Exhibit 4.6


 


EXECUTION
COPY


 




 





FEI COMPANY


 


ZERO COUPON CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2023

FIRST PUTABLE JUNE 15, 2008


 












 


INDENTURE

DATED AS OF JUNE 13, 2003


 












 


BNY WESTERN TRUST COMPANY

AS TRUSTEE




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  
	
   

  
	
  SECTION 1.1.

  	
  DEFINITIONS

  
	
  SECTION 1.2.

  	
  OTHER DEFINITIONS

  
	
  SECTION 1.3.

  	
  TRUST INDENTURE ACT PROVISIONS

  
	
  SECTION 1.4.

  	
  RULES OF CONSTRUCTION

  
	
   

  	
   

  
	
  ARTICLE
  2

  
	
  THE SECURITIES

  
	
   

  	
   

  
	
  SECTION 2.1.

  	
  FORM AND DATING

  
	
  SECTION 2.2.

  	
  EXECUTION AND AUTHENTICATION

  
	
  SECTION 2.3.

  	
  REGISTRAR, PAYING AGENT AND CONVERSION
  AGENT

  
	
  SECTION 2.4.

  	
  PAYING AGENT TO HOLD MONEY IN TRUST

  
	
  SECTION 2.5.

  	
  SECURITYHOLDER LISTS

  
	
  SECTION 2.6.

  	
  TRANSFER AND EXCHANGE

  
	
  SECTION 2.7.

  	
  REPLACEMENT SECURITIES

  
	
  SECTION 2.8.

  	
  OUTSTANDING SECURITIES

  
	
  SECTION 2.9.

  	
  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

  
	
  REDEMPTION AND PURCHASES

  
	
   

  	
   

  
	
  SECTION 3.1.

  	
  RIGHT TO REDEEM; NOTICE TO TRUSTEE

  
	
  SECTION 3.2.

  	
  SELECTION OF SECURITIES TO BE REDEEMED

  
	
  SECTION 3.3.

  	
  NOTICE OF REDEMPTION

  
	
  SECTION 3.4.

  	
  EFFECT OF NOTICE OF REDEMPTION

  
	
  SECTION 3.5.

  	
  DEPOSIT OF REDEMPTION PRICE

  
	
  SECTION 3.6.

  	
  SECURITIES REDEEMED IN PART

  
	
  SECTION 3.7.

  	
  CONVERSION ARRANGEMENT ON CALL FOR
  REDEMPTION

  
	
  SECTION 3.8.

  	
  PURCHASE OF SECURITIES AT OPTION OF THE
  HOLDER UPON CHANGE IN CONTROL

  
	
  SECTION 3.9.

  	
  EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE

  
	
  SECTION 3.10.

  	
  DEPOSIT OF CHANGE IN CONTROL PURCHASE
  PRICE

  
	
  SECTION 3.11.

  	
  PURCHASE OF SECURITIES AT OPTION OF THE
  HOLDER ON SPECIFIED DATES

  
	
  SECTION 3.12.

  	
  SECURITIES PURCHASED IN PART

  
	
  SECTION 3.13.

  	
  COMPLIANCE WITH SECURITIES LAWS UPON
  PURCHASE OF SECURITIES

  



 


i

















 


	
  ARTICLE 4

  
	
  CONVERSION

  
	
   

  	
   

  
	
  SECTION 4.1.

  	
  CONVERSION PRIVILEGE

  
	
  SECTION 4.2.

  	
  CONVERSION PROCEDURE

  
	
  SECTION 4.3.

  	
  FRACTIONAL SHARES

  
	
  SECTION 4.4.

  	
  TAXES ON CONVERSION

  
	
  SECTION 4.5.

  	
  COMPANY TO PROVIDE STOCK

  
	
  SECTION 4.6.

  	
  ADJUSTMENT OF CONVERSION PRICE

  
	
  SECTION 4.7.

  	
  NO ADJUSTMENT

  
	
  SECTION 4.8.

  	
  NOTICE OF ADJUSTMENT

  
	
  SECTION 4.9.

  	
  ADJUSTMENT FOR TAX PURPOSES

  
	
  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 5.1.

  	
  AGREEMENT OF SUBORDINATION

  
	
  SECTION 5.2.

  	
  PAYMENTS TO HOLDERS

  
	
  SECTION 5.3.

  	
  SUBROGATION OF SECURITIES

  
	
  SECTION 5.4.

  	
  AUTHORIZATION TO EFFECT SUBORDINATION

  
	
  SECTION 5.5.

  	
  NOTICE TO TRUSTEE

  
	
  SECTION 5.6.

  	
  TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS

  
	
  SECTION 5.7.

  	
  NO IMPAIRMENT OF SUBORDINATION

  
	
  SECTION 5.8.

  	
  CERTAIN CONVERSIONS DEEMED PAYMENT

  
	
  SECTION 5.9.

  	
  ARTICLE APPLICABLE TO PAYING AGENTS

  
	
  SECTION 5.10.

  	
  SENIOR INDEBTEDNESS ENTITLED TO RELY

  
	
   

  	
   

  
	
  ARTICLE 6

  
	
  COVENANTS

  
	
   

  	
   

  
	
  SECTION 6.1.

  	
  PAYMENT OF SECURITIES

  
	
  SECTION 6.2.

  	
  SEC REPORTS

  
	
  SECTION 6.3.

  	
  COMPLIANCE CERTIFICATES

  
	
  SECTION 6.4.

  	
  FURTHER INSTRUMENTS AND ACTS

  
	
  SECTION 6.5.

  	
  MAINTENANCE OF CORPORATE EXISTENCE

  
	
  SECTION 6.6.

  	
  RULE 144A INFORMATION REQUIREMENT

  
	
  SECTION 6.7.

  	
  STAY, EXTENSION AND USURY LAWS

  
	
  SECTION 6.8.

  	
  PAYMENT OF INTEREST AMOUNTS

  
	
   

  	
   

  
	
  ARTICLE
  7

  
	
  CONSOLIDATION, MERGER, CONVEYANCE,
  TRANSFER OR LEASE

  
	
   

  	
   

  
	
  SECTION 7.1.

  	
  COMPANY MAY CONSOLIDATE, ETC, ONLY ON
  CERTAIN TERMS

  
	
  SECTION 7.2.

  	
  SUCCESSOR SUBSTITUTED

  



 


ii

















 


	
  ARTICLE
  8

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  
	
  SECTION 8.1.

  	
  EVENTS OF DEFAULT

  
	
  SECTION 8.2.

  	
  ACCELERATION

  
	
  SECTION 8.3.

  	
  OTHER REMEDIES

  
	
  SECTION 8.4.

  	
  WAIVER OF DEFAULTS AND EVENTS OF DEFAULT

  
	
  SECTION 8.5.

  	
  CONTROL BY MAJORITY

  
	
  SECTION 8.6.

  	
  LIMITATIONS ON SUITS

  
	
  SECTION 8.7.

  	
  RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND
  TO CONVERT

  
	
  SECTION 8.8.

  	
  COLLECTION SUIT BY TRUSTEE

  
	
  SECTION 8.9.

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM

  
	
  SECTION 8.10.

  	
  PRIORITIES

  
	
  SECTION 8.11.

  	
  UNDERTAKING FOR COSTS

  
	
   

  	
   

  
	
  ARTICLE
  9

  
	
  TRUSTEE

  
	
   

  	
   

  
	
  SECTION 9.1.

  	
  DUTIES OF TRUSTEE

  
	
  SECTION 9.2.

  	
  RIGHTS OF TRUSTEE

  
	
  SECTION 9.3.

  	
  INDIVIDUAL RIGHTS OF TRUSTEE

  
	
  SECTION 9.4.

  	
  TRUSTEE’S DISCLAIMER

  
	
  SECTION 9.5.

  	
  NOTICE OF DEFAULT OR EVENTS OF DEFAULT

  
	
  SECTION 9.6.

  	
  REPORTS BY TRUSTEE TO HOLDERS

  
	
  SECTION 9.7.

  	
  COMPENSATION AND INDEMNITY

  
	
  SECTION 9.8.

  	
  REPLACEMENT OF TRUSTEE

  
	
  SECTION 9.9.

  	
  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 10.1.

  	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
  SECTION 10.2.

  	
  APPLICATION OF TRUST MONEY

  
	
  SECTION 10.3.

  	
  REPAYMENT TO COMPANY

  
	
  SECTION 10.4.

  	
  REINSTATEMENT

  
	
   

  	
   

  
	
  ARTICLE 11

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  
	
  SECTION 11.1.

  	
  WITHOUT CONSENT OF HOLDERS

  
	
  SECTION 11.2.

  	
  WITH CONSENT OF HOLDERS

  
	
  SECTION 11.3.

  	
  COMPLIANCE WITH TRUST INDENTURE ACT

  
	
  SECTION 11.4.

  	
  REVOCATION AND EFFECT OF CONSENTS

  
	
  SECTION 11.5.

  	
  NOTATION ON OR EXCHANGE OF SECURITIES

  
	
  SECTION 11.6.

  	
  TRUSTEE TO SIGN AMENDMENTS, ETC

  
	
  SECTION 11.7.

  	
  EFFECT OF SUPPLEMENTAL INDENTURES

  



 


iii

















 


	
  ARTICLE 12

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  SECTION 12.1.

  	
  TRUST INDENTURE ACT CONTROLS

  
	
  SECTION 12.2.

  	
  NOTICES

  
	
  SECTION 12.3.

  	
  COMMUNICATIONS BY HOLDERS WITH OTHER
  HOLDERS

  
	
  SECTION 12.4.

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS
  PRECEDENT

  
	
  SECTION 12.5.

  	
  RECORD DATE FOR VOTE, WAIVER OR CONSENT
  OF SECURITYHOLDERS

  
	
  SECTION 12.6.

  	
  RULES BY TRUSTEE, PAYING AGENT, REGISTRAR
  AND CONVERSION AGENT

  
	
  SECTION 12.7.

  	
  LEGAL HOLIDAYS

  
	
  SECTION 12.8.

  	
  GOVERNING LAW

  
	
  SECTION 12.9.

  	
  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

  



 


iv

















 


CROSS-REFERENCE
TABLE*


 


	
  TIA

  SECTION

  	
   

  	
   

  	
   

  	
  INDENTURE

  SECTION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section

  	
   

  	
  310(a)(1)

  	
   

  	
  9.10

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  9.10

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  N.A.**

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  9.10

  
	
   

  	
   

  	
  (b)

  	
   

  	
  9.8; 9.10

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section

  	
   

  	
  311(a)

  	
   

  	
  9.11

  
	
   

  	
   

  	
  (b)

  	
   

  	
  9.11

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section

  	
   

  	
  312(a)

  	
   

  	
  2.5

  
	
   

  	
   

  	
  (b)

  	
   

  	
  12.3

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.3

  
	
  Section

  	
   

  	
  313(a)

  	
   

  	
  9.6

  
	
   

  	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  9.6

  
	
   

  	
   

  	
  (c)

  	
   

  	
  9.6; 12.2

  
	
   

  	
   

  	
  (d)

  	
   

  	
  9.6

  
	
  Section

  	
   

  	
  314(a)

  	
   

  	
  6.2; 6.4

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  12.4(a)

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  12.4(a)

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (e)

  	
   

  	
  12.4(b)

  
	
   

  	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  Section

  	
   

  	
  315(a)

  	
   

  	
  9.1(b)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  9.5; 12.2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  9.1(a)

  
	
   

  	
   

  	
  (d)

  	
   

  	
  9.1(c)

  
	
   

  	
   

  	
  (e)

  	
   

  	
  8.11

  
	
  Section

  	
   

  	
  316(a)(last sentence)

  	
   

  	
  2.9

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  8.5

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  8.4

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.7

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.5

  
	
  Section

  	
   

  	
  317(a)(1)

  	
   

  	
  8.8

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  8.9

  
	
   

  	
   

  	
  (b)

  	
   

  	
  2.4

  



 












*                 This Cross-Reference Table
shall not, for any purpose, be deemed a part of this Indenture.


 


**          N.A. means Not Applicable.


 


v

















 


THIS INDENTURE dated as of
June 13, 2003 is between FEI Company, a corporation duly organized under the
laws of the State of Oregon (the “Company”), and BNY Western Trust Company, a
California State Banking Corporation, as Trustee (the “Trustee”).


 


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 Securities.


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY
REFERENCE


 


SECTION 1.1.      DEFINITIONS.


 


“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, 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” or “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
that does not include the information or the schedule called for by
footnotes 1, 3 and 4 thereof.


 


“Common Stock” means the
common stock of the Company, no par value per share, 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.


 


1

















 


“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.


 


“Conversion Rate” means, as
of any date of determination with respect to the Securities, the number of
shares of Common Stock into which a Security may be converted in accordance
with Article 4 hereof, and shall equal the quotient obtained by dividing
$1,000 by the then current Conversion Price.


 


“Conversion Value” of a
Security means, as of any date of determination, the product of the last
reported bid price of the Common Stock on that date of determination multiplied
by the Conversion Rate of that Security on that date.


 


“Corporate Trust Office”
means the office of the Trustee at which at any time the trust created by this
Indenture shall be administered, which office at the date of the execution of
this Indenture is located at 550 Kearny Street, Suite 600, San Francisco,
CA 94108, Attn: Corporate Trust Department 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 the Company’s obligations under any particular Senior
Indebtedness 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 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.


 


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


 


“Final Maturity Date” means
June 15, 2023.


 


“GAAP” means generally
accepted accounting principles 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 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 a
permanent Global Security that is in substantially the form attached hereto as Exhibit A
and that includes the information and schedule called for by footnotes 1,
3 and 4


 


2

















 


thereof and which is deposited with the
Depositary or its custodian and registered in the name of the Depositary or its
nominee.


 


“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 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 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 trade accounts payable or other accrued current
expense 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 generally accepted
accounting principles, to be accounted for as capitalized lease obligations on
the balance sheet of such Person, (ii) as lessee under other leases for
facilities equipment (and related assets leased together therewith), whether or
not capitalized, entered into or leased for financing purposes (as determined
by the Company) or (iii) under any lease or related document (including a
purchase agreement) in connection with the lease of real property or
improvements (or any personal property included as part of any such lease)
which provides that such Person is contractually obligated to purchase or cause
a third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of such
Person under such lease or related document to purchase or cause to a third
party to purchase such leased property (whether or not such lease transaction
is characterized as an operating lease or a capitalized lease in accordance
with generally accepted accounting principles), (d) all obligations (contingent
or otherwise) of such Person with respect to any interest rate, currency or
other swap, cap, floor or collar agreement, hedge agreement, forward contract,
or other similar instrument 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 (contingent or otherwise) 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 obligation
secured thereby shall have been assumed by such Person, and (g) any and all deferrals,
renewals, extensions 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 Goldman, Sachs & Co.


 


“Interest Amounts” has the
meaning given to “Interest” in Section 6 of the Registration Rights
Agreement and also means the interest payable pursuant to Section 4.5 hereof
and for the purposes of this Indenture, default interest (to the extent the
payment thereof is lawful) on overdue installments of Interest Amounts, if any,
and overdue principal.


 


“Interest Amounts Payment
Date”, if applicable, means June 15 and December 15 of each year.


 


3

















 


“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.


 


“Officers’ Certificate”
means a certificate signed by two Officers; provided,
however, that for purposes of
Sections 4.11 and 6.3, “Officers’ Certificate” means a certificate signed
by the principal executive officer, principal financial officer or principal
accounting officer 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.


 


“Put Right Purchase Date”
means either the 2008 Purchase Date or the applicable 2013-2018 Purchase Date,
as the case may be.


 


“Put Right Purchase Price”
means the 2008 Purchase Price or the 2013-2018 Purchase Price, as the case may
be.


 


“Record Date” for Interest
Amounts, if any, payable on any Interest Amounts Payment Date, means June 1 or
December 1 (whether or not a Business Day) next preceding such Interest Amounts
Payment Date.


 


“Redemption Date” or
“redemption date” when used with respect to any Security to be redeemed, means
the date fixed for such redemption pursuant to this Indenture, as set forth in
the form of Security annexed as Exhibit A hereto.


 


“Redemption Price” when used
with respect to any Security to be redeemed, means the price fixed for such
redemption pursuant to this Indenture, as set forth in the form of Security
annexed as Exhibit A hereto.


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of June 13,
2003, between the Company and the Initial Purchasers.


 


“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) 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 Global Security”
means a Global Security that is a Restricted Security.


 


4

















 


“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.


 


“Sale Price” of the Common
Stock means, as of any date of determination, the closing per share sale price
(or if no closing sale price is reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and the
average ask prices) on such date as reported in composite transactions for the
principal United States securities exchange on which the Common Stock is traded
or, if the Common Stock is not listed on a United States national or regional
securities exchange, as reported on the Nasdaq System or by the National
Quotation Bureau Incorporated.


 


“Series A Preferred Stock”
means the Series A preferred stock of the Company in existence on the date
hereof with such rights as described in the Certificate of Designation to the
Second Amended and Restated Certificate of Incorporation of the Company filed
with the Secretary of State of Oregon on June 10, 2003, and any shares of any
class or classes of capital stock of the Company resulting from any
reclassification thereof.


 


“SEC” means the Securities
and Exchange Commission.


 


“Securities” means the Zero
Coupon Convertible Subordinated Notes due June 15, 2023, First Putable
June 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 allowable 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 secured or unsecured, absolute or
contingent, due or to become due, 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.  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.  Notwithstanding the foregoing, Senior
Indebtedness shall not include (a) Indebtedness that expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities or
expressly provides that such Indebtedness is on the same basis or junior to the
Securities, (b) Indebtedness under the Company’s 5.5% Convertible Subordinated
Notes due August 2008,


 


5

















 


(c) any Indebtedness of the Company to any
subsidiary of the Company and (d) any obligations for federal, state, local or
other taxes.


 


“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 11.3,
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 a day
during which trading in securities generally occurs on the NNM (or, if the
Common Stock is not quoted on the NNM, on the principal other market on which
the Common Stock is then traded), other than a day on which a material
suspension of or limitation on trading is imposed that affects either the NNM
(or, if applicable, such other market) in its entirety or only the shares of
Common Stock (by reason of movements in price exceeding limits permitted by the
relevant market on which the Common Stock is traded or otherwise) or on which
the NNM (or, if applicable, such other market) cannot clear the transfer of
Common Stock due to an event beyond the Company’s control.


 


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


 


“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” or
“Authorized 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.


 


“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.”


 


6

















 


“Volume Weighted Average
Price” means, with respect to one share of Common Stock on any Trading Day, the
volume weighted average prices as displayed under the heading “Bloomberg VWAP”
on Bloomberg Page FEIC <equity> AQR in respect of the period from 9:30
a.m. to 4:00 p.m. (New York City time) on that Trading Day (or if such volume
weighted average price is not available, the market value of one share of
Common Stock on such Trading Day as the Company determines in good faith using
a volume weighted method).


 


“Voting Stock” of a Person
means any class or classes of Capital Stock or other 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 1.2.      OTHER DEFINITIONS.


	
  Term

  	
   

  	
  Defined
  in Section

  
	
   

  	
   

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.1(b)

  
	
  “Bankruptcy Law”

  	
   

  	
  8.1

  
	
  “Cash Settlement”

  	
   

  	
  4.2(b)

  
	
  “Cash Settlement Averaging
  Period”

  	
   

  	
  4.2(b)

  
	
  “Change in Control”

  	
   

  	
  3.8(a)

  
	
  “Change in Control
  Purchase Date”

  	
   

  	
  3.8(a)

  
	
  “Change in Control
  Purchase Notice”

  	
   

  	
  3.8(c)

  
	
  “Change in Control
  Purchase Price”

  	
   

  	
  3.8(a)

  
	
  “Closing Price”

  	
   

  	
  4.6(e)

  
	
  “Combined Settlement”

  	
   

  	
  4.2(b)(3)

  
	
  “Company Order”

  	
   

  	
  2.2

  
	
  “Company Put Right Notice”

  	
   

  	
  3.11(b)

  
	
  “Conversion
  Agent”

  	
   

  	
  2.3

  
	
  “Conversion
  Date”

  	
   

  	
  4.2(a)

  
	
  “Conversion
  Obligations”

  	
   

  	
  4.2(b)

  
	
  “Conversion
  Price”

  	
   

  	
  4.6

  
	
  “Conversion
  Retraction Period”

  	
   

  	
  4.2(d)

  
	
  “Conversion
  Settlement Election Notice”

  	
   

  	
  4.2(e)

  
	
  “Current
  Market Price”

  	
   

  	
  4.6(e)

  
	
  “Custodian”

  	
   

  	
  8.1

  
	
  “DTC”

  	
   

  	
  2.1(a)

  
	
  “Depositary”

  	
   

  	
  2.1(a)

  
	
  “Determination Date”

  	
   

  	
  4.6(d)(1)

  
	
  “Event of Default”

  	
   

  	
  8.1

  
	
  “Exchange
  Agent”

  	
   

  	
  4.5(b)

  
	
  “Expiration
  Date”

  	
   

  	
  4.6(d)(2)

  
	
  “Expiration Time”

  	
   

  	
  4.6(d)(2)

  
	
  “Legal Holiday”

  	
   

  	
  12.7

  
	
  “Legend”

  	
   

  	
  2.12(a)

  
	
  “NNM”

  	
   

  	
  4.6(e)

  
	
  “Partial Cash Amount”

  	
   

  	
  4.2(b)

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Payment Blockage Notice”

  	
   

  	
  5.2

  
	
  “Primary Registrar”

  	
   

  	
  2.3

  



 


7

















 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
  “Purchase Agreement”

  	
   

  	
  2.1

  
	
  “Purchased Shares”

  	
   

  	
  4.6(d)(2)

  
	
  “Put Right Purchase
  Notice”

  	
   

  	
  3.11(c)

  
	
  “QIB”

  	
   

  	
  2.1(a)

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Reserve Sufficient Date”

  	
   

  	
  4.5(a)

  
	
  “Rights Plan”

  	
   

  	
  4.6(c)

  
	
  “Settlement Notice Period”

  	
   

  	
  4.2(d)(2)

  
	
  “Share Settlement”

  	
   

  	
  4.2(b)(1)

  
	
  “Triggering Distribution”

  	
   

  	
  4.6(d)(1)

  
	
  “Trigger Event”

  	
   

  	
  4.6(c)

  
	
  “Unissued Shares”

  	
   

  	
  3.8(a)

  
	
  “2008 Purchase Date”

  	
   

  	
  3.11(a)

  
	
  “2008 Purchase Price”

  	
   

  	
  3.11(a)

  
	
  “2013-2018 Purchase Dates”

  	
   

  	
  3.11(a)

  
	
  “2013-2018 Purchase Price”

  	
   

  	
  3.11(a)

  



 


SECTION 1.3.      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 1.4.      RULES OF CONSTRUCTION.


 


Unless the context otherwise
requires:


 


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


 


(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;


 


8

















 


(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;


 


(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 2.1.      FORM AND DATING.


 


The Securities and the
corresponding 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 June 10, 2003 (the “Purchase Agreement”),
between the Company and the Initial Purchasers, in transactions exempt from, or
not subject to, the registration requirements of the Securities Act.


 


(a)           Restricted Global Securities.  All of the Securities are initially being
offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, “QIBs” or individually, each a “QIB”) in reliance on
Rule 144A under the Securities Act and to Non-U.S. Persons in offshore
transactions pursuant to Regulation S under the Securities Act and shall be
issued initially in the form of one or more Restricted Global Securities, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Trustee, at its Corporate Trust Office, as custodian for the
depositary, The Depository Trust Company (“DTC”) (such depositary, or any
successor thereto, being hereinafter referred to as the “Depositary”), and
registered in the name of its nominee, Cede & Co., duly executed by
the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the
Restricted Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable Procedures.


 


(b)           Global Securities In General.  Each Global Security shall represent such of
the outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate amount of outstanding Securities from
time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect replacements, exchanges, redemptions, purchases or
conversions of such Securities.  Any
adjustment of the aggregate principal amount of a Global Security to reflect
the amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions
given by the Holder thereof as required by Section 2.12 hereof and shall be
made on the records of the Trustee and the Depositary.  The Trustee may rely on such instructions
without independent verification.


 


9

















 


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


 


(c)           Book Entry Provisions.  The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(c), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary or
its nominee, (ii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instructions and (iii) shall bear legends
substantially to the following effect:


 


“UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO FEI COMPANY (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.”


 


SECTION 2.2.      EXECUTION AND AUTHENTICATION.


 


An Officer shall sign the
Securities for the Company by manual or facsimile signature attested by 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.


 


10

















 


The Trustee shall
authenticate and make available for delivery Securities for original issue in
the aggregate principal amount of up to $200,000,000 upon receipt of a written
order or orders of the Company signed by two Officers of the Company (a
“Company Order”).  Each Company Order
shall specify the amount of Securities to be authenticated, shall provide that
all such Securities will be represented by a Restricted Global Security and the
date on which each original issue of Securities is to be authenticated.  The aggregate principal amount of Securities
outstanding at any time may not exceed $200,000,000, except as provided in
Section 2.7.


 


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 integral multiple thereof.


 


SECTION 2.3.      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 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 6.1 and Article 10).


 


The Company hereby initially
designates the Trustee as Paying Agent, Registrar, Primary Registrar, Custodian
and Conversion Agent, and each of the Corporate Trust Office of the Trustee and
the office or agency of the Trustee or any affiliate of the Trustee in the
Borough of Manhattan, The City of New York (which shall initially be The Bank
of New York, 101 Barclay Street – Lobby Level, Debt Processing Window, New
York, New York 10286), one such office or agency of the Company for each of the
aforesaid purposes.


 


SECTION 2.4.      PAYING AGENT TO HOLD MONEY IN
TRUST.


 


Prior to 12:00 noon, New
York City time, on each due date of the principal of or Interest Amounts, if
any, on any Securities, the Company shall deposit with a Paying Agent a sum
sufficient to pay such principal or Interest Amounts, if any, so becoming due.  Subject to Section 5.2, a Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for


 


11

















 


the payment of principal of or Interest
Amounts, 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 12:00 noon, New York City
time, on each due date of the principal of or Interest Amounts, if any, 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 doing so, the Paying Agent (other than the Company) shall have no
further liability for the money.


 


SECTION 2.5.      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 any Interest Amounts
Payment Date, if any, 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 2.6.      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 and, if applicable, a transfer certificate
each in the form included in Exhibit A, and in form satisfactory to
the Registrar duly executed by the Holder thereof or its attorney duly
authorized in writing.  To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.3, 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), 3.6, 3.12, 4.2
(last paragraph) or 11.5.


 


Neither the Company, any
Registrar nor the Trustee shall be required to exchange or register a transfer
of (i) any Securities for a period of 15 days next preceding any mailing
of a notice of Securities to be redeemed, (ii) any Securities or portions
thereof selected or called for redemption (except, in the case of redemption of
a Security in part, the portion thereof not to be redeemed) or (iii) 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.


 


(b)           Any Registrar appointed pursuant to Section 2.3
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.


 


12

















 


(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 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 2.7.      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 redeemed or purchased by the Company pursuant to
Article 3, the Company in its discretion may, instead of issuing a new
Security, pay, redeem or purchase such Security, as the case may be.


 


Upon the issuance of any new
Securities under this Section 2.7, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
reasonable fees and expenses of the Trustee or the Registrar) in connection
therewith.


 


Every new Security issued
pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and 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 2.7 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 2.8.      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 4, those delivered to it
for cancellation or surrendered for transfer or exchange and those described in
this Section 2.8 as not outstanding.


 


13

















 


If a Security is replaced
pursuant to Section 2.7, it ceases to be outstanding unless the Company receives,
subsequent to the new Security’s authentication, proof satisfactory to the
Company 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 in respect of the outstanding
Securities on a Redemption Date, a Change in Control Purchase Date, a Put Right
Purchase Date or the Final Maturity Date money sufficient to pay the principal
of (including premium, if any) and any accrued Interest Amounts, if any, on
Securities (or portions thereof) payable on that date, then on and after such
Redemption Date, Change in Control Purchase Date, Put Right 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
Amounts, if any, on them shall cease to accrue; provided, that
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefore satisfactory to the
Trustee has been made.


 


Subject to the restrictions
contained in Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.


 


SECTION 2.9.      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.


 


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, redemption, payment or conversion.  The Trustee and no one else shall promptly
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, payment, conversion or cancellation and
shall deliver the canceled Securities to the Company.  All Securities which are redeemed, purchased or otherwise
acquired by the Company or any of its Subsidiaries prior to the Final Maturity
Date may be delivered to the Trustee for cancellation, or the Company may hold
or resell such Securities; provided, however
that all Securities delivered to the Trustee for cancellation shall be
cancelled promptly by the Trustee.  The
Company may not issue any new Securities to replace any Securities cancelled by
the Trustee or any Securities that any Holder has converted pursuant to
Article 4.  Without limitation to
the foregoing, any Securities acquired


 


14

















 


by any investment bankers or other purchasers
pursuant to Section 3.7, but not pursuant to Section 4.5, shall be
surrendered for conversion and thereafter cancelled, and may not be reoffered,
sold or otherwise transferred.


 


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 comply with the provisions of Rule 144A, Rule 144 or
Regulation S under the Securities Act or that such Securities are not
“restricted” within the meaning of Rule 144 under 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.


 


(b)           A Global Security may not be transferred, in whole or in
part, to any Person other than the Depositary or a nominee or any successor
thereof, and no such transfer to any such other Person may be registered; provided that the foregoing 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. 
Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with this Section 2.12.


 


(c)           Subject to the succeeding paragraph, every Security shall
be subject to the restrictions on transfer provided in the Legend other than a
Restricted Global Security.  Whenever
any Restricted Security other than a Restricted Global Security is presented or
surrendered for registration of transfer or for exchange for a Security
registered in a name other than that of the Holder, such Security must be
accompanied by a certificate in substantially the form set forth in Exhibit A,
dated the date of such surrender and signed by the Holder of such Security, as
to compliance with such restrictions on transfer.  The Registrar shall not be required to accept for such
registration of transfer or exchange any Security not so accompanied by a
properly completed certificate.


 


(d)           The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security
has been sold pursuant to an effective registration statement under the
Securities Act or transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) or, if earlier, upon the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision). 
Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if


 


15

















 


requested by the Company or the Registrar, an
opinion of counsel reasonably acceptable to the Company, addressed to the
Company and in form acceptable to the Company, to the effect that the transfer
of such Security has been made in compliance with Rule 144 or such successor
provision), be exchanged for a new Security, of like tenor and aggregate principal
amount, which shall not bear the restrictive Legend.  The Company shall inform the Trustee of the effective date of any
registration statement registering the Securities under the Securities Act.  The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.


 


(e)           As used in the preceding two paragraphs of this Section
2.12, the term “transfer” encompasses any sale, pledge, transfer, hypothecation
or other disposition of any Security.


 


(f)            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.


 


(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


 


16

















 


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 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.


 


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 redemption or
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 redemption or purchase and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption or 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

REDEMPTION AND PURCHASES


 


SECTION 3.1.      RIGHT TO REDEEM;
NOTICE TO TRUSTEE.


 


The Securities may be
redeemed at the election of the Company, as a whole or from time to time in
part, at the times and at the Redemption Prices specified in paragraph 5
of the form of Security attached hereto as Exhibit A, together with
any accrued Interest Amounts, if any, up to, but not including, the Redemption
Date; provided that if the
Redemption Date falls after an Interest Amounts Record Date, if any, and on or
before an Interest Amounts Payment Date, then the Interest Amounts, if any, on
the Securities will be payable to the Holders in whose name the Securities are
registered at the close of business on such Interest Amounts Record Date, if
any.


 


If the Company elects to
redeem Securities pursuant to this Section 3.1 and paragraph 5 of the
Securities, it shall notify the Trustee at least 25 days prior to the
Redemption Date as fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee) of the Redemption Date and the principal amount of
Securities to be redeemed.  If fewer
than all of the Securities are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.


 


17

















 


SECTION 3.2.      SELECTION OF SECURITIES TO BE
REDEEMED.


 


If less than all of the
Securities are to be redeemed, unless the procedures of the Depositary provide
otherwise, the Trustee shall, at least 15 days but not more than 60 days
prior to the Redemption Date, select the Securities to be redeemed.  The Trustee shall make the selection from
the Securities outstanding and not previously called for redemption, by lot, or
in its discretion, on a pro rata basis. 
Securities in denominations of $1,000 may only be redeemed in
whole.  The Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the
principal of Securities that have denominations larger than $1,000.  Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.


 


If any Security selected for
partial redemption is converted in part before termination of the conversion
right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed to be the portion selected for
redemption.  Securities which have been
converted subsequent to the Trustee commencing selection of Securities to be
redeemed but prior to redemption of such Securities shall be treated by the
Trustee as outstanding for the purpose of such selection.


 


SECTION 3.3.      NOTICE OF REDEMPTION.


 


At least 15 days but not
more than 60 days before a Redemption Date, the Company shall mail or cause to
be mailed a notice of redemption to each Holder of Securities to be redeemed at
such Holder’s address as it appears on the Primary Registrar’s books.


 


The notice shall identify
the Securities (including CUSIP numbers) to be redeemed and shall state:


 


(1)           the Redemption Date;


 


(2)           the Redemption Price;


 


(3)           the then current Conversion Price;


 


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


 


(5)           that Securities called for redemption
must be presented and surrendered to a Paying Agent to collect the Redemption
Price;


 


(6)           that Holders who wish to convert
Securities must surrender such Securities for conversion no later than the
close of business on the Business Day immediately preceding the Redemption Date
and must satisfy the other requirements set forth in paragraph 9 of the
Securities and Article 4 hereof;


 


(7)           that, unless the Company defaults in
making the payment of the Redemption Price, Interest Amounts, if any, on
Securities called for redemption shall cease accruing on and after the
Redemption Date and the only remaining right of the Holder shall be to receive
payment of the Redemption Price plus accrued Interest Amounts, if any, upon
presentation and surrender to a Paying Agent of the Securities; and


 


(8)           if any Security is being redeemed in
part, the portion of the principal amount of such Security to be redeemed and
that, after the Redemption Date, upon presentation and surrender of


 


18

















 


such Security, a new Security or Securities
in aggregate principal amount equal to the unredeemed portion thereof will be
issued.


 


If any of the Securities to
be redeemed 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 redemptions. 
At the Company’s written request, which request shall (i) be
irrevocable once given and (ii) set forth all relevant information
required by clauses (1) through (8) of the preceding paragraph, the
Trustee shall give the notice of redemption to each Holder in the Company’s
name and at the Company’s expense.


 


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


 


SECTION 3.4.      EFFECT OF NOTICE OF
REDEMPTION.


 


Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice, together with
accrued Interest Amounts, if any, except for Securities that are converted in
accordance with the provisions of Article 4.  On or after the Redemption Date and upon presentation and
surrender to a Paying Agent, Securities called for redemption shall be paid at
the Redemption Price, plus any accrued Interest Amounts, up to but not
including the Redemption Date; provided that
if the Redemption Date falls after an Interest Amounts Record Date, if any, and
on or before an Interest Amounts Payment Date, then the Interest Amounts, if
any, on the Securities will be payable to the Holders in whose names the
Securities are registered at the close of business on such Interest Amounts
Record Date, if any.


 


SECTION 3.5.      DEPOSIT OF REDEMPTION PRICE.


 


Prior to 12:00 noon, New
York City time, on the Redemption Date, the Company shall deposit with a Paying
Agent (or, if the Company acts as Paying Agent, shall segregate and hold in
trust) an amount of money (in immediately available funds if deposited on such
Redemption Date) sufficient to pay the Redemption Price of and any accrued
Interest Amounts, on all Securities to be redeemed on that date, other than
Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation or have been
converted.  The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of the conversion of Securities pursuant to Article 4 or,
if such money is then held by the Company in trust and is not required for such
purpose, it shall be discharged from the trust.


 


SECTION 3.6.      SECURITIES REDEEMED IN PART.


 


Upon presentation and
surrender of a Security that is redeemed 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 unredeemed portion of the Security surrendered.


 


SECTION 3.7.      CONVERSION ARRANGEMENT ON
CALL FOR REDEMPTION.


 


In connection with any
redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities called for redemption by an agreement with one or
more investment banks or other purchasers to purchase such Securities by paying
to a Paying Agent (other than the Company or any of its Affiliates) in trust
for the Holders, on or before 12:00 noon New York City time on the Redemption
Date, an amount that, together with any amounts deposited with such Paying
Agent by the Company for


 


19

















 


the redemption of such Securities, is not
less than the Redemption Price, together with any Interest Amounts, if any,
accrued to, but not including, the Redemption Date of such Securities.  Notwithstanding anything to the contrary
contained in this Article 3, the obligation of the Company to pay the
Redemption Price of such Securities, including all accrued Interest Amounts, if
any, shall be deemed to be satisfied and discharged to the extent such amount
is so paid by such purchasers; provided, however, that nothing in this Section 3.7 shall relieve
the Company of its obligation to pay the Redemption Price, plus any accrued
Interest Amounts, to but excluding the relevant Redemption Date, on Securities
called for redemption.  If such an
agreement with one or more investment banks or other purchasers is entered
into, any Securities called for redemption and not surrendered for conversion
by the Holders thereof prior to the relevant Redemption Date may, at the option
of the Company upon written notice to the Trustee, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 4)
surrendered by such purchasers for conversion, all as of 12:00 noon New York
City time on the Redemption Date, subject to payment of the above amount as
aforesaid.  The Paying Agent shall hold
and pay to the Holders whose Securities are selected for redemption any such
amount paid to it for purchase in the same manner as it would money deposited
with it by the Company for the redemption of Securities.  Without the Paying Agent’s prior written
consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Paying Agent
as set forth in this Indenture, and the Company agrees to indemnify the Paying
Agent from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Company and such purchasers, including
the costs and expenses incurred by the Paying Agent in the defense of any claim
or liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this
Indenture.


 


SECTION 3.8.                  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 any accrued and unpaid Interest Amounts, if any, 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 3.8.


 


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


 


20

















 


Company representing at least 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 to them for
purposes of Section 13(d) and 14(d) of the Exchange Act or any successor
provisions, 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 (as defined below) 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 of the Company
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 3.8, a Change in Control will not be
deemed to have occurred if either:


 


(1)           the Closing Price (determined in
accordance with Section 4.6(e) of this Indenture) of the Common Stock for any
five (5) 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 made pursuant to dissenters’ appraisal rights) in the
merger or consolidation otherwise constituting a Change in Control consists of
shares of common stock, depositary receipts or other certificates representing
common equity interests traded on a United States national securities exchange
or quoted on the Nasdaq National Market (or which will be so traded or quoted
immediately following such merger or consolidation) and as a result of such
merger or consolidation the Securities become convertible solely into such
common stock, depositary receipts or other certificates representing common
equity interests.


 


(b)           Within 10 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of the Change in Control to
the 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 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 terms and conditions of the
transaction leading to the Change in Control;


 


(3)           the date by which the Change in
Control Purchase Notice pursuant to this Section 3.8 must be given;


 


21

















 


(4)           the Change in Control Purchase Date;


 


(5)           the Change in Control Purchase Price;


 


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


 


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


 


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


 


(9)           the Conversion Price and any
adjustments thereto;


 


(10)         that Securities as to which a Change in
Control Purchase Notice has been given may be converted if they are otherwise
convertible only in accordance with Article 4 of this Indenture and
paragraph 9 of the Securities only to the extent that the Change in Control
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


(11)         the procedures that the Holder must
follow to exercise rights under this Section 3.8;


 


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


 


(13)         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.


 


At the Company’s request,
the Trustee shall give notice of such Change in Control on behalf of the
Company and at the Company’s expense; provided,
however, that, in all cases, the
text of such notice shall be prepared by the Company.


 


(c)           A Holder may exercise its rights specified in
subsection (a) of this Section 3.8 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 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 immediately preceding the Change in
Control Purchase Date.  The notice most
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 3.8, a portion of a Security
if the principal amount of such portion is $1,000 or an integral multiple of
$1,000.  Provisions of the Indenture
that apply to the purchase of all of a Security pursuant to Sections 3.8
through 3.13 also apply to the purchase of such portion of such Security.


 


22

















 


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 an integral multiple
thereof at any time prior to the close of business on the Business Day
immediately preceding the Change in Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
3.9.


 


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 3.9.      EFFECT OF CHANGE IN CONTROL
PURCHASE NOTICE.


 


Upon receipt by any Paying
Agent of the Change in Control Purchase Notice specified in Section 3.8(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 3.8(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 3.8(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 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 an
integral multiple of $1,000 in excess thereof) with respect to which such
notice of withdrawal is being submitted.


 


SECTION
3.10.    DEPOSIT
OF CHANGE IN CONTROL PURCHASE PRICE.


 


On or before 12:00 noon, 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 3.10 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


 


23

















 


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.


 


To the extent that the
aggregate amount of cash deposited by the Company pursuant to this Section 3.10
exceeds the aggregate Change in Control Purchase Price together with Interest
Amounts, 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.


 


SECTION
3.11.           PURCHASE OF
SECURITIES AT OPTION OF THE HOLDER ON SPECIFIED DATES.


 


(a)           Securities shall be purchased in cash by the Company in
accordance with the provisions of paragraph 8 of the Securities as of
June 15, 2008 (the “2008 Purchase Date”) at a purchase price per Security
equal to 100.25% of the aggregate principal amount of the Security, together
with any accrued Interest Amounts, if any, up to but not including the 2008
Purchase Date (the “2008 Purchase Price”), and as of June 15, 2013 and June 15,
2018 (collectively, the “2013-2018 Purchase Dates”), at a purchase price per
Security equal to 100% of the aggregate principal amount of the Security,
together with any accrued Interest Amounts up to but not including the
applicable 2013-2018 Purchase Date (the “2013-2018 Purchase Price”); provided that if the Put Right Purchase
Date falls after an Interest Amounts Record Date, if any, and on or before the
related Interest Amounts Payment Date, any Interest Amounts on the Securities
will be payable to the Holders in whose names the Securities are registered at
the close of business on such Interest Amounts Record Date, if any.


 


(b)           The Company shall give written notice of the applicable
Put Right Purchase Date by notice sent by first-class mail to the Trustee and
to each Holder (at its address shown in the register of the Registrar) not less
than 20 Business Days prior to each Put Right Purchase Date (the “Company Put
Right Notice”).  Each Company Put Right
Notice shall include a form of Put Right Purchase Notice to be completed by a
Securityholder and shall state:


 


(i)            the
Put Right Purchase Price, the Put Right Purchase Date and the Conversion Price
in effect;


 


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


 


(iii)          that
Securities as to which a Put Right Purchase Notice has been given may be
converted if they are otherwise convertible only in accordance with Article 4
hereof and paragraph 9 of the Securities only to the extent that the Put Right
Purchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


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


 


(v)           that
the Put Right Purchase Price for any Security as to which a Put Right Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Put Right Purchase Date and the time of surrender of such Security
as described in subclause (iv) above;


 


24

















 


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


 


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


 


(viii)        the
procedures for withdrawing a Put Right Purchase Notice (including pursuant to
the terms of Section 3.11(d));


 


(ix)           that,
unless the Company defaults in making payment on Securities for which a Put
Right Purchase Notice has been submitted, Interest Amounts, if any, on such
Securities will cease to accrue on and after the Put Right Purchase Date; and


 


(x)            the
CUSIP number of the Securities.


 


If any of the Securities are
to be redeemed in the form of a Global Security, the Company shall modify such
notice to the extent necessary to accord with the procedures of the Depositary
applicable to redemptions.


 


At the Company’s request,
the Trustee shall give such Company Put Right Notice on behalf of the Company
and at the Company’s expense; provided,
however, that, in all cases, the
text of such Company Put Right Notice shall be prepared by the Company.


 


(c)           Purchases of Securities by the Company pursuant to this
Section 3.11 shall be made, at the option of the Holder thereof, upon:


 


(1)           delivery to the Paying Agent by the
Holder of a written notice of purchase in the form set forth in Exhibit A
attached hereto (a “Put Right Purchase Notice”) at any time from the opening of
business on the date that is 20 Business Days prior to the applicable Put Right
Purchase Date until the close of business on the fifth (5th)
Business Day prior to such Put Right Purchase Date stating:


 


(A)          the certificate number of the Security
which the Holder will deliver to be purchased,


 


(B)           the portion (which may be 100%) of the
principal amount of the Security which the Holder will deliver to be purchased,
which portion must be in a principal amount of $1,000 or an integral multiple
thereof, and


 


(C)           that such Security shall be purchased
as of the applicable Put Right Purchase Date pursuant to the terms and
conditions specified in paragraph 8 of the Securities and in this Section 3.11
of this Indenture.


 


(2)           delivery of such Security to the
Paying Agent at any time after delivery of the Put Right Purchase Notice
(together with all necessary endorsements) at the offices of the Paying
Agent.  Delivery of such Security shall
be a condition to receipt by the Holder of the Put Right Purchase Price
therefor.  The Put Right Purchase Price
shall be paid pursuant to this Section 3.11 only if the Security delivered to
the Paying Agent shall conform in all respects to the description thereof in
the related Put Right Purchase Notice, as determined by the Company.


 


(d)           Notwithstanding anything herein to
the contrary, any Holder delivering to the Paying Agent the Put Right Purchase
Notice contemplated by this Section 3.11 shall have the right to withdraw such
Put Right Purchase Notice at any time prior to the close of business on the
second Business Day


 


25

















 


immediately preceding the Put Right Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent
specifying:


 


(1)           the certificate number, if any, of
the Security in respect of which such notice of withdrawal is being submitted,


 


(2)           the aggregate principal amount of the
Security with respect to which such notice of withdrawal is being submitted,
and


 


(3)           the aggregate principal amount, if
any, of such Security which remains subject to the original Put Right Purchase
Notice and which has been or will be delivered for purchase by the Company.


 


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


 


(e)           On or before 12:00 noon (local time in the City of New
York) on the Put Right Purchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or if the Company or an Affiliate of the
Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.4) an amount of money (in immediately available funds if
deposited on such Put Right Purchase Date) sufficient to pay the aggregate Put
Right Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Put Right Purchase Date. 
The manner in which the deposit required by this Section 3.11(e) 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 Put Right Purchase Date.


 


If a Paying Agent holds, in
accordance with the terms hereof, money sufficient to pay the Put Right
Purchase Price of any Security for which a Put Right Notice has been tendered
and not withdrawn on the Put Right Purchase Date, then, on the Put Right
Purchase Date, such Security will cease to be outstanding, whether or not the
Security is delivered to the Paying Agent, and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Put Right
Purchase Price as aforesaid) and Interest Amounts, if any, will cease to accrue
on such Security.


 


The Put Right Purchase Price
shall be paid to such Holder with respect to Securities for which a Put Right
Purchase Notice has been tendered and not withdrawn, subject to receipt of
funds by the Paying Agent, promptly following the later of (x) the Put Right
Purchase Date with respect to such Security (provided the conditions in Section
3.11(c) have been satisfied) and (y) the time of delivery of such Security to
the Paying Agent by the Holder thereof in the manner required by Section
3.11(c).  Securities in respect of which
a Put Right Purchase Notice has been given by the Holder thereof may not be converted
pursuant to Article 4 hereof on or after the date of the delivery of such Put
Right Purchase Notice, unless such Put Right Purchase Notice has first been
validly withdrawn as specified in Section 3.11(d).


 


To the extent that the
aggregate amount of cash deposited by the Company pursuant to this Section
3.11(e) exceeds the aggregate Put Right Purchase Price of the Securities or
portions thereof that the Company is obligated to purchase, then promptly after
the Put Right Purchase Date the Trustee or a Paying Agent, as the case may be,
shall return any such excess cash to the Company.


 


(f)            There shall be no purchase of any
Securities pursuant to this Section 3.11 if there has occurred (prior to,
on or after as the case may be, the giving, by the Holders of such Securities,
of the required Put Right Purchase Notice) and is continuing an Event of
Default (other than a default in the


 


26

















 


payment of the Put Right Purchase
Price).  The Paying Agent will promptly
return to the respective Holders thereof any Securities (x) with respect to
which a Put Right Purchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Put Right Purchase Price) in which
case, upon such return, the Put Right Purchase Notice with respect thereto
shall be deemed to have been withdrawn.


 


Upon receipt by the Paying
Agent of the Put Right Purchase Notice specified in Section 3.11(c), the Holder
of the Security in respect of which such Put Right Purchase Notice was given
shall (unless such Put Right Purchase Notice is withdrawn as specified herein)
thereafter be entitled to receive solely the Put Right Purchase Price with
respect to such Security.


 


(g)           The Company shall purchase from the Holder thereof,
pursuant to this Section 3.11, a portion of a Security if the principal amount
of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to
the purchase of all of a Security also apply to the purchase of such portion of
such Security.


 


SECTION
3.12.           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 or the Put Right
Purchase Date, as the case may be, 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.


 


SECTION
3.13.    COMPLIANCE
WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES.


 


In connection with any offer
to purchase or purchase of Securities under Section 3.8 or 3.11, the Company
shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to
either such Rule), if applicable and any other tender offer rules, under the
Exchange Act, (b) file the related Schedule TO (or any successor or
similar schedule, form or report) if required under the Exchange Act, with a
copy to the Trustee, and (c) 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 Sections 3.8 through 3.12 to be exercised in the time and in
the manner specified therein.


 


ARTICLE 4

CONVERSION


 


SECTION 4.1.      CONVERSION PRIVILEGE.


 


(a)           Subject to the further provisions of this Article 4 and
paragraph 9 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 integral
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, if, as of such Conversion Date, the Sale Price of the Common Stock
on the last Trading Day of the immediately preceding fiscal quarter is more
than 120% of the Conversion Price per share of Common Stock on such Trading Day
(the “Sale Price Condition”), subject to the exceptions provided in Section
4.1(b).  The Conversion Agent shall, on
each applicable Trading Day set forth above, determine whether the Securities


 


27

















 


are convertible pursuant to this Section
4.1(a) and will notify the Company and, if the Conversion Agent is not the
Trustee, the Trustee of its determination.


 


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


 


A Security in respect of
which a Holder has delivered a Change in Control Purchase Notice pursuant to
Section 3.8(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 3.9.  A Security in respect
of which a Holder has delivered a Put Right Purchase Notice pursuant to
Section 3.11(c) exercising the option of such Holder to require the
Company to purchase such Security may be converted only if such Put Right
Purchase Notice is withdrawn by a written notice of withdrawal delivered to a
Paying Agent prior to the close of business on the second Business Day
immediately preceding the Put Right Purchase Date in accordance with
Section 3.11(d).


 


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


 


(b)           Even if the Sale Price Condition is not satisfied,


 


(1)           a Holder may surrender for conversion
a Security which has been called for redemption pursuant to Section 3.1 at any
time prior to the close of business on the day that is two Business Days prior
to the redemption date;


 


(2)           if after any five consecutive Trading
Day period in which the average of the Trading Prices for the Securities for
that five Trading Day period was less than 100% of the average of the
Conversion Values for the Securities during that period, a holder may surrender
Securities for conversion at any time during the following 10 Trading Days; provided, however,
that no Securities may be converted based on the satisfaction of this condition
during the six-month period immediately preceding each specified date on which
the Holders may require the Company to repurchase Securities pursuant to
Section 3.11, if on any day during such five consecutive Trading Day period,
the Sale Price of Common Stock is between the Conversion Price and 120% of the
Conversion Price;


 


(3)           in the event that the Company
declares


 


(A)          a dividend or distribution of any
rights or warrants to all holders of Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price per share (as defined in Section 4.6(e)) on the record
date for such issuance (other than a distribution of rights by the Company to
its stockholders pursuant to a Rights Plan), or


 


(B)           a dividend or distribution to all
holders of Common Stock of cash, debt securities (or other evidences of
indebtedness), or other assets (excluding dividends or distributions for which
Conversion Price adjustment is required to be made under Section 4.6(a) or
4.6(b) of the Indenture), which distribution, together with all other such
distributions within the preceding twelve months, has a per share value
exceeding 10% of the Current Market Price of the Common Stock as of the


 


28

















 


Trading Day immediately prior to the date of
declaration for such distribution, then the Company must notify the Holders at
least 20 days prior to the ex-dividend date for such distribution.  Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time thereafter
until the earlier of (i) the close of business on the Business Day prior to the
ex-dividend date or (ii) the announcement by the Company that such distribution
will not take place; and


 


(4)           If the Company is party to a consolidation,
merger or transfer, lease or other disposition of all or substantially all of
its assets pursuant to which its Common Stock would be converted into, or into
the right to receive, cash, securities or other assets, a Holder may surrender
Securities for conversion at any time beginning 20 days before the anticipated
effective date of the transaction until 20 days after the actual effective date
of the transaction.  If the Company is
party to a consolidation, merger or transfer, lease or other disposition of all
or substantially all of its assets pursuant to which its Common Stock is
converted into, or into the right to receive, cash, securities or other assets,
then at the effective time of the transaction, the right to convert a Security
into Common Stock will be changed into a right to convert it into, or into the
right to receive, as applicable, the kind and amount of cash, securities or
other property which the Holder would have received if the Holder had converted
that Holder’s Securities immediately before the transaction (assuming, in a
case in which the Company’s shareholders may exercise rights of election, that
a Holder of Securities would not have exercised any rights of election as to
the stock, other securities or other property or assets receivable in
connection therewith and received per share the kind and amount of cash,
securities or other property received per share by a plurality of nonelecting
shares).


 


The Company will provide
written notice to the Conversion Agent upon the occurrence of any of the
conversion events specified in paragraph (b) of this Section 4.1 (other than
Section 4.1(b)(1)).


 


(c)           If a Security is called for redemption or 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 Redemption Date, Change in Control Purchase Date or Put Right Purchase
Date, as the case may be, for such Security or such earlier date as the Holder
presents such Security for redemption or for purchase (unless the Company shall
default in making the redemption payment, Change in Control Purchase Price
payment or Put Right 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 redeemed or 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 9 of the Securities and is subject to adjustment as provided in
this Article 4.  The number of
shares of Series A Preferred Stock, if any, issuable upon conversion of a
Security shall be determined in accordance with Section 4.5.


 


SECTION 4.2.      CONVERSION PROCEDURE.


 


(a)           To convert a Security, a Holder must (1) complete and
manually sign the conversion notice on the back of the Security and deliver
such notice to a Conversion Agent, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by a Registrar or a Conversion Agent, and (4) pay any
transfer or similar tax, if required. 
The date on which the Holder satisfies all of those requirements is the
“Conversion Date.”


 


(b)           As soon as practicable after the Conversion Date, the
Company shall satisfy all of its obligations (“Conversion Obligations”) upon
conversion of the Securities by delivering to the Holder, at


 


29

















 


the Company’s option, either shares of Common
Stock, cash or a combination of cash and shares of Common Stock, in the
following manner:


 


(1)           If the Company elects to satisfy the
entire Conversion Obligation in shares of Common Stock (“Share Settlement”),
then the Company will deliver to the Holder shares of Common Stock equal to the
quotient of (A) the aggregate principal amount of Securities to be converted
by the Holder divided by (B) the then applicable Conversion Price;


 


(2)           If the Company elects to satisfy the
entire Conversion Obligation in cash (“Cash Settlement”), then the Company will
deliver to the Holder cash in an amount equal to the product of (A) a
number equal to the aggregate principal amount of Securities to be converted by
such Holder divided by the then applicable Conversion Price, and (B) the
arithmetic mean of the Volume Weighted Average Prices of the Common Stock on each
Trading Day during the applicable cash settlement averaging period as provided
below (the “Cash Settlement Averaging Period”); or


 


(3)           If the Company elects to satisfy a
portion of the Conversion Obligation in cash (the “Partial Cash Amount”) and a
portion in shares of Common Stock (together with the Partial Cash Amount, a
“Combined Settlement”), then the Company will deliver to the Holder such
Partial Cash Amount plus a number of shares equal to (A) the cash
settlement amount as set forth in clause (2) above minus such Partial Cash
Amount divided by (B) the arithmetic mean of the Volume Weighted Average
Prices of the Common Stock on each Trading Day during the applicable Cash
Settlement Averaging Period as provided below.


 


(c)           If the Company elects Share Settlement or Combined
Settlement but is unable to issue Common Stock to discharge its Conversion
Obligations pursuant to this Section 4.2, the provisions of Section 4.5 will
apply.


 


(d)           If the Company receives the conversion notice from a
Holder on or prior to the day that is thirty (30) days prior to June 15,
2008 or after June 15, 2008, then the following procedures shall apply:


 


(1)           If the Company elects to satisfy the
Conversion Obligation by Share Settlement, then settlement in shares will be
made on or prior to the tenth (10th) Trading Day following receipt
of such conversion notice.


 


(2)           If the Company elects to satisfy the
Conversion Obligation by Cash Settlement or Combined Settlement, then the
Company will notify the Holder, through the Trustee, of the dollar amount to be
satisfied in cash at any time on or before the date that is two Business Days
following receipt of the notice of conversion (the “Settlement Notice
Period”).  Share Settlement will apply
automatically if the Company does not notify the Holder that the Company has
chosen another settlement method.


 


(3)           If the Company timely elects Cash
Settlement or Combined Settlement, then the Holder may retract the conversion
notice at any time during the two (2) Business Day period beginning on the day
after the Settlement Notice Period (the “Conversion Retraction Period”).  The Holder cannot retract the conversion
notice (and the conversion notice therefore will be irrevocable) if the Company
elects Share Settlement.  If the Holder
has not retracted the conversion notice during the Conversion Retraction
Period, then Cash Settlement or Combined Settlement will occur on the first
Trading Day following the Cash Settlement Averaging Period.  For purposes of this Section 4.2(d)(3), the
Cash Settlement Averaging Period will be the five (5) Trading Day period
beginning on the first Trading Day after the Conversion Retraction Period.


 


30

















 


(e)           If the Company receives the conversion notice from the
first day after the day that is thirty (30) days prior to June 15, 2008
to, and including, June 15, 2008, then the following procedures will
apply:


 


(1)           On or prior to the day that is thirty
(30) days prior to June 15, 2008, the Company may notify (the “Conversion
Settlement Election Notice”) the Holder, through the Trustee, that the Company
intends to satisfy all Conversion Obligations arising during such thirty (30)
day period by either Cash Settlement or Combined Settlement, and the Company
will state in the Conversion Settlement Election Notice the fixed dollar amount
of cash that will be delivered to the Holder. 
Share Settlement will apply automatically if the Company does not
deliver to the Holder the Conversion Settlement Election Notice on or prior to
the day that is thirty (30) days prior to June 15, 2008.  The Company will settle all conversions of
Securities in the same manner.  The
Holder cannot retract the conversion notice if the Holder delivers such notice
from the first day after the day that is thirty (30) days prior to
June 15, 2008 to, and including, June 15, 2008 (and the conversion
notice therefore will be irrevocable).


 


(2)           If the Company has timely elected
Cash Settlement or Combined Settlement, then with respect to all subsequent
conversions, settlement amounts will be computed as set forth above, except
that the Cash Settlement Averaging Period will be the twenty (20) Trading Day
period that begins on the date that is the twenty-second (22nd)
Trading Day expected to occur prior to June 15, 2008 and that ends no
later than the Trading Day immediately preceding June 15, 2008.  However, if twenty (20) Trading Days do not
occur after such date and prior to June 15, 2008, then the Cash Settlement
Averaging Period will be the number of Trading Days that do occur prior to
June 15, 2008.


 


(3)           Settlement (in shares and/or cash)
will occur on or prior to the fifth (5th) Trading Day following
June 15, 2008 (or, if June 15, 2008 is not a Trading Day, on the
first Trading Day after such five (5) Trading Day period).


 


(f)            If an Event of Default (other than an Event of Default in
a cash payment upon conversion of the Securities), has occurred and is
continuing, the Company may not pay cash upon conversion of any Security or
portion of a Security (other than cash for fractional shares).


 


(g)           Anything herein to the contrary notwithstanding, in the
case of Global Securities, conversion notices may be delivered and such Global
Securities may be surrendered for conversion in accordance with the Applicable
Procedures as in effect from time to time.


 


(h)           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.


 


To the extent that any
Securities are surrendered for conversion (in whole or in part) during the
period from the close of business on any Interest Amounts Record Date to the
opening of business on the next succeeding Interest Amounts Payment Date, if
any, the Company shall be entitled to direct the


 


31

















 


Paying Agent to take any and all actions
consistent with custom and practice in order to prevent the payment of Interest
Amounts, if any, in excess of the amounts provided in the Registration Rights
Agreement and Section 4.5.


 


Nothing in this
Section 4.2 shall affect the right of a Holder in whose name any Security
is registered at the close of business on a Interest Amounts Record Date to
receive the Interest Amounts, if any, payable on such Security on the related
Interest Amounts Payment Date in accordance with the terms of this Indenture,
the Securities and the Registration Rights Agreement. 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 4.3.      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 fractional shares equal to the arithmetic mean of the
Volume Weighted Average Price of the Common Stock determined during the
applicable Cash Settlement Averaging Period relating to the conversion
multiplied by the fractional share (calculated to the nearest 1/1,000th
of a share of Common Stock) and rounding the product to the nearest whole cent.


 


The Company will issue
fractional shares of Series A Preferred Stock up to 1/1000th of
a share of Series A Preferred Stock. 
Any fraction of a share of Series A Preferred Stock that is less than
1/1000th of a share shall be paid in cash.  The cash paid for such excess fractional share of Series A
Preferred Stock shall equal the product of (i) such excess fractional share of
Series A Preferred Stock multiplied by 1000 and (ii) the arithmetic mean of the
Volume Weighted Average Price of the Common Stock determined during the
applicable Cash Settlement Averaging Period relating to the conversion, and
rounding the product to the nearest whole cent.


 


SECTION 4.4.      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 or Series A Preferred
Stock upon such conversion or due upon the delivery upon exchange of Common
Stock by an Exchange Agent pursuant to Section 4.5.  However, the Holder shall pay any such tax which is due because
the Holder requests the shares to be issued in a name other than the Holder’s
name.  The Conversion Agent may refuse
to deliver the certificate representing the Common Stock or Series A Preferred
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 4.5.      COMPANY TO PROVIDE STOCK.


 


(a)           Prior to the Reserve Sufficient Date (as defined below),
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 and Series A Preferred Stock, a sufficient number of shares of Common
Stock and Series A Preferred Stock to permit the conversion of all outstanding
Securities into shares of Common Stock and Series A Preferred Stock.


 


32

















 


In the event the Company has
not established a reserve of Common Stock sufficient for conversion into Common
Stock of all outstanding Securities by the date 120 days after the latest date
of issuance of the Securities, the Securities then outstanding will bear
interest at the rate 0.75% per annum from and after such date to, but
excluding, the date on which a reserve sufficient for conversion of all
Securities then outstanding has been established (the “Reserve Sufficient
Date”).  Such Interest Amounts shall be
paid on the relevant Interest Amounts Payment Dates to Holders on the
applicable Interest Amounts Record Date.


 


On and after the Reserve
Sufficient Date, subsections (b) and (c) of this Section 4.5 and the preceding
two paragraphs of this Section 4.5(a) shall no longer be in effect.  On and after the Reserve Sufficient Date the
Company shall from time to time, as may be necessary, reserve a sufficient
number of shares of Common Stock to permit the conversion of all outstanding
Securities into shares of Common Stock.


 


(b)           The Company may, in its discretion, designate a financial
institution (the “Exchange Agent”) to which Securities surrendered for
conversion by a Holder of Securities shall be initially offered by the
Conversion Agent for exchange in lieu of the Company converting the
Securities.  In such circumstances, when
a Holder surrenders Securities for conversion, the Conversion Agent shall cause
the Securities first to be offered to the Exchange Agent for exchange in lieu
of conversion.  If the Exchange Agent
accepts any such Security, it shall deliver the appropriate number of shares of
Common Stock that the Holder of such Securities would receive upon conversion,
plus cash for any fractional shares and shall deliver, or shall cause to be
delivered on its behalf, the appropriate number of shares of Common Stock and
cash to the Holder who surrendered the Securities or to the Conversion Agent
and the Conversion Agent shall deliver those shares and cash to the Holder who
surrendered the Securities.  The
designation of an institution as an Exchange Agent does not require the
institution to accept any Securities from the Conversion Agent.  If the Exchange Agent declines to accept any
Securities in whole or in part or agrees to accept Securities for exchange but
does not timely deliver the related shares of Common Stock and cash, such
Securities or portion of Securities not exchanged shall be converted pursuant
to this Article 4.  Any Securities
accepted for exchange by the Exchange Agent shall remain outstanding until
maturity or until redeemed, converted or purchased in accordance with the
Indenture.


 


The Company has designated
Credit Suisse First Boston LLC as Exchange Agent but only with respect to
Securities surrendered for conversion for which the shares of Common Stock
reserved for issuance upon conversion of outstanding Securities are
insufficient for such conversion.  The
Company may revoke, amend or supplement its designation by Company Order to the
Conversion Agent.  The term Exchange
Agent includes any additional exchange agent. 
Upon the Company establishing a reserve of Common Stock sufficient for
conversion into Common Stock of all Securities remaining outstanding, the
Company shall deliver to the Conversion Agent and the Trustee a Company Order
advising of that fact and that subsections (b) and (c) of this Section 4.5 and
the first two paragraphs of Section 4.5(a) shall no longer be in effect.


 


(c)           In the event that the Company in unable to satisfy its
Conversion Obligations in shares of Common Stock and the Exchange Agent
designated to exchange Securities surrendered for conversion declines to
exchange such Securities or does not timely deliver such shares of Common
Stock, the Company may issue Series A Preferred Stock in lieu of shares of
Common Stock based on a ratio of 1.1 shares of Series A Preferred Stock for
each 1,000 shares of Common Stock.  The
Company may issue fractions of Series A Preferred Stock up to 1/1000th of
a share of Series A Preferred Stock, with any smaller fraction being paid in
cash in accordance with Section 4.3.


 


33

















 


(d)           Any and all shares of Common Stock and Series A Preferred
Stock delivered upon conversion of the Securities 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.


 


(e)           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
Notes into Common Stock in accordance with the provisions of this Indenture,
the Company covenants to list such Common Stock issuable upon conversion of the
Notes 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 4.6.      ADJUSTMENT OF CONVERSION
PRICE.


 


The conversion price as
stated in paragraph 9 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 (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
of not more than 60 days after such issuance) 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 (e) of this Section 4.6) 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 (e) of this
Section 4.6) 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 


 


34

















 


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 4.6), 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 4.6 and also excluding the
distribution of rights to all holders of Common Stock pursuant to a Rights Plan
or the detachment of such rights under the terms of such 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 (e) of this Section 4.6) 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 4.6) 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 shareholders 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 4.6(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.


 


In the event that the
Company implements a preferred shares rights plan (“Rights Plan”), upon
conversion of the Securities into Common Stock, to the extent that the 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 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 4.6(c).


 


35

















 


Rights or warrants (or other
rights issued pursuant to a Rights Plan) 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 4.6 (and no adjustment to the Conversion
Price under this Section 4.6 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 4.6(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 4.6 was made, (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or 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.


 


(d)           (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
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 4.6 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 4.6 has been
made, exceeds an amount equal to 5.0% of the product of the Current Market
Price per share of Common Stock (as determined in accordance with
subsection (e) of this Section 4.6) 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 (e) of this Section 4.6) 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 4.6(d)(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


 


36

















 


Date) and the denominator shall be such
Current Market Price per share of the Common Stock (as determined in accordance
with subsection (e) of this Section 4.6) 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 4.6 has been made and (B) 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 4.6 has been made, exceeds an amount equal to
5.0% of the product of the Current Market Price per share of Common Stock (as
determined in accordance with subsection (e) of this Section 4.6) 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 (e) of this
Section 4.6) 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 (e)
of this Section 4.6) 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 4.6(d)(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 4.6(d)(2).


 


(3)           For purposes of this
Section 4.6(d), 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


 


37

















 


acquisition of shares 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.


 


(e)           For the purpose of any computation under
subsections (b), (c) and (d) of this Section 4.6, 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) or (d) of this Section 4.6 or
(ii) the record date with respect to distributions, issuances or other
events requiring such computation under subsection (b), (c) or (d) of this
Section 4.6.  The closing price
(the “Closing Price”) for each day shall be the last reported 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 quoted on the NNM, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not quoted on the NNM or listed or admitted for
trading on any national securities exchange, the last reported 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).


 


(f)            In any case in which this Section 4.6 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 4.6, 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 4.9) 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 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 4.7.      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 4.7 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.


 


Except pursuant to Section
4.6 and this Section 4.7, no adjustment need be made for issuances of Common
Stock or any securities convertible or exchangeable for Common Stock or the
right to purchase Common Stock or such convertible or exchangeable securities.


 


38

















 


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
4.8.          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
4.9.          ADJUSTMENT
FOR TAX PURPOSES.


 


The Company shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by Section 4.6, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision 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
4.10.       NOTICE
OF CERTAIN TRANSACTIONS.


 


In the event that:


 


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


 


(2)           the Company consolidates or merges
with, or transfers all or substantially all of its property and assets to,
another corporation and shareholders 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 4.6); (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 Person, as the case may be, shall,


 


39

















 


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 Person, 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 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 the Company or the
Trustee on behalf of the Company 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 4.9.  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 if the Company’s 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 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.


 


40

















 


ARTICLE 5


SUBORDINATION


 


SECTION
5.1.          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 Amounts, if any, on all Securities
(including, but not limited to, the Redemption Price with respect to the
Securities called for redemption or the Change in Control Purchase Price or Put
Right 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
5.2.          PAYMENTS
TO HOLDERS.


 


No payment shall be made
with respect to the principal of, or premium, if any, or Interest Amounts, if any,
on the Securities (including, but not limited to, the Redemption Price with
respect to the Securities to be called for redemption or the Change in Control
Purchase Price or Put Right 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 5.5, if:


 


(i)            a default in the payment of principal, premium, interest,
rent or other obligations due on any Senior Indebtedness occurs and is
continuing (or, in the case of 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 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 any 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 a
Representative or holder of such Designated Senior Indebtedness or the Company.


 


Subject to the provisions of
Section 5.5, 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 date the Trustee received the immediately prior Payment
Blockage Notice and all scheduled payments on the Securities that have come due
have been paid in full in cash.  No
nonpayment default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee (unless such default was waived,
cured or otherwise ceased to exist and thereafter subsequently reoccurred)
shall be the basis for a subsequent Payment Blockage Notice.


 


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


 


41

















 


(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 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 Amounts, 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 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 corporation 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
corporation 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 5.2 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,


 


42

















 


premium, if any, or Interest Amounts, if any,
on the Securities by the Company (including, but not limited to, the Redemption
Price with respect to the Securities called for redemption or the Change in
Control Purchase Price or Put Right 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 5.5, 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 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 5.2
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 9.7.  This Section 5.2 shall be
subject to the further provisions of Section 5.5.


 


SECTION
5.3.          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 Amounts, 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 over
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 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.


 


43

















 


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 Amounts, if any,
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 9.1, 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 5.4.          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 5.3 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
5.5.          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 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 from any trustee thereof; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 9.1, 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 Amounts, if any,
on any Security) the Trustee shall not have received, with respect to such
monies, the notice provided for in this Section 5.5, 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


 


44

















 


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 9.1, 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
5.6.          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 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 9.1, 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
5.7.          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
5.8.          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 Amounts, if any, 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 4.3), 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 5.8, the term “junior securities” means
(a) shares of any stock of any class of the Company, or (b) securities
of the Company which are


 


45

















 


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
5.9.          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 (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 5.5 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
6.1.          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 Amounts, if any, shall be
considered paid on the date it is due if the Paying Agent (other than the
Company) holds by 12:00 noon, New York City time, on that date money, deposited
by the Company or an Affiliate thereof, sufficient to pay the installment.  Subject to Section 4.2 hereof, accrued and
unpaid Interest Amounts, if any, on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Amounts Payment Date
shall be paid to the person in whose name that Security is registered at the
close of business on the Interest Amounts Record Date for such Interest
Amounts, if any, at the office or agency of the Company maintained for such
purpose.  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 any Interest Amounts, if any, arising pursuant to the
Registration Rights Agreement and Section 4.5 at the rate of 4% per annum.


 


Payment of the principal of
(and premium, if any) and any Interest Amounts, if any, 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 (which shall initially be The
Bank of New York, 101 Barclay Street – Lobby Level, Debt Processing Window, New
York, New York 10286) 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
Amounts 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


 


46

















 


funds at the election of such Holder if such
Holder has provided wire transfer instructions to the Company and to the Paying
Agent at least 10 Business Days prior to the payment date.


 


SECTION
6.2.          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 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
6.3.          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 December 31, 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 signer knows of any default or Event of Default.  If such signer knows 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 6.3, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture. 
The Company will notify the Trustee of any change to its fiscal year.


 


SECTION
6.4.          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
6.5.          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
6.6.          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 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 exemption provided by Rule 144A, as


 


47

















 


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
6.7.          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 Amounts, 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
6.8.          PAYMENT
OF INTEREST AMOUNTS.


 


If Interest Amounts are
payable by the Company pursuant to the Registration Rights Agreement or
Section 4.5, the Company shall deliver to the Trustee a certificate to
that effect stating (i) the amount of such Interest Amounts, if any, that
are payable and (ii) the date on which such Interest Amounts, if any, are
payable.  Unless and until a Trust
Officer of the Trustee receives such a certificate, the Trustee may assume
without inquiry that no such Interest Amounts, if any, are payable.  If the Company has paid Interest Amounts
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
7.1.          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 Person) or convey, transfer or lease all or
substantially all its properties and assets 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 Person) or convey, transfer or lease all or substantially all of
its properties and assets as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person who
acquires by conveyance or transfer, or who leases all or substantially all of
the properties and assets of the Company as an entirety shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia;


 


(2)           the successor Person formed by such
consolidation or into which the Company is merged or to whom such conveyance,
transfer or lease is made shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium and
Interest Amounts, if any, 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 satisfactory in form to
the Trustee, executed and delivered to the


 


48

















 


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 who shall have acquired the Company’s assets;


 


(3)           immediately after giving effect to
such transaction, no Event of Default or Default shall have occurred and be
continuing; and


 


(4)           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
7.2.          SUCCESSOR
SUBSTITUTED.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all of the properties and
assets of the Company as an entirety in accordance with Section 7.1, 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
8.1.          EVENTS
OF DEFAULT.


 


An “Event of Default” shall
occur if:


 


(1)           the Company defaults in the payment
of any interest (including Interest Amounts, if any,) on any Security when the
same becomes 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, upon
redemption, on a Change of Control Purchase Date or Put Right Purchase Date or
otherwise), whether or not such payment shall be prohibited by the provisions
of Article 5 hereof;


 


(3)           the Company fails to perform any
other covenants required of it in the Indenture and the default continues 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 notice
of a Change in Control when required by Section 3.8(b); or


 


(6)           any Indebtedness for money borrowed
by the Company or any Significant Subsidiary in an outstanding principal amount
in excess of U.S. $25,000,000, whether such Indebtedness


 


49

















 


now exists or shall hereafter be created, is
not paid at final maturity (either at its stated maturity or upon acceleration
thereof), and such Indebtedness is not discharged, or such acceleration is not cured,
waived, 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, pursuant to or within
the meaning of any Bankruptcy Law:


 


(A)                              commences
a voluntary case or proceeding;


 


(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 in an involuntary case or proceeding;


 


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


 


(C)                                orders
the liquidation of the Company;


 


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 8.1 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 8.1
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.


 


50

















 


SECTION
8.2.          ACCELERATION.


 


If an Event of Default
(other than an Event of Default specified in clause (7) or (8) of
Section 8.1) with respect to the Company occurs and is continuing, the
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 to the date of
acceleration on the Securities then outstanding (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 8.1 with
respect to the Company 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.  Any payments by the Company on the
Securities following such acceleration will be subject to the subordination
provisions of Article 5 to the extent provided herein.  After an acceleration, the Holders of a
majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee 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 (at the rate of 4% per annum) on overdue
installments of Interest Amounts, if any, which has become due otherwise than
by such declaration of acceleration, has been paid; (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 9.7 have been made. 
No such rescission shall affect any subsequent default or impair any
right consequent thereto.


 


SECTION
8.3.          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 any Interest Amounts 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
8.4.          WAIVER
OF DEFAULTS AND EVENTS OF DEFAULT.


 


Subject to Sections 8.7
and 11.2, 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 any interest
(including any Interest Amounts) on any Security when due, a failure by the
Company to convert any Securities into Common Stock or Series A Preferred Stock
pursuant to this Indenture or any default or Event of Default in respect of any
provision of this Indenture or the Securities which, under Section 11.2,
cannot be modified or amended 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
8.5.          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


 


51

















 


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
8.6.          LIMITATIONS
ON SUITS.


 


A Holder of a Security may
not pursue any remedy with respect to this Indenture or the Securities (except
actions for payment of overdue principal or Interest Amounts, if any, 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 request and the 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
8.7.          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 Amounts, if any, 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 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
8.8.          COLLECTION
SUIT BY TRUSTEE.


 


If an Event of Default in
the payment of principal or Interest Amounts, if any, specified in
clause (1) or (2) of Section 8.1 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 Amounts, if any, remaining unpaid, together
with, to the extent that payment of such interest is lawful, interest on
overdue principal and on overdue installments of Interest Amounts, if any, in
each case at the rate of 4% per annum 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
8.9.          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,


 


52

















 


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 9.7, 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:


 


First, to the Trustee for
amounts due under Section 9.7;


 


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 Amounts, if
any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and Interest Amounts,
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 8.7, or a
suit by Holders of more than 10% in aggregate principal amount of the
Securities then outstanding.


 


53

















 


ARTICLE 9


TRUSTEE


 


SECTION
9.1.          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 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 on their
face 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 9.1;


 


(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 8.5.


 


(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 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 9.1.


 


(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
9.2.          RIGHTS
OF TRUSTEE.


 


Subject to Section 9.1:


 


(a)           The Trustee may rely conclusively on
any document believed by it to be genuine and to have been signed or presented
by the proper person.  The Trustee need
not investigate any fact or matter stated in the document.


 


(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 12.4(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.


 


54

















 


(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.


 


(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 and this Indenture.


 


(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
9.3.          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 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
9.4.          TRUSTEE’S
DISCLAIMER.


 


The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, or any offering circular relating thereto, 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.


 


55

















 


SECTION
9.5.          NOTICE
OF DEFAULT OR EVENTS OF DEFAULT.


 


If a default or an Event of
Default occurs and is continuing and such is actually known to the Trustee, the
Trustee shall mail to each Securityholder notice of the default or Event of
Default within 90 days after such default or Event of Default becomes actually
known to it.  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
9.6.          REPORTS
BY TRUSTEE TO HOLDERS.


 


If such report is required
by TIA Section 313, within 60 days after each May 15, beginning with the
May 15 following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such May 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
9.7.          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. 
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 9.7 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 determined by the
income of the Trustee), (including reasonable legal fees and expenses whether
incurred before trial, on trial, on appeal, or in any bankruptcy or arbitration
proceeding) 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 or bad faith.


 


To secure the Company’s
payment obligations in this Section 9.7, 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 Amounts, if any, on the
Securities.  The obligations of the
Company under this Section 9.7 shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee.


 


56

















 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
clause (7) or (8) of Section 8.1 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
9.8.          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.


 


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, 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 9.8, the Company’s obligations
under Section 9.7 shall continue for the benefit of the retiring Trustee.


 


SECTION
9.9.          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,


 


57

















 


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 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
10.1.       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


 


(a)           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 2.7 and (ii) Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided in Section 10.3)
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, or


 


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


 


58

















 


and the Company, in the case
of clause (i), (ii) or (iii) 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 such 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 to the date of such deposit (in the
case of Securities which have become due and payable) or to the Final Maturity
Date or Redemption Date, as the case may be. 
In the event that the Company exercises its right to redeem the
Securities as provided in Article 3, the Company shall have the right to
withdraw its funds previously deposited with the Trustee or Paying Agent
pursuant to the immediately preceding sections;


 


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


 


(c)           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 9.7 shall survive and the provisions of Section 2.3,
Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.12, Section 3.8,
Section 3.9, Section 3.10, Section 3.11, Section 3.12, Section 3.13, Section
12.5, Article 4, the last paragraph of Section 6.1 and this Article 10 shall
survive until the Securities have been paid in full.


 


SECTION
10.2.       APPLICATION
OF TRUST MONEY.


 


Subject to the provisions of
Section 10.3, the Trustee or a Paying Agent shall hold in trust, for the
benefit of the Holders, all money deposited with it pursuant to Section 10.1
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
10.3.       REPAYMENT
TO COMPANY.


 


The Trustee and each Paying
Agent shall promptly pay to the Company any excess money (i) deposited with
them pursuant to Section 10.1 and (ii) held by them at any time.


 


The Trustee and each Paying
Agent shall pay to the Company any money held by them for the payment of
principal or Interest Amounts, if any, that remains unclaimed two years after a
right to such money has matured or, if the Company has delivered to the Trustee
and each Paying Agent a certificate to the effect that applicable escheat laws
have been amended and has requested that the Trustee deliver such funds to the
Company at an earlier date, then the Trustee and each Paying Agent shall
deliver such funds to the Company in accordance with such request; 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 abandoned property law
designates another person.


 


59

















 


SECTION
10.4.       REINSTATEMENT.


 


(a)           If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 10.2 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
pursuant to Section 10.1 until such time as the Trustee or such Paying Agent is
permitted to apply all such money in accordance with Section 10.2; 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.


 


(b)           If, pursuant to the last sentence of
Section 10.1(a), the Company withdraws its previously deposited funds as a
result of its exercise of its redemption right, the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit has occurred pursuant to Section 10.1.


 


ARTICLE 11


AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION
11.1.       WITHOUT
CONSENT OF HOLDERS.


 


The Company and the Trustee
may amend or supplement the Indenture or the Securities without notice to or
consent of any Securityholder:


 


(a)           to comply with Sections 4.11 and
7.1;


 


(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;


 


(f)            to appoint a successor Trustee; or


 


(g)           to provide for uncertificated
Securities in addition to or in place of certificated Securities.


 


SECTION
11.2.       WITH
CONSENT OF HOLDERS.


 


The Company and the Trustee
may amend or supplement the Securities or this Indenture 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 the Securities or this Indenture without notice to any
Securityholder.  However,
notwithstanding the foregoing but subject to Section 11.4, without the
written consent of each Securityholder affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 8.4, may not:


 


(a)           change the stated maturity of the
principal of, or Interest Amounts, if any, on, any Security;


 


60

















 


(b)           reduce the principal amount of, or
any premium or Interest Amounts, if any, on, any Security;


 


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


 


(d)           change the currency of payment of
principal of, or any premium or Interest Amounts 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 

Section 3.8 upon a Change in Control or as described in Section 3.11 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 to the Indenture;


 


(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 11.2 or Section 8.4, except to increase the percentage
required for modification or waiver 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 11.2 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 11.2 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 11.2 or under Section 11.1
may not make any change that adversely affects the rights under Article 5
of any holder of an issue of Senior Indebtedness unless the holders of that
issue, pursuant to its terms, consent to the change.


 


SECTION
11.3.       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.


 


61

















 


SECTION
11.4.       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 applicable
Securityholder, unless it makes a change described in any of clauses (a)
through (k) of Section 11.2.  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
11.5.       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
11.6.       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 9.1, 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
11.7.       EFFECT
OF SUPPLEMENTAL INDENTURES.


 


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


 


ARTICLE 12


MISCELLANEOUS


 


SECTION
12.1.       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
12.2.       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


 


62

















 


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:


 


FEI Company


7451 NW Evergreen Parkway


Hillsboro, OR 97124-5830


Attention: General Counsel


Facsimile No.: (503)
640-7509


 


if to the Trustee, to:


 


BNY Western Trust Company


550 Kearny Street, Suite 600


San Francisco, CA 94108


Attention: Corporate Trust
Department


Facsimile No.: (415)
399-1647


 


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.


 


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
12.3.       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
12.4.       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.


 


63

















 


(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;


 


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
12.5.       RECORD
DATE FOR VOTE, WAIVER OR CONSENT OF SECURITYHOLDERS.


 


The Company (or, in the
event deposits have been made pursuant to Section 10.1, 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 11.4, 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 12.6.                      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
12.7.       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 Amounts, if any,
shall accrue for the intervening period. 
If a Record Date is a Legal Holiday, the Record Date shall not be
affected.


 


SECTION
12.8.       GOVERNING
LAW.


 


This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


64

















 


SECTION
12.9.       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 19 of the Securities of any director, officer, employee or
shareholder, 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.


 


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]


 


65

















 


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


 


	
   

  	
  FEI Company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vahé A. Sarkissian

  
	
   

  	
  Name:

  	
  Vahé A. Sarkissian

  
	
   

  	
  Title:

  	
  Chairman, Chief Executive
  Officer and President

  
	
   

  	
   

  	
   

  
	
   

  	
  BNY Western Trust Company as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Priscilla R. Dedoro

  
	
   

  	
   

  	
  Authorized Officer

  



 


 

















 


EXHIBIT A


[FORM OF FACE OF SECURITY]


 


[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.](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 ISSUABLE UPON CONVERSION THEREOF 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 THEREUNDER.](2)


 


[THE HOLDER OF THIS SECURITY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES
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 


 












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


 


(2)       These paragraphs to be included only if
the Security is a Restricted Security.


 


A-1

















 


(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 THIS SECURITY EXCEPT AS PERMITTED
UNDER THE SECURITIES ACT.](2)


 


[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.](2)


 


 












(2)       These paragraphs to be included only if
the Security is a Restricted Security.


 


A-2

















 


FEI COMPANY


 




	
  CUSIP:                   

  	
   

  	
  A-        

  






 


ZERO
COUPON CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2023,

FIRST PUTABLE JUNE 15, 2008


 


FEI Company, an Oregon
corporation (the “Company”, which term shall include any successor corporation
under the Indenture referred to on the reverse hereof), promises to pay to Cede
& Co., or its registered assigns, the principal sum of                                                         
Dollars ($                 )
on June 15, 2023 [or such greater or lesser amount as is indicated on the
Schedule of Exchanges of Notes on the other side of this Note].(3)


 


Interest Amounts Payment
Dates:  June 15 and December 15


 


Interest Amounts Record
Dates:  June 1 and December 1


 


This Note shall not bear
interest, other than Interest Amounts payable in certain circumstances, if
any.  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


 


 












(3)       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.


 


 


	
   

  	
  FEI COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: June 13, 2003

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Vahé A. Sarkissian

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ATTEST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Bradley J. Thies

  
	
   

  	
  Title:

  	
  Secretary

  



 


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION:


BNY WESTERN TRUST
COMPANY, as Trustee, certifies

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


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-4

















 


[FORM OF REVERSE SIDE OF SECURITY]


 


FEI COMPANY


 


ZERO COUPON CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2023,

FIRST PUTABLE JUNE 15, 2008


 


1.                    INTEREST AMOUNTS


 


FEI Company, an Oregon
corporation (the “Company”, which term shall include any successor corporation
under the Indenture hereinafter referred to), will not pay interest on the
principal amount of this Note other than any Interest Amounts, if any, accrued
and payable as provided in the Registration Rights Agreement or in the
Indenture.


 


2.                    METHOD OF PAYMENT


 


The Company shall pay
Interest Amounts, if any, on this Note to the person who is the Holder of this
Note at the close of business on June 1 or December 1, as the case may be, next
preceding the related Interest Amount payment date.  The Holder must surrender this Note to a Paying Agent to collect
payment of principal.  The Company will
pay principal and Interest Amounts, if any, 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 Amounts, if any, 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 and to the Paying
Agent at least 5 Business Days prior to the payment date.  The Company may mail a check for Interest
Amounts, if any, 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, BNY Western Trust
Company (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 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, LIMITATIONS


 


This Note is one of a duly
authorized issue of Securities of the Company designated as its Zero Coupon
Convertible Subordinated Notes due June 15, 2023, First Putable June 15, 2008
(the “Notes”), issued under an Indenture dated as of June 13, 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.


 


A-1

















 


The Notes are subordinated
unsecured obligations of the Company limited to $200,000,000 aggregate
principal amount.  The Indenture does
not limit other debt of the Company, secured or unsecured, including Senior
Indebtedness.


 


5.                    OPTIONAL REDEMPTION


 


The Notes are subject to
redemption, at any time, or from time to time, on or after June 15, 2008, as a
whole or in part, at the election of the Company.  The Redemption Price is 100% (or 100.25% if the Redemption Date
is June 15, 2008) of the principal amount of the Notes to be redeemed, together
with accrued and unpaid Interest Amounts, if any, up to but not including the
Redemption Date; provided that if
the Redemption Date falls after an Interest Amounts Record Date, if any, and on
or before an Interest Amount Payment Date, then the Interest Amounts, if any,
will be payable to the Holders in whose names the Notes are registered at the
close of business on such Interest Amounts Record Date, if any.


 


No sinking fund is provided
for the Notes.


 


6.                    NOTICE OF REDEMPTION


 


Notice of redemption will be
mailed by first-class mail at least 15 days but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at its registered
address.  Notes in denominations larger
than $1,000 may be redeemed in part, but only in whole multiples of $1,000.  On and after the Redemption Date, subject to
the deposit with the Paying Agent of funds sufficient to pay the Redemption
Price plus accrued Interest Amounts, if any, accrued to, but excluding, the
Redemption Date, Interest Amounts, if any, shall cease to accrue on Notes or
portions of them called for redemption.


 


7.                    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 an integral 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 any accrued
Interest Amounts 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 an integral multiple of $1,000 in excess thereof) at
any time prior to the close of business on the Business Day immediately
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.


 


8.                    PURCHASE OF NOTES AT OPTION OF HOLDER ON
SPECIFIED DATES


 


At the option of the Holder
and subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase for cash all or any part specified by the Holder
(so long as the principal amount of such part is $1,000 or an integral multiple
of $1,000 in excess thereof) of the Notes held by such Holder on the applicable
Put Right Purchase Date at the applicable Put Right Purchase Price.  The Holder shall have the right to withdraw
any Put Right Purchase Notice (in whole or in a portion thereof that is $1,000
or an integral multiple of $1,000 in excess thereof) at any time prior to the
close of business on the second Business Day immediately preceding the Put
Right Purchase Date by delivering a written notice of withdrawal to the Paying
Agent in accordance with the terms of the Indenture.


 


A-2

















 


9.                    CONVERSION


 


(a)           To convert a Note, a Holder must
(1) complete and manually sign the conversion notice on the back of the
Note and deliver such notice to a Conversion Agent, (2) surrender the Note
to a Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by a Registrar or a Conversion Agent, and (4) pay
any transfer or similar tax, if required.


 


(b)           A Holder may convert a Note in
accordance with the Indenture and the provisions hereof.


 


(c)           The initial Conversion Price is
$27.132 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 accordance with the Indenture.


 


(d)           As soon as practicable after the
Conversion Date, the Company shall satisfy all of its obligations (“Conversion
Obligations”) upon conversion of the Notes by delivering to the Holder, at the
Company’s option, either shares of Common Stock, cash or a combination of cash
and shares of Common Stock, in the manner provided in the Indenture.


 


(e)           In the event that the Company in
unable to satisfy its Conversion Obligations in shares of Common Stock and the
Exchange Agent designated to exchange Notes surrendered for conversion of
shares of Common Stock as set forth in the Indenture declines to exchange such
Notes or does not timely deliver such shares of Common Stock, the Company may
issue Series A Preferred Stock in lieu of shares of Common Stock based on a
ratio of 1.1 shares of Series A Preferred Stock for each 1,000 shares of Common
Stock.  One share of Series A Preferred
Stock is equivalent to 1000 shares of Common Stock.  The Company may issue fractions of Series A Preferred Stock up to
1/1,000th of a share of Series A Preferred Stock, with any smaller
fraction being paid in cash in accordance with the Indenture.  The designation by the Company, and the
rights, of the Exchange Agent are set forth in the Indenture.


 


(f)            Prior to the Reserve Sufficient Date
(as defined below), 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 and Series A Preferred Stock, a sufficient
number of shares of Common Stock and Series A Preferred Stock to permit the
conversion of all outstanding Securities into shares of Common Stock and Series
A Preferred Stock.  In the event the
Company has not established a reserve of Common Stock sufficient for conversion
into Common Stock of all outstanding Securities by the date 120 days after the
latest date of issuance of the Securities, the Securities then outstanding will
bear interest at the rate 0.75% per annum from and after such date to, but
excluding, the date on which a reserve sufficient for conversion of all
Securities then outstanding has been established (the “Reserve Sufficient
Date”).  Such Interest Amounts shall be
paid on the relevant Interest Amounts Payment Dates to Holders on the
applicable Interest Amounts Record Date. 
On and after the Reserve Sufficient Date, the provisions of this
paragraph and paragraph 9(e) of this Note above, and the related
provisions of the Indenture, shall no longer be in effect.


 


(g)           On and after the Reserve Sufficient
Date the Company shall from time to time, as may be necessary, reserve a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.


 


(h)           Anything herein to the contrary
notwithstanding, in the case of Global Notes, conversion notices may be
delivered and such Global Notes may be surrendered for conversion in accordance
with the Applicable Procedures as in effect from time to time.


 


A-3

















 


(i)            If an Event of Default (other than
an Event of Default in a cash payment upon conversion of the Notes), has
occurred an is continuing, the Company may not pay cash upon conversion of any
Note or portion of a Note (other than cash for fractional shares).


 


To the extent that any Notes
are surrendered for conversion (in whole or in part) during the period from the
close of business on any Interest Amounts Record Date to the opening of
business on the next succeeding Interest Amounts Payment Date, if any, the
Company shall be entitled to direct the Paying Agent to take any and all
actions consistent with custom and practice in order to prevent the payment of
Interest Amounts in excess of the amounts provided in the Registration Rights
Agreement and Section 4.5 of the Indenture.


 


A Note in respect of which a
Holder had delivered a Change in Control Purchase Notice or Put Right 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 or Put
Right Purchase Notice, as the case may be, is withdrawn in accordance with the
terms of the Indenture.


 


10.                  CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION


 


Any Notes called for
redemption, unless surrendered for conversion before the close of business on
the Business Day immediately preceding the Redemption Date, may be deemed to be
purchased from the Holders of such Notes at an amount not less than the
Redemption Price, together with accrued Interest Amounts, if any, to, but not
including, the Redemption Date, by one or more investment banks or other
purchasers who may agree with the Company to purchase such Notes from the
Holders, to convert them into Common Stock of the Company and to make payment
for such Notes to the Paying Agent in trust for such Holders.


 


11.                  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 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.


 


12.                  DENOMINATIONS, TRANSFER, EXCHANGE


 


The Notes are in registered
form, without coupons, in denominations of $1,000 and integral 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.


 


13.                  PERSONS DEEMED OWNERS


 


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


 


A-4

















 


14.                  UNCLAIMED MONEY


 


If money for the payment of
principal or Interest Amounts, if any, 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.


 


15.                  AMENDMENT, SUPPLEMENT AND WAIVER


 


Subject to certain
exceptions, the Notes or the Indenture 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 with
respect to the Notes and its consequence or compliance with any provision of
the Notes or the Indenture with respect to 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.


 


16.                  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 Person (except in certain circumstances specified in the Indenture)
will be released from those obligations.


 


17.                  DEFAULTS AND REMEDIES


 


The Indenture sets forth
events that constitute an Event of Default under the Indenture.  If an Event of Default with respect to the Notes
(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
Amounts) 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.


 


18.                  TRUSTEE DEALINGS WITH THE COMPANY


 


BNY Western Trust Company,
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-5

















 


19.                  NO RECOURSE AGAINST OTHERS


 


A director, officer,
employee or shareholder, 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.


 


20.                  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.


 


21.                  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.


 


22.                  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.


 


The Company will furnish to
any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made
to:  FEI Company, 7451 NW Evergreen
Parkway, Hillsboro, OR 97124-5830 Attention: General Counsel.


 


A-6

















 


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.

  



 


	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  
	
  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-7

















 


CONVERSION NOTICE


 


To convert this Note, check
the box:  o


 


The Company may elect to
satisfy its Conversion Obligations by Share Settlement, Cash Settlement or
Combined Settlement.


 


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


 


	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  
	
  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-8

















 


OPTION TO ELECT REPURCHASE

UPON A CHANGE OF CONTROL


 


To:          FEI
Company


 


The undersigned registered
owner of this Security hereby irrevocably acknowledges receipt of a notice from
FEI Company (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 an integral 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 Amounts, if any, 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 an integral 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-9

















 


OPTION TO ELECT REPURCHASE

ON SPECIFIED DATES


 


To:          FEI
Company


 


The undersigned hereby
requests and instructs FEI Company to redeem the entire principal amount of
this Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, on June 15,          
in accordance with the terms of the Indenture referred to in this Security at
the Put Right Purchase Price to the registered Holder hereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 an integral 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-10

















 


SCHEDULE OF EXCHANGES OF NOTES(4)


 


The following exchanges,
redemptions, 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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












(4)       This schedule should be included only if
the Security is a Global Security.


 


A-11

















 


CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER RESTRICTED SECURITIES(5)


 


Re:                               Zero Coupon
Convertible Subordinated Notes due June 15, 2023, First Putable June 15, 2008
(the “Notes”) of FEI Company.


 


This certificate relates to
$                   principal
amount of Notes owned in (check applicable box):


 


o   book-entry
or    o   definitive
form by                                       (the
“Transferor”).


 


The Transferor has requested
a Registrar or the Trustee to exchange or register the transfer of such Notes.


 


In connection with such
request and in respect of each such Note, the Transferor does hereby certify
that the Transferor is familiar with transfer restrictions relating to the
Notes as provided in Section 2.12 of the Indenture dated as of June 13,
2003 between FEI Company and BNY Western Trust Company, as trustee (the
“Indenture”), and the transfer of such Note is being made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the “Securities Act”) (check applicable box) or the transfer or exchange, as
the case may be, of such Note does not require registration under the
Securities Act because (check applicable box):


 


o            Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.


 


o            Such Note is being acquired for the Transferor’s own
account, without transfer.


 


o                                    Such Note is
being transferred to the Company or a Subsidiary (as defined in the Indenture)
of the Company.


 


o                                    Such Note is
being transferred to a person the Transferor reasonably believes is a
“qualified institutional buyer” (as defined in Rule 144A or any successor
provision thereto (“Rule 144A”) under the Securities Act) that is
purchasing for its own account or for the account of a “qualified institutional
buyer”, in each case to whom notice has been given that the transfer is being
made in reliance on such Rule 144A, and in each case in reliance on
Rule 144A.


 


o                                    Such Note is
being transferred pursuant to and in compliance with an exemption from the
registration requirements under the Securities Act in accordance with
Rule 144 (or any successor thereto) (“Rule 144”) under the Securities
Act.


 


o                                    Such Note is
being transferred to a Non-U.S. Person in an offshore transaction in compliance
with Rule 904 of Regulation S under the Securities Act or any
successor thereto.


 












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


 


A-12

















 


o                                    Such Note is
being transferred pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act (other than an exemption
referred to above) and as a result of which such Note will, upon such transfer,
cease to be a “restricted security” within the meaning of Rule 144 under
the Securities Act.


 


The Transferor acknowledges
and agrees that, if the transferee will hold any such Notes in the form of
beneficial interests in a global Note which is a “restricted security” within
the meaning of Rule 144 under the Securities Act, then such transfer can
only be made pursuant to (i) Rule 144A under the Securities Act and such
transferee must be a “qualified institutional buyer” (as defined in
Rule 144A) or (ii) pursuant to Regulation S under the Securities Act.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  (Insert Name of
  Transferor)

  



 


A-13