Exhibit 4.1


 


 


CIPHERGEN
BIOSYSTEMS, INC.


 


as
Issuer


 


 


 


 


 


4.50%
CONVERTIBLE SENIOR NOTES DUE 2008


 


 


_________________________


 


 


INDENTURE


 


 


Dated
as of August 22, 2003


 


 


_________________________


 


 


U.S.
BANK NATIONAL ASSOCIATION,


 


as
Trustee


 


 


 

















 


 


CROSS-REFERENCE TABLE


 


 


 


	
  Trust Indenture

  Act Section

  	
   

  	
   

  	
   

  	
  Indenture Section

  
	
  310  (a)(1)

  	
   

  	
   

  	
   

  	
  5.11

  
	
  (a)(2)

  	
   

  	
   

  	
   

  	
  5.11

  
	
  (a)(3)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (a)(4)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (a)(5)

  	
   

  	
   

  	
   

  	
  5.11

  
	
  (b)

  	
   

  	
   

  	
   

  	
  5.3,
  5.11

  
	
  (c)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  311
  (a)

  	
   

  	
   

  	
   

  	
  5.12

  
	
  (b)

  	
   

  	
   

  	
   

  	
  5.12

  
	
  (c)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  312(a)

  	
   

  	
   

  	
   

  	
  2.10

  
	
  (b)

  	
   

  	
   

  	
   

  	
  13.3

  
	
  (c)

  	
   

  	
   

  	
   

  	
  13.3

  
	
  313(a)

  	
   

  	
   

  	
   

  	
  5.7

  
	
  (b)(1)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (b)(2)

  	
   

  	
   

  	
   

  	
  5.7

  
	
  (c)

  	
   

  	
   

  	
   

  	
  5.7,
  14.2

  
	
  (d)

  	
   

  	
   

  	
   

  	
  5.7

  
	
  314
  (a)(1), (2), (3)

  	
   

  	
   

  	
   

  	
  9.6,
  13.6

  
	
  (a)(4)

  	
   

  	
   

  	
   

  	
  9.6,
  9.7, 13.6

  
	
  (b)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (c)(1)

  	
   

  	
   

  	
   

  	
  13.5

  
	
  (c)(2)

  	
   

  	
   

  	
   

  	
  13.5

  
	
  (c)(3)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (d)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (e)

  	
   

  	
   

  	
   

  	
  13.6

  
	
  (f)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  315
  (a)

  	
   

  	
   

  	
   

  	
  5.1(a)

  
	
  (b)

  	
   

  	
   

  	
   

  	
  5.6,
  13.2

  
	
  (c)

  	
   

  	
   

  	
   

  	
  5.1(b)

  
	
  (d)

  	
   

  	
   

  	
   

  	
  5.1(c)

  
	
  (e)

  	
   

  	
   

  	
   

  	
  4.14

  
	
  316(a)(last
  sentence)

  	
   

  	
   

  	
   

  	
  2.13

  
	
  (a)(1)(A)

  	
   

  	
   

  	
   

  	
  4.5

  
	
  (a)(1)(B)

  	
   

  	
   

  	
   

  	
  4.4

  
	
  (a)(2)

  	
   

  	
   

  	
   

  	
  N/a

  
	
  (b)

  	
   

  	
   

  	
   

  	
  4.7

  
	
  (c)

  	
   

  	
   

  	
   

  	
  7.4

  
	
  317 (a)(1)

  	
   

  	
   

  	
   

  	
  4.8

  



 


 


 


 


2

















 


 


	
  (a)(2)

  	
   

  	
   

  	
   

  	
  4.9

  
	
  (b)

  	
   

  	
   

  	
   

  	
  2.5

  
	
  318
  (a)

  	
   

  	
   

  	
   

  	
  13.1

  
	
  (b)

  	
   

  	
   

  	
   

  	
  N/A

  
	
  (c)

  	
   

  	
   

  	
   

  	
  13.1

  



__________________


“N/a” means not applicable.


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


 


 


 


3

















 


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND INCORPORATION BY
  REFERENCE

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 1.1

  	
  DEFINITIONS.

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.2

  	
  INCORPORATION BY REFERENCE OF TRUST
  INDENTURE ACT.

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.3

  	
  RULES OF CONSTRUCTION.

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE NOTES

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 2.1

  	
  TITLE AND TERMS.

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.2

  	
  FORM OF NOTES.

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.3

  	
  LEGENDS.

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.4

  	
  EXECUTION, AUTHENTICATION, DELIVERY AND
  DATING.

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.5

  	
  REGISTRAR AND PAYING AGENT.

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.6

  	
  PAYING AGENT TO HOLD ASSETS IN TRUST.

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.7

  	
  GENERAL PROVISIONS RELATING TO TRANSFER AND
  EXCHANGE.

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.8

  	
  BOOK-ENTRY PROVISIONS FOR THE GLOBAL NOTES.

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.9

  	
  SPECIAL TRANSFER PROVISIONS.

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.10

  	
  HOLDER LISTS.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.11

  	
  PERSONS DEEMED OWNERS.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.12

  	
  MUTILATED, DESTROYED, LOST OR STOLEN
  NOTES.

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.13

  	
  TREASURY NOTES.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.14

  	
  TEMPORARY NOTES.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.15

  	
  CANCELLATION.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.16

  	
  CUSIP NUMBERS.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.17

  	
  DEFAULTED INTEREST.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 3.1

  	
  SATISFACTION AND DISCHARGE OF INDENTURE.

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.2

  	
  DEPOSITED MONIES TO BE HELD IN TRUST.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.3

  	
  RETURN OF UNCLAIMED MONIES.

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 4.1

  	
  EVENTS OF DEFAULT.

  	
  33

  



 


 


 


i

















 


 


	
   

  	
  SECTION 4.2

  	
  ACCELERATION OF MATURITY; RESCISSION AND
  ANNULMENT.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.3

  	
  OTHER REMEDIES.

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.4

  	
  WAIVER OF PAST DEFAULTS.

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.5

  	
  CONTROL BY MAJORITY.

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.6

  	
  LIMITATION ON SUIT.

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.7

  	
  UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
  PAYMENT.

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.8

  	
  COLLECTION OF INDEBTEDNESS AND SUITS FOR
  ENFORCEMENT BY THE TRUSTEE.

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.9

  	
  TRUSTEE MAY FILE PROOFS OF CLAIM.

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.10

  	
  RESTORATION OF RIGHTS AND REMEDIES.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.11

  	
  RIGHTS AND REMEDIES CUMULATIVE.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.12

  	
  DELAY OR OMISSION NOT WAIVER.

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.13

  	
  APPLICATION OF MONEY COLLECTED.

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.14

  	
  UNDERTAKING FOR COSTS.

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.15

  	
  WAIVER OF STAY OR EXTENSION LAWS.

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 5.1

  	
  CERTAIN DUTIES AND RESPONSIBILITIES.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.2

  	
  CERTAIN RIGHTS OF TRUSTEE.

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.3

  	
  INDIVIDUAL RIGHTS OF TRUSTEE.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.4

  	
  MONEY HELD IN TRUST.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.5

  	
  TRUSTEE’S DISCLAIMER.

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.6

  	
  NOTICE OF DEFAULTS.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.7

  	
  REPORTS BY TRUSTEE TO HOLDERS.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.8

  	
  COMPENSATION AND INDEMNIFICATION.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.9

  	
  REPLACEMENT OF TRUSTEE.

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.10

  	
  SUCCESSOR TRUSTEE BY MERGER, ETC.

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.11

  	
  CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.12

  	
  COLLECTION OF CLAIMS AGAINST THE COMPANY.

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI CONSOLIDATION, MERGER,
  CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 6.1

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

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.2

  	
  SUCCESSOR CORPORATION SUBSTITUTED.

  	
  46

  



 


 


 


ii

















 


 


	
  ARTICLE VII AMENDMENTS, SUPPLEMENTS AND
  WAIVERS

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 7.1

  	
  WITHOUT CONSENT OF HOLDERS OF NOTES.

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.2

  	
  WITH CONSENT OF HOLDERS OF NOTES.

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.3

  	
  COMPLIANCE WITH TRUST INDENTURE ACT.

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.4

  	
  REVOCATION OF CONSENTS AND EFFECT OF
  CONSENTS OR VOTES.

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.5

  	
  NOTATION ON OR EXCHANGE OF NOTES.

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.6

  	
  TRUSTEE TO SIGN AMENDMENT, ETC.

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII MEETING OF HOLDERS OF NOTES

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 8.1

  	
  PURPOSES FOR WHICH MEETINGS MAY BE CALLED.

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.2

  	
  CALL NOTICE AND PLACE OF MEETINGS.

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.3

  	
  PERSONS ENTITLED TO VOTE AT MEETINGS.

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.4

  	
  QUORUM; ACTION.

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.5

  	
  DETERMINATION OF VOTING RIGHTS; CONDUCT AND
  ADJOURNMENT OF MEETINGS.

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.6

  	
  COUNTING VOTES AND RECORDING ACTION OF
  MEETINGS.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX COVENANTS

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 9.1

  	
  PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.2

  	
  MAINTENANCE OF OFFICES OR AGENCIES.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.3

  	
  CORPORATE EXISTENCE.

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.4

  	
  MAINTENANCE OF PROPERTIES.

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.5

  	
  PAYMENT OF TAXES AND OTHER CLAIMS.

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.6

  	
  REPORTS.

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.7

  	
  COMPLIANCE CERTIFICATE; NOTICE OF
  REGISTRATION DEFAULT.

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.8

  	
  RESALE OF CERTAIN NOTES.

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 10.1

  	
  OPTIONAL REDEMPTION.

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.2

  	
  NOTICE TO TRUSTEE.

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.3

  	
  SELECTION OF NOTES TO BE REDEEMED.

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.4

  	
  NOTICE OF REDEMPTION.

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.5

  	
  EFFECT OF NOTICE OF REDEMPTION.

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.6

  	
  DEPOSIT OF REDEMPTION PRICE.

  	
  58

  



 


 


iii

















 


	
   

  	
  SECTION 10.7

  	
  NOTES REDEEMED IN PART.

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI REPURCHASE AT THE OPTION OF A
  HOLDER UPON A CHANGE OF CONTROL

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 11.1

  	
  REPURCHASE RIGHT.

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 11.2

  	
  NOTICES; METHOD OF EXERCISING REPURCHASE
  RIGHT, ETC.

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII CONVERSION OF NOTES

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 12.1

  	
  CONVERSION RIGHT AND CONVERSION PRICE.

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.2

  	
  EXERCISE OF CONVERSION RIGHT.

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.3

  	
  FRACTIONS OF SHARES.

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.4

  	
  ADJUSTMENT OF CONVERSION PRICE.

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.5

  	
  NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.6

  	
  NOTICE PRIOR TO CERTAIN ACTIONS.

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.7

  	
  COMPANY TO RESERVE COMMON STOCK.

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.8

  	
  TAXES ON CONVERSIONS.

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.9

  	
  COVENANT AS TO COMMON STOCK.

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.10

  	
  CANCELLATION OF CONVERTED NOTES.

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.11

  	
  EFFECT OF RECLASSIFICATION, CONSOLIDATION,
  MERGER OR SALE.

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.12

  	
  RESPONSIBILITY OF TRUSTEE FOR CONVERSION
  PROVISIONS.

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.13

  	
  LIMITATION ON CONVERSION RIGHT.

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION 13.1

  	
  TRUST INDENTURE ACT CONTROLS.

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.2

  	
  NOTICES.

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.3

  	
  COMMUNICATION BY HOLDERS WITH OTHER
  HOLDERS.

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.4

  	
  ACTS OF
  HOLDERS OF NOTES.

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.5

  	
  CERTIFICATE AND OPINION AS TO CONDITIONS
  PRECEDENT.

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.6

  	
  STATEMENTS REQUIRED IN CERTIFICATE OR
  OPINION.

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.7

  	
  EFFECT OF HEADINGS AND TABLE OF CONTENTS.

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.8

  	
  SUCCESSORS AND ASSIGNS.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.9

  	
  SEPARABILITY CLAUSE.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.10

  	
  BENEFITS OF INDENTURE.

  	
  80

  



 


 


 


iv

















 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.11

  	
  GOVERNING LAW.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.12

  	
  COUNTERPARTS.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.13

  	
  LEGAL HOLIDAYS.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 13.14

  	
  RECOURSE AGAINST OTHERS.

  	
  80

  



 


 


	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A:

  	
   

  	
  Form of Note

  	
   

  	
  A-1

  
	
  EXHIBIT B:

  	
   

  	
  Regulation S Certificate

  	
   

  	
  B-1

  
	
  EXHIBIT C:

  	
   

  	
  Rule 144A Certificate

  	
   

  	
  C-1

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


v

















 


 


INDENTURE,
dated as of August 22, 2003 between CIPHERGEN BIOSYSTEMS, INC., a corporation
duly organized and existing under the laws of the State of Delaware, having its
principal office at 6611 Dumbarton Circle, Fremont, CA  94555 (the “Company”), and U.S. Bank
National Association, a national banking association duly organized and
existing under the laws of the United States, as Trustee (the “Trustee”).


RECITALS OF THE COMPANY


The
Company has duly authorized the creation of an issue of its 4.50% Convertible
Senior Notes due 2008 (the “Notes”) of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.


All
things necessary to make the Notes, when the Notes are executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


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


 


ARTICLE I



DEFINITIONS AND INCORPORATION BY REFERENCE


SECTION 1.1                 DEFINITIONS.


“Act,”
when used with respect to any Holder of a Note, has the meaning specified in
Section 13.4(a) hereof.


“Additional
Interest” means any and all additional interest payable pursuant to Section 3
of the Registration Rights Agreement.


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


 

















 


“Bankruptcy
Law” means Title 11 of the U.S. Code or any similar federal, state or foreign
law for the relief of debtors.


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


“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company, duly adopted by the Board of Directors and
in full force and effect on the date of such certification, and delivered to
the Trustee.


“Business
Day,” when used with respect to any Place of Payment or Place of Conversion,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or Place of Conversion,
as the case may be, are authorized or obligated by law to close.


“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) in equity of such Person, whether now outstanding or issued after
the date of this Indenture, including, without limitation, all common stock and
preferred stock.


“Cedel”
means Cedel Bank Societe Anonyme.


“Change
of Control” means an event or series of events in which:


(a)           any
“person,” including any syndicate or group deemed to be a “person” under
Section 13(d)(3) of the Exchange Act of 1934, acquires beneficial ownership,
directly or indirectly, of shares of Capital Stock of the Company entitling
that person to exercise more than 50% of the total voting power of all shares
of the Capital Stock of the Company entitled to vote generally in elections of
directors, other than any acquisition by the Company, any Subsidiary or any
employee benefit plan of the Company; or


(b)           the
Company (1) consolidates with or merges into any other corporation or business
entity or conveys or transfers or leases all or substantially all of the assets
of the Company to any other person, corporation or business entity or any other
corporation or business entity merges into the Company, and (2) the holders of
the Company’s Capital Stock immediately before such transaction own, directly
or indirectly, less than 50% of the combined voting power of the outstanding
voting securities of the corporation or business entity resulting from such
transaction;


provided,
however, that a Change in Control shall not be deemed to occur if either: (x)
the Closing Price per share of the Common Stock for any five Trading Days
within the period of 10 consecutive Trading Days commencing immediately after
the announcement of such Change in Control shall equal or exceed 105% of the
conversion price of the Notes in effect on each Trading Day; or (y) at least
90% of the consideration in the Change in Control transaction consists of
shares of common stock traded on a national securities exchange or quoted on
the Nasdaq National Market, and as a result the Notes become convertible solely
into such common stock.


 


2

















 


Beneficial
ownership shall be determined in accordance with Rules 13d-3 and 13d-5
promulgated by the SEC under the Exchange Act (except that a person will be
deemed to have beneficial ownership of all shares that such person has the
right to acquire, either immediately or with the passage of time). The term
“person” includes any syndicate or group which would be deemed to be a “person”
under Section 13(d)(3) of the Exchange Act.


“Closing
Date” means August 22, 2003, or such later date on which the Notes may be
delivered pursuant to the Purchase Agreement.


“Closing
Price” of any security on any date of determination means:


(1)                                  the closing
sale price (or, if no closing sale price is reported, the last reported sale
price) of such security on the New York Stock Exchange on such date;


(2)                                  if such
security is not listed for trading on the New York Stock Exchange on any such
date, the closing sale price as reported in the composite transactions for the
principal U.S. securities exchange on which such security is so listed;


(3)                                  if such
security is not so listed on a U.S. national or regional securities exchange,
the closing sale price as reported by the Nasdaq National Market;


(4)                                  if such
security is not so reported, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization; or


(5)                                  if such bid
price is not available, the average of the mid-point of the last bid and ask
prices of such security on such date from at least three nationally recognized
independent investment banking firms retained for this purpose by the Company.


“Common
Stock” means any stock of any class of the Company which has 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 is
not subject to redemption by the Company. 
However, subject to the provisions of Section 12.11 hereof, shares
issuable on conversion of Notes shall include only shares of the class
designated as Common Stock, par value $0.001 per share, of the Company at the
date of execution of this Indenture or shares of any class or classes 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 that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable 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.


 


3

















 


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


“Company
Notice” has the meaning specified in Section 11.2 hereof.


“Company
Order” means a written request or order signed in the name of the Company by
its Chairman of the Board, its President, its Chief Executive Officer, its
Chief Financial Officer or any Vice President, and delivered to the Trustee.


“Conversion
Agent” means any Person authorized by the Company to convert Notes in
accordance with Article 12 hereof.


“Conversion
Price” has the meaning specified in Section 12.1 hereof.


“Conversion
Rate” has the meaning specified in Section 12.1 hereof.


“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be administered (which at the date of
execution of this Indenture is located c/o U.S. Bank National Association, 60
Livingston Avenue, St. Paul, MN  55107,
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.


“Corporation”
means a corporation, association, limited liability company, company or
business trust.


“Current
Market Price” has the meaning specified in Section 12.4(g).


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


“Default”
means an event which is, or after notice or lapse of time or both would be, an
Event of Default.


“Defaulted
Interest” has the meaning specified in Section 2.17 hereof.


“Depositary”
means The Depository Trust Company, its nominees and their respective
successors.


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


“DTC
Participants” has the meaning specified in Section 2.8 hereof.


“Euroclear”
means Morgan Guaranty Trust Company of New York, Brussels office, as the
operator of the Euroclear System.


 


4

















 


“Event
of Default” has the meaning specified in Section 4.1 hereof.


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


“Expiration
Time” has the meaning specified in Section 12.4(f) hereof.


“Fair
market value” has the meaning set forth in Section 12.4(g) hereof.


“Global
Note” has the meaning specified in Section 2.2 hereof.


“Holder,”
when used with respect to any Note, means the Person in whose name the Note is
registered in the Register.


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.


“Initial
Purchaser” mean SG Cowen Securities Corporation.


“Interest
Payment Date” means each of March 1 and September 1, beginning March 1, 2004.


“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.


“Nasdaq
National Market” means the National Association of Securities Dealers Automated
Quotation National Market or any successor national securities exchange or
automated over-the-counter trading market in the United States.


“Non-Electing
Share” has the meaning specified in Section 12.11 hereof.


“Notes”
has the meaning ascribed to it in the first paragraph under the caption
“Recitals of the Company.”


“Officer”
of the Company means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer, the Treasurer, any Vice President,
the Secretary or Assistant Secretary of the Company.


“Officers’
Certificate” means a certificate signed by (a) the Chairman, the President, the
Chief Executive Officer, the Chief Financial Officer or any Vice President of
the Company and (b) the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.


“Offshore
Global Note” has the meaning set forth in Section 2.2.


“Offshore
Physical Note” has the meaning set forth in Section 2.2.


“Offshore
Restriction Date” has the meaning specified in Section 2.3(a)(iii).


 


5

















 


“Opinion
of Counsel” means a written opinion of counsel, who may be counsel to the
Company (and may include directors or employees of the Company) and which
opinion is acceptable to the Trustee.


“Outstanding,”
when used with respect to Notes, means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except
Notes:


(1)                                  previously
canceled by the Trustee or delivered to the Trustee for cancellation;


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


(3)                                  which have been
paid, in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Notes are held by a bona fide purchaser in whose hands such Notes
are valid obligations of the Company.


“Paying
Agent” has the meaning specified in Section 2.5 hereof.


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


“Physical
Notes” has the meaning specified in Section 2.2 hereof.


“Place
of Conversion” means any city in which any Conversion Agent is located.


“Place
of Payment” means any city in which any Paying Agent is located.


“Predecessor
Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for
the purposes of this definition, any Note authenticated and delivered under
Section 2.12 hereof in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.


“Purchase
Agreement” means the Purchase Agreement, dated August 18, 2003, between the
Company and the Initial Purchaser.


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


 


6

















 


“Record
Date” means either a Regular Record Date or a Special Record Date, as the case
may be, provided that, for purposes of Section 12.4 hereof, Record Date has the
meaning specified in 12.4(g) hereof.


“Redemption
Date,” when used with respect to any Note to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.


“Redemption
Price” has the meaning specified in Section 10.1(b) hereof.


“Reference
Dealer” means a dealer engaged in the trading of convertible securities.


“Reference
Period” has the meaning set forth in Section 12.4(d) hereof.


“Register”
has the meaning specified in Section 2.5 hereof.


“Registrar”
has the meaning specified in Section 2.5 hereof.


“Registration
Rights Agreement” means the Registration Rights Agreement dated as of August
22, 2003 between the Company and the Initial Purchaser, for the benefit of the
Initial Purchaser and the Holders, as the same may be amended or modified from
time to time in accordance with the terms thereof.


“Regular
Record Date” for the interest on the Notes (including Additional Interest, if
any) payable means the close of business on the February 15 or August 15
(whether or not a Business Day), as the case may be, preceding an Interest
Payment Date.


“Repurchase
Date” has the meaning specified in Section 11.1 hereof.


“Repurchase
Price” has the meaning specified in Section 11.1 hereof.


“Repurchase
Right” has the meaning specified in Section 11.1 hereof.


“Responsible
Officer,” when used with respect to the Trustee, means any officer of the
Trustee, including any vice president, assistant vice president, secretary,
assistant secretary, the treasurer, any assistant treasurer, the managing
director or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.


“Restricted
Securities” means the Notes defined as such in Section 2.3 hereof.


“Restricted
Securities Legend” has the meaning set forth in Section 2.3(a) hereof.


“Rule
144” means Rule 144 as promulgated under the Securities Act (including any
successor rule thereof), as the same may be amended from time to time.


 


7

















 


“Rule
144A” means Rule 144A as promulgated under the Securities Act (including any
successor rule thereof), as the same may be amended from time to time.


“SEC”
means the Securities and Exchange Commission or any successor thereto.


“Securities
Act” means the Securities Act of 1933, as amended.


“Shelf
Registration Statement” has the meaning set forth in the Registration Rights
Agreement.


“Significant
Subsidiary” has the meaning set forth in Rule 1-02(w) promulgated by the SEC.


“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.17 hereof.


“Subsidiary”
means a corporation more than 50% of the outstanding Voting Stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.


“Successor
Company” has the meaning specified in Section 6.1.


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa- 77bbbb), as
in effect on the date of execution of this Indenture; provided, however, that
in the event the TIA is amended after such date, “TIA” means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as so amended, or
any successor statute.


“Trading
Day” means:


(1)                                  if the
applicable security is listed or admitted for trading on the New York Stock
Exchange or another national security exchange, a day on which the New York
Stock Exchange or such other national security is open for business;


(2)                                  if the
applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon; or


(3)                                  if the
applicable security is not so listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.


“Transfer
Agent” means any Person, which may be the Company, authorized by the Company to
exchange or register the transfer of Notes, initially U.S. Trust Company,
National Association.


“Trigger
Event” has the meaning specified in Section 12.4(d) hereof.


 


8

















 


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


“U.S.
Global Note” has the meaning specified in Section 2.2.


“U.S.
Government Obligations” means: (1) direct obligations of the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged or (2) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America and which in either case, are
non-callable at the option of the issuer thereof.


“U.S.
Physical Note” has the meaning specified in Section 2.2.


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


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


SECTION 1.2                 INCORPORATION BY REFERENCE OF
TRUST INDENTURE ACT.


Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.


The
following TIA terms used in this Indenture have the following meanings:


“indenture
securities” means the Notes;


“indenture
security holder” means a Holder;


“indenture
to be qualified” means this Indenture;


“indenture
trustee” or “institutional trustee” means the Trustee; and


“obligor”
on the Notes means the Company and any other obligor on the indenture
securities.


All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.


SECTION 1.3                 RULES OF CONSTRUCTION.


 


9

















 


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


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


(2)                                  all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with accounting principles generally accepted in the United States
prevailing at the time of any relevant computation hereunder; and


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


ARTICLE II



THE NOTES


SECTION 2.1                 TITLE AND TERMS.


The
Notes shall be known and designated as the “4.50% Convertible Senior Notes due
2008” of the Company.  The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture is limited to $25 million ($30 million if the over-allotment option
set forth in Section 3 of the Purchase Agreement is exercised in full), except
for Notes authenticated and delivered upon registration of, transfer of, or in
exchange for, or in lieu of other Notes pursuant to Section 2.7, 2.8, 2.9,
2.12, 7.5, 10.7, 11.1 or 12.2 hereof. 
The Notes shall be issuable in denominations of $1,000 or integral
multiples thereof.


The
Notes shall mature on September 1, 2008.


Interest
shall accrue from August 22, 2003 at a rate of 4.50% per annum until the
principal thereof is paid or made available for payment pursuant to the terms
of this Indenture.  Interest shall be
payable semiannually in arrears on March 1 and September 1 in each year,
commencing March 1, 2004.


Interest
on the Notes shall be computed on the basis of a 360-day year comprised of
twelve 30-day months, and, in the case of a partial month, the actual number of
days elapsed.


Except
as provided below in this paragraph, a Holder of any Note shall not be entitled
to receive any interest (including Additional Interest, if any) that has
accrued on such Note if such Note is converted into common stock on any day
other than an Interest Payment Date.  By
delivering to the Holder of any Note that is converted into common stock the
number of shares issuable upon conversion, together with a cash payment, if
any, in lieu of fractional shares, the Company shall be deemed to have
satisfied its obligation with respect to such Note.  Accordingly, accrued but unpaid interest shall be deemed to be paid
in full rather than canceled, extinguished or forfeited.  If a Holder of any Note converts such Note
after a Regular Record Date but prior to the corresponding Interest Payment
Date, such Holder shall be entitled to


 


10

















 


receive
on the Interest Payment Date interest accrued and paid on such Note,
notwithstanding the conversion of such Note prior to such Interest Payment
Date.  However, at the time such Holder
surrenders such Note for conversion, such Holder shall pay the Company an
amount equal to the interest (including Additional Interest, if any) that will
be paid on the Notes being converted on the Interest Payment Date.  The preceding sentence does not apply to Notes
that are converted after being called by the Company for redemption.  In the event that the Company calls any
Notes for redemption on a date that is after a Record Date for an interest
payment but prior to the corresponding Interest Payment Date, and prior to the
redemption date a Holder of any Note chooses to convert such Note, such Holder
shall not be required to pay the Company at the time such Holder surrenders
such Note for conversion the amount of interest on such Note such Holder shall
be entitled to receive on the date that has been fixed for redemption.  Accrued but unpaid interest will be payable
upon any conversion of Notes made concurrently with or after acceleration of
the Notes following an Event of Default.


Principal
of, and premium, if any, and interest on, Global Notes shall be payable to the
Depositary in immediately available funds.


Principal
and premium, if any, and interest on maturity, on Physical Notes shall be
payable at the office or agency of the Company maintained for such purpose,
initially the Corporate Trust Office of the Trustee.  Interest on Physical Notes (other than at maturity) will be
payable by (i) U.S. Dollar check drawn on a bank in The City of New York mailed
to the address of the Holder, or (ii) upon application to the Registrar not
later than the relevant Record Date by a Holder, of an aggregate principal
amount in excess of $5,000,000, wire transfer in immediately available funds.


The
Notes shall be redeemable at the option of the Company as provided in Article
10 hereof.


The
Notes shall have a Repurchase Right exercisable at the option of Holders as
provided in Article 11 hereof.


The
Notes shall be convertible as provided in Article 12 hereof.


SECTION 2.2                 FORM OF NOTES.


The
Notes and the Trustee’s certificate of authentication to be borne by such Notes
shall be substantially in the form annexed hereto as Exhibit A, which is
incorporated in and made a part of this Indenture.  The terms and provisions contained in the form of Note shall
constitute, and are hereby expressly made, a part of this Indenture, and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.


Any
of the Notes may have such letters, numbers or other marks of identification
and such notations, legends and endorsements as the officers executing the same
may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or


 


11

















 


automated
quotation system on which the Notes may be listed or designated for issuance,
or to conform to usage.


Notes
offered and sold to QIBs in reliance on Rule 144A shall be issued initially
only in the form of one or more permanent global Notes (each, a “U.S. Global
Note”) in registered form without interest coupons, in substantially the form
set forth in Exhibit A and, except as otherwise provided in Section
2.3(a)(iii), shall contain the Restrictive Securities Legend as set forth in
Section 2.3(a)(i).


Notes
offered and sold in offshore transactions in reliance on Regulation S shall be
issued initially only in the form of one or more permanent global Notes (each,
an “Offshore Global Note” and, together with the U.S. Global Note, the “Global
Notes”) in registered form without interest coupons in substantially the form
set forth in Exhibit A and, except as otherwise provided in Section
2.3(a)(iii), shall contain the Restrictive Securities Legend as set forth in
Section 2.3(a)(i).  Notes issued
pursuant to Section 2.8(d) in exchange for or upon transfer of beneficial
interests in the U.S. Global Note shall be in the form of permanent
certificated Notes substantially in the form set forth in Exhibit A (the “U.S.
Physical Notes”), and Notes issued pursuant to Section 2.8(d) in exchange for
or upon transfer of beneficial interests in the Offshore Global Note shall be
in the form of permanent certificated Notes substantially in the form set forth
in Exhibit A (the “Offshore Physical Notes”).


The
Offshore Physical Notes and U.S. Physical Notes are sometimes collectively
herein referred to as the “Physical Notes.”


The
Global Notes shall be:


(1)                                  duly executed
by the Company and authenticated by the Trustee as hereinafter provided;


(2)                                  registered in
the name of the Depositary (or its nominee) for credit to the respective
accounts of the Holders at the Depositary; and


(3)                                  deposited with
the Trustee, as custodian for the Depositary.


The
Global Notes shall be substantially in the form of the Note set forth in
Exhibit A annexed hereto (including the text and schedule called for by
footnote 1 and 2 thereto).  The
aggregate principal amount of the Global Notes may from time to time be
increased or decreased (which, taken together with the principal amounts of all
other outstanding Global Notes shall not exceed $25,000,000 in the aggregate at
any time or $30,000,000 if the over-allotment option set forth in Section 3 of
the Purchase Agreement is exercised in full) by adjustments made on the records
of the Trustee, as custodian for the Depositary (or its nominee), in accordance
with the instructions given by the Holder thereof, as hereinafter provided.


The
Notes shall be typed, printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any other manner permitted
by the rules of any securities exchange on which the Notes may be listed, all
as determined by the Officers executing such Notes, as evidenced by their
execution of such Notes.


 


12

















 


SECTION 2.3                 LEGENDS.


(a)           RESTRICTED
SECURITIES LEGENDS.


Each
Note issued hereunder and any Common Stock issued upon conversion of a
Restricted Security shall, upon issuance, bear the legend set forth in Section
2.3(a)(i) or Section 2.3(a)(ii) (each, a “Restricted Securities Legend”), as
the case may be, and such legend shall not be removed except as provided in
Section 2.3(a)(iii).  Each Note that
bears or is required to bear the Restricted Securities Legend set forth in
Section 2.3(a)(i) (together with any Common Stock issued upon conversion of the
Notes and required to bear the Restricted Securities Legend set forth in
Section 2.3(a)(ii), collectively, the “Restricted Securities”) shall be subject
to the restrictions on transfer set forth in this Section 2.3(a) (including the
Restricted Securities Legend set forth below), and the Holder of each such
Restricted Security, by such Holder’s acceptance thereof, shall be deemed to
have agreed to be bound by all such restrictions on transfer.


As
used in Section 2.3(a), the term “transfer” encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.


(i)    RESTRICTED SECURITIES LEGEND FOR RESTRICTED SECURITIES.


Except
as provided in Section 2.3(a)(iii), until two years after the original issuance
date of any Note, any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than Common Stock,
if any, issued upon conversion thereof which shall bear the legend set forth in
Section 2.3(a)(ii), if applicable) shall bear a Restricted Securities Legend in
substantially the following form:


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


 


THE HOLDER OF THIS NOTE
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION HEREOF 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


 


 


 


13

















 


ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION 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 NOTE 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 TRANSACTION WITH REGARD TO THE
SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES ACT.


 


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


(ii)   RESTRICTED SECURITIES LEGEND FOR COMMON STOCK ISSUED UPON
CONVERSION OF NOTES.


Except
as provided in Section 2(a)(iii), until two years after the original issuance
date of any Note, any stock certificate representing Common Stock issued upon
conversion of such Note shall bear a Restricted Securities Legend in
substantially the following form:


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


 


THE HOLDER OF THIS
CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)  THE SHARES OF
COMMON STOCK REPRESENTED HEREBY 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


 


 


 


14

















 


 (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION 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 THE SECURITIES
REPRESENTED HEREBY 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 TRANSACTION WITH REGARD
TO THE SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES ACT.


 


THIS CERTIFICATE AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THE SECURITIES REPRESENTED
HEREBY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY.  THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED BY THE ACCEPTANCE HEREOF TO HAVE
AGREED TO SUCH AMENDMENT OR SUPPLEMENT.”


As used herein, the terms “United States” and
“U.S. Person” have the meanings given to them by Regulation S under the
Securities Act.”


(iii)  REMOVAL OF THE RESTRICTED SECURITIES LEGENDS.


Each
Note or share of Common Stock issued upon conversion of such Note shall bear
the Restricted Securities Legend set forth in Section 2.3(a)(i) or 2.3(a)(ii),
as the case may be, until the earlier of:


(A)          two years after the original issuance date of such Note, in
the case of each U.S. Global Note and each U.S. Physical Note, and one year
after the original issue date of each Note, in the case of each Offshore Global
Note and each Offshore Physical Note (such date being referred to as the
“Offshore Restriction Date”);


(B)           such Note or Common Stock has been sold pursuant to a
registration statement that has been declared effective under the Securities
Act (and which continues to be effective at the time of such sale);


 


15

















 


(C)           such Common Stock has been issued upon conversion of Notes
that have been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such sale);


(D)          the date when holders of such Note or Common Stock are able
to sell such Note or Common Stock immediately without restriction pursuant to
the volume limitation provisions of Rule 144 under the Securities Act; or


(E)           such Note or Common Stock is owned by holders who complete
and deliver in a timely manner the Selling Securityholder Notice and
Questionnaire described in the Registration Rights Agreement and dispose of
such Note or Common Stock under the shelf registration statement described in
the Registration Rights Agreement.


The
Holder must give written notice thereof to the Trustee and any transfer agent
for the Common Stock, as applicable.


Notwithstanding
the foregoing, the Restricted Securities Legend may be removed if there is
delivered to the Company such satisfactory evidence, which may include an
opinion of independent counsel, as may be reasonably required by the Company
that neither such legend nor the restrictions on transfer set forth therein are
required to ensure that transfers of such Note or Common Stock will not violate
the registration requirements of the Securities Act.  Upon provision of such satisfactory evidence, the Trustee, at the
written direction of the Company, shall authenticate and deliver in exchange
for such Notes another Note or Notes having an equal aggregate principal amount
that does not bear such legend.  If the
Restricted Securities Legend has been removed from a Note as provided above, no
other Note issued in exchange for all or any part of such Note shall bear such
legend, unless the Company has reasonable cause to believe that such other Note
is a “restricted security” within the meaning of Rule 144 and instructs the
Trustee in writing to cause a Restricted Securities Legend to appear thereon.


Any
Note (or security issued in exchange or substitution thereof) as to which such
restrictions on transfer shall have expired in accordance with their terms or
as to which the conditions for removal of the Restricted Securities Legend set
forth in Section 2.3(a)(i) as set forth therein have been satisfied may, upon
surrender of such Note for exchange to the Registrar in accordance with the
provisions of Section 2.7 hereof, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the Restricted
Securities Legend required by Section 2.3(a)(i).


Any
such Common Stock as to which such restrictions on transfer shall have expired
in accordance with their terms or as to which the conditions for removal of the
Restricted Securities Legend set forth in Section 2.3(a)(ii) as set forth
therein have been satisfied may, upon surrender of the certificates representing
such shares of Common Stock for exchange in accordance with the procedures of
the transfer agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock, which shall
not bear the Restricted Securities Legend required by Section 2.3(a)(ii).


 


16

















 


(b)           GLOBAL
NOTE LEGEND.


Each
Global Note shall also bear the following legend on the face thereof:


“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF.  THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE O R IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


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


SECTION 2.4                 EXECUTION, AUTHENTICATION,
DELIVERY AND DATING.


Two
Officers shall execute the Notes on behalf of the Company by manual or
facsimile signature.  If an Officer
whose signature is on a Note no longer holds that office at the time the Note
is authenticated, the Note shall be valid nevertheless.


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


Each
Note shall be dated the date of its authentication.


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


 


17

















 


The
Trustee may appoint an authenticating agent or agents reasonably acceptable to
the Company with respect to the Notes. 
Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.


SECTION 2.5                 REGISTRAR AND PAYING AGENT.


The
Company shall maintain an office or agency (which shall be located in the
Borough of Manhattan in the City of New York, State of New York) where Notes
may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Notes may be presented for payment (the “Paying
Agent”).  The Registrar shall keep a
register of the Notes (the “Register”) and of their transfer and exchange.  The Company may appoint one or more
co-Registrars and one or more additional Paying Agents for the Notes.  The term “Paying Agent” includes any
additional paying agent and the term “Registrar” includes any additional
registrar.  The Company may change any
Paying Agent or Registrar without prior notice to any Holder.


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


(1)                                  hold all sums
held by it for the payment of the principal of and premium, if any, or interest
(including Additional Interest, if any) on Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in this Indenture;


(2)                                  give the
Trustee notice of any Default by the Company in the making of any payment of
principal and premium, if any, or interest (including Additional Interest, if
any); and


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


The
Company shall give prompt written notice to the Trustee of the name and address
of any Paying Agent who is not a party to this Indenture.  If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Company or any Affiliate of
the Company may act as Paying Agent or Registrar; provided, however, that none
of the Company, its subsidiaries or the Affiliates of the foregoing shall act:


(i)    as Paying Agent in connection with redemptions, offers to
purchase and discharges, as otherwise specified in this Indenture, and


(ii)   as Paying Agent or Registrar if a Default or Event of Default has
occurred and is continuing.


 


18

















 


The
Company hereby initially appoints the Trustee as Registrar and Paying Agent for
the Notes.


SECTION 2.6                 PAYING AGENT TO HOLD ASSETS IN
TRUST.


Not
later than 8:00 a.m. (New York City time) on each due date of the principal,
premium, if any, and interest (including Additional Interest, if any) on any
Notes, the Company shall deposit with one or more Paying Agents money in
immediately available funds sufficient to pay such principal, premium, if any,
and interest (including Additional Interest, if any) so becoming due.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than
the Company) shall have no further liability for the money so paid over to the
Trustee.


If
the Company shall act as a Paying Agent, it shall, prior to or on each due date
of the principal of and premium, if any, or interest (including Additional
Interest, if any) on any of the Notes, segregate and hold in trust for the
benefit of the Holders a sum sufficient with monies held by all other Paying
Agents, to pay the principal and premium, if any, or interest (including
Additional Interest, if any) so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as provided in this Indenture, and shall
promptly notify the Trustee of its action or failure to act.


SECTION 2.7                 GENERAL PROVISIONS RELATING TO
TRANSFER AND EXCHANGE.


The
Notes are issuable only in registered form. 
A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture.  No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Register. 
Furthermore, any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system maintained by the Holder of
such Global Note (or its agent) and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book-entry.


Notwithstanding
the foregoing, in the case of a Restricted Security, a beneficial interest in a
Global Note being transferred in reliance on an exemption from the registration
requirements of the Securities Act other than in accordance with Rule 144 and
Rule 144A may only be transferred for a Physical Note.


Transfer
of any shares of Common Stock issued upon conversion of any Note that are
Restricted Securities may only be effected by written application to the
transfer agent for the Common Stock stating the name of the proposed transferee
and otherwise complying with the requirements set forth in Section 2.3(a) and
any other requirements put in place by the Company or such transfer agent.  No such transfer shall be effected until,
and such transferee shall succeed to the rights of a holder of such Common
Stock only upon, final acceptance and registration of the transfer by the
Company and such transfer agent. 
Furthermore, any such holder by acceptance of such Common Stock issued
upon conversion of any Restricted Security, agrees


 


19

















 


that
transfers of beneficial interests in such Common Stock may be effected only
through a book-entry system maintained by the holder of such Common Stock (or
its agent) and that ownership of a beneficial interest in the Common Stock
shall be required to be reflected in a book-entry.


When
Notes are presented to the Registrar with a request to register the transfer or
to exchange them for an equal aggregate principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including that such Notes are duly endorsed or accompanied by a written
instrument of transfer duly executed by the Holder thereof or by an attorney
who is authorized in writing to act on behalf of the Holder).  Subject to Section 2.4 hereof, to permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar’s request.  No service charge shall be made for any
registration of transfer or exchange or redemption of the Notes, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.14, 7.5 or 10.7 hereof).


Neither
the Company nor the Registrar shall be required to exchange or register a
transfer of any Notes:


(1)                                  for a period of
15 Business Days prior to the day of any selection of Notes for redemption
under Article 10 hereof;


(2)                                  so selected for
redemption or, if a portion of any Note is selected for redemption, such
portion thereof selected for redemption; or


(3)                                  surrendered for
conversion or, if a portion of any Note is surrendered for conversion, such
portion thereof surrendered for conversion.


SECTION 2.8                 BOOK-ENTRY PROVISIONS FOR THE
GLOBAL NOTES.


(a)           The
Global Notes initially shall:


(i)    be registered in the name of the Depositary (or a nominee thereof);


(ii)   be delivered to the Trustee as custodian for such Depositary; and


(iii)  bear the Restricted Securities Legend as set forth in Section
2.3(a)(i) hereof.


Members
of, or participants in, the Depositary (“DTC Participants”) shall have no
rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary, or the Trustee as its custodian, or under such Global
Note, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. 
Notwithstanding the foregoing,


 


20

















 


nothing
contained herein shall prevent the Company, the Trustee or any agent of the
Company or Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and the DTC Participants, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.


(b)           The
registered Holder of a Global Note may grant proxies and otherwise authorize
any Person, including DTC Participants and Persons that may hold interests
through DTC Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.


(c)           A
Global Note may not be transferred, in whole or in part, to any Person other
than the Depositary (or a nominee thereof), and no such transfer to any such
other Person may be registered. 
Beneficial interests in a Global Note may be transferred in accordance
with the rules and procedures of the Depositary and the provisions of Section
2.9 hereof.


(d)           If
at any time:


(i)    the Depositary notifies the Company in writing that it is no
longer willing or able to continue to act as Depositary for the Global Notes,
or the Depositary ceases to be a “clearing agency” registered under the
Exchange Act and a successor depositary for the Global Notes is not appointed
by the Company within 90 days of such notice or cessation;


(ii)   the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of the Notes in definitive form under this
Indenture in exchange for all or any part of the Notes represented by a Global
Note or Global Notes; or


(iii)  an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depositary for the issuance of
Physical Notes in exchange for such Global Note or Global Notes,


the
Depositary shall surrender such Global Note or Global Notes to the Trustee for
cancellation and the Company shall execute, and the Trustee, upon receipt of an
Officers’ Certificate and Company Order for the authentication and delivery of
Notes, shall authenticate and deliver in exchange for such Global Note or
Global Notes, Physical Notes in an aggregate principal amount equal to the
aggregate principal amount of such Global Note or Global Notes.  Such Physical Notes shall be registered in
such names as the Depositary (or any nominee thereof) shall identify in writing
as the beneficial owners of the Notes represented by such Global Note or Global
Notes.


(e)           Notwithstanding
the foregoing, in connection with any transfer of beneficial interests in a
Global Note to beneficial owners pursuant to Section 2.8(d) hereof, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of such Global Note in an amount equal to the principal amount of the
beneficial interest in such Global Note to be transferred.


 


21

















 


(f)            Notwithstanding
anything in this Indenture to the contrary, to the extent the procedures of the
Depositary shall from time to time conflict with the procedures set forth in
this Indenture, the procedures of the Depositary shall control for so long as
the Depositary remains depositary for the Global Notes.


SECTION 2.9                 SPECIAL TRANSFER PROVISIONS.


(a)           GENERAL.  The provisions of this Section 2.9 shall
apply to all transfers involving any Physical Note and any beneficial interest
in any Global Note.  The Company shall,
as promptly as practicable upon receipt of a written notice from any Holder
wishing to effectuate a transfer pursuant to Regulation S, cause an Offshore
Global Note to be executed, authenticated and delivered as set forth in Section
2.4, in order to facilitate such transfer.


(b)           CERTAIN
DEFINITIONS.  As used in this Section
2.9 only, “delivery” of a certificate by a transferee or transferor means the
delivery to the Registrar by such transferee or transferor of the applicable
certificate duly completed; “holding” includes both possession of a Physical
Note and ownership of a beneficial interest in a Global Note, as the context
requires; “transferring” a Global Note means transferring that portion of the
principal amount of the transferor’s beneficial interest therein that the
transferor has notified the Registrar that it has agreed to transfer; and
“transferring” a Physical Note means transferring that portion of the principal
amount thereof that the transferor has notified the Registrar that it has
agreed to transfer.


As
used in this Indenture, “Regulation S Certificate” means a certificate
substantially in the form set forth in Exhibit B; “Rule 144A Certificate” means
a certificate substantially in the form set forth in Exhibit C; and “Rule 144
Non-Registration and Supporting Evidence” means a written opinion of counsel
reasonably acceptable to the Company to the effect that, and such other
certification or information as the Company may reasonably require to confirm
that, the proposed transfer is being made pursuant to the exemption from the
registration requirements of the Securities Act provided by Rule 144.


(c)           DEEMED
DELIVERY OF A RULE 144A CERTIFICATE IN CERTAIN CIRCUMSTANCES.  A Rule 144A Certificate, if not actually delivered,
will be deemed delivered if (A) (i) the transferor advises the Company and the
Trustee in writing that the relevant offer and sale were made in accordance
with the provisions of Rule 144A (or, in the case of a transfer of a Physical
Note, the transferor checks the box provided on the Physical Note to that
effect) and (ii) the transferee advises the Company and the Trustee in writing
that (x) it is a qualified institutional buyer within the meaning of Rule 144A
and, if applicable, it holds a reasonable belief that each account for which it
is acting in connection with the relevant transfer is a qualified institutional
buyer within the meaning of Rule 144A, (y) it is aware that the transfer of
Notes to it is being made in reliance on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z) if at any time
the Company is not subject to Section 13 or 15(d) of the Exchange Act, prior to
the proposed date of transfer the transferee has been given the opportunity to obtain
from the Company the information referred to in Rule 144A(d)(4), and has either
declined such opportunity or has received such information (or, in the case of
a transfer of a Physical Note, the transferee signs the certification provided
on the


 


22

















 


Physical
Note to that effect); or (B) the transferor holds the U.S. Global Note and is
transferring to a transferee that will take delivery in the form of the U.S.
Global Note.


(d)           PROCEDURES
AND REQUIREMENTS.


(1)           if the proposed transfer occurs prior
to the Offshore Restriction Date, and the proposed transferor holds:


(A)          a U.S. Physical Note which is surrendered to the Registrar,
and the proposed transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee requests
delivery in the form of a U.S. Physical Note, then the Registrar shall (x)
register such transfer in the name of such transferee and record the date
thereof in its books and records, (y) cancel such surrendered U.S. Physical
Note and (z) deliver a new U.S. Physical Note to such transferee duly
registered in the name of such transferee in principal amount equal to the
principal amount being transferred of such surrendered U.S. Physical Note;


(ii)           delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through a member of, or participant in, the Depository (an “Agent
Member”) and requests that the proposed transferee receive a beneficial
interest in the U.S. Global Note, then the Registrar shall (x) cancel such
surrendered U.S. Physical Note, (y) record an increase in the principal amount
of the U.S. Global Note equal to the principal amount being transferred of such
surrendered U.S. Physical Note and (z) notify the Depositary in accordance with
the procedures of the Depositary that it approves of such transfer; or


(iii)          delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in an Offshore Global Note,
then, if an Offshore Global Note was theretofore issued, the Registrar shall
(x) cancel such surrendered U.S. Physical Note, (y) record an increase in the
principal amount of the Offshore Global Note equal to the principal amount
being transferred of such surrendered U.S. Physical Note and (z) notify the
Depositary in accordance with the procedures of the Depositary that it approves
of such transfer.


In
any of the cases described in this Section 2.9(e)(1)(A), the Registrar shall
deliver to the transferor a new U.S. Physical Note in principal amount equal to
the principal amount not being transferred of such surrendered U.S. Physical
Note, as applicable.


(B)           an interest in the U.S. Global Note, and the proposed
transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the proposed transferee
receive a beneficial


 


23

















 


interest in the U.S. Global Note, then the
transfer shall be effected in accordance with the procedures of the Depositary
therefor; or


(ii)           delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in an Offshore Global Note,
then, if an Offshore Global Note was theretofore issued, the Registrar shall
(w) register such transfer in the name of such transferee and record the date
thereof in its books and records, (x) record a decrease in the principal amount
of the U.S. Global Note in an amount equal to the beneficial interest therein
being transferred, (y) record an increase in the principal amount of the
Offshore Global Note equal to the amount of such decrease and (z) notify the
Depositary in accordance with the procedures of the Depositary that it approves
of such transfer.


(C)           an interest in an Offshore Global Note, and the proposed
transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the proposed transferee
receive a beneficial interest in the U.S. Global Note, then the Registrar shall
(x) record a decrease in the principal amount of the Offshore Global Note in an
amount equal to the beneficial interest therein being transferred, (y) record
an increase in the principal amount of the U.S. Global Note equal to the amount
of such decrease and (z) notify the Depositary in accordance with the procedures
of the Depositary that it approves of such transfer; or


(ii)           delivers a Regulation S Certificate and the proposed
transferee is or is acting through an Agent Member and requests that the
proposed transferee receive a beneficial interest in an Offshore Global Note,
then, if an Offshore Global Note was theretofore issued, the transfer shall be
effected in accordance with the procedures of the Depositary therefor;
provided, however, that until one year after the original issuance of any Note,
beneficial interests in the Offshore Global Note may be held only in or through
accounts maintained at the Depositary by Euroclear or Cedel (or by Agent
Members acting for the account thereof), and no person shall be entitled to
effect any transfer or exchange that would result in any such interest being
held otherwise than in or through such an account.


(2)           If the proposed transfer occurs on or
after the Offshore Restriction Date, and the proposed transferor holds:


(A)          a U.S. Physical Note which is surrendered to the Registrar,
and the proposed transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee requests
delivery in the form of a U.S. Physical Note, then the procedures set forth in
Section 2.9(e)(1)(A)(i) shall apply.


 


24

























 


(ii)           delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the proposed transferee
receive a beneficial interest in the Offshore Global Note, then, if an Offshore
Global Note was theretofore issued, the procedures set forth in Section
2.9(e)(1)(A)(ii) shall apply; or


(iii)          delivers a Regulation S Certificate, then the Registrar
shall cancel such surrendered U.S. Physical Note and at the direction of the
transferee, either:


(x)        register such transfer in the name of
such transferee, record the date thereof in its books and records and deliver a
new Offshore Physical Note to such transferee in principal amount equal to the
principal amount being transferred of such surrendered U.S. Physical Note, or


(y)       if the proposed transferee is or is
acting through an Agent Member, and if an Offshore Global Note was theretofore
issued, record an increase in the principal amount of the Offshore Global Note
equal to the principal amount being transferred of such surrendered U.S.
Physical Note and notify the Depositary in accordance with the procedures of
the Depositary that it approves of such transfer.


In
any of the cases described in this Section 2.9(e)(2)(A)(i), (ii) or (iii)(x),
the Registrar shall deliver to the transferor a new U.S. Physical Note in
principal amount equal to the principal amount not being transferred of such
surrendered U.S. Physical Note, as applicable.


(B)           an interest in the U.S. Global Note, and the proposed
transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests that the proposed transferee
receive a beneficial interest in the U.S. Global Note, then the procedures set
forth in Section 2.9(e)(1)(B)(i) shall apply; or


(ii)           delivers a Regulation S Certificate, then the Registrar
shall (x) record a decrease in the principal amount of the U.S. Global Note in
an amount equal to the beneficial interest therein being transferred, (y)
notify the Depositary in accordance with the procedures of the Depositary that
it approves of such transfer and (z) at the direction of the transferee, if the
proposed transferee is or is acting through an Agent Member and if an Offshore
Global Note was theretofore issued,, record an increase in the principal amount
of the Offshore Global Note equal to the amount of such decrease.


 


25

















 


(C)           an Offshore Physical Note which is surrendered to the
Registrar, and the proposed transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests delivery in the form of the U.S.
Global Note, then the Registrar shall (x) cancel such surrendered Offshore
Physical Note, (y) record an increase in the principal amount of the U.S.
Global Note equal to the principal amount being transferred of such surrendered
Offshore Physical Note and (z) notify the Depositary in accordance with the
procedures of the Depositary that it approves of such transfer;


(ii)           where the proposed transferee is or is acting through an
Agent Member and, if an Offshore Global Note was theretofore issued, requests
that the proposed transferee receive a beneficial interest in the Offshore
Global Note, then the Registrar shall (x) cancel such surrendered Offshore
Physical Note, (y) record an increase in the principal amount of the Offshore
Global Note equal to the principal amount being transferred of such surrendered
Offshore Physical Note and (z) notify the Depositary in accordance with the procedures
of the Depositary that it approves of such transfer; or


(iii)          does not make a request covered by Section 2.9(e)(2)(C)(i)
or Section 2.9(e)(2)(C)(ii), then the Registrar shall (x) register such
transfer in the name of such transferee and record the date thereof in its
books and records, (y) cancel such surrendered Offshore Physical Note and (z)
deliver a new Offshore Physical Note to such transferee duly registered in the
name of such transferee in principal amount equal to the principal amount being
transferred of such surrendered Offshore Physical Note.


In
any of the cases described in this Section 2.9(e)(2)(C), the Registrar shall
deliver to the transferor a new U.S. Physical Note in principal amount equal to
the principal amount not being transferred of such surrendered U.S. Physical
Note, as applicable.


(D)          an interest in an Offshore Global Note, and the proposed
transferee or transferor, as applicable:


(i)            delivers (or is deemed to have delivered pursuant to
clause (d) above) a Rule 144A Certificate and the proposed transferee is or is
acting through an Agent Member and requests delivery in the form of the U.S.
Global Note, then the Registrar shall (x) record a decrease in the principal
amount of the Offshore Global Note in an amount equal to the beneficial
interest therein being transferred, (y) record an increase in the principal
amount of the U.S. Global Note equal to the amount of such decrease and (z)
notify the Depositary in accordance with the procedures of the Depositary that
it approves of such transfer; or


(ii)           where the proposed transferee is or is acting through an
Agent Member, requests that the proposed transferee receive a beneficial
interest in


 


26

















 


the Offshore Global Note, then the transfer
shall be effected in accordance with the procedures of the Depositary therefor.


(e)           EXECUTION,
AUTHENTICATION AND DELIVERY OF PHYSICAL NOTES. 
In any case in which the Registrar is required to deliver a Physical
Note to a transferee or transferor, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, such Physical Note.


(f)            CERTAIN
ADDITIONAL TERMS APPLICABLE TO PHYSICAL NOTES. 
Any transferee entitled to receive a Physical Note may request that the
principal amount thereof be evidenced by one or more Physical Notes in any
authorized denomination or denominations, and the Registrar shall comply with
such request if all other transfer restrictions are satisfied.


(g)           Transfers
Not Covered by Section 2.9(e).


(i)            The Registrar shall effect and record, upon receipt of a
written request from the Company so to do, a transfer of Notes not otherwise
permitted by Section 2.9(e), such recording to be done in accordance with the
otherwise applicable provisions of Section 2.9(e), upon the furnishing by the
proposed transferor or transferee of a Rule 144 Non-Registration Opinion and
Supporting Evidence.


(ii)           Transfers of Common Stock issued upon conversion of any
Restricted Security will be effected according to the policies and procedures
of the Company, the Depositary and the transfer agent for such Common Stock,
and may require, but is not limited to, delivery of certification by the holder
of such Common Stock in a form substantially the same as the Rule 144A
Certificate, the Regulation S Certificate and/or Rule 144 Non-Registration and
Supporting Evidence.


(h)           GENERAL.  By its acceptance of any Note or shares of
Common Stock issuable upon conversion of the Notes bearing the Restricted
Securities Legend, each Holder of such Note or shares of Common Stock issuable
upon conversion of the Notes acknowledges the restrictions on transfer of such
Note and such Common Stock set forth in this Indenture and in the Restricted
Securities Legend and agrees that it will transfer such Note and such Common
Stock only as provided in the Indenture. 
The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions with respect thereto set forth in this
Indenture.


In
connection with any transfer of Notes, each Holder agrees by its acceptance of
the Notes to furnish the Registrar or the Company such certifications, legal
opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities
Act.  The Registrar shall not be
required to determine (but may rely upon a determination made by the Company)
the sufficiency or accuracy of any such certifications, legal opinions, other
information or document.


The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.8 hereof or this Section
2.9.  The Company shall have the right
to inspect and make copies of all such letters, notices or other written


 


27

















 


communications
at any reasonable time upon the giving of reasonable written notice to the
Registrar.


SECTION 2.10               HOLDER 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 Holders and
shall otherwise comply with Section 312(a) of the TIA.  If the Trustee is not the Registrar, the
Company shall furnish to the Trustee every six months (prior to or on each
Interest Payment Date) and at such other times as the Trustee may reasonably
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 Holders relating to such
Interest Payment Date or request, as the case may be, and the Company shall
otherwise comply with Section 312(a) of the TIA.


SECTION 2.11               PERSONS DEEMED OWNERS.


The
Company, the Trustee and any agent of the Company or the Trustee may treat the
registered Holder of a Global Note as the absolute owner of such Global Note
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Note is overdue, and
notwithstanding any notice of ownership or writing thereon, or any notice of
previous loss or theft or other interest therein.  The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Note is registered as the owner
of such Note for the purpose of receiving payment of principal of and premium,
if any, and interest (including Additional Interest, if any) on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
notwithstanding any notice of ownership or writing thereon, or any notice of
previous loss or theft or other interest therein.


SECTION 2.12               MUTILATED, DESTROYED, LOST OR
STOLEN NOTES.


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


If
there is delivered to the Company and the Trustee


(1)                                  evidence to
their satisfaction of the destruction, loss or theft of any Note, and


(2)                                  such Note or
indemnity as may be required by either of them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and, upon written request, the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.


In
case any such mutilated, destroyed, lost or stolen Note has become or is about
to become due and payable, the Company in its discretion, but subject to any
conversion rights,


 


28

















 


may,
instead of issuing a new Note, pay such Note, upon satisfaction of the
condition set forth in the preceding paragraph.


Upon
the issuance of any new Note under this Section, 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 expenses (including the fees
and expenses of the Trustee) connected therewith.


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


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


SECTION
2.13               TREASURY
NOTES.


In
determining whether the Holders of the requisite principal amount of
Outstanding Notes are present at a meeting of Holders for quorum purposes or
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any Affiliate of the Company
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only such Notes of which
the Trustee has received written notice and are so owned shall be so
disregarded.


SECTION 2.14               TEMPORARY NOTES.


Pending
the preparation of Notes in definitive form, the Company may execute and the
Trustee shall, upon written request of the Company, authenticate and deliver
temporary Notes (printed or lithographed). 
Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in definitive form but with such
omissions, insertions and variations as may be appropriate for temporary Notes,
all as may be determined by the Company. 
Every such temporary Note shall be executed by the Company and
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the Notes in definitive form.  Without unreasonable delay, the Company will
execute and deliver to the Trustee Notes in definitive form (other than in the
case of Notes in global form) and thereupon any or all temporary Notes (other
than any such Notes in global form) may be surrendered in exchange therefor, at
each office or agency maintained by the Company pursuant to Section 9.2 and the
Trustee shall authenticate and deliver in exchange for such temporary Notes an
equal aggregate principal amount of Notes in definitive form.  Such exchange shall be made by the Company
at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits and


 


29

















 


subject
to the same limitations under this Indenture as Notes in definitive form
authenticated and delivered hereunder.


SECTION 2.15               CANCELLATION.


All
Notes surrendered for payment, redemption, repurchase, conversion, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. 
All Notes so delivered shall be canceled promptly by the Trustee, and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture.  Upon
written instructions of the Company, the Trustee shall destroy canceled Notes
and, after such destruction, shall deliver a certificate of such destruction to
the Company.  If the Company shall
acquire any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless the same are
delivered to the Trustee for cancellation.


 


SECTION
2.16               CUSIP
NUMBERS.


The
Company in issuing the Notes or shares of Common Stock which are Restricted
Securities may use “CUSIP” numbers (if then generally in use), and the Trustee
shall use CUSIP numbers in notices of redemption or exchange of Notes as a
convenience to Holders; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or the Common Stock, as the case may be, or as contained in any
such notice and that reliance may be placed only on the other identification
numbers printed on the Notes or the Common Stock, and any such redemption of
the Notes shall not be affected by any defect in or omission of such numbers.  The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.


SECTION 2.17               DEFAULTED INTEREST.


If
the Company fails to make a payment of interest (including Additional Interest,
if any) on any Note when due and payable (“Defaulted Interest”), it shall pay
such Defaulted Interest plus (to the extent lawful) any interest payable on the
Defaulted Interest (calculated using the Interest Rate), in any lawful
manner.  It may elect to pay such Defaulted
Interest, plus any such interest payable on it, to the Persons who are Holders
of such Notes on which the interest is due on a subsequent Special Record
Date.  The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Note.  The Company shall fix
any such Special Record Date and payment date for such payment.  At least 15 days before any such Special
Record Date, the Company shall mail to Holders affected thereby a notice that
states the Special Record Date, the Interest Payment Date, and amount of such
interest (and such Additional Interest, if any) to be paid.


ARTICLE III


SATISFACTION AND DISCHARGE


SECTION 3.1                 SATISFACTION AND DISCHARGE OF
INDENTURE.


 


30

















 


When:


(1)                                  the Company
shall deliver to the Trustee for cancellation all Notes previously
authenticated (other than any Notes which have been destroyed, lost or stolen
and in lieu of, or in substitution for which, other Notes shall have been
authenticated and delivered) and not previously canceled, or


(2)                                  (A) all the
Notes not previously canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption,


(B) the Company shall deposit with the
Trustee, in trust, cash in U.S. Dollars and/or U.S. Government Obligations
which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than one
day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay principal of, premium, if any, or interest (including
Additional Interest, if any) on all of the Notes (other than any Notes which
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not previously canceled or delivered to the Trustee for cancellation, on the
dates such payments of principal, premium, if any, or interest (including
Additional Interest, if any) are due to such date of maturity or redemption, as
the case may be, and (C) the Company shall have delivered to the Trustee an
Officers’ Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over any other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company of others, and


if, in the case of either clause (1) or (2),
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect (except
as to:


(i)            remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, (ii) rights hereunder of
Holders to receive payments of principal of and premium, if any, and interest
(including Additional Interest, if any) on, the Notes and the other rights,
duties and obligations of Holders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee, and


 


31

















 


(iii)          the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on written demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel (each stating that all
conditions precedent herein relating to the satisfaction and discharge of this
Indenture have been complied with) and at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture; provided, however, the Company shall reimburse the Trustee for
all amounts due the Trustee under Section 5.8 hereof and for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Notes.


 


SECTION 3.2                 DEPOSITED
MONIES TO BE HELD IN TRUST.


Subject
to Section 3.3 hereof, all monies deposited with the Trustee pursuant to
Section 3.1 hereof shall be held in trust and applied by it to the payment,
notwithstanding the provisions of Article 13 hereof, either directly or through
any Paying Agent (including the Company if acting as its own Paying Agent), to
the Holders of the particular Notes for the payment or redemption of which such
monies have been deposited with the Trustee, of all sums due and to become due
thereon for principal, premium, if any, and interest (including Additional
Interest, if any).  All monies deposited
with the Trustee pursuant to Section 3.1 hereof (and held by it or any Paying
Agent) for the payment of Notes subsequently converted shall be returned to the
Company upon request of the Company.


SECTION 3.3                 RETURN OF UNCLAIMED MONIES.


Anything
contained herein to the contrary notwithstanding, and subject to any applicable
law, any money held by the Trustee in trust for the payment and discharge of
the principal, interest (including Additional Interest, if any) or premium, if
any, on any of the Notes which remains unclaimed for two years after the date
when each payment of such principal, interest and premium has become payable
shall be repaid within sixty days of such date by the Trustee to the Company as
its absolute property free from trust, and the Trustee shall thereupon be
released and discharged with respect thereto and the Holders shall look only to
the Company for the payment of the principal, interest (including Additional
Interest, if any) and premium, if any, on such Notes.  The Company may cause, or, if requested by the Company, the
Trustee shall cause notice of such payment to the Company to be mailed to each
Holder of a Note entitled thereto prior to such payment.  The Trustee shall not be liable to the
Company or any Holder for interest on funds held by it for the payment and
discharge of the principal, interest (including Additional Interest, if any) or
premium, if any, on of any of the Notes to any Holder.  The Company shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.


ARTICLE IV


DEFAULTS AND REMEDIES


 


 


32

















 


SECTION 4.1                 EVENTS OF DEFAULT.


An
“Event of Default,” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


(a)           default
in the payment of principal of (or premium, if any, on) any Note at its stated
maturity, upon redemption or exercise of a Repurchase Right or otherwise;


(b)           default
in the payment of interest or Additional Interest, if any, on any Note when due
and payable and continuance of such default for a period of 30 days;


(c)           default
in the performance or breach of any term, covenant or agreement of the Company
in this Indenture or under the Notes and continuance of such default or breach
for a period of 60 consecutive days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Notes a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;


(d)           a
default occurs under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any of its Significant Subsidiaries,
whether such indebtedness now exists or shall be created hereafter, which
default (i) is caused by a failure to pay principal of such indebtedness prior
to the expiration of the applicable grace period, if any, provided in such
indebtedness (a “Payment Default”) or (ii) results in the acceleration of such
indebtedness prior to its stated maturity and, in each case, the principal
amount of any such indebtedness, together with the principal amount of any
other such indebtedness under which there is then existing a Payment Default or
the maturity of which has been so accelerated, aggregates $10 million or more;


(e)           a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of the
Company or any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 30 consecutive days;


(f)            the
Company or any Significant Subsidiary (A) commences a voluntary case under any
applicable bankruptcy or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any Significant
Subsidiary or (C) effects any general assignment for the benefit of creditors;
or


 


33

















 


(g)           failure
to provide the notice required under this Indenture upon a Change of Control.


SECTION 4.2                 ACCELERATION OF MATURITY;
RESCISSION AND ANNULMENT.


(a)           If
an Event of Default with respect to Outstanding Notes (other than an Event of
Default with respect to the Company specified in Section 4.1(e) or 4.1 (f)
hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes, by written notice to the
Company specifying such Event of Default and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder, may declare due
and payable 100% of the principal amount of all Outstanding Notes plus any
accrued and unpaid interest to the date of payment.  Upon a declaration of acceleration, such principal and accrued
and unpaid interest to the date of payment shall be immediately due and
payable.


(b)           If
an Event of Default with respect to the Company specified in Section 4.1(e) or
4.1(f) hereof occurs, all unpaid principal and accrued and unpaid interest
(including Additional Interest, if any) on the Outstanding Notes shall become
and be immediately due and payable, without any declaration or other act on the
part of the Trustee or any Holder.


(c)           The
Holders, either (a) through the written consent of not less than a majority in
aggregate principal amount of the Outstanding Notes, or (b) by the adoption of
a resolution by Holders of a majority in aggregate principal amount of the
Outstanding Notes represented at a meeting of Holders at which a quorum (as
prescribed in Section 8.4) is present, may rescind and annul an acceleration
and its consequences if:


(1)                                  all existing
Events of Default, other than the nonpayment of principal of or interest
(including Additional Interest, if any) on the Notes which have become due
solely because of the acceleration, have been remedied, cured or waived, and


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


provided, however, that in the event of a
declaration of acceleration in respect of the Notes because of an Event of
Default specified in Section 4.1(d) shall have occurred and be continuing, such
declaration of acceleration shall be automatically rescinded and annulled if
the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have waived, cured, rescinded or annulled
their declaration of acceleration in respect of such Indebtedness, and written
notice of such discharge or waiver, cure, rescission or annullment as the case
may be, shall have been given to the Trustee by the Company and countersigned
by the holders of such Indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of
the Notes and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.


 


SECTION 4.3                 OTHER REMEDIES.


 


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If
an Event of Default with respect to Outstanding Notes occurs and is continuing,
the Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal of or interest on the Notes or to enforce
the performance of any provision of the Notes.


The
Trustee may maintain a proceeding in which it may prosecute and enforce all
rights of action and claims under this Indenture or the Notes, even if it does
not possess any of the Notes or does not produce any of them in the proceeding.


SECTION 4.4                 WAIVER
OF PAST DEFAULTS.


The
Holders, either (a) through the written consent of not less than a majority in
aggregate principal amount of the Outstanding Notes, or (b) by the adoption of
a resolution, at a meeting of Holders of the Outstanding Notes at which a
quorum (as prescribed in Section 8.4) is present, by the Holders of at least a
majority in aggregate principal amount of the Outstanding Notes represented at
such meeting, may, on behalf of the Holders of all of the Notes, waive an
existing Default or Event of Default, except a Default or Event of Default:


(1)                                  in the payment
of the principal of or premium, if any, or interest (including Additional
Interest, if any) on any Note (provided, however, that subject to Section 4.7
hereof, the Holders of a majority in aggregate principal amount of the
Outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration);


(2)                                  in respect of a
covenant or provision hereof which, under Section 7.2 hereof, including Section
7.2(g), cannot be modified or amended without the consent of the Holders of
each Outstanding Note affected.


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


SECTION 4.5                 CONTROL BY MAJORITY.


The
Holders of a majority in aggregate principal amount of the Outstanding Notes
(or such lesser amount as shall have acted at a meeting pursuant to the
provisions of this Indenture) shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee.  However, the Trustee may refuse to follow
any direction that:


(1)                                  conflicts with
any law or with this Indenture;


(2)                                  the Trustee determines
may be unduly prejudicial to the rights of the Holders not joining therein, or


 


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(3)                                  may expose the
Trustee to personal liability. The Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


SECTION 4.6                 LIMITATION ON SUIT.


No
Holder of any Note shall have any right to pursue any remedy with respect to
this Indenture or the Notes (including, instituting any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver
or trustee) unless:


(1)                                  such Holder has
previously given written notice to the Trustee of an Event of Default that is
continuing;


(2)                                  the Holder of
at least 25% in aggregate principal amount of the Outstanding Notes shall have
made written request to the Trustee to pursue the remedy;


(3)                                  such Holder or
Holders have offered to the Trustee indemnity satisfactory to it against any
costs, expenses and liabilities incurred in complying with such request;


(4)                                  the Trustee has
failed to comply with the request for 60 days after its receipt of such notice,
request and offer of indemnity; and


(5)                                  during such
60-day period, no direction inconsistent with such written request has been
given to the Trustee by the Holders of a majority in aggregate principal amount
of the Outstanding Notes (or such amount as shall have acted at a meeting
pursuant to the provisions of this Indenture);


PROVIDED,
HOWEVER, that no one or more of such Holders may use this Indenture to
prejudice the rights of another Holder or to obtain preference or priority over
another Holder.


SECTION 4.7                 UNCONDITIONAL RIGHT OF HOLDERS
TO RECEIVE PAYMENT.


Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and interest (including Additional Interest, if any) on
such Note on the stated maturity expressed in such Note, in the case of
redemption, on the Redemption Date, and in the case of the exercise of a
Repurchase Right, on the Repurchase Date, and to bring suit for the enforcement
of any such payment on or after such respective dates, and such right shall not
be impaired or affected without the consent of such Holder.


SECTION 4.8                 COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY THE TRUSTEE.


The
Company covenants that if:


 


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(1)                                  a default is
made in the payment of any interest (including Additional Interest, if any) on
any Note when such interest (including Additional Interest, if any) becomes due
and payable and such default continues for a period of 30 days, or


(2)                                  a default is
made in the payment of the principal of or premium, if any, on any Note at the
maturity thereof,


the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable (as expressed
therein or as a result of any acceleration effected pursuant to Section 4.2
hereof) on such Notes for principal and premium, if any, and interest
(including Additional Interest, if any) and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium, if any, and on any overdue interest (including Additional Interest, if
any), calculated using the Interest Rate, and, in addition thereto, 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.


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


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


SECTION 4.9                 TRUSTEE MAY FILE PROOFS OF
CLAIM.


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


(1)                                  to file and
prove a claim for the whole amount of principal and premium, if any, and
interest (including Additional Interest, if any) owing and unpaid in respect of
the Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses,


 


 


37

















 


                                                disbursements
and advances of the Trustee, its agents and counsel) and of the Holders of
Notes allowed in such judicial proceeding, and


(2)                                  to collect and
receive any moneys or other property payable or deliverable on any such claim
and to distribute the same;


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceedings is hereby authorized by each
Holder of Notes to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
Notes, 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 5.8.


Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept, or adopt on behalf of any Holder of a Note, any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder of a Note in any such proceeding.


SECTION 4.10               RESTORATION OF RIGHTS AND
REMEDIES.


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


SECTION 4.11               RIGHTS AND REMEDIES CUMULATIVE.


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 2.12, no right
or remedy conferred in this Indenture upon or reserved to the Trustee or to the
Holders of Notes is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.


SECTION 4.12               DELAY OR OMISSION NOT WAIVER.


No
delay or omission of the Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders of
Notes may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Notes, as the case may be.


 


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SECTION 4.13               APPLICATION OF MONEY COLLECTED.


Subject
to Article 13, any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or premium, if any, or interest (including Additional Interest, if any), upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


FIRST:
To the payment of all amounts due the Trustee;


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


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


SECTION 4.14               UNDERTAKING FOR COSTS.


All
parties to this Indenture agree, and each Holder of any Note by such Holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Notes, or to any suit instituted by any Holder of any Note for the enforcement
of the payment of the principal of or premium, if any, or interest (including
Additional Interest, if any) on any Note on or after the stated maturity
expressed in such Note (or, in the case of redemption or exercise of a
Repurchase Right, on or after the Redemption Date) or for the enforcement of
the right to convert any Note in accordance with Article 12.


SECTION 4.15               WAIVER OF STAY OR EXTENSION LAWS.


The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim to take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede 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.


 


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ARTICLE V


THE TRUSTEE


SECTION 5.1                 CERTAIN DUTIES AND
RESPONSIBILITIES.


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


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


(2)                                  In the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided, however, that in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates or opinions to determine whether or not, on their face, they
conform to the requirements to this Indenture (but need not investigate or
confirm the accuracy of any facts stated therein).


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


(c)           No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:


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


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


(3)                                  The Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with a direction received by it of the Holders
of a majority in principal amount of the Outstanding Notes (or such lesser
amount as shall have acted at a meeting pursuant to the provisions of this
Indenture) relating to the time, method and place of conducting


 


40

















 


                                                any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.


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


(e)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.  The Trustee may refuse to perform any duty
or exercise any right or power unless it receives indemnity satisfactory to it
against any loss, liability, cost or expense (including, without limitation,
reasonable fees of counsel).


(f)            The
Trustee shall not be obligated to pay interest on any money or other assets received
by it unless otherwise agreed in writing with the Company.  Assets held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


(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, Note, note, coupon, other
evidence of Indebtedness or other paper or document, but the Trustee, in its
discretion, may, but shall have no duty or obligation to, 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 or lack thereof.


(h)           The
Trustee shall not be deemed to have notice or actual knowledge of any Event of
Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact a Default is
received by the Trustee pursuant to Section 13.2 hereof, and such notice
references the Notes and this Indenture.


(i)            The
rights, privileges, protections, immunities and benefits given to the Trustee
hereunder, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each Paying Agent, authenticating agent, Conversion Agent or
Registrar acting hereunder.


SECTION 5.2                 CERTAIN RIGHTS OF TRUSTEE.


Subject
to the provisions of Section 5.1 hereof and subject to Section 315(a) through
(d) of the TIA:


(1)                                  The Trustee may
rely 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.


 


41

















 


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


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


(4)                                  The Trustee
shall not be liable for any action taken or omitted to be taken by it in good
faith which it believed to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture, unless the Trustee’s conduct
constitutes negligence.


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


(6)                                  Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


(7)                                  The permissive
rights of the Trustee to do things enumerated in this Indenture shall not be
construed as a duty unless so specified herein.


SECTION 5.3                 INDIVIDUAL RIGHTS OF TRUSTEE.


The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest (as such term is defined in Section 310(b) of
the TIA), it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (to the extent permitted under Section 310(b)
of the TIA) or resign.  Any agent may do
the same with like rights and duties. 
The Trustee is also subject to Sections 5.11 and 5.12 hereof.


SECTION 5.4                 MONEY HELD IN TRUST.


Money
held by the Trustee in trust hereunder shall be segregated from other
funds.  The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise expressly agreed with the Company.


SECTION 5.5                 TRUSTEE’S DISCLAIMER.


 


42

















 


The
recitals contained herein and in the Notes (except for those in the certificate
of authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity, sufficiency or priority of this Indenture or of the Notes.  The Trustee shall not be accountable for the
use or application by the Company of Notes or the proceeds thereof.


SECTION 5.6                 NOTICE
OF DEFAULTS.


Within
90 days after the occurrence of any Default or Event of Default hereunder of
which the Trustee has received written notice, the Trustee shall give notice to
Holders pursuant to Section 13.2 hereof, unless such Default or Event of
Default shall have been cured or waived; provided, however, that, except in the
case of a Default or Event of Default in the payment of the principal of or
premium, if any, or interest (including Additional Interest, if any), or in the
payment of any redemption or repurchase obligation on any Note, the Trustee
shall be protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.


SECTION 5.7                 REPORTS BY TRUSTEE TO HOLDERS.


The
Trustee shall transmit to Holders and to such other Persons as may be required
by Section 313(c) of the TIA such reports concerning the Trustee and its
actions under this Indenture as may be required by Section 313 of the TIA at
the times and in the manner provided by the TIA.


A
copy of each report at the time of its mailing to Holders shall be filed with
the SEC, if required, and each stock exchange, if any, on which the Notes are
listed.  The Company shall promptly
notify the Trustee when the Notes become listed on any stock exchange.


SECTION 5.8                 COMPENSATION AND
INDEMNIFICATION.


The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Company covenants and agrees to pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ), except to the extent that any such expense,
disbursement or advance is due to its gross negligence or bad faith.  When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 4.1
hereof, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.  The Company also covenants to indemnify the Trustee and its
officers, directors, employees and agents for, and to hold such Persons
harmless against, any loss, liability or expense incurred by them, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder or the performance of their duties hereunder, including the
costs and expenses of defending themselves against or investigating any claim
of liability in the premises, except to the extent that any such


 


43

















 


loss,
liability or expense was due to the gross negligence or willful misconduct of
such Persons.  The obligations of the
Company under this Section 5.8 to compensate and indemnify the Trustee and its
officers, directors, employees and agents and to pay or reimburse such Persons
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the earlier resignation or removal of the Trustee.  Such additional indebtedness shall be a
senior claim to that of the Notes upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Notes, and the Notes are hereby subordinated to such
senior claim.  “Trustee” for purposes of
this Section 5.8 shall include any predecessor Trustee, but the negligence or
willful misconduct of any Trustee shall not affect the indemnification of any
other Trustee.


SECTION 5.9                 REPLACEMENT OF TRUSTEE.


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 5.9.


The
Trustee may resign and be discharged from the trust hereby created by so
notifying the Company in writing.  The
Holders of at least a majority in aggregate principal amount of Outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in writing.  The Company must remove the Trustee if:


(i)    the Trustee fails to comply with Section 5.11 hereof or Section
310 of the TIA;


(ii)   the Trustee becomes incapable of acting;


(iii)  the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law; or


(iv)  a Custodian or public officer takes charge of the Trustee or its
property.


If
the Trustee resigns or is removed or if a vacancy exists in the office of the
Trustee for any reason, the Company shall promptly appoint a successor
Trustee.  The Trustee shall be entitled
to payment of its fees and reimbursement of its expenses while acting as
Trustee.  Within one year after the
successor Trustee takes office, the Holders of at least a majority in aggregate
principal amount of Outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.


Any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee if the Trustee fails to
comply with Section 5.11 hereof.


If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation or removal,


 


44

















 


the
resigning or removed Trustee, as the case may be, may petition, at the expense
of the Company, any court of competent jurisdiction for 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. 
Thereupon 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.  The Company shall mail a notice of the successor Trustee’s
succession to the Holders.  The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee.  Notwithstanding
replacement of the Trustee pursuant to this Section 5.9, the Company’s
obligations under Section 5.8 hereof shall continue for the benefit of the
retiring Trustee with respect to expenses, losses and liabilities incurred by
it prior to such replacement.


SECTION 5.10               SUCCESSOR TRUSTEE BY MERGER, ETC.


Subject
to Section 5.11 hereof, if the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation or national banking association, the successor entity
without any further act shall be the successor Trustee as to the Notes.


SECTION 5.11               CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY.


The
Trustee shall at all times satisfy the requirements of Section 310(a)(1), (2)
and (5) of the TIA.  The Trustee shall
at all times have (or, in the case of a corporation included in a bank holding
company system, the related bank holding company shall at all times have), a
combined capital and surplus of at least $100 million as set forth in its (or
its related bank holding company’s) most recent published annual report of
condition.  The Trustee is subject to
Section 310(b) of the TIA.


SECTION 5.12               COLLECTION OF CLAIMS AGAINST THE
COMPANY.


The
Trustee is subject to Section 311(a) of the TIA, excluding any creditor relationship
listed in Section 311(b) of the TIA.  A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated therein.


ARTICLE VI


CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE


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


The
Company shall not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its
property and assets (in one transaction or a series of related transactions) to
any Person unless:


(1)                                  either (A) the
Company shall be the resulting, surviving or transferee Person (the “Successor
Company”), or (B) the Successor


 


45

















 


                                                Company (if
other than the Company) (i) shall be a corporation organized and existing under
the laws of the United States of America or any state thereof or the District
of Columbia, and (ii) shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
of the Company’s obligations for the due and punctual payment of the principal
of (and premium and Additional Interest, if any) and interest on all Notes and
the performance and observance of every covenant of this Indenture on the part
of the Company to be performed or observed and shall have provided for
conversion rights in accordance with Section 12.11 hereof;


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


(3)                                  the Company
shall have delivered to the Trustee an Officer’s 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 provided for herein relating to such transaction have been
complied with.


SECTION 6.2                 SUCCESSOR CORPORATION
SUBSTITUTED.


Upon
any consolidation of the Company with or merger of the Company with or into any
other corporation or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company to any Person in accordance
with Section 6.1, 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 in the event of any
such conveyance or transfer, the Company (which term shall for this purpose
mean the Person named as the “Company” in the first paragraph of this Indenture
or any successor Person which shall theretofore become such in the manner
described in Section 6.1), except in the case of a lease to another Person,
shall be discharged of all obligations and covenants under this Indenture and
the Notes.


ARTICLE VII


AMENDMENTS, SUPPLEMENTS AND
WAIVERS


 


SECTION 7.1                 WITHOUT CONSENT OF HOLDERS OF
NOTES.


 


46

















 


Without
the consent of any Holders of Notes, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may amend this
Indenture and the Notes to:


(a)           add
to the covenants of the Company for the benefit of the Holders of Notes;


(b)           surrender
any right or power herein conferred upon the Company;


(c)           make
provision with respect to the conversion rights of Holders of Notes pursuant to
Section 12.11 hereof;


(d)           provide
for the assumption of the Company’s obligations to the Holders of Notes in the
case of a merger, consolidation, conveyance, transfer or lease pursuant to
Article 6 hereof;


(e)           reduce
the Conversion Price; provided, that such reduction in the Conversion Price
shall not adversely affect the interest of the Holders of Notes;


(f)            comply
with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


(g)           make
any changes or modifications to this Indenture necessary in connection with the
registration of any Notes under the Securities Act as contemplated in the
Registration Rights Agreement, provided, that such action pursuant to this
clause (g) does not, in the good faith opinion of the Board of Directors and
the Trustee, adversely affect the interests of the Holders of Notes in any
material respect;


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


(i)            add
or modify any other provisions with respect to matters or questions arising
under this Indenture which the Company and the Trustee may deem necessary or
desirable and which shall not be inconsistent with the provisions of this Indenture,
provided, that such action pursuant to this clause (i) does not adversely
affect the interests of the Holders of Notes; or


(j)            comply
with the procedures of the Depositary.


SECTION 7.2                 WITH CONSENT OF HOLDERS OF
NOTES.


Except
as provided below in this Section 7.2, this Indenture or the Notes may be
amended, modified or supplemented, and noncompliance in any particular instance
with any


 


47

















 


provision
of this Indenture or the Notes may be waived, in each case (i) with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Outstanding Notes or (ii) by the adoption of a resolution, at a meeting of
Holders of the Outstanding Notes at which a quorum is present, by the Holders
of a majority in aggregate principal amount of the Outstanding Notes
represented at such meeting.


Without
the written consent or the affirmative vote of each Holder of Notes so
affected, an amendment, modification or waiver under this Section 7.2 may not:


(a)           change
the stated maturity of the principal of, or any installment of interest
(including Additional Interest, if any) on, any Note;


(b)           reduce
the principal amount of, or premium, if any, on any Note;


(c)           reduce
the interest (including Additional Interest, if any) on any Note;


(d)           change
the currency of payment of principal of, premium, if any, or interest
(including Additional Interest, if any) on any Note;


(e)           impair
the right of any Holder to institute suit for the enforcement of any payment in
or with respect to any Note;


(f)            modify
the obligation of the Company to maintain an office or agency in The City of
New York pursuant to Section 9.2 hereof;


(g)           amend
the Repurchase Right after the occurrence of a Change of Control or the right
to convert any Note in a manner adverse to the Holders; provided, however, that
the execution of a supplemental indenture solely to permit a Successor Company
to assume the Company’s obligations under the Notes shall not be deemed to be
adverse to the Holders;


(h)           modify
the redemption payment provisions of the Indenture in a manner adverse to the
Holders of the Notes;


(i)            reduce
the percentage of aggregate principal amount of Notes outstanding required to
waive a default or amend or modify this Indenture, except to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby; or


(j)            reduce
the requirements of Section 8.4 hereof for quorum or voting, or reduce the
percentage of aggregate principal amount of the Outstanding Notes the consent
of whose Holders is required for any such supplemental indenture or the consent
of whose Holders is required for any waiver provided for in this Indenture.


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


SECTION 7.3                 COMPLIANCE WITH TRUST INDENTURE
ACT.


 


48

















 


Every
amendment to this Indenture or the Notes shall be set forth in a supplemental
indenture that complies with the TIA as then in effect.


SECTION 7.4                 REVOCATION OF CONSENTS AND
EFFECT OF CONSENTS OR VOTES.


Until
an amendment, supplement or waiver becomes effective, a written consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note;
provided, however, that unless a record date shall have been established, any
such Holder or subsequent Holder may revoke the consent as to its Note or
portion of a Note if the Trustee receives written notice of revocation before
the date the amendment, supplement or waiver becomes effective.


An
amendment, supplement or waiver becomes effective on receipt by the Trustee of
written consents from or affirmative votes by, as the case may be, the Holders
of the requisite percentage of aggregate principal amount of the Outstanding
Notes, and thereafter shall bind every Holder of Notes; provided, however, if
the amendment, supplement or waiver makes a change described in any of the
clauses (a) through (j) of Section 7.2 hereof, the amendment, supplement or
waiver shall bind only each Holder of a Note which has consented to it or voted
for it, as the case may be, and every subsequent Holder of a Note or portion of
a Note that evidences the same indebtedness as the Note of the consenting or
affirmatively voting, as the case may be, Holder.


The
Company may, but shall not be obligated to, fix a Record Date for the purpose
of determining the Holders entitled to consent to any amendment, supplement or
waiver, which Record Date shall be not more than 30 days prior to the first
solicitation of such consent.  If a
Record Date is fixed, then notwithstanding the second sentence of the
immediately preceding paragraph, those Persons who were Holders at such Record
Date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such Record Date. 
No such consent shall be valid or effective for more than 90 days after
such Record Date unless consents from Holders of the requisite percentage in
principal amount of outstanding Notes required hereunder for the effectiveness
of such consents shall have also been given and not revoked within such 90 day
period.


SECTION 7.5                 NOTATION ON OR EXCHANGE OF
NOTES.


If
an amendment, supplement or waiver changes the terms of a Note:


(a)           the
Trustee may require the Holder of a Note to deliver such Notes to the Trustee,
the Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Note thereafter authenticated; or


(b)           if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms.


 


49

















 


Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.


SECTION 7.6                 TRUSTEE TO SIGN AMENDMENT, ETC.


The
Trustee shall sign any amendment authorized pursuant to this Article 7 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If the
amendment does adversely affect the rights, duties, liabilities or immunities
of the Trustee, the Trustee may but need not sign it.  In signing or refusing to sign such amendment, the Trustee shall
be entitled to receive and shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that
such amendment is authorized or permitted by this Indenture.


ARTICLE VIII


MEETING OF HOLDERS OF NOTES


SECTION 8.1                 PURPOSES FOR WHICH MEETINGS MAY
BE CALLED.


A
meeting of Holders of Notes may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes.


SECTION 8.2                 CALL NOTICE AND PLACE OF
MEETINGS.


(a)           The
Trustee may at any time call a meeting of Holders of Notes for any purpose
specified in Section 8.1 hereof, to be held at such time and at such place in
The City of New York as the Trustee may determine.  Notice of every meeting of Holders of Notes, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section
13.2 hereof, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.


(b)           In
case at any time the Company, pursuant to a Board Resolution, or the Holders of
at least 10% in principal amount of the Outstanding Notes shall have requested
the Trustee to call a meeting of the Holders of Notes for any purpose specified
in Section 8.1 hereof, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Notes in the
amount specified, as the case may be, may determine the time and the place in
The City of New York for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section.


SECTION 8.3                 PERSONS ENTITLED TO VOTE AT
MEETINGS.


To
be entitled to vote at any meeting of Holders of Notes, a Person shall be (a) a
Holder of one or more Outstanding Notes, or (b) a Person appointed by an
instrument in writing


 


50

















 


as
proxy for a Holder or Holders of one or more Outstanding Notes by such Holder
or Holders.  The only Persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


SECTION 8.4                 QUORUM; ACTION.


The
Persons entitled to vote a majority in principal amount of the Outstanding
Notes shall constitute a quorum.  In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Notes, be
dissolved.  In any other case, the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting.  In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. 
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 8.2(a) hereof, except that such notice need be given only
once and not less than five days prior to the date on which the meeting is
scheduled to be reconvened.


At
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid, any resolution and all matters (except as limited by the
proviso to Section 7.2 hereof) shall be effectively passed and decided if
passed or decided by the Persons entitled to vote not less than a majority in
principal amount of Outstanding Notes represented and voting at such meeting.


Any
resolution passed or decisions taken at any meeting of Holders of Notes duly
held in accordance with this Section shall be binding on all the Holders of
Notes, whether or not present or represented at the meeting.


SECTION 8.5                 DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.


(a)           Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Notes in
regard to proof of the holding of Notes and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate.  Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be proved
in the manner specified in Section 8.3 hereof and the appointment of any proxy
shall be proved in the manner specified in Section 8.3 hereof.  Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 8.3 hereof or other proof.


(b)           The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which
may be the Trustee) of the meeting, unless the meeting shall have been called by
the Company or by Holders of Notes as provided in Section 8.2(b) hereof, in
which case the


 


51

















 


Company or
the Holders of Notes calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman.  A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Notes represented at the meeting.


(c)           At
any meeting each Holder of a Note or proxy shall be entitled to one vote for
each $1,000 principal amount of Notes held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding.  The chairman of the
meeting shall have no right to vote, except as a Holder of a Note or proxy.


(d)           Any
meeting of Holders of Notes duly called pursuant to Section 8.2 hereof at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Notes represented at the
meeting, and the meeting may be held as so adjourned without further notice.


SECTION 8.6                 COUNTING VOTES AND RECORDING
ACTION OF MEETINGS.


The
vote upon any resolution submitted to any meeting of Holders of Notes shall be
by written ballots on which shall be subscribed the signatures of the Holders
of Notes or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Notes held or represented by them.  The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting.  A record, at least in
duplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 8.2 hereof and, if applicable, Section
8.4 hereof.  Each copy shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.  Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.


ARTICLE IX


COVENANTS


SECTION 9.1                 PAYMENT OF PRINCIPAL, PREMIUM
AND INTEREST.


The
Company will duly and punctually pay the principal of and premium, if any, and
interest (including Additional Interest, if any) in respect of the Notes in
accordance with the terms of the Notes and this Indenture.  The Company will deposit or cause to be
deposited with the Trustee as directed by the Trustee, no later than the day
prior to the stated maturity of any Note or installment of interest (including
Additional Interest, if any), all payments so due.


SECTION 9.2                 MAINTENANCE OF OFFICES OR
AGENCIES.


 


52

















 


The
Company shall maintain a Place of Payment for the Notes in the Borough of
Manhattan, The City of New York, which will be an office or agency where Notes
may be:


(i)    presented or surrendered for payment;


(ii)   surrendered for registration of transfer or exchange;


(iii)  surrendered for conversion;


and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served.  The
office or agency of the Trustee in the Borough of Manhattan, the City of New
York, shall initially be such office or agency of the Company, unless and until
the Company shall designate and maintain some other office or agency for one or
more of such purposes.


The
Company may at any time and from time to time vary or terminate the appointment
of any such office or appoint any additional offices for any or all of such
purposes; provided, however, that until all of the Notes have been delivered to
the Trustee for cancellation, or moneys sufficient to pay the principal of and
premium, if any, and interest (including Additional Interest, if any) on the
Notes have been made available for payment and either paid or returned to the
Company pursuant to the provisions of Section 4.13 hereof, the Company will
maintain in The City of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange, where Notes may be surrendered for
conversion and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. 
The Company will give prompt written notice to the Trustee, and notice
to the Holders in accordance with Section 13.2 hereof, of the appointment or
termination of any such agents and of the location and any change in the
location of any such office or agency.


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


SECTION 9.3                 CORPORATE EXISTENCE.


Subject
to Article 6 hereof, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises of the Company and
each Significant Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and that
the loss thereof is not disadvantageous in any material respect to the Holders.


SECTION 9.4                 MAINTENANCE OF PROPERTIES.


The
Company will cause all properties owned by the Company or any Subsidiary or
used or held for use in the conduct of its business or the business of any Subsidiary
to be


 


53

















 


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


SECTION 9.5                 PAYMENT OF TAXES AND OTHER
CLAIMS.


The
Company will, and will cause any Significant Subsidiary to, pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary and (b) all claims for labor, materials and supplies,
which, if unpaid, might by law become a lien upon the property of the Company
or any Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.


SECTION 9.6                 REPORTS.


If
at any time the Company is not subject to Section 13 or 15(d) of the Exchange
Act, upon the request of a Holder of a Note, the Company will promptly furnish
or cause to be furnished to such Holder or to a prospective purchaser of such
Note designated by such Holder, as the case may be, the information, if any,
required to be delivered by it pursuant to Rule 144A(d)(4) under the Securities
Act to permit compliance with Rule 144A in connection with the resale of such
Note; provided, however, that the Company shall not be required to furnish such
information in connection with any request made on or after the date which is
two years from the later of the date such Note was last acquired from the Company
or an “affiliate” of the Company.


SECTION 9.7                 COMPLIANCE CERTIFICATE; NOTICE
OF REGISTRATION DEFAULT.


(a)           The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, an Officer’s Certificate signed by two Officers of
the Company (at least one of whom shall be the principal executive officer or
the principal financial officer) stating that in the course of the performance
by the signers of their duties as Officers of the Company, they would normally
have knowledge of any failure by the Company to comply with all conditions, or
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof.  In the event an Officer of the
Company comes to have actual knowledge of a Default, regardless of the date,
the Company shall deliver an Officers’ Certificate to the Trustee within five
Business Days of obtaining such actual knowledge specifying such Default and
the nature and status thereof.


 


54

















 


(b)           When
any Registration Default (as defined in the Resale Registration Rights
Agreement) occurs, the Company shall promptly deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission an
Officer’s Certificate specifying the nature of such Registration Default.  In addition, the Company shall deliver to
the Trustee on each Interest Payment Date during the continuance of a
Registration Default and on the Interest Payment Date following the cure of a
Registration Default, an Officer’s Certificate specifying the amount of
Additional Interest which have accrued and which are then owing under the
Resale Registration Rights Agreement.


SECTION 9.8                 RESALE OF CERTAIN NOTES.


During
the period of two years after the last date of original issuance of any Notes,
without the prior written consent of the Initial Purchaser, which consent shall
not be unreasonably withheld, delayed or conditioned, the Company shall not,
and shall use its reasonable efforts not to permit any of its “affiliates” (as
defined under Rule 144 under the Securities Act) to, resell any Notes which
constitute “restricted securities” under Rule 144, that are acquired by any of
them within the United States or to “U.S. persons” (as defined in Regulation S)
except pursuant to an effective registration statement under the Securities Act
or an applicable exemption therefrom. 
The Trustee shall have no responsibility or liability in respect of the
Company’s performance of its agreement in the preceding sentence.


ARTICLE X


REDEMPTION OF NOTES


SECTION 10.1               OPTIONAL REDEMPTION.


(a)           The
Company shall not redeem the Notes at any time prior to September 1, 2006.


(b)           On
or after September 1, 2006, the Company may, at its option, redeem the Notes in
whole at any time or in part from time to time, on any date prior to maturity,
upon notice as set forth in Section 10.4 at the redemption price (expressed as
percentages of the principal amount) set forth below if redeemed during the
12-month period beginning on the dates indicated (the “Redemption Price”):


	
   

  	
   

  	
  Redemption Price

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  September 1, 2006 to
  August 31, 2007

  	
   

  	
  101.80%

  
	
   

  	
  September 1, 2007 to
  August 31, 2008

  	
   

  	
  100.90%

  



 


provided, however,
the Company may only redeem the Notes if the Closing Price of the Common Stock
equals or exceeds 150% of the Conversion Price then in effect for at least 20
Trading Days in any consecutive 30-day trading period ending on the Trading Day
prior to the date the notice of the redemption pursuant to this Section 10.1(a)
is mailed pursuant to Section 10.4.


 


55

















 


(c)           The
Company shall pay any interest on the Notes called for redemption pursuant to
this Section 10.1 (including those Notes which are converted into Common Stock
after the date the notice of the redemption is mailed and prior to the
Redemption Date) accrued but not paid to, but excluding, the Redemption
Date.  Such interest shall be paid to
the Holder entitled to the Redemption Price; provided that if the Redemption
Date is an Interest Payment Date, the Company shall pay the interest to the
Holder of the Note at the close of business on the corresponding Regular Record
Date.


SECTION 10.2               NOTICE TO TRUSTEE.


If
the Company elects to redeem Notes pursuant to the redemption provisions of
Section 10.1(a) or (b) hereof (such election to be evidenced by a resolution of
the Company’s board of directors), it shall notify the Trustee at least 60 days
prior to the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee) of such intended Redemption Date, the principal amount of Notes to
be redeemed and the CUSIP numbers of the Notes to be redeemed.


SECTION 10.3               SELECTION OF NOTES TO BE
REDEEMED.


If
fewer than all the Notes are to be redeemed, the Trustee shall select the
particular Notes to be redeemed from the Outstanding Notes by a method that
complies with the requirements of any exchange on which the Notes are listed,
or, if the Notes are not listed on an exchange, on a pro rata basis or by lot
or in accordance with any other method the Trustee considers fair and
appropriate.  Notes and portions thereof
that the Trustee selects shall be in amounts equal to the minimum authorized
denominations for Notes to be redeemed or any integral multiple thereof.


If
any Note selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Notes so
selected, the converted portion of such Note shall be deemed to be the portion
selected for redemption (provided, however, that the Holder of such Note so
converted and deemed redeemed shall not be entitled to any additional interest
payment as a result of such deemed redemption than such Holder would have
otherwise been entitled to receive upon conversion of such Note).  Notes which have been converted during a
selection of Notes to be redeemed may be treated by the Trustee as Outstanding
for the purpose of such selection.


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


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


SECTION 10.4               NOTICE OF REDEMPTION.


 


56

















 


Notice
of redemption shall be given in the manner provided in Section 13.2 hereof to
the Holders of Notes to be redeemed. 
Such notice shall be given not less than 30 nor more than 60 days prior
to the Redemption Date.  All notices of
redemption shall state:


(1)                                  the Redemption
Date;


(2)                                  the Redemption
Price and interest accrued and unpaid to the Redemption Date, if any;


(3)                                  if fewer than
all the Outstanding Notes are to be redeemed, the aggregate principal amount of
Notes to be redeemed and the aggregate principal amount of Notes which will be
outstanding after such partial redemption;


(4)                                  that on the
Redemption Date the Redemption Price and, as provided in Section 10.1(c),
interest accrued and unpaid to the Redemption Date, and Additional Interest, if
any, will become due and payable upon each such Note to be redeemed, and that
interest thereon shall cease to accrue on and after such date;


(5)                                  the Conversion
Price then in effect, the date on which the right to convert the principal of
the Notes to be redeemed will terminate and the places where such Notes may be
surrendered for conversion;


(6)                                  the place or
places where such Notes are to be surrendered for payment of the Redemption
Price and accrued and unpaid interest, if any; and


(7)                                  the CUSIP
number of the Notes.


(8)                                  the last date
on which exchanges or transfers of Notes may be made pursuant to Section 2.7
hereof, and shall specify the serial numbers of Notes and the portions thereof
called for redemption.


Notice
of redemption of Notes to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name
of and at the expense of the Company.


SECTION 10.5               EFFECT OF NOTICE OF REDEMPTION.


Notice
of redemption having been given as provided in Section 10.4 hereof, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (and, as provided in Section 10.1(c),
accrued interest and Additional Interest, if any, to the Redemption Date) and
from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued and unpaid interest) such Notes shall cease to
bear interest; provided that the Company may specify in such notice conditions
to the redemption of the Notes that must be met on or prior to the Redemption
Date,


 


57

















 


including
the receipt of proceeds from concurrent equity or other financings, in which
case the Redemption Date shall not occur, and the Notes to be redeemed shall
not be due and payable at the Redemption Price, until such conditions are
satisfied.  Upon surrender of any such
Note for redemption in accordance with such notice (including the satisfaction
of all applicable conditions), such Note shall be paid by the Company at the
Redemption Price (and, as provided, in Section 10.1(c), Additional Interest and
accrued interest, if any, to the Redemption Date); provided, however,
that the installments of interest on Notes whose stated maturity is prior to or
on the Redemption Date shall be payable to the Holders of such Notes, or one or
more Predecessor Notes, registered as such on the relevant Record Date
according to their terms and the provisions of Section 2.7 hereof.


If
any Note called for redemption shall not be so paid when due upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the interest rate set forth on the
Note.


SECTION 10.6               DEPOSIT OF REDEMPTION PRICE.


Prior
to or on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) an amount of money sufficient to pay the
Redemption Price of, and accrued and unpaid interest and Additional Interest,
if any, on, all the Notes to be redeemed on that Redemption Date other than any
Notes called for redemption on that date which have been converted prior to the
date of such deposit payable on Notes called for redemption on that date which
have been converted prior to the date of such deposit.


If
any Note called for redemption is converted prior to the Redemption Date, any
money deposited with the Trustee or with a Paying Agent or so segregated and
held in trust for the redemption of such Note shall (subject to any right of
the Holder of such Note or any Predecessor Note to receive interest as provided
in the fifth paragraph of Section 2.1 hereof) be paid to the Company on Company
Request or, if then held by the Company, shall be discharged from such trust.


SECTION 10.7               NOTES REDEEMED IN PART.


Any
Note which is to be redeemed only in part shall be surrendered at an office or
agency of the Company designated for that purpose pursuant to Section 9.2
hereof (with, if the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or the Holder’s attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.


 


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ARTICLE XI


REPURCHASE AT THE OPTION OF
A HOLDER

UPON A CHANGE OF CONTROL


SECTION 11.1               REPURCHASE RIGHT.


In
the event that a Change in Control shall occur, each Holder shall have the
right (the “Repurchase Right”), at the Holder’s option to require the Company
to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder’s Notes not theretofore called for redemption,
or any portion of the principal amount thereof that is equal to $1,000 or an
integral multiple thereof (provided that no single Note may be repurchased in
part unless the portion of the principal amount of such Note to be Outstanding
after such repurchase is equal to $1,000 or an integral multiple thereof), on a
date (the “Repurchase Date”) that is less than 45 days after the date of the
Company Notice at a purchase price (expressed as percentages of the principal
amount of the Notes to be repurchased) (the “Repurchase Price”) set forth
below, plus interest accrued and unpaid to, but excluding, the Repurchase Date:


	
   

  	
   

  	
  Repurchase Price

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Prior to August 31, 2004

  	
   

  	
  110.0%

  
	
   

  	
  September 1, 2004 to
  August 31, 2005

  	
   

  	
  107.5%

  
	
   

  	
  September 1, 2005 to
  August 31, 2008

  	
   

  	
  105.0%

  



 


Notwithstanding
the foregoing, installments of interest on Notes whose stated maturity is prior
to or on the Repurchase Date shall be payable to the Holders of such Notes, or
one or more Predecessor Notes, registered as such at the close of business on
the relevant Record Date according to their terms and the provisions of Section
2.1 hereof.


SECTION 11.2               NOTICES; METHOD OF EXERCISING
REPURCHASE RIGHT, ETC.


(a)           Unless
the Company shall have theretofore called for redemption all of the Outstanding
Notes, within 30 days after the Company becomes aware of the occurrence of a
Change in Control, the Company, or, at the written request and expense of the
Company within 30 days after the Company becomes aware of such occurrence, the
Trustee, shall give to all Holders of Notes notice, in the manner provided in
Section 13.2 hereof, of the occurrence of the Change of Control and of the
Repurchase Right set forth herein arising as a result thereof (the “Company
Notice”).  The Company shall also
deliver a copy of such notice of a Repurchase Right to the Trustee.  Each notice of a Repurchase Right shall
state:


(1)                                  the Repurchase
Date;


(2)                                  the date by
which the Repurchase Right must be exercised;


(3)                                  the Repurchase
Price and accrued and unpaid interest, if any;


 


59

























 


(4)                                  a description
of the procedure which a Holder must follow to exercise a Repurchase Right, and
the place or places where such Notes are to be surrendered for payment of the
Repurchase Price, accrued and unpaid interest and Additional Interest, if any;


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


(6)                                  the Conversion
Price then in effect, the date on which the right to convert the principal of
the Notes will terminate and that accrued and unpaid interest on the Notes is
forfeited upon conversion;


(7)                                  the amount of
the Notes to be repurchased will terminate and the place where such Notes may
be surrendered for conversion, and


(8)                                  the place or
places where such Notes, together with the Option to Elect Repayment Upon a
Change of Control certificate included in Exhibit A annexed hereto are to be
delivered for payment of the Repurchase Price and accrued and unpaid interest,
if any.


No
failure of the Company to give the foregoing notices or defect therein shall
any Holder’s right to exercise a Repurchase Right or affect the validity of the
proceedings for the repurchase of Notes.


If
any of the foregoing provisions or other provisions of this Article 11 are
inconsistent with applicable law, such law shall govern.


(b)           To
exercise a Repurchase Right, a Holder shall deliver to the Trustee prior to or
on the first day prior to the Repurchase Date:


(1)                                  written notice
of the Holder’s exercise of such right, which notice shall set forth the name
of the Holder, the principal amount of the Notes to be repurchased (and, if any
Note is to be repurchased in part, the serial number thereof, the portion of
the principal amount thereof to be repurchased) and a statement that an
election to exercise the Repurchase Right is being made thereby, and


(2)                                  the Notes with
respect to which the Repurchase Right is being exercised.


Such
written notice shall be irrevocable, except that the right of the Holder to
convert the Notes with respect to which the Repurchase Right is being exercised
shall continue until the close of business on the Business Day immediately preceding
the Repurchase Date.  The Company shall
not pay accrued and unpaid interest on any Notes so converted except as
provided in Section 12.2.


 


60

















 


(c)           In
the event a Repurchase Right shall be exercised in accordance with the terms
hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase
Price in cash as provided above, for payment to the Holder on the Repurchase
Date, together with Additional Interest, if any, and accrued and unpaid
interest to the Repurchase Date payable in cash with respect to the Notes as to
which the Repurchase Right has been exercised; provided, however, that
installments of interest that mature prior to or on the Repurchase Date shall
be payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Regular Record Date
according to their terms and the provisions of Section 2.1 hereof.


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


(e)           Any
Note which is to be repurchased only in part shall be surrendered to the
Trustee (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Note without service charge,
a new Note or Notes, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in exchange
for the unrepurchased portion of the principal of the Note so surrendered.


(f)            All
Notes delivered for repurchase shall be delivered to the Trustee to be canceled
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.15 hereof.


ARTICLE XII


CONVERSION OF NOTES


SECTION 12.1               CONVERSION RIGHT AND CONVERSION
PRICE.


Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, any Outstanding Note or any portion of the principal amount
thereof which is $1,000 or an integral multiple of $1,000 may be converted into
duly authorized, fully paid and nonassessable shares of Common Stock, at the
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion.  Such conversion right shall
expire at the close of business on the Business Day immediately preceding
September 1, 2008 unless the Notes or a portion thereof are called for
redemption or are repurchased.


In
case a Note or portion thereof is called for redemption, such conversion right
in respect of the Note or the portion so called, shall expire at the close of
business on the Business Day immediately preceding the Redemption Date, unless
the Company defaults in making the


 


61

















 


payment
due upon redemption.  In the case of a
Change of Control for which the Holder exercises its Repurchase Right with
respect to a Note or portion thereof, such conversion right in respect of the
Note or portion thereof shall expire at the close of business on the Business
Day immediately preceding the Repurchase Date.


The
rate at which shares of Common Stock shall be delivered upon conversion (the
“Conversion Rate”) shall be initially equal to 108.8329 shares per $1,000
principal amount of Notes.  The
Conversion Price of the Notes (the “Conversion Price”) shall equal $1,000
divided by the Conversion Rate (rounded to the nearest cent).  The Conversion Price shall be adjusted in
certain instances as provided in Section 12.4 hereof.


SECTION 12.2               EXERCISE OF CONVERSION RIGHT.


To
exercise the conversion right, the Holder of any Note to be converted shall
surrender such Note duly endorsed or assigned to the Company or in blank, at
the office of any Conversion Agent, accompanied by a duly signed conversion
notice substantially in the form attached to the Note to the Company stating
that the Holder elects to convert such Note or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted.


To
the extent provided in Section 2.1, Notes surrendered for conversion during the
period from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date (except in the case of
any Note whose maturity is prior to such Interest Payment Date) shall be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest and Additional
Interest, if any, to be received on such Interest Payment Date on the principal
amount of Notes being surrendered for conversion, as well as any taxes or
duties payable pursuant to Section 12.8. 
To the extent provided in Section 2.1, Notes which have been called for
redemption by the Company in a notice of redemption pursuant to Section 10.4,
and are converted prior to redemption, shall not require such concurrent
payment to the Company upon surrender for conversion, and if converted during
the time period set forth in the preceding sentence, the Holders of such
converted Notes shall be entitled to receive (and retain) any accrued interest
on the principal of such surrendered Notes, and Additional Interest, if any.


Notes
shall be deemed to have been converted immediately prior to the close of business
on the day of surrender of such Notes for conversion in accordance with the
foregoing provisions, and at such time the rights of the Holders of such Notes
as Holders shall cease, and the Person or Persons entitled to receive the
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such time.  As promptly as practicable on or after the
conversion date, the Company shall cause to be issued and delivered to such
Conversion Agent a certificate or certificates for the number of full shares of
Common Stock issuable upon conversion, together with payment in lieu of any
fraction of a share as provided in Section 12.3 hereof.


In
the case of any Note which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note or Notes of
authorized denominations in aggregate principal amount equal to the unconverted
portion of the principal amount of such Notes.


 


62

















 


If
shares of Common Stock to be issued upon conversion of a Restricted Security,
or Notes to be issued upon conversion of a Restricted Security in part only,
are to be registered in a name other than that of the Holder of such Restricted
Security, such Holder must deliver to the Conversion Agent the conversion
notice in substantially the form set forth in Exhibit A annexed hereto, dated
the date of surrender of such Restricted Security and signed by such Holder, as
to compliance with the restrictions on transfer applicable to such Restricted
Security.  Neither the Trustee nor any
Conversion Agent, Registrar or Transfer Agent shall be required to register in
a name other than that of the Holder shares of Common Stock or Notes issued
upon conversion of any Restricted Security not so accompanied by a properly
completed certificate.


The
Company hereby initially appoints the Trustee as the Conversion Agent.


SECTION 12.3               FRACTIONS OF SHARES.


No
fractional shares of Common Stock shall be issued upon conversion of any Note
or Notes.  If more than one Note shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issued upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Notes (or specified portions
thereof) so surrendered.  Instead of any
fractional share of Common Stock which would otherwise be issued upon
conversion of any Note or Notes (or specified portions thereof), the Company
shall pay a cash adjustment in respect of such fraction (calculated to the
nearest one-100th of a share) in an amount equal to the same fraction of the
Closing Price of the Common Stock as of the Trading Day preceding the date of
conversion.


SECTION 12.4               ADJUSTMENT OF CONVERSION PRICE.


The
Conversion Price shall be subject to adjustments, calculated by the Company,
from time to time as follows:


(a)           In
case the Company shall hereafter pay a dividend or make a distribution to all
holders of the outstanding Common Stock in shares of Common Stock, the
Conversion Price in effect at the opening of business on the date following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Conversion
Price by a fraction:


(i)    the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date (as defined in
Section 12.4(g)) fixed for such determination, and


(ii)   the denominator of which shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution.  Such reduction shall
become effective immediately after the opening of business on the day following
the Record Date.  If any dividend or
distribution of the type described in this Section 12.4(a) is declared but not
so paid or made, the Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such dividend or distribution had not
been declared.


 


63

















 


(b)           In
case the outstanding shares of Common Stock shall be subdivided into a greater
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and conversely, in case outstanding
shares of Common Stock shall be combined into a smaller number of shares of Common
Stock, the Conversion Price in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.


(c)           In
case the Company shall issue rights or warrants (other than any rights or
warrants referred to in Section 12.4(d)) to all holders of its outstanding
shares of Common Stock entitling them 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 (as
defined in Section 12.4(g)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such Record Date by a fraction:


(i)    the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date plus the number
of shares which the aggregate offering price of the total number of shares so
offered for subscription or purchase (or the aggregate conversion price of the
convertible securities so offered) would purchase at such Current Market Price,
and


(ii)   the denominator of which shall be the number of shares of Common
Stock outstanding on the close of business on the Record Date plus the total
number of additional shares of Common Stock so offered for subscription or
purchase (or into which the convertible securities so offered are convertible).


Such
adjustment shall become effective immediately after the opening of business on
the day following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. 
To the extent that shares of Common Stock (or securities convertible
into Common Stock) are not delivered pursuant to such rights or warrants, upon
the expiration or termination of such rights or warrants the Conversion Price
shall be readjusted to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on
the basis of the delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered.  In the event that such rights or warrants
are not so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed.  In determining whether
any rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such Current Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received for such rights or warrants, the value
of such consideration if other than cash, to be determined by the Board of
Directors.


 


64

















 


(d)           In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of capital stock of the Company (other
than any dividends or distributions to which Section 12.4(a) applies) or
evidences of its indebtedness or other assets, including securities, but
excluding (1) any rights or warrants referred to in Section 12.4(c), (2) any
stock, securities or other property or assets (including cash) distributed as
dividends or distributions in connection with a reclassification, change, merger,
combination, sale, conveyance, consolidation or statutory share exchange to
which Section 12.11 hereof applies and (3) any dividends or distributions paid
exclusively in cash (the securities described in foregoing are hereinafter in
this Section 12.4(d) called the “securities”), then, in each such case, subject
to the second succeeding paragraph of this Section 12.4(d), the Conversion
Price shall be reduced so that the same shall be equal to the price determined
by multiplying the Conversion Price in effect immediately prior to the close of
business on the Record Date (as defined in Section 12.4(g)) with respect to
such distribution by a fraction:


(i)    the numerator of which shall be the Current Market Price
(determined as provided in Section 12.4(g)) on such date less the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution) on such date of the portion of
the securities so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of the Common Stock
outstanding on the Record Date), and


(ii)   the denominator of which shall be such Current Market Price.


Such
reduction shall become effective immediately prior to the opening of business
on the day following the Record Date. 
However, in the event that the then fair market value (as so determined)
of the portion of the securities so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the Record
Date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon conversion of a Note (or
any portion thereof) the amount of securities such Holder would have received
had such Holder converted such Note (or portion thereof) immediately prior to
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 12.4(d) by reference to the actual or when issued
trading market for any securities comprising all or part of such distribution,
it must in doing so consider the prices in such market over the same period
(the “Reference Period”) used in computing the Current Market Price pursuant to
Section 12.4(g) to the extent possible, unless the Board of Directors in a
Board Resolution determines in good faith that determining the fair market
value during the Reference Period would not be in the best interest of the
Holder.


Rights
or warrants distributed by the Company to all holders of Common Stock entitling
the holders thereof to subscribe for or purchase shares of the Company’s
capital stock (either initially or under certain circumstances), which rights
or warrants, until the occurrence of a specified event or events (a “Trigger
Event”):


 


65

















 


(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 12.4(d)
(and no adjustment to the Conversion Price under this Section 12.4(d) will be
required) until the occurrence of the earliest Trigger Event.  If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant shall
become exercisable to purchase different securities, evidences of indebtedness
or other assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different purchase
price, then the occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and a
termination or expiration of the existing right or warrant without exercise by
the holder 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 resulted in an adjustment to the Conversion
Price under this Section 12.4(d):


(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 of Common Stock with respect to such rights or warrant (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 all of which shall have expired or been terminated
without exercise, the Conversion Price shall be readjusted as if such rights
and warrants had never been issued.


For purposes of this Section 12.4(d) and
Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which
this Section 12.4(d) is applicable that also includes shares of Common Stock, a
subdivision or combination of Common Stock to which Section 12.4(c) applies, or
rights or warrants to subscribe for or purchase shares of Common Stock to which
Section 12.4(c) applies (or any combination thereof), shall be deemed instead
to be:


 


(1)                                  a dividend or
distribution of the evidences of indebtedness, assets, shares of capital stock,
rights or warrants other than such shares of Common Stock, such subdivision or
combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and
12.4(c) apply,


 


66

















 


                                                respectively
(and any Conversion Price reduction required by this Section 12.4(d) with
respect to such dividend or distribution shall then be made), immediately followed
by


(2)                                  a dividend or
distribution of such shares of Common Stock, such subdivision or combination or
such rights or warrants (and any further Conversion Price reduction required by
Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or
distribution shall then be made), except:


(A)          the Record Date of such dividend or distribution shall be
substituted as (x) “the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution,” “Record Date fixed
for such determinations” and “Record Date” within the meaning of Section
12.4(a), (y) “the day upon which such subdivision becomes effective” and “the
day upon which such combination becomes effective” within the meaning of
Section 12.4(b), and (z) as “the date fixed for the determination of
stockholders entitled to receive such rights or warrants,” “the Record Date
fixed for the determination of the stockholders entitled to receive such rights
or warrants” and such “Record Date” within the meaning of Section 12.4(c), and


(B)           any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the
date fixed for such determination” within the meaning of Section 12.4(a) and
any reduction or increase in the number of shares of Common Stock resulting
from such subdivision or combination shall be disregarded in connection with
such dividend or distribution.


 


(e)           In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock cash (excluding any cash that is distributed upon a
reclassification, change, merger, combination, sale, conveyance, consolidation
or statutory share exchange to which Section 12.11 hereof applies or as part of
a distribution referred to in Section 12.4(d) hereof), then and in each such
case, immediately after the close of business on the Record Date of such
distribution, 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 such Record Date by a fraction:


(i)    the numerator of which shall be equal to the Current Market Price
on the Record Date less an amount equal to the quotient of (x) such amount of
cash and (y) the number of shares of Common Stock outstanding on the Record
Date, and


(ii)   the denominator of which shall be equal to the Current Market
Price on such date.


 


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However,
in the event that the then fair market value (as so determined) of the portion
of the securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion of a Note (or any
portion thereof) the amount of cash such Holder would have received had such
Holder converted such Note (or portion thereof) immediately prior to 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.


(f)            In
case a tender or exchange offer made by the Company or any of its subsidiaries
to all holders of Common Stock for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares (as defined below)) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution), as of the expiration
of such tender or exchange offer) that, combined together with the aggregate of
the cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and set forth in a Board Resolution),
as of the expiration of such tender or exchange offer, of consideration payable
in respect of any other tender or exchange offers, made by the Company or any
of its subsidiaries to all holders of Common Stock for all or any portion of
the Common Stock expiring within the 12 months preceding the expiration of such
tender or exchange offer and in respect of which no adjustment pursuant to this
Section 12.4(f) has been made, exceeds 10% of the product of the Current Market
Price (determined as provided in Section 12.4(g)) as of the last time (the
“Expiration Time”) tenders or exchanges could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) on the
Expiration Time, then, and in each such case, immediately prior to the opening
of business on the day after the date of the Expiration Time, the Conversion
Price shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close of
business on the date of the Expiration Time by a fraction:


(i)    the numerator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Current Market Price of the Common Stock on
the Trading Day next succeeding the Expiration Time, and


(ii)   the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged
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) on the Expiration Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time.


 


68

















 


Such
reduction (if any) shall become effective immediately prior to the opening of
business on the day following the Expiration Time.  In the event that the Company is obligated to purchase shares
pursuant to any such tender or exchange offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such tender or exchange offer
had not been made.  If the application
of this Section 12.4(f) to any tender or exchange offer would result in an
increase in the Conversion Price, no adjustment shall be made for such tender
or exchange offer under this Section 12.4(f).


(g)           For
purposes of this Section 12.4, the following terms shall have the meanings
indicated:


 


(1)                                  “Current Market
Price” shall mean the average of the daily Closing Prices per share of Common
Stock for the ten consecutive Trading Days immediately prior to the date in
question; provided, however, that if:


(i)    the “ex” date (as hereinafter defined) for any event (other than
the issuance or distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 12.4(a), (b), (c), (d),
(e) or (f) occurs during such ten consecutive Trading Days, the Closing Price
for each Trading Day prior to the “ex” date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by which the
Conversion Price is so required to be adjusted as a result of such other event;


(ii)   the “ex” date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f) occurs
on or after the “ex” date for the issuance or distribution requiring such
computation and prior to the day in question, the Closing Price for each
Trading Day on and after the “ex” date for such other event shall be adjusted
by multiplying such Closing Price by the reciprocal of the fraction by which
the Conversion Price is so required to be adjusted as a result of such other
event; and


(iii)  the “ex” date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into account any
adjustment required pursuant to clause (i) or (ii) of this proviso, the Closing
Price for each Trading Day on or after such “ex” date shall be adjusted by
adding thereto the amount of any cash and the fair market value (as determined
by the Board of Directors in a manner consistent with any determination of such
value for purposes of Section 12.4(d) or (f), whose determination shall be
conclusive and set forth in a Board Resolution) of the evidences of
indebtedness, shares of capital stock or assets being distributed applicable to
one share of Common Stock as of the close of business on the day before such
“ex” date.


 


69

















 


For
purposes of any computation under Section 12.4(f), the Current Market Price of
the Common Stock on any date shall be deemed to be the average of the daily
Closing Prices per share of Common Stock for such day and the next two
succeeding Trading Days; provided, however, that if the “ex” date for any event
(other than the tender or exchange offer requiring such computation) that
requires an adjustment to the Conversion Price pursuant to Section 12.4(a),
(b), (c), (d), (e) or (f) occurs on or after the Expiration Time for the tender
or exchange offer requiring such computation and prior to the day in question,
the Closing Price for each Trading Day on and after the “ex” date for such
other event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so required to be
adjusted as a result of such other event. 
For purposes of this paragraph, the term “ex” date, when used:


(A)          with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution;


(B)           with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades regular
way on such exchange or in such market after the time at which such subdivision
or combination becomes effective, and


(C)           with respect to any tender or exchange offer, means the
first date on which the Common Stock trades regular way on such exchange or in
such market after the Expiration Time of such offer.


Notwithstanding
the foregoing, whenever successive adjustments to the Conversion Price are
called for pursuant to this Section 12.4, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to effectuate the
intent of this Section 12.4 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.


(2)                                  “fair market
value” shall mean the amount which a willing buyer would pay a willing seller
in an arm’s length transaction.


(3)                                  “Record Date”
shall mean, with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors or by statute, contract or otherwise).


(h)           The
Company may make such reductions in the Conversion Price, in addition to those
required by Sections 12.4(a), (b), (c), (d), (e) or (f), as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or


 


70

















 


rights to
purchase Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for income tax
purposes.


To
the extent permitted by applicable law, the Company from time to time may
reduce the Conversion Price by any amount for any period of time if the period
is at least 20 days and the reduction is irrevocable during the period and the
Board of Directors determines in good faith that such reduction would be in the
best interests of the Company, which determination shall be conclusive and set
forth in a Board Resolution.  Whenever
the Conversion Price is reduced pursuant to the preceding sentence, the Company
shall mail to the Trustee and each Holder at the address of such Holder as it
appears in the Register a notice of the reduction at least 15 days prior to the
date the reduced Conversion Price takes effect, and such notice shall state the
reduced Conversion Price and the period during which it will be in effect.


Adjustment
to the Conversion Price is not necessary if Holders may participate in the
transactions otherwise giving rise to an adjustment on a basis and with notice
that the Board of Directors determines to be fair and appropriate.  In cases where the fair market value of the
portion of assets, debt securities or rights, warrants or options to purchase
securities of the Company applicable to one share of Common Stock distributed
to stockholders exceeds the average sale price per share of Common Stock, or
the average sale price per share of options on Common Stock so distributed by
less than $1.00, rather than being entitled to an adjustment in the Conversion
Price, a Holder, upon conversion of a Note, will be entitled to receive (in
addition to the shares of Common Stock into which such Note is convertible) the
kind and amounts of assets, debt securities or rights, options or warrants
comprising the distribution that such Holder would have received if such Holder
had converted such Note immediately prior to the record date for determining
the stockholders entitled to receive such distribution.


(i)            No
adjustment in the Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 12.4(i) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.  All calculations
under this Article 12 shall be made by the Company and shall be made to the
nearest cent or to the nearest one-ten thousandth (1/10,000th) of a
share, as the case may be.  No
adjustment need be made for a change in the par value or no par value of the
Common Stock.


(j)            In
any case in which this Section 12.4 provides that an adjustment shall become
effective immediately after a Record Date for an event, the Company may defer
until the occurrence of such event (i) issuing to the Holder of any Note
converted after such Record Date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such holder any amount in cash in lieu of any fraction pursuant to Section 12.3
hereof.


(k)           For
purposes of this Section 12.4, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. 
The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.


 


71

















 


(l)            If
the distribution date for the rights provided in the Company’s rights
agreement, if any, occurs prior to the date a Note is converted, (i) the Holder
of the Note who converts such Note after the distribution date is entitled to
receive the rights that would otherwise be attached (but for the date of
conversion) to the shares of Common Stock received upon such conversion and
(ii) no adjustment shall be made to the Conversion Price pursuant to clause 12.4(b).


SECTION 12.5               NOTICE OF ADJUSTMENTS OF
CONVERSION PRICE.


Whenever
the Conversion Price is adjusted as herein provided (other than in the case of
an adjustment pursuant to the second paragraph of Section 12.4(h) for which the
notice required by such paragraph has been provided), the Company shall
promptly file with the Trustee and any Conversion Agent other than the Trustee
an Officers’ Certificate setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based;
provided that the Trustee shall have no duty or obligation to verify the
accuracy of the adjusted Conversion Price. 
Promptly after delivery of such Officers’ Certificate, the Company shall
prepare a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price and the date on which each
adjustment becomes effective, and shall mail such notice to each Holder at the
address of such Holder as it appears in the Register within 20 days of the
effective date of such adjustment. 
Failure to deliver such notice shall not effect the legality or validity
of any such adjustment.


SECTION 12.6               NOTICE PRIOR TO CERTAIN ACTIONS.


In
case at any time after the date hereof:


(1)                                  the Company
shall declare a dividend (or any other distribution) on its Common Stock
payable otherwise than in cash out of its capital surplus or its consolidated
retained earnings;


(2)                                  the Company
shall authorize the granting to the holders of its Common Stock of rights or
warrants to subscribe for or purchase any shares of capital stock of any class
(or of securities convertible into shares of capital stock of any class) or of
any other rights;


(3)                                  there shall
occur any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding Common Stock, a change in par
value, a change from par value to no par value or a change from no par value to
par value), or any merger, consolidation, statutory share exchange or
combination to which the Company is a party and for which approval of any
shareholders of the Company is required, or the sale, transfer or conveyance of
all or substantially all of the assets of the Company; or


(4)                                  there shall
occur the voluntary or involuntary dissolution, liquidation or winding up of
the Company;


 


72

















 


the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of securities pursuant to Section 9.2 hereof, and shall
cause to be provided to the Trustee and all Holders in accordance with Section
13.2 hereof, at least 20 days (or 10 days in any case specified in clause (1)
or (2) above) prior to the applicable record or effective date hereinafter
specified, a notice stating:


(A)          the date on which a record is to be taken for the purpose
of such dividend, distribution, rights or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined, or


(B)           the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
merger, consolidation, statutory share exchange, sale, transfer, dissolution,
liquidation or winding up.


Neither
the failure to give such notice nor any defect therein shall affect the
legality or validity of the proceedings or actions described in clauses (1)
through (4) of this Section 12.6.


SECTION 12.7               COMPANY TO RESERVE COMMON STOCK.


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


SECTION 12.8               TAXES ON CONVERSIONS.


Except
as provided in the next sentence, the Company will pay any and all taxes (other
than taxes on income) and duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Notes pursuant hereto.  A Holder delivering a Note for conversion
shall be liable for and will be required to pay any tax or duty which may be
payable in respect of any transfer involved in the issue and delivery of shares
of Common Stock in a name other than that of the Holder of the Note or Notes to
be converted, and no such issue or delivery shall be made unless the Person
requesting such issue has paid to the Company the amount of any such tax or
duty, or has established to the satisfaction of the Company that such tax or
duty has been paid.


SECTION 12.9               COVENANT AS TO COMMON STOCK.


The
Company covenants that all shares of Common Stock which may be issued upon
conversion of Notes will upon issue be fully paid and nonassessable and, except
as provided in Section 12.8, the Company will pay all taxes, liens and charges
with respect to the issue thereof.


 


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SECTION 12.10             CANCELLATION OF CONVERTED NOTES.


All
Notes delivered for conversion shall be delivered to the Trustee to be canceled
by or at the direction of the Trustee, which shall dispose of the same as
provided in Section 2.9.


SECTION 12.11             EFFECT OF RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE.


If
any of following events occur, namely:


(i)    any reclassification or change of the outstanding shares of
Common Stock (including a compulsory share exchange but other than changes
resulting from a subdivision or combination), as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash or any combination thereof) with respect to or in
exchange for such Common Stock,


(ii)   any merger, consolidation, statutory share exchange or combination
of the Company with another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or
assets (including cash or any combination thereof) with respect to or in
exchange for such Common Stock or


(iii)  any sale or conveyance of all or substantially all of the
properties and assets of the Company to any other Person as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash or any combination thereof) with respect to
or in exchange for such Common Stock,


the
Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
TIA as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing that each Note
shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash or any combination thereof)
which the Holder thereof would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Notes been converted into Common Stock
immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised (“Non-Electing Share”), then for the purposes of
this Section 12.11 the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-


 


74

















 


Electing
Shares).  The Trustee shall be entitled
to rely on an Opinion of Counsel as to whether any such supplemental indenture
is required to and does comply with the TIA. 
Such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article 12.  If, in the case of any
such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and assets of a corporation other than the successor
or purchasing corporation, as the case may be, in such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Notes as the Board of Directors shall
reasonably consider necessary by reason of the foregoing, including to the
extent practicable the provisions providing for the Repurchase Rights set forth
in Article 11 hereof.


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


The
above provisions of this Section shall similarly apply to successive
reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.


If
this Section 12.11 applies to any event or occurrence, Section 12.4 hereof
shall not apply.


SECTION 12.12             RESPONSIBILITY OF TRUSTEE FOR
CONVERSION PROVISIONS.


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


SECTION 12.13             LIMITATION ON CONVERSION RIGHT.


 


75

















 


Notwithstanding
anything to the contrary in this Article, any Holder of a Note who (together
with such Holder’s affiliates) purchases more than $10 million in aggregate
principal amount of Notes in the initial resale by the Initial Purchaser shall
not have the right to convert any Note to the extent that, after giving effect
to such conversion, the Holder (together with the Holder’s affiliates), as set
forth on the applicable conversion notice, would beneficially own in excess of
4.99% of the number of shares of Common Stock outstanding immediately after
giving effect to such conversion.  For
purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its affiliates shall include the number of
shares of Common Stock issuable upon conversion of the Note with respect to which
the determination of such sentence is being made, but shall exclude the number
of shares of Common Stock which would be issuable upon (A) conversion of the
remaining, nonconverted portion of the Note beneficially owned by the Holder or
any of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without
limitation, any other Notes) subject to a limitation on conversion or exercise
analogous to the limitation contained herein, beneficially owned by the Holder
or any of its affiliates.  Except as set
forth in the preceding sentence, for purposes of this Section 12.13, beneficial
ownership shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. 
For purposes of this Section 12.13, in determining the number of
outstanding shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the Company’s most
recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case
may be, (y) a more recent public announcement by the Company or (z) any
subsequent notice by the Company or the Company’s transfer agent setting forth
the number of shares of Common Stock outstanding.  Upon the written or oral request of the Holder, the Company shall
promptly confirm in writing to the Holder the number of shares of Common Stock
then outstanding.  In any case, the
number of outstanding shares of Common Stock shall be determined after giving
effect to the conversion or exercise of securities of the Company, including
the Note, by the Holder or its affiliates since the date as of which such
number of outstanding shares of Common Stock was reported.  The Initial Purchaser shall furnish the
Company with a list of the Holders of Notes who purchase more than $10 million
in aggregate principal amount from the Initial Purchaser in its initial resale
of Notes.


 


ARTICLE XIII


OTHER PROVISIONS OF GENERAL
APPLICATION


SECTION 13.1               TRUST INDENTURE ACT CONTROLS.


This
Indenture is subject to the provisions of the TIA which are required to be part
of this Indenture, and shall, to the extent applicable, be governed by such
provisions.


SECTION 13.2               NOTICES.


Any
notice or communication to the Company or the Trustee is duly given if in
writing and delivered in person or mailed by first-class mail to the address
set forth below:


 


76

















 


(a)           if
to the Company:


Ciphergen Biosystems, Inc.


6611 Dumbarton Circle


Fremont, CA 94555


Attention: Chief Financial
Officer


 


with a copy to:


Wilson Sonsini Goodrich
& Rosati, Professional Corporation


650 Page Mill Road


Palo Alto, CA 94304


Attention: [Michael J. O’Donnell]


(b)           if
to the Trustee:


U.S. Bank National
Association


60 Livingston Avenue


St. Paul, MN 55107


Attention: Corporate Trust Department


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 to a Holder shall be mailed by first-class mail to his
address shown on the Register kept by the Registrar.  Failure to mail a notice or communication to a Holder or any
defect in such notice or communication shall not affect its sufficiency with
respect to other Holders.


If
a notice or communication is mailed or sent in the manner provided above within
the time prescribed, it is duly given as of the date it is mailed, whether or
not the addressee receives it, except that notice to the Trustee shall only be
effective upon receipt thereof by the Trustee.


If
the Company mails a notice or communication to Holders, it shall mail a copy to
the Trustee at the same time.


SECTION 13.3               COMMUNICATION BY HOLDERS WITH
OTHER HOLDERS.


Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under the Notes or this Indenture.  The Company, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the TIA.


SECTION 13.4               ACTS OF HOLDERS OF NOTES.


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Notes may
be embodied in and evidenced by:


 


77

















 


(1)                                  one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent or proxy duly appointed in writing;


(2)                                  the record of
Holders of Notes voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Notes duly called and held
in accordance with the provisions of Article 8; or


(3)                                  a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. 
Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders of Notes signing such instrument or instruments and so voting at
such meeting.  Proof of execution of any
such instrument or of a writing appointing any such agent or proxy, or of the
holding by any Person of a Note, shall be sufficient for any purpose of this
Indenture and (subject to Section 5.1 hereof) conclusive in favor of the
Trustee and the Company if made in the manner provided in this Section.  The record of any meeting of Holders of Notes
shall be proved in the manner provided in Section 8.6 hereof.


(b)           The
fact and date of the execution by any Person of any such instrument or writing
may be provided in any manner which the Trustee reasonably deems sufficient.


(c)           The
principal amount and serial numbers of Notes held by any Person, and the date
of such Person holding the same, shall be proved by the Register.


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


SECTION 13.5               CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT.


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


 


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


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


Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
Counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.


SECTION 13.6               STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.


Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


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


(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 each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


(4)                                  a statement as
to whether, in the opinion of each such individual, such condition or covenant
has been complied with.


SECTION 13.7               EFFECT OF HEADINGS AND TABLE OF
CONTENTS.


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


 


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SECTION 13.8               SUCCESSORS AND ASSIGNS.


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


SECTION 13.9               SEPARABILITY CLAUSE.


In
case any provision in this Indenture or the Notes 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 13.10             BENEFITS OF INDENTURE.


Nothing
contained in this Indenture or in the Notes, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and
the Holders of Notes, any benefit or legal or equitable right, remedy or claim
under this Indenture.


SECTION 13.11             GOVERNING LAW.


THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


SECTION 13.12             COUNTERPARTS.


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


SECTION 13.13             LEGAL HOLIDAYS.


In
any case where any Interest Payment Date, Redemption Date or stated maturity of
any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest (including Additional Interest, if any) or principal or premium, if
any, need not be made at such Place of Payment on such day, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
stated maturity, provided, that in the case that payment is made on such
succeeding Business Day, no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or stated
maturity, as the case may be.


SECTION 13.14             RECOURSE AGAINST OTHERS.


No
recourse for the payment of the principal of or premium, if any, or interest
(including Additional Interest, if any) on any Note, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance thereof and as part of
the consideration for the issue thereof, expressly waived and released.


 


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


	
   

  	
  CIPHERGEN BIOSYSTEMS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


 


 


 


81

















EXHIBIT A


 


Form
of Note


 


 


 


 


 


82

















 


EXHIBIT B


 


Regulation S Certificate


_______________, ____


U.S. Bank National Association


60 Livingston
Avenue


St. Paul, MN
55107-2292


Attention:  Corporate Trust Department


Fax: (651) 495-8097


Re:                               Ciphergen Biosystems, Inc. (the “Company”) 

4.50% Convertible Senior Notes Due 2008 (the “Notes”)


Ladies and Gentlemen:


In connection with our proposed sale of $[_________]
aggregate Principal Amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended (the “Securities Act”),
and, accordingly, we represent that:


1.             the offer of the Notes was not made to a Person in the
United States;


2.             either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United States,
or (b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any Person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;


3.             no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable (or applicable successor rules);


4.             the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act and the conditions of Rule
903(b) or 904(b) of Regulation S, as applicable (or applicable successor rules)
have been satisfied; and


5.             we have advised the transferee of the transfer
restrictions applicable to the Notes.


You and the Company are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party, in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.  Terms used in this certificate
have the meanings set forth in Regulation S.


Very truly yours,


[Name of Transferor]


By                                                                     


          Authorized Signature


 


 


 


 


83

















 


EXHIBIT C


 


Rule
144A Certificate


 


_______________, ____


U.S. Bank National Association


60 Livingston
Avenue


St. Paul, MN
55107-2292


Attention:  Corporate Trust Department


Fax: (651) 495-8097


Re:                               Ciphergen Biosystems, Inc. (the “Company”) 

4.50% Convertible Senior Notes Due 2008 (the “Notes”)


Ladies and Gentlemen:


In connection with our proposed sale of $[_________]
aggregate Principal Amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Rule 144A under the Securities Act of 1933,
as amended (the “Securities Act”),
and, accordingly, we represent that:


1.             the transferee is purchasing this Note for its own
account or an account with respect to which it exercises sole investment
discretion, in each case for investment and not with a view to distribution;


2.             the transferee, and any account of the transferee
referred to in paragraph (1) above, is a “Qualified Institutional Buyer” within
the meaning of Rule 144A under the Securities Act of 1933; and


3.             the transferee has received such information regarding
the Company as the transferee has requested pursuant to Rule 144A, or the
transferee has determined not to request such information.


You and the Company are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party, in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.


Very truly yours,


[Name of Transferor]


By                                                                     


          Authorized Signature


 


 


 


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