warrants


 


32

















 


pursuant to a Rights Plan complying with the requirements set forth in
the immediately preceding sentence of this paragraph shall not constitute a
distribution of rights or warrants pursuant to this Section 4.06(c).


 


Rights or warrants distributed by the Company
to all holders of Common Stock entitling the holders thereof to subscribe for
or purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights 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 this Section 4.06 (and no adjustment to the Conversion Price under
this Section 4.06 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Price shall be made under this Section 4.06(c).  If any such right or warrant, including any such existing rights
or warrants distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights 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 record date with respect to new rights or warrants
with such rights (and a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof).  In addition, in the event of any
distribution (or deemed distribution) of rights 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 Price under this Section 4.06
was made, (1) in the case of any such rights or warrants which shall all have
been repurchased without exercise by any holders thereof, the Conversion Price
shall be readjusted upon such final 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 repurchase price received by a holder or
holders of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by any
holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.


 


(1)                                  In case the Company
shall, by dividend or otherwise, at any time distribute (a “Triggering
Distribution”) to all or substantially all holders of its Common
Stock cash in an aggregate amount that, together with the aggregate amount of
(A) any cash and the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers’ Certificate delivered to the Trustee) of any
other consideration payable in respect of any tender offer by the Company or a


 


33

















 


Subsidiary of the Company for Common Stock consummated within the 12
months preceding the date of payment of the Triggering Distribution and in
respect of which no Conversion Price adjustment pursuant to this Section 4.06
has been made and (B) all other cash distributions to all or substantially all
holders of its Common Stock made within the 12 months preceding the date of
payment of the Triggering Distribution and in respect of which no Conversion
Price adjustment pursuant to this Section 4.06 has been made, exceeds an amount
equal to 10.0% of the product of the Current Market Price per share of Common
Stock (as determined in accordance with subsection (d) of this Section 4.06) on
the Business Day (the “Determination Date”) immediately preceding
the day on which such Triggering Distribution is declared by the Company
multiplied by the number of shares of Common Stock outstanding on the
Determination Date (excluding shares held in the treasury of the Company), the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the Determination Date by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock (as determined in accordance
with subsection (d) of this Section 4.06) on the Determination Date less the
sum of the aggregate amount of cash and the aggregate fair market value
(determined as aforesaid in this Section 4.06(c)(1)) of any such other
consideration so distributed, paid or payable within such 12 months (including,
without limitation, the Triggering Distribution) applicable to one share of
Common Stock (determined on the basis of the number of shares of Common Stock
outstanding on the Determination Date) and the denominator shall be such
Current Market Price per share of the Common Stock (as determined in accordance
with subsection (d) of this Section 4.06) on the Determination Date, such
reduction to become effective immediately prior to the opening of business on
the day following the date on which the Triggering Distribution is paid.


 


(2)                                  In case any tender
offer made by the Company or any of its Subsidiaries for Common Stock shall
expire and such tender offer (as amended upon the expiration thereof) shall
involve the payment of aggregate consideration in an amount (determined as the
sum of the aggregate amount of cash consideration and the aggregate fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee thereof) of any other consideration) that,
together with the aggregate amount of (A) any cash and the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee) of any other consideration payable in respect
of any other tender offers by the Company or any Subsidiary of the Company for
Common Stock consummated within the 12 months preceding the date of the
Expiration Date (as defined below) and in respect of which no Conversion Price
adjustment pursuant to this Section 4.06 has been made and (B)


 


34

















 


all cash distributions to all or substantially all holders of its
Common Stock made within the 12 months preceding the Expiration Date and in
respect of which no Conversion Price adjustment pursuant to this Section 4.06
has been made, exceeds an amount equal to 10.0% of the product of the Current
Market Price per share of Common Stock (as determined in accordance with
subsection (d) of this Section 4.06) as of the last date (the “Expiration
Date”) tenders could have been made pursuant to such tender offer
(as it may be amended) (the last time at which such tenders could have been
made on the Expiration Date is hereinafter sometimes called the “Expiration
Time”) multiplied by the number of shares of Common Stock
outstanding (including tendered shares but excluding any shares held in the
treasury of the Company) at the Expiration Time, then, immediately prior to the
opening of business on the day after the Expiration Date, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close of
business on the Expiration Date by a fraction of which the numerator shall be the
product of the number of shares of Common Stock outstanding (including tendered
shares but excluding any shares held in the treasury of the Company) at the
Expiration Time multiplied by the Current Market Price per share of the Common
Stock (as determined in accordance with subsection (d) of this Section 4.06) on
the Trading Day next succeeding the Expiration Date and the denominator shall
be the sum of (x) the aggregate consideration (determined as aforesaid) payable
to stockholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the “Purchased Shares”) and (y) the product of
the number of shares of Common Stock outstanding (less any Purchased Shares and
excluding any shares held in the treasury of the Company) at the Expiration
Time and the Current Market Price per share of Common Stock (as determined in
accordance with subsection (d) of this Section 4.06) on the Trading Day next
succeeding the Expiration Date, such reduction to become effective immediately
prior to the opening of business on the day following the Expiration Date.  In the event that the Company is obligated
to purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would have been in
effect based upon the number of shares actually purchased.  If the application of this Section
4.06(c)(2) to any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under this Section
4.06(c)(2).


 


(3)                                  For purposes of this
Section 4.06(c), the term “tender offer” shall mean and include both tender
offers and exchange offers, all references to “purchases” of shares in tender
offers (and all similar references) shall mean and include both the purchase of
shares in tender offers and the acquisition of shares


 


35

















 


pursuant to exchange offers, and all references to “tendered shares”
(and all similar references) shall mean and include shares tendered in both
tender offers and exchange offers.


 


(d)                       For
the purpose of any computation under subsections (b) and (c) of this Section
4.06, the current market price (the “Current Market Price”) per share of Common
Stock on any date shall be deemed to be the average of the daily closing prices
for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the
Determination Date or the Expiration Date, as the case may be, with respect to
distributions or tender offers under subsection (c) of this Section 4.06 or
(ii) the record date with respect to distributions, issuances or other events
requiring such computation under subsection (b) or (c) of this Section
4.06.  The closing price (the “Closing
Price”) per share of Common Stock for each day shall be the reported
last sales price or, in case no such reported sale takes place on such date,
the average of the reported closing bid and asked prices in either case on the
Nasdaq National Market (the “NNM”) or, if the Common Stock is not listed
or admitted to trading on the NNM, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on the NNM or any national securities exchange, the
reported last sales price of the Common Stock as quoted on NASDAQ or, in case
no reported sales takes place, the average of the closing bid and asked prices
as quoted on NASDAQ or any comparable system or, if the Common Stock is not
quoted on NASDAQ or any comparable system, the closing sales price or, in case
no reported sale takes place, the average of the closing bid and asked prices,
as furnished by any two members of the National Association of Securities
Dealers, Inc. selected from time to time by the Company for that purpose.  If no such prices are available, the Current
Market Price per share shall be the fair value of a share of Common Stock as
determined by the Board of Directors (which shall be evidenced by an Officers’
Certificate delivered to the Trustee).


 


(e)                        In
any case in which this Section 4.06 shall require that an adjustment be made
following a record date or a Determination Date or Expiration Date, as the case
may be, established for purposes of this Section 4.06, the Company may elect to
defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 4.09) issuing to the
Holder of any Security converted after such record date or Determination Date
or Expiration Date the shares of Common Stock and other Capital Stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other Capital Stock of the Company issuable upon such conversion only on
the basis of the Conversion Price prior to adjustment; and, in lieu of the
shares the issuance of which is so deferred, the Company shall issue or cause
its transfer agents to issue due bills or other appropriate evidence prepared
by the Company of the right to receive such shares.  If any distribution in respect of which an adjustment to the
Conversion Price is required to be made as of the record date or Determination
Date or Expiration Date therefor is not


 


36

















 


thereafter made or paid by the Company for any reason, the Conversion
Price shall be readjusted to the Conversion Price which would then be in effect
if such record date had not been fixed or such effective date or Determination
Date or Expiration Date had not occurred.


 


Section 4.07.  No Adjustment.  No adjustment in the Conversion Price shall be
required unless the adjustment would require an increase or decrease of at
least 1% in the Conversion Price as last adjusted; provided, however,
that any adjustments which by reason of this Section 4.07 are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.  All calculations under this
Article 4 shall be made to the nearest cent or to the nearest one-hundredth of
a share, as the case may be.


 


No adjustment need be made for issuances of
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest or for a change in the par value or a change to no par value of the
Common Stock.


 


To the extent that the Securities become
convertible into the right to receive cash, no adjustment need be made
thereafter as to the cash.  Interest
will not accrue on the cash.


 


Section 4.08.  Adjustment for Tax Purposes.  The Company shall be entitled to
make such reductions in the Conversion Price, in addition to those required by
Section 4.06, as it in its discretion shall determine to be advisable in order
that any stock dividends, subdivisions of shares, distributions of rights to
purchase stock or securities or distributions of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders shall
not be taxable.


 


Section 4.09.  Notice of Adjustment.  Whenever the Conversion Price or
conversion privilege is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment and file with the Trustee an
Officers’ Certificate briefly stating the facts requiring the adjustment and
the manner of computing it.  Unless and
until the Trustee shall receive an Officers’ Certificate setting forth an
adjustment of the Conversion Price, the Trustee may assume without inquiry that
the Conversion Price has not been adjusted and that the last Conversion Price
of which it has knowledge remains in effect.


 


Section 4.10.  Notice of Certain Transactions.


 


In the event that:


 


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


 


37

















 


(2)                                  the Company
consolidates or merges with, or transfers all or substantially all of its
property and assets to, another corporation and stockholders of the Company
must approve the transaction; or


 


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


 


the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be.  The Company shall mail the notice at least
ten days before such date.  Failure to
mail such notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 4.10.


 


Section 4.11.  Effect of Reclassification, Consolidation,
Merger or Sale on Conversion Privilege. 
If any of the following shall occur, namely:  (a) any reclassification or change of shares
of Common Stock issuable upon conversion of the Securities (other than a change
in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination, or any other change for
which an adjustment is provided in Section 4.06); (b) any consolidation or
merger or combination to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than 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) in, outstanding shares of Common Stock; or (c) any
sale or conveyance as an entirety or substantially as an entirety of the
property and assets of the Company, directly or indirectly, to any person, then
the Company, or such successor, purchasing or transferee corporation, as the
case may be, shall, as a condition precedent to such reclassification, change,
combination, consolidation, merger, sale or conveyance, execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each Security
then outstanding shall have the right to convert such Security into the kind
and amount of shares of stock and other securities and property (including
cash) receivable upon such reclassification, change, combination,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock deliverable upon conversion of such Security immediately prior
to such reclassification, change, combination, consolidation, merger, sale or
conveyance.  Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article 4.  If, in
the case of any such consolidation, merger, combination, sale or conveyance,
the stock or other securities and property (including cash) receivable
thereupon by a holder of Common Stock include shares of stock or other
securities and property of a person other than the successor, purchasing or
transferee corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the Holders of the


 


38

















 


Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. 
The provisions of this Section 4.11 shall similarly apply to successive
reclassifications, changes, combinations, consolidations, mergers, sales or
conveyances.


 


In the event the Company shall execute a
supplemental indenture pursuant to this Section 4.11, the Company shall
promptly file with the Trustee (x) an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or other securities or
property (including cash) receivable by Holders of the Securities upon the
conversion of their Securities after any such reclassification, change,
combination, consolidation, merger, sale or conveyance, any adjustment to be
made with respect thereto and that all conditions precedent have been complied
with and (y) an Opinion of Counsel that all conditions precedent have been
complied with, and shall promptly mail notice thereof to all Holders.


 


Section 4.12.  Trustee’s Disclaimer.  The Trustee shall have no duty to
determine when an adjustment under this Article 4 should be made, how it should
be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers’ Certificate including the Officers’
Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 4.09. 
The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall
not be responsible for the Company’s failure to comply with any provisions of
this Article 4.


 


The Trustee shall not be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture executed pursuant to Section 4.11, but may accept as
conclusive evidence of the correctness thereof, and shall be fully protected in
relying upon, the Officers’ Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 4.11.


 


Section 4.13.  Voluntary Reduction.  The Company from time to time may
reduce the Conversion Price by any amount for any period of time if the period
is at least 20 days and if the reduction is irrevocable during the period if
the Board of Directors determines that such reduction would be in the best
interest of the Company or to avoid or diminish income tax to holders of shares
of Common Stock in connection with a dividend or distribution of stock or
similar event, and the Company provides 15 days prior notice to the Trustee of
any reduction in the Conversion Price; provided, however, that in no event
may the Company reduce the Conversion Price to be less than the par value of a
share of Common Stock.


 


39

















 


ARTICLE 5


SUBORDINATION


 


Section 5.01.  Agreement of Subordination.  The Company covenants and agrees,
and each Holder of Securities issued hereunder by its acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 5; and each Person holding any Security, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees to be bound by such provisions.


 


The payment of the principal of, premium, if
any, and interest (including Additional Interest, if any) on all Securities
(including, but not limited to the Change in Control Purchase Price with
respect to the Securities subject to purchase in accordance with Article 3 as
provided in this Indenture) issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment
to the prior payment in full in cash or payment satisfactory to the holders of
Senior Indebtedness of all Senior Indebtedness, whether outstanding at the date
of this Indenture or thereafter incurred.


 


No provision of this Article 5 shall prevent
the occurrence of any default or Event of Default hereunder.


 


Section 5.02.  Payments to Holders.  No payment shall be made with
respect to the principal of, or premium, if any, or interest (including
Additional Interest, if any) on the Securities (including, but not limited to
the Change in Control Purchase Price with respect to the Securities subject to
purchase in accordance with Article 3 as provided in this Indenture), except
payments and distributions made by the Trustee as permitted by the first or
second paragraph of Section 5.05, if:


 


(i)                                     a default in the
payment of principal, premium, interest, rent or other obligations due on any
Designated Senior Indebtedness occurs and is continuing (or, in the case of
Designated Senior Indebtedness for which there is a period of grace, in the
event of such a default that continues beyond the period of grace, if any,
specified in the instrument or lease evidencing such Designated Senior
Indebtedness), unless and until such default shall have been cured or waived or
shall have ceased to exist; or


 


(ii)                                  a default, other than
a payment default, on a Designated Senior Indebtedness occurs and is continuing
that then permits holders of such Designated Senior Indebtedness to accelerate
its maturity and the Trustee receives a notice of the default (a “Payment
Blockage Notice”) from the Company, a Representative or holder of
Designated Senior Indebtedness or the Company.


 


40

















 


Subject to the provisions of Section 5.05, if
the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above,
no subsequent Payment Blockage Notice shall be effective for purposes of this
Section unless and until at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice.  No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee (unless such default was waived, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Payment Blockage Notice.


 


The Company may and shall resume payments on
and distributions in respect of the Securities upon the earlier of:


 


(a)                                  in the case of a
default referred to in clause (i) above, the date upon which the default is
cured or waived or ceases to exist, or


 


(b)                                 in the case of a
default referred to in clause (ii) above, 
the earlier of the date on which such default is cured or waived or
ceases to exist or 179 days pass after the date on which the applicable Payment
Blockage Notice is received, if the maturity of such Designated Senior
Indebtedness has not been accelerated, unless this Article 5 otherwise prohibits
the payment or distribution at the time of such payment or distribution.


 


Upon any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company (whether voluntary or
involuntary) or in bankruptcy, insolvency, receivership or similar proceedings,
all amounts due or to become due upon all Senior Indebtedness shall first be
paid in full in cash, or other payments satisfactory to the holders of Senior
Indebtedness before any payment is made on account of the principal of,
premium, if any, or interest (including Additional Interest, if any) on the
Securities (except payments made pursuant to Article 10 from monies deposited
with the Trustee pursuant thereto prior to commencement of proceedings for such
dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization of the Company or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provision of this Article 5,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, or as otherwise required by law or
a court


 


41

















 


order) or their Representative or Representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full in cash,
or other payment satisfactory to the holders of Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution is made to the
Holders of the Securities or to the Trustee.


 


For purposes of this Article 5, the words,
“cash, property or securities” shall not be deemed to include shares of stock
of the Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent provided in this
Article 5 with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the Senior
Indebtedness is assumed by the new corporation, if any, resulting from any
reorganization or readjustment, and (ii) the rights of the holders of Senior
Indebtedness (other than leases which are not assumed by the Company or the new
corporation, as the case may be) are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance, transfer or
lease of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided for in Article 7 shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 5.02 if such other corporation shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions stated in Article 7.


 


In the event of the acceleration of the
Securities because of an Event of Default, no payment or distribution shall be
made to the Trustee or any Holder of Securities in respect of the principal of,
premium, if any, or interest (including Additional Interest, if any) on the
Securities by the Company (including, but not limited to the Change in Control
Purchase Price with respect to the Securities subject to purchase in accordance
with Article 3 as provided in this Indenture), except payments and
distributions made by the Trustee as permitted by Section 5.05, until all
Senior Indebtedness has been paid in full in cash or other payment satisfactory
to the holders of Senior Indebtedness or such acceleration is rescinded in
accordance with the terms of this Indenture. If payment of the Securities is
accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of such acceleration.


 


In the event that, notwithstanding the
foregoing provisions, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or


 


42

















 


otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their Representative or Representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full, in cash or other payment satisfactory to the holders of
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.


 


Nothing in this Section 5.02 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.07.  This Section 5.02 shall be subject to the
further provisions of Section 5.05.


 


Section 5.03.  Subrogation of Securities.  Subject to the payment in full,
in cash or other payment satisfactory to the holders of Senior Indebtedness, of
all Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Indebtedness pursuant to the provisions of this Article 5
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal, premium, if any, and interest (including Additional Interest, if
any) on the Securities shall be paid in full in cash or other payment satisfactory
to the holders of Senior Indebtedness; and, for the purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 5, and no payment pursuant to the provisions of this Article 5, to or
for the benefit of the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the Holders of the Securities pursuant to the
subrogation provisions of this Article 5, which would otherwise have been paid
to the holders of Senior Indebtedness shall be deemed to be a payment by the
Company to or for the account of the


 


43

















 


Securities. It is understood that the provisions of this Article 5 are
and are intended solely for the purposes of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.


 


Nothing contained in this Article 5 or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article 5 of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy.


 


Upon any payment or distribution of assets of
the Company referred to in this Article 5, the Trustee, subject to the
provisions of Section 9.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which such bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Securities, for the purpose
of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon and all other facts pertinent thereto or to
this Article 5.


 


Section 5.04.  Authorization to Effect Subordination.  Each Holder of a Security by the
Holder’s acceptance thereof authorizes and directs the Trustee on the Holder’s
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 5 and appoints the Trustee to act as
the Holder’s attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required in
any proceeding referred to in Section 5.03 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior
Indebtedness or their Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.


 


Section 5.05.  Notice to Trustee.  The Company shall give prompt written notice in the
form of an Officers’ Certificate to a Trust Officer of the Trustee and


 


44

















 


to any Paying Agent of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee or any Paying
Agent in respect of the Securities pursuant to the provisions of this Article
5.  Notwithstanding the provisions of
this Article 5 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 5, unless and until a
Trust Officer of the Trustee shall have received written notice thereof at the
Corporate Trust Office from the Company (in the form of an Officers’
Certificate) or a Representative or a holder or holders of Senior Indebtedness
(or a trustee on behalf of such holder or holders); and before the receipt of
any such written notice, the Trustee, subject to the provisions of Section
9.01, shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not less than one Business Day prior to the date
upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of, or
premium, if any, or interest on any Security) the Trustee shall not have
received, with respect to such monies, the notice provided for in this Section
5.05, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such
prior date. Notwithstanding anything in this Article 5 to the contrary, nothing
shall prevent any payment by the Trustee to the Holders of monies deposited
with it pursuant to Article 10, and any such payment shall not be subject to
the provisions of Article 5.


 


The Trustee, subject to the provisions of
Section 9.01, shall be entitled to rely on the delivery to it of a written
notice by a Representative or a person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a Representative or a holder of Senior
Indebtedness (or a trustee on behalf of any such holder or holders). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 5, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 5, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.


 


Section 5.06.  Trustee’s Relation to Senior
Indebtedness.  The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article 5 in respect of any Senior Indebtedness at any time held by it, to the
same extent as


 


45

















 


any other holder of Senior Indebtedness, and nothing in Section 9.11 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder.


 


With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article 5, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 9.01, the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Company or any other person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article 5 or otherwise.


 


Section 5.07.  No Impairment of Subordination.  No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.


 


Section 5.08.  Certain Conversions Deemed Payment.  For the purposes of this Article
5 only, (1) the issuance and delivery of junior securities upon conversion of
Securities in accordance with Article 4 shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or
interest on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 4.03), property or
securities (other than junior securities) upon conversion of a Security shall be
deemed to constitute payment on account of the principal of such Security. For
the purposes of this Section 5.08, the term “junior securities” means (a)
shares of any stock of any class of the Company, or (b) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. Nothing contained
in this Article 5 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in
accordance with Article 4.


 


Section 5.09.  Article Applicable to Paying Agents.  If at any time any Paying Agent
other than the Trustee shall have been appointed by the Company and be then
acting hereunder, the term “Trustee” as used in this Article shall


 


46

















 


(unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or
in place of the Trustee; provided, however, that the first
paragraph of Section 5.05 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.


 


Section 5.10.  Senior Indebtedness Entitled to Rely.  The holders of Senior
Indebtedness (including, without limitation, Designated Senior Indebtedness)
shall have the right to rely upon this Article 5, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.


 


ARTICLE 6


COVENANTS


 


Section 6.01.  Payment of Securities.  The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities and this Indenture. 
An installment of principal or interest or Additional Interest, if any,
shall be considered paid on the date it is due if the Paying Agent (other than
the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof, sufficient to pay the
installment.  The Company shall, (in
immediately available funds) to the fullest extent permitted by law, pay
interest on overdue principal (including premium, if any) and overdue
installments of interest at the rate borne by the Securities per annum.


 


Payment of the principal of (and premium, if
any) and any interest on the Securities shall be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The
City of New York or at the Corporate Trust Office of the Trustee in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address appears in
the Register; provided further that a Holder with an aggregate principal
amount in excess of $2,000,000 will be paid by wire transfer in immediately
available funds at the election of such Holder if such Holder has provided wire
transfer instructions to the Company at least 10 Business Days prior to the
payment date.


 


Section 6.02.  SEC Reports.  The Company shall file all reports and other
information and documents which it is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act, and within 30 days after it files them


 


47

















 


with the SEC, the Company shall file copies of all such reports,
information and other documents with the Trustee.


 


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 Officers’ Certificates).


 


Section 6.03.  Compliance Certificates.  The Company shall deliver to the
Trustee, within 90 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending June 30, 2003), an Officers’
Certificate as to the signer’s knowledge of the Company’s compliance with all
conditions and covenants on its part contained in this Indenture and stating
whether or not the signers know of any default or Event of Default.  If such signers know of such a default or
Event of Default, the Officers’ Certificate shall describe the default or Event
of Default and the efforts to remedy the same. 
For the purposes of this Section 6.03, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant
to the terms of this Indenture.


 


Section 6.04.  Further Instruments and Acts.  Upon request of the Trustee, the
Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.


 


Section 6.05.  Maintenance of Corporate Existence.  Subject to Article 7, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.


 


Section 6.06.  Rule 144A Information Requirement.  Within the period prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision), the Company covenants
and agrees that it shall, during any period in which it is not subject to
Section 13 or 15(d) under the Exchange Act, upon the request of any Holder or
beneficial holder of the Securities make available to such Holder or beneficial
holder of Securities or any Common Stock issued upon conversion thereof which
continue to be Restricted Securities in connection with any sale thereof and
any prospective purchaser of Securities or such Common Stock designated by such
Holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act or such Common Stock and it will take such
further action as any Holder or beneficial holder of such Securities or such
Common Stock may reasonably request, all to the extent required from time to
time to enable such Holder or beneficial holder to sell its Securities or
Common Stock without registration under the Securities Act within the
limitation of the


 


48

















 


exemption provided by Rule 144A, as such Rule may be amended from time
to time.  Upon the request of any Holder
or any beneficial holder of the Securities or such Common Stock, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.


 


Section 6.07.  Stay, Extension and Usury Laws.  The Company covenants (to the
extent that it may lawfully do so) that it shall 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 or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of, premium, if
any, or interest (including Additional Interest, if any) on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


Section 6.08.  Payment of Additional Interest.  If Additional Interest is payable
by the Company pursuant to the Registration Rights Agreement, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable.  Unless
and until a Trust Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no such Additional Interest is
payable.  If the Company has paid
Additional Interest directly to the Persons entitled to it, the Company shall
deliver to the Trustee a certificate setting forth the particulars of such
payment.


 


ARTICLE 7


CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 7.01.  Company May Consolidate, Etc, only on
Certain Terms.  The Company
shall not consolidate with or merge into any other Person (in a transaction in
which the Company is not the surviving corporation) or convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
unless:


 


(1)                                  in case the Company
shall consolidate with or merge into another Person (in a transaction in which
the Company is not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall


 


49

















 


be a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed and the conversion rights shall be
provided for in accordance with Article 4, by supplemental indenture reasonably
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Person (if other than the Company) formed by such consolidation or into
which the Company shall have been merged or by the Person which shall have
acquired the Company’s assets;


 


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


 


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


 


Section 7.02.  Successor Substituted.  Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 7.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 8


DEFAULT AND
REMEDIES


 


Section 8.01.  Events of Default.  An “Event of Default” shall occur if:


 


(1)                                  the Company defaults
in the payment of any interest or Additional Interest, if any, payable to all
holders of Transfer Restricted Securities (as defined in the Registration
Rights Agreement) on any Security when the same becomes


 


50

















 


due and payable and the default continues for a period of 30 days,
whether or not such payment shall be prohibited by the provisions of Article 5
hereof;


 


(2)                                  the Company defaults
in the payment of any principal of (including, without limitation, any premium,
if any, on) any Security when the same becomes due and payable (whether at
maturity, on a Change of Control Purchase Date or otherwise), whether or not
such payment shall be prohibited by the provisions of Article 5 hereof;


 


(3)                                  the Company fails to
comply with any of its other covenants contained in the Securities or this
Indenture and the default continues and is not cured or waived for the period
and after the notice specified below;


 


(4)                                  the Company defaults
in the payment of the purchase price of any Security when the same becomes due
and payable, whether or not such payment shall be prohibited by the provisions
of Article 5 hereof; or


 


(5)                                  the Company fails to
provide a Change in Control Purchase Notice when required by Section 3.02; or


 


(6)                                  any indebtedness
under any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or any Significant Subsidiary (all or substantially all
of the outstanding voting securities of which are owned, directly or
indirectly, by the Company) or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness for money borrowed by the Company or any Significant
Subsidiary (all or substantially all of the outstanding voting securities of
which are owned, directly or indirectly, by the Company) (an “Instrument”)
with a principal amount then outstanding in excess of U.S. $15,000,000, whether
such indebtedness now exists or shall hereafter be created, is not paid at
final maturity of the Instrument (either at its stated maturity or upon
acceleration thereof), and such indebtedness is not discharged, or such
acceleration is not rescinded or annulled, within a period of 30 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Securities a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such default to be cured or waived or such acceleration
to be rescinded or annulled and stating that such notice is a “Notice of
Default” hereunder; or


 


(7)                                  the Company or any
Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy
Law:


 


(A)                      commences a voluntary case or
proceeding;


 


51

















 


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


 


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


 


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


 


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


 


(A)                      is for relief against the Company
or any Significant Subsidiary in an involuntary case or proceeding;


 


(B)                        appoints a Custodian of the
Company or any Significant Subsidiary or for all or substantially all of the
property of the Company or any Significant Subsidiary; or


 


(C)                        orders the liquidation of the
Company or any Significant Subsidiary;


 


and in each case the order or decree remains unstayed and in effect for
60 consecutive days.


 


The term “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. 
The term “Custodian” means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.


 


A default under clause (3) above is not an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding
notify the Company and the Trustee, in writing, of the default, and the Company
does not cure the default within 60 days after receipt of such notice. The
notice given pursuant to this Section 8.01 must specify the default, demand
that it be remedied and state that the notice is a “Notice of Default.”  When any default under this Section 8.01 is
cured, it ceases.


 


The Trustee shall not be charged with
knowledge of any Event of Default unless written notice thereof shall have been
given to a Trust Officer at the Corporate Trust Office of the Trustee by the
Company, a Paying Agent, any Holder or any agent of any Holder.


 


Section 8.02.  Acceleration.  If an Event of Default (other than an Event of Default
specified in clause (7) or (8) of Section 8.01) occurs and is continuing, the


 


52

















 


Trustee may, by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding may, by notice
to the Company and the Trustee, declare all unpaid principal of the Securities
outstanding on the date of acceleration (if not then due and payable) to be due
and payable upon any such declaration, and the same shall become and be
immediately due and payable.  If an
Event of Default specified in clause (7) or (8) of Section 8.01 occurs, all
unpaid principal of the Securities then outstanding shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.  The
Holders of a majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee and the Company may rescind an
acceleration and its consequences if (a) all existing Events of Default, other
than the nonpayment of the principal of the Securities which has become due
solely by such declaration of acceleration, have been cured or waived; (b) to
the extent the payment of such interest is lawful, interest (calculated at the
rate per annum borne by the Securities) on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid or deposited with the Trustee; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 9.07 have been made. 
No such rescission shall affect any subsequent default or impair any
right consequent thereto.


 


Section 8.03.  Other Remedies.  If an Event of Default occurs and is continuing, the
Trustee may, but shall not be obligated to, pursue any available remedy by
proceeding at law or in equity to collect the payment of the principal of or
interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.


 


The Trustee may maintain a proceeding even if
it does not possess any of the Securities or does not produce any of them in
the proceeding.  A delay or omission by
the Trustee or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other remedy.  All available remedies are cumulative to the
extent permitted by law.


 


Section 8.04.  Waiver of Defaults and Events of
Default.  Subject to Section
8.07 and 11.02, the Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may waive an existing
default or Event of Default and its consequence, except a default or Event of
Default in the payment of the principal of, premium, if any, or interest on any
Security, a failure by the Company to convert any Securities into Common Stock
or any default or Event of Default in respect of any provision of this
Indenture or the Securities which, under Section 11.02, cannot be modified or
amended


 


53

















 


without the consent of the Holder of each Security affected.  When a default or Event of Default is
waived, it is cured and ceases.


 


Section 8.05.  Control by Majority.  The Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder or the
Trustee, or that may involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it; provided, however,
that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.


 


Section 8.06.  Limitations on Suits.  A Holder may not pursue any
remedy with respect to this Indenture or the Securities (except actions for
payment of overdue principal or interest or for the conversion of the
Securities pursuant to Article 4) unless:


 


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


 


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


 


(3)                                  such Holder or
Holders offer to the Trustee reasonable indemnity to the Trustee against any
loss, liability or expense;


 


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


 


(5)                                  no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in aggregate principal amount
of the Securities then outstanding.


 


A Securityholder may not use this Indenture
to prejudice the rights of another Securityholder or to obtain a preference or
priority over such other Securityholder.


 


Section 8.07.  Rights of Holders to Receive Payment and to
Convert.  Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal of and interest on the Security, on or after
the respective due dates expressed in the Security and this Indenture, to
convert such Security in accordance with Article 4 and to bring suit for the


 


54

















 


enforcement of any such payment on or after such respective dates or
the right to convert, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.


 


Section 8.08.  Collection Suit by Trustee.  If an Event of Default in the
payment of principal or interest specified in clause (1) or (2) of Section 8.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with, to the extent that payment of such interest is lawful,
interest on overdue principal and on overdue installments of interest, in each
case at the rate per annum borne by the Securities and such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


Section 8.09.  Trustee May File Proofs of Claim.  The Trustee may file such proofs
of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 9.07, and to
the extent that such payment of the reasonable compensation, expenses,
disbursements and advances in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to, or, on
behalf of any Holder, to authorize, accept or adopt any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 8.10.  Priorities. 
If the Trustee collects any money pursuant to this Article 8,
it shall pay out the money in the following order:


 


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First, to the Trustee for amounts due under
Section 9.07;


 


Second, to the holders of Senior Indebtedness
to the extent required by Article 5;


 


Third, to Holders for amounts due and unpaid
on the Securities for principal and interest (including Additional Interest, if
any), ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and interest (including
Additional Interest, if any), respectively; and


 


Fourth, the balance, if any, to the Company.


 


The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 8.10.


 


Section 8.11.  Undertaking for Costs.  In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. 
This Section 8.11 does not apply to a suit made by the Trustee, a suit
by a Holder pursuant to Section 8.07, or a suit by Holders of more than 10% in
aggregate principal amount of the Securities then outstanding.


 


ARTICLE 9


TRUSTEE


 


Section 9.01.  Duties of Trustee.  (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.


 


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


 


(1)                                  the
Trustee need perform only those duties as are specifically set forth in this
Indenture and no others; and


 


(2)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee


 


56

















 


and conforming to the requirements of this Indenture.  The Trustee, however, shall examine any
certificates and opinions which by any provision hereof are specifically
required to be delivered to the Trustee to determine whether or not they conform
to the requirements of this Indenture.


 


(c)                                  The Trustee may not
be relieved from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:


 


(1)                                  this
paragraph does not limit the effect of subsection (b) of this Section 9.01;


 


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


 


(3)                                  the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 8.05.


 


(d)                                 No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers unless the Trustee
shall have received adequate indemnity in its reasonable opinion against
potential costs and liabilities incurred by it relating thereto.


 


(e)                                  Every provision of
this Indenture that in any way relates to the Trustee is subject to subsections
(a), (b), (c) and (d) of this Section 9.01.


 


(f)                                    The Trustee shall
not be liable for interest on any money received by it except as the Trustee
may agree in writing with the Company. 
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.


 


Section 9.02.  Rights of Trustee.  Subject to Section 9.01:


 


(a)                                  The Trustee may rely
conclusively on any document reasonably 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.


 


(b)                                 Before the Trustee
acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel, which shall conform to Section 12.04(b).  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.


 


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


 


(d)                                 The Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers under the Indenture.


 


(e)                                  The Trustee may
consult with counsel of its selection, and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization and
protection in respect of any such action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.


 


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


 


(g)                                 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.


 


(h)                                 The Trustee shall not
be deemed to have notice of any Default or Event of Default unless a Trust
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Securities, this
Indenture, and that of an Event of Default has occurred.


 


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


 


Section 9.03.  Individual Rights of Trustee.  The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or an Affiliate of the Company with the same


 


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rights it would have if it were not Trustee.  Any Agent may do the same with like rights.  However, the Trustee is subject to Sections
9.10 and 9.11.


 


Section 9.04.  Trustee’s Disclaimer.  The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication.


 


Section 9.05.  Notice of Default or Events of Default.  If a default or an Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Securityholder notice of the default or Event of Default
within 90 days after receiving notice thereof. 
However, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding
notice is in the interests of Securityholders, except in the case of a default
or an Event of Default in payment of the principal of or interest on any
Security.


 


Section 9.06.  Reports by Trustee to Holders.  If such report is required by TIA
Section 313, within 60 days after each June 15, beginning with the
June 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such June 15 that complies
with TIA Section 313(a).  The Trustee
also shall comply with TIA Section 313(b)(2) and (c).


 


A copy of each report at the time of its
mailing to Securityholders shall be mailed to the Company and filed with the
SEC and each stock exchange, if any, on which the Securities are listed.  The Company shall notify the Trustee
whenever the Securities become listed on any stock exchange or listed or
admitted to trading on any quotation system and any changes in the stock
exchanges or quotation systems on which the Securities are listed or admitted
to trading and of any delisting thereof.


 


Section 9.07.  Compensation and Indemnity.  The Company shall pay to the
Trustee from time to time such compensation (as agreed to from time to time by
the Company and the Trustee in writing) for its services (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust).  The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in accordance with
the Indenture.  Such expenses may
include the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.


 


The Company shall indemnify the Trustee or
any predecessor Trustee (which for purposes of this Section 9.07 shall include
its officers, directors, employees and agents) for, and hold it harmless against,
any and all loss, liability or expense including taxes (other than taxes based
upon, measured by or


 


59

















 


determined by the income of the Trustee), (including reasonable legal
fees and expenses) incurred by it in connection with the acceptance or
administration of its duties under this Indenture or any action or failure to
act as authorized or within the discretion or rights or powers conferred upon
the Trustee hereunder including the reasonable costs and expenses of the
Trustee and its counsel in defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.  The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may
seek indemnity.  The Company need not
pay for any settlement without its written consent, which shall not be
unreasonably withheld.


 


The Company need not reimburse the Trustee
for any expense or indemnify it against any loss or liability incurred by it
resulting from its gross negligence, willful misconduct, recklessness or bad
faith.


 


To secure the Company’s payment obligations
in this Section 9.07, the Trustee shall have a senior claim to which the
Securities are hereby made subordinate on all money or property held or
collected by the Trustee, except such money or property held in trust to pay
the principal of and interest on the Securities.  The obligations of the Company under this Section 9.07 shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee.


 


When the Trustee incurs expenses or renders
services after an Event of Default specified in clause (7) or (8) of Section
8.01 occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law. The provisions
of this Section shall survive the termination of this Indenture.


 


Section 9.08.  Replacement of Trustee.  The Trustee may resign by so
notifying the Company.  The Holders of a
majority in aggregate principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and may, with the Company’s
written consent, appoint a successor Trustee. 
The Company may remove the Trustee if:


 


(1)                                  the
Trustee fails to comply with Section 9.10;


 


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


 


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


 


(4)                                  the
Trustee becomes incapable of acting.


 


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If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. 
The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its
appointment as described below.


 


If a successor Trustee does not take office
within 45 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of 10% in principal amount of the
Securities then outstanding may petition any court of competent jurisdiction
for the appointment of a successor Trustee at the expense of the Company.


 


If the Trustee fails to comply with Section
9.10, the Company may remove the Trustee and any Holder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.


 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.  Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee and
be released from its obligations (exclusive of any liabilities that the
retiring Trustee may have incurred while acting as Trustee) hereunder, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture.  A successor Trustee
shall mail notice of its succession to each Holder.


 


A retiring Trustee shall not be liable for
the acts or omissions of any successor Trustee after its succession.


 


Notwithstanding replacement of the Trustee
pursuant to this Section 9.08, the Company’s obligations under Section 9.07
shall continue for the benefit of the retiring Trustee.


 


Section 9.09.  Successor Trustee by Merger, Etc.  If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate
trust assets (including the administration of this Indenture) to, another
corporation, the resulting, surviving or transferee corporation, without any
further act, shall be the successor Trustee, provided such transferee
corporation shall qualify and be eligible under Section 9.10.  Such successor Trustee shall promptly mail
notice of its succession to the Company and each Holder.


 


Section 9.10.  Eligibility; Disqualification.  The Trustee shall always satisfy
the requirements of paragraphs (1), (2) and (5) of TIA Section 310(a).  The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000.  If at any time the Trustee shall cease to
satisfy any such requirements, it shall resign immediately in the manner and
with the effect


 


61

















 


specified in this Article 9. 
The Trustee shall be subject to the provisions of TIA Section
310(b).  Nothing herein shall prevent
the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).


 


Section 9.11.  Preferential Collection of Claims against
Company.  The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b).  A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.


 


ARTICLE 10


SATISFACTION
AND DISCHARGE OF INDENTURE


 


Section 10.01.  Satisfaction and Discharge of
Indenture.  This Indenture
shall cease to be of further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein expressly
provided for and except as further provided below), and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when


 


(1)                                  either


 


(A)                              all Securities
theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07 and (ii) Securities for whose payment money has theretofore
been deposited in trust and thereafter repaid to the Company as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or


 


(B)                                all such Securities not
theretofore delivered to the Trustee for cancellation


 


(i)                                     have become due
and payable, or


 


(ii)                                  will become due and
payable at the Final Maturity Date within one year,


 


and the Company, in the case of clause (i) or (ii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee or a Paying
Agent (other than the Company or any of its Affiliates) as trust funds in trust
for the purpose cash in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest (including Additional Interest, if
any) to the date of such deposit (in the case of Securities which have become
due and payable) or to the Final Maturity Date, as the case may be;


 


62

















 


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


 


(2)                                  the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.


 


Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee
under Section 9.07 shall survive and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 3.02, 3.03, 3.04,
3.05, 3.06, 3.07, and 12.05, Article 4, the last paragraph of Section 6.02 and
this Article 10, shall survive until the Securities have been paid in full.


 


Section 10.02.  Application of Trust Money.  Subject to the provisions of
Section 10.03, the Trustee or a Paying Agent shall hold in trust, for the
benefit of the Holders, all money deposited with it pursuant to Section 10.01
and shall apply the deposited money in accordance with this Indenture and the
Securities to the payment of the principal of and interest on the
Securities.  Money so held in trust
shall not be subject to the subordination provisions of Article 5.


 


Section 10.03.  Repayment to Company.  The Trustee and each Paying Agent
shall promptly pay to the Company upon request any excess money (i) deposited
with them pursuant to Section 10.01 and (ii) held by them at any time.


 


The Trustee and each Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal
or interest that remains unclaimed for two years after a right to such money
has matured; provided, however, that the Trustee or such Paying
Agent, before being required to make any such payment, may at the expense of
the Company cause to be mailed to each Holder entitled to such money notice
that such money remains unclaimed and that after a date specified therein,
which shall be at least 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.  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 10.04.  Reinstatement.  If the Trustee or any Paying Agent is unable to apply
any money in accordance with Section 10.02 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred


 


63

















 


pursuant to Section 10.01 until such time as the Trustee or such Paying
Agent is permitted to apply all such money in accordance with Section 10.02; provided,
however,
that if the Company has made any payment of the principal of or interest on any
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive any
such payment from the money held by the Trustee or such Paying Agent.


 


ARTICLE 11


AMENDMENTS,
SUPPLEMENTS AND WAIVERS


 


Section 11.01.  Without Consent of Holders.  The Company and the Trustee may
amend or supplement this Indenture or the Securities without notice to or
consent of any Securityholder:


 


(a)                        to comply
with Section 4.11 and 7.01;


 


(b)                       to cure any
ambiguity, defect or inconsistency;


 


(c)                        to make
any other change that does not adversely affect the rights of any
Securityholder;


 


(d)                       to comply
with the provisions of the TIA;


 


(e)                        to add to
the covenants of the Company for the equal and ratable benefit of the
Securityholders or to surrender any right, power or option conferred upon the
Company; or


 


(f)                          to
appoint a successor Trustee.


 


Section 11.02.  With Consent of Holders.  The Company and the Trustee may
amend, modify or supplement this Indenture or the Securities with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding.  The
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Securities without notice to any
Securityholder.  However,
notwithstanding the foregoing but subject to Section 11.04, without the written
consent of each Securityholder affected, an amendment, supplement, modification
or waiver, including a waiver pursuant to Section 8.04, may not:


 


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


 


64

















 


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


 


(c)                        reduce the
amount of principal payable upon acceleration of the maturity of any Security;


 


(d)                       change the
place or currency of payment of principal of, or any premium or interest on,
any Security;


 


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


 


(f)                          modify
the provisions with respect to the purchase right of Holders pursuant to
Article 3 upon a Change in Control in a manner adverse to Holders;


 


(g)                       modify the
subordination provisions of Article 5 in a manner materially adverse to the Holders
of Securities;


 


(h)                       adversely
affect the right of Holders to convert Securities other than as provided in or
under Article 4 of this Indenture;


 


(i)                           reduce
the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a modification or amendment;


 


(j)                           reduce
the percentage of the aggregate principal amount of the outstanding Securities
necessary for the waiver of compliance with certain provisions of this
Indenture or the waiver of certain defaults under this Indenture; and


 


(k)                        modify any
of the provisions of this Section or Section 8.04, except to increase any such
percentage or to provide that certain provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each outstanding
Security affected thereby.


 


It shall not be necessary for the consent of
the Holders under this Section 11.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.


 


After an amendment, supplement or waiver
under this Section 11.02 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver.  Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amendment, supplement or waiver. An
amendment or supplement under this Section 11.02 or under Section 11.01 may not
make any change that adversely affects the rights under Article 5 of any


 


65

















 


holder of an issue of Senior Indebtedness unless the holders of that
issue, pursuant to its terms, consent to the change.


 


Section 11.03.  Compliance with Trust Indenture Act.  Every amendment to or supplement
of this Indenture or the Securities shall comply with the TIA as in effect at
the date of such amendment or supplement.


 


Section 11.04.  Revocation and Effect of Consents.  Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even
if notation of the consent is not made on any Security.  However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of a Security if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.


 


After an amendment, supplement or waiver
becomes effective, it shall bind every Securityholder, unless it makes a change
described in any of clauses (a) through (k) of Section 11.02.  In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder’s Security.


 


Section 11.05.  Notation on or Exchange of Securities.  If an amendment, supplement or
waiver changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. 
The Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms.


 


Section 11.06.  Trustee to Sign Amendments, Etc.  The Trustee shall sign any
amendment or supplemental indenture authorized pursuant to this Article 11 if
the amendment or supplemental indenture does not adversely affect the rights,
duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, in its sole discretion, but need not
sign it.  In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive and, subject to Section 9.01, shall be fully protected in relying upon,
an Opinion of Counsel stating that such amendment or supplemental indenture is
authorized or permitted by this Indenture. 
The Company may not sign an amendment or supplement indenture until the
Board of Directors approves it.


 


Section 11.07.  Effect of Supplemental Indentures.  Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this


 


66

















 


Indenture for all purposes; and every Holder of Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.


 


ARTICLE 12


MISCELLANEOUS


 


Section 12.01.  Trust Indenture Act Controls.  If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the TIA through operation of Section
318(c) thereof, such imposed duties shall control.


 


Section 12.02.  Notices. 
Any demand, authorization notice, request, consent or communication
shall be given in writing and delivered in person or mailed by first-class
mail, postage prepaid, addressed as follows or transmitted by facsimile
transmission (confirmed by delivery in person or mail by first-class mail,
postage prepaid, or by guaranteed overnight courier) to the following facsimile
numbers:


 


If to the Company, to:


 


DuPont Photomasks, Inc.


131 Old Settlers Boulevard


Round Rock, Texas  78664


Attention: General Counsel


Facsimile No.:  (512) 310-6544


 


If to the Trustee, to:


 


JPMorgan Chase Bank


600 Travis, Suite 1150


Houston, Texas  77002


Attn:  Corporate Trust
Department (DuPont Photomasks, Inc. —

1.25% Convertible Subordinated Notes Due May 15, 2008)


Facsimile No.:  (713) 577-5200


 


Such notices or communications shall be
effective when received.


 


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


 


Any notice or communication mailed to a
Securityholder shall be mailed by first-class mail or delivered by an overnight
delivery service to it at its address shown on the register kept by the Primary
Registrar.


 


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Failure to mail a notice or communication to
a Securityholder or any defect in it shall not affect its sufficiency with
respect to other Securityholders.  If a
notice or communication to a Securityholder is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.


 


Section 12.03.  Communications by Holders with Other
Holders.  Securityholders may
communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar and
any other person shall have the protection of TIA Section 312(c).


 


Section 12.04.  Certificate and Opinion as to Conditions
Precedent.  (a) Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of the
Trustee:


 


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


 


(2)                                  an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent
(including any covenants, compliance with which constitutes a condition
precedent) have been complied with; provided however, that such Officers’
Certificate and Opinion of Counsel shall not be required in connection with the
initial issuance of Securities hereunder.


 


(b)                                 Each Officers’
Certificate and Opinion of Counsel with respect to compliance with a condition
or covenant provided for in this Indenture shall include:


 


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


 


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


 


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


 


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


 


68

















 


provided however,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.


 


Section 12.05.  Record Date for Vote, Waiver or Consent of
Securityholders.  The Company
(or, in the event deposits have been made pursuant to Section 10.01, the
Trustee) may set a record date for purposes of determining the identity of
Holders entitled to vote, waive or consent to any action by vote, waiver or
consent authorized or permitted under this Indenture, which record date shall
not be more than thirty (30) days prior to the date of the commencement of
solicitation of such action. 
Notwithstanding the provisions of Section 11.04, if a record date is fixed,
those persons who were Holders of Securities at the close of business on such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.


 


Section 12.06.  Rules by Trustee, Paying Agent, Registrar
and Conversion Agent.  The
Trustee may make reasonable rules (not inconsistent with the terms of this
Indenture) for action by or at a meeting of Holders.  Any Registrar, Paying Agent or Conversion Agent may make
reasonable rules for its functions.


 


Section 12.07.  Legal Holidays.  A “Legal Holiday” is a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York and the state in which the Corporate Trust Office is located are not
required to be open.  If a payment date
is a Legal Holiday, payment shall be made on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period.  If a regular record date is a
Legal Holiday, the record date shall not be affected.


 


Section 12.08.  Governing Law.  This Indenture and the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.


 


Section 12.09.  No Adverse Interpretation of Other
Agreements.  This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. 
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.


 


Section 12.10.  No Recourse against Others.  All liability described in
paragraph 15 of the Securities of any director, officer, employee or
stockholder, as such, of the Company is waived and released.


 


Section 12.11.  Successors. 
All agreements of the Company in this Indenture and the
Securities shall bind its successor. 
All agreements of the Trustee in this Indenture shall bind its
successor.


 


69

















 


Section 12.12.  Multiple Counterparts.  The parties may sign multiple
counterparts of this Indenture.  Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.


 


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


 


Section 12.14.  Table of Contents, Headings, Etc.  The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


[SIGNATURE PAGE FOLLOWS]


 


70

















 


 


IN WITNESS WHEREOF, the parties hereto have
hereunto set their hands as of the date and year first above written.


 


	
   

  	
  DuPont Photomasks, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Peter S. Kirlin

  
	
   

  	
   

  	
  Name:

  	
  Peter S. Kirlin

  
	
   

  	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  



 


	
   

  	
  JPMorgan Chase Bank, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Carol Logan

  
	
   

  	
   

  	
  Name:

  	
  Carol Logan

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Trust Officer

  



 


71

















 


EXHIBIT A


 


[FORM OF FACE OF SECURITY]


 


[THIS SECURITY IS A REGULATION S GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.  EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 2.12(b) OF THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN
THIS REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE
RESTRICTED GLOBAL SECURITY DURING THE RESTRICTED PERIOD.](1)


 


[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.  THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.](2)


 












(1)           These paragraphs should be included only if
the Security is a Regulation S Global Security.


(2)           These paragraphs should be included only if
the Security is a global Security.


 


A-1

















 


THIS SECURITY (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS SECURITY AND THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM.  EACH PURCHASER OF
THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A OR REGULATION S THEREUNDER.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.  IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE
SECURITIES EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.


 


[THE HOLDER OF THIS SECURITY IS ENTITLED TO
THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF,
AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION
RIGHTS AGREEMENT.](3)


 












(3)           These paragraphs to be included only if the
Security is a Transfer Restricted Security (as defined in the Registration
Rights Agreement).


 


A-2

















 


DUPONT PHOTOMASKS, INC.


 


	
  CUSIP:                    

  	
   

  	
  [R][S]                  

  



 


1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY
15, 2008


 


DuPont Photomasks, Inc., a Delaware
corporation (the “Company”, which term shall include any
successor corporation under the Indenture referred to on the reverse hereof),
promises to pay
to                        
                      ,
or registered assigns, the principal sum
of                                                   Dollars
($                 )
on May 15, 2008 [or such greater or lesser amount as is indicated on the
Schedule of Exchanges of Notes on the other side of this Note].(4)


 


Interest Payment Dates:  May 15
and November 15


 


Record Dates:  May 1 and
November 1


 


This Note is convertible as specified on the
other side of this Note.  Additional
provisions of this Note are set forth on the other side of this Note.


 


SIGNATURE PAGE FOLLOWS


 












(4)           This phrase should be included only if the
Security is a global Security.


 


A-3

















 


IN WITNESS WHEREOF, the Company has caused
this instrument to be duly executed.


 


	
   

  	
  DUPONT PHOTOMASKS, INC.

  
	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


	
  Attest:

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Dated:


 


Trustee’s Certificate of Authentication:  This is one of the

Securities referred to in the within-mentioned Indenture.


 


	
  JPMORGAN CHASE BANK,

  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory:

  



 


 


A-4

















 


[FORM OF REVERSE SIDE OF SECURITY]


 


DUPONT PHOTOMASKS, INC.

1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY 15, 2008


 


1.                                       INTEREST


 


DuPont Photomasks, Inc., a Delaware
corporation (the “Company”, which term shall include any
successor under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Note at the rate of 1.25% per
annum.  The Company shall pay interest
semiannually on May 15 and November 15 of each year, commencing November 15, 2003.  Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from May 5, 2003; provided, however, that if there is
not an existing default in the payment of interest and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date.  Interest will be computed
on the basis of a 360-day year of twelve 30-day months.  Any reference herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
on such date as provided in the Registration Rights Agreement.


 


2.                                       METHOD
OF PAYMENT


 


The Company shall pay interest on this Note
(except defaulted interest) to the person who is the Holder of this Note at the
close of business on May 1 or November 1, as the case may be, next preceding
the related interest payment date.  The
Holder must surrender this Note to a Paying Agent to collect payment of
principal.  The Company will pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts.  The Company may, however, pay principal and
interest in respect of any Certificated Security by check or wire payable in
such money; provided,
however,
that a Holder with an aggregate principal amount in excess of $2,000,000 will
be paid by wire transfer in immediately available funds at the election of such
Holder if such Holder has provided wire transfer instructions to the
Company.  The Company may mail an
interest check to the Holder’s registered address.  Notwithstanding the foregoing, so long as this Note is registered
in the name of a Depositary or its nominee, all payments hereon shall be made
by wire transfer of immediately available funds to the account of the
Depositary or its nominee.


 


3.                                       PAYING AGENT,
REGISTRAR AND CONVERSION AGENT


 


Initially, JPMorgan Chase Bank (the “Trustee”,
which term shall include any successor trustee under the Indenture hereinafter
referred to) will act as Paying Agent, Registrar and Conversion Agent.  The Company may change any


 


A-5

















 


Paying Agent, Registrar or Conversion Agent without notice to the
Holder.  The Company or any of its Subsidiaries
may, subject to certain limitations set forth in the Indenture, act as Paying
Agent or Registrar.


 


4.                                       INDENTURE


 


This Note is one of a duly authorized issue
of Securities of the Company designated as its 1.25% Convertible Subordinated
Notes Due May 15, 2008 (the “Notes”), issued under an Indenture dated as
of May 5, 2003 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. 
The terms of this Note include those stated in the Indenture and those required
by or made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended, as in effect on the date of the Indenture.  This Note is subject to all such terms, and
the Holder of this Note is referred to the Indenture and said Act for a
statement of them.


 


The Notes are subordinated unsecured
obligations of the Company.  The
Indenture does not limit other debt of the Company, secured or unsecured,
including Senior Indebtedness.


 


5.                                       PURCHASE OF
NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL


 


At the option of the Holder and subject to
the terms and conditions of the Indenture, the Company shall become obligated
to purchase all or any part specified by the Holder (so long as the principal
amount of such part is $1,000 or a multiple of $1,000 in excess thereof) of the
Notes held by such Holder on the date that is 30 Business Days after the
occurrence of a Change in Control, at a purchase price equal to 100% of the
principal amount thereof together with accrued interest up to, but excluding,
the Change in Control Purchase Date. 
The Holder shall have the right to withdraw any Change in Control
Purchase Notice (in whole or in a portion thereof that is $1,000 or a multiple
of $1,000 in excess thereof) at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms
of the Indenture.


 


6.                                       CONVERSION


 


A Holder of a Note may convert the principal
amount of such Note (or any portion thereof equal to $1,000 or any multiple of
$1,000 in excess thereof) into shares of Common Stock at any time prior to the
close of business on May 15, 2008; provided, however, that if the Note is
subject to purchase upon a Change in Control, the conversion right will
terminate at the close of business on the Business Day immediately preceding
the Change in Control Purchase Date, as the case may be, for such Note or such
earlier date as the Holder presents such Note


 


A-6

















 


for purchase (unless the Company shall default in making the Change in
Control Purchase Price, as the case may be, when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Note is purchased).


 


The initial Conversion Price is $25.595 per
share, subject to adjustment under certain circumstances as provided in the
Indenture.  The number of shares of
Common Stock issuable upon conversion of a Note is determined by dividing the
principal amount of the Note or portion thereof converted by the Conversion
Price in effect on the Conversion Date. 
No fractional shares will be issued upon conversion; in lieu thereof, an
amount will be paid in cash based upon the Closing Price (as defined in the
Indenture) of the Common Stock on the Trading Day immediately prior to the
Conversion Date.


 


To convert a Note, a Holder must (a) complete
and manually sign the conversion notice set forth below and deliver such notice
to a Conversion Agent, (b) surrender the Note to a Conversion Agent, (c)
furnish appropriate endorsements and transfer documents if required by a
Registrar or a Conversion Agent, and (d) pay any transfer or similar tax, if
required.  Notes so surrendered for
conversion (in whole or in part) during the period from the close of business
on any regular record date to the opening of business on the next succeeding
interest payment date (excluding Notes or portions thereof subject to purchase
upon a Change in Control on a Change in Control Purchase Date during the period
beginning at the close of business on a regular record date and ending at the
opening of business on the first Business Day after the next succeeding
interest payment date, or if such interest payment date is not a Business Day,
the second such Business Day) shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
interest payment date on the principal amount of such Note then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Note, subject to the provisions of this
Indenture relating to the payment of defaulted interest by the Company.  If the Company defaults in the payment of
interest payable on such interest payment date, the Company shall promptly
repay such funds to such Holder.  A
Holder may convert a portion of a Note equal to $1,000 or any multiple thereof.


 


A Note in respect of which a Holder had
delivered a Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Note may be converted only if
the Change in Control Purchase Notice is withdrawn in accordance with the terms
of the Indenture.


 


7.                                       SUBORDINATION


 


The indebtedness evidenced by the Notes is,
to the extent and in the manner provided in the Indenture, subordinate and
junior in right of payment to


 


A-7

















 


the prior payment in full of all Senior Indebtedness of the
Company.  Any Holder by accepting this
Note agrees to and shall be bound by such subordination provisions and
authorizes the Trustee to give them effect. In addition to all other rights of
Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any terms of any instrument relating to the Senior Indebtedness or any
extension or renewal of the Senior Indebtedness.


 


8.                                       DENOMINATIONS,
TRANSFER, EXCHANGE


 


The Notes are in registered form, without
coupons, in denominations of $1,000 and multiples of $1,000.  A Holder may register the transfer of or
exchange Notes in accordance with the Indenture.  The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental charges that may be imposed in relation thereto by law or
permitted by the Indenture.


 


9.                                       PERSONS DEEMED
OWNERS


 


The Holder of a Note may be treated as the
owner of it for all purposes.


 


10.                                 UNCLAIMED MONEY


 


If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its written request, subject to applicable
unclaimed property law.  After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.


 


11.                                 AMENDMENT, SUPPLEMENT
AND WAIVER


 


Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the consent of the Holders of
at least a majority in aggregate principal amount of the Notes then
outstanding, and an existing default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Notes may be waived in a
particular instance with the consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding.  Without the consent of or notice to any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency or make any other change
that does not adversely affect the rights of any Holder.


 


A-8

















 


12.                                 SUCCESSOR ENTITY


 


When a successor Person assumes all the
obligations of its predecessor under the Notes and the Indenture in accordance
with the terms and conditions of the Indenture, the predecessor corporation
(except in certain circumstances specified in the Indenture) shall be released
from those obligations.


 


13.                                 DEFAULTS AND REMEDIES


 


Under the Indenture, an Event of Default
includes:  (i) default for 30 days in
payment of any interest or Additional Interest on any Notes; (ii) default in
payment of any principal (including, without limitation, any premium, if any)
on the Notes when due; (iii) failure by the Company for 60 days after written
notice to it to comply with any of its other agreements contained in the
Indenture or the Notes; (iv) default in the payment of the purchase price of
the Notes when due; (v) failure to provide a Change of Control Notice as
required in the Indenture; (vi) default in the payment of certain indebtedness
of the Company or a Significant Subsidiary and (vii) certain events of
bankruptcy, insolvency or reorganization of the Company or any Significant
Subsidiary.  If an Event of Default
(other than as a result of certain events of bankruptcy, insolvency or
reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding may declare all unpaid principal to the date of acceleration on the
Notes then outstanding to be due and payable immediately, all as and to the
extent provided in the Indenture.  If an
Event of Default occurs as a result of certain events of bankruptcy, insolvency
or reorganization of the Company, unpaid principal of the Notes then
outstanding shall become due and payable immediately without any declaration or
other act on the part of the Trustee or any Holder, all as and to the extent
provided in the Indenture.  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 aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their interests.  The Company is required to file periodic
reports with the Trustee as to the absence of default.


 


14.                                 TRUSTEE DEALINGS WITH
THE COMPANY


 


JPMorgan Chase Bank, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from and perform services for the Company or an Affiliate of the
Company, and may otherwise deal with the Company or an Affiliate of the
Company, as if it were not the Trustee.


 


A-9

















 


15.                                 NO RECOURSE AGAINST
OTHERS


 


A director, officer, employee or stockholder,
as such, of the Company shall not have any liability for any obligations of the
Company under the Notes or the Indenture nor for any claim based on, in respect
of or by reason of such obligations or their creation.  The Holder of this Note by accepting this
Note waives and releases all such liability. 
The waiver and release are part of the consideration for the issuance of
this Note.


 


16.                                 AUTHENTICATION


 


This Note shall not be valid until the
Trustee or an authenticating agent manually signs the certificate of
authentication on the other side of this Note.


 


17.                                 ABBREVIATIONS AND
DEFINITIONS


 


Customary abbreviations may be used in the
name of the 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 UGMA (=
Uniform Gifts to Minors Act).


 


All terms defined in the Indenture and used
in this Note but not specifically defined herein are defined in the Indenture
and are used herein as so defined.


 


18.                                 INDENTURE TO CONTROL;
GOVERNING LAW


 


In the case of any conflict between the
provisions of this Note and the Indenture, the provisions of the Indenture
shall control.  This Note shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principals of conflicts of law.


 


The Company will furnish to any Holder, upon
written request and without charge, a copy of the Indenture.  Requests may be made to:  DuPont Photomasks, Inc., 131 Old Settlers
Boulevard, Round Rock, TX  78664,
(512) 310-6500, Attention:  Investor
Relations.


 


A-10

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


I or we assign and transfer this Note to


 


 


(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.


 


	
   

  	
  Company Name

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (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-11

















 


CONVERSION NOTICE


 


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


 


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


 


If you want the stock certificate 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.


 


	
   

  	
   

  
	
   

  	
  Company Name

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (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-12

















 


OPTION TO ELECT REPURCHASE

UPON A CHANGE OF CONTROL


 


To:                              DuPont
Photomasks, Inc.


 


The undersigned registered owner of this
Security hereby irrevocably acknowledges receipt of a notice from DuPont
Photomasks, Inc. (the “Company”) as to the occurrence of a Change
in Control with respect to the Company and requests and instructs the Company
to redeem the entire principal amount of this Security, or the portion thereof
(which is $1,000 or a multiple thereof) below designated, in accordance with
the terms of the Indenture referred to in this Security at the Change in
Control Purchase Price, together with accrued interest to, but excluding, such
date, to the registered Holder hereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s) must be guaranteed by a qualified guarantor institution
  with membership in an approved signature guarantee program pursuant to Rule
  17Ad-15 under the Securities Exchange Act of 1934.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature Guaranty

  
	
   

  	
   

  
	
  Principal amount to be redeemed

  	
   

  
	
  (in a multiple of $1,000, if less than all):

  	
   

  
	
   

  	
   

  
	
                                                          

  	
   

  	
   

  
						



 


NOTICE:  The signature to the
foregoing Election must correspond to the Name as written upon the face of this
Security in every particular, without alteration or any change whatsoever.


 


A-13

















 


SCHEDULE OF EXCHANGES OF NOTES(5)


 


The following exchanges, repurchases or
conversions of a part of this global Note have been made: 


 


	
  Principal Amount

  of this Global Note

  Following Such

  Decrease Date

  of Exchange (or

  Increase)

  	
   

  	
  Authorized

  Signatory of

  Securities

  Custodian

  	
   

  	
  Amount of
  Decrease

  in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  of this Global Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












(5)           This schedule should be included only if the
Security is a global Security.


 


A-14

















 


EXHIBIT B


 


[FORM
OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF

TRANSFER TO REGULATION S GLOBAL SECURITY](6)


 


(Pursuant to
Section 2.12(b)(2), (5) or (6) of the Indenture)


 


JPMorgan Chase Bank, as trustee


600 Travis, Suite 1150


Houston, Texas  77002


 


Attention:                                         (DuPont
Photomasks, Inc.  1.25%
Convertible Subordinated Securities due May 15, 2008)


 


Dear Ladies and Gentlemen:


 


Reference is hereby made to the Indenture, dated as of May 5, 2003
(the “Indenture”), between DuPont Photomasks, Inc., as issuer (the “Company”)
and JPMorgan Chase Bank, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


This letter relates to the securities which are evidenced by one or
more [Restricted Global Securities][Regulation S Global Securities] and held
with the Depositary through [the Depository Trust Company][Euroclear]
[Clearstream]  (the “Securities”) in the
name
of                      (the
“Transferor”).  The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by one or more Regulation S Global Securities in, which
amount, immediately after such transfer, is to be held with the Depositary
though Euroclear or Clearstream or both.


 


In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Securities and pursuant to and
in accordance with Rule 903 or Rule 904 under the United States Securities Act
of 1933, as amended (the “Securities Act”), and accordingly the Transferor
hereby further certifies that:


 


(1)                                  The offer of the
Securities was not made to a person in the United States;


 


(2)                                  either:


 












(6)           This certificate should only be included if
this Security is a Transfer Restricted Security.


 


A-15

















 


(i)                                     at the time the
buy order was originated, the transferee was outside the United States or the
Transferor and any person acting on its behalf reasonably believed and believes
that the transferee was outside the United States; or


 


(ii)                                  the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither the Transferor nor any person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States;


 


(3)                                  no directed selling
efforts have been made in contravention of the requirements of Rule 904(b) of
Regulation S;


 


(4)                                  the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act; and


 


(5)                                  upon completion of
the transaction and prior to the expiration of the Restricted Period, the
beneficial interest being transferred as described above is to be held with the
Depositary through Euroclear or Clearstream or both.


 


(6)                                  With respect to
transfers made in reliance on Rule 144, the Securities are being transferred in
a transaction permitted by Rule 144 under the Securities Act; and with respect
to transfer made in reliance on Rule 144A, that such Securities are being
transferred in accordance with Rule 144A under the Securities Act to a
transferee that the Transferor reasonably believes is purchasing the Securities
for its own account or an account with respect to which the transferee
exercises sole investment discretion and the transferee and any such account is
a “qualified institutional buyer” within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.


 


In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(2) or (3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 904(c)(1), as the case may be.


 


Upon giving effect to this request to exchange a beneficial interest in
a Restricted Global Security for a beneficial interest in a Regulation S Global
Security, the resulting beneficial interest shall be subject to the
restrictions on


 


A-16

















 


transfer applicable to Regulation S Global Securities pursuant to the
Indenture and the Securities Act.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers, and you and
each of them is entitled to rely on the contents of this certificate.  Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.


 


	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Insert Name of Transferor]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


A-17

















 


EXHIBIT C


 


[FORM
OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF

TRANSFER TO RULE 144A RESTRICTED GLOBAL SECURITY](7)


 


(Pursuant to Section 2.12(b)(3),(4) or (6) of the Indenture)


 


JPMorgan Chase Bank, as trustee


600 Travis, Suite 1150


Houston, Texas  77002


 


Attention:                                         (DuPont
Photomasks, Inc.  1.25%
Convertible Subordinated Securities due May 15, 2008)


 


Dear Ladies and Gentlemen:


 


Reference is hereby made to the Indenture, dated as of May 5, 2003
(the “Indenture”), between DuPont Photomasks, Inc., as issuer (the “Company”)
and JP Morgan Chase Bank, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


This letter relates to securities which are evidenced by one or more
[Restricted Global Securities][Regulation S Global Securities] and held with
the Depositary through [the Depository Trust Company][Euroclear] [Clearstream]
in the name of
                       (the
“Transferor”).  The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by one or more Restricted Global Securities, to be held
with the Depositary.


 


In connection with such request and in respect of such Securities, the
Transferor hereby certifies that:


 


[CHECK ONE]


 


                                                such
transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the “Securities Act”)
and, accordingly, the Transferor hereby further certifies that the Securities
are being transferred to a Person that the Transferor reasonably believes is
purchasing the Securities for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and such
Person and each such account is a


 












(7)           This certificate should only be included if
the Security is a Transfer Restricted Security.


 


A-18

















 


“qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A;


 


or


 


                                                such
transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;


 


or


 


                                                such
transfer is being effected pursuant to an effective registration statement
under the Securities Act;


 


or


 


                                                such
transfer is being effected pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A or Rule 144, and the Transferor
hereby further certifies that the Securities are being transferred in
compliance with the transfer restrictions applicable to the Securities and in
accordance with the requirements of the exemption claimed, which certification
is supported by such legal opinions or other information provided by the
Transferor or the transferee (a copy of which the Transferor has attached to
this certification) in form reasonably acceptable to the Company, to the effect
that such transfer is in compliance with the Securities Act;


 


and such Securities are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.


 


Upon giving effect to this request (i) to exchange a beneficial
interest in Regulation S Global Securities for a beneficial interest in
Restricted Global Securities, (ii) to exchange a beneficial interest in Global
Securities for a beneficial interest in Securities in certificated form or
(iii) to exchange a beneficial interest in Securities in certificated form for
a beneficial interest in Securities in certificated form, the resulting
beneficial interest shall be subject to the restrictions on transfer applicable
to Restricted Global Securities pursuant to the Indenture and the Securities
Act.


 


A-19

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchaser, and you and
each of them is entitled to rely on the contents of this certificate.  Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.


 


 


	
   

  	
   

  	
   

  
	
  [Insert Name of Transferor]

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


A-20