### **EXHIBIT 4.1**

 

**DUPONTPHOTOMASKS, INC.**

 

**FORMOF INDENTURE BETWEEN DUPONT PHOTOMASKS, INC. ANDJP MORGAN CHASE BANK, A NEW YORK BANKING CORPORATION,AS TRUSTEE, INCLUDING THE FORM OF 1.25% CONVERTIBLESUBORDINATED NOTES DUE 2008 ATTACHED AS EXHIBIT ATHERETO**

 

 

**DUPONT PHOTOMASKS, INC.**

 

**1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY15, 2008**

 

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**INDENTURE**

**DATED AS OF MAY 5, 2003**

 

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**JPMORGAN CHASE BANK, AS TRUSTEE**

 

 

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**TABLE OF CONTENTS**

 
| Article  1                                                                                  |
|---------------------------------------------------------------------------------------------|
| DEFINITIONS AND INCORPORATION BY REFERENCE                                                  |
|                                                                                        |
| Section 1.01.  *Definitions*                                                           |
| Section 1.02.  *Other Definitions*                                                     |
| Section 1.03.  *Trust Indenture Act Provisions*                                        |
| Section 1.04.  *Rules of Construction*                                                 |
|                                                                                        |
| Article  2                                                                                  |
| THE SECURITIES                                                                              |
|                                                                                        |
| Section 2.01.  *Form and Dating*                                                       |
| Section 2.02.  *Execution and Authentication*                                          |
| Section 2.03.  *Registrar, Paying Agent and Conversion Agent*                          |
| Section 2.04.  *Paying Agent to Hold Money in Trust*                                   |
| Section 2.05.  *Securityholder Lists*                                                  |
| Section 2.06.  *Transfer and Exchange.*                                                |
| Section 2.07.  *Replacement Securities*                                                |
| Section 2.08.  *Outstanding Securities*                                                |
| Section 2.09.  *Treasury Securities*                                                   |
| Section 2.10.  *Temporary Securities*                                                  |
| Section 2.11.  *Cancellation*                                                          |
| Section 2.12.  *Legend; Additional Transfer and Exchange Requirements.*                |
| Section 2.13.  *CUSIP Numbers*                                                         |
|                                                                                        |
| Article  3                                                                                  |
| PURCHASES                                                                                   |
|                                                                                        |
| Section 3.01.  *No Right to Redeem*                                                    |
| Section 3.02.  *Purchase of Securities at Option of the Holder upon Change in Control* |
| Section 3.03.  *Effect of Change in Control Purchase Notice*                           |
| Section 3.04.  *Deposit of Change in Control Purchase Price*                           |
| Section 3.05.  *Securities Purchased in Part*                                          |
| Section 3.06.  *Compliance with Securities Laws upon Purchase of Securities*           |
| Section 3.07.  *Repayment to the Company*                                              |
|                                                                                        |
| Article  4                                                                                  |
| CONVERSION                                                                                  |
|                                                                                        |
| Section 4.01.  *Conversion Privilege*                                                  |
| Section 4.02.  *Conversion Procedure*                                                  |
| Section 4.03.  *Fractional Shares*                                                     |
| Section 4.04.  *Taxes on Conversion*                                                   |

 

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| Section 4.05.  *Company to Provide Stock*                                                           |
|----------------------------------------------------------------------------------------------------------|
| Section 4.06.  *Adjustment of Conversion Price*                                                     |
| Section 4.07.  *No Adjustment*                                                                      |
| Section 4.08.  *Adjustment for Tax Purposes*                                                        |
| Section 4.09.  *Notice of Adjustment*                                                               |
| Section 4.10.  *Notice of Certain Transactions.*                                                    |
| Section 4.11.  *Effect of Reclassification, Consolidation, Merger or Sale on  Conversion Privilege* |
| Section 4.12.  *Trustee’s Disclaimer*                                                          |
| Section 4.13.  *Voluntary Reduction*                                                                |
|                                                                                                     |
| Article  5                                                                                               |
| SUBORDINATION                                                                                            |
|                                                                                                     |
| Section 5.01.  *Agreement of Subordination*                                                         |
| Section 5.02.  *Payments to Holders*                                                                |
| Section 5.03.  *Subrogation of Securities*                                                          |
| Section 5.04.  *Authorization to Effect Subordination*                                              |
| Section 5.05.  *Notice to Trustee*                                                                  |
| Section 5.06.  *Trustee’s Relation to Senior Indebtedness*                                     |
| Section 5.07.  *No Impairment of Subordination*                                                     |
| Section 5.08.  *Certain Conversions Deemed Payment*                                                 |
| Section 5.09.  *Article Applicable to Paying Agents*                                                |
| Section 5.10.  *Senior Indebtedness Entitled to Rely*                                               |
|                                                                                                     |
| Article  6                                                                                               |
| COVENANTS                                                                                                |
|                                                                                                     |
| Section 6.01.  *Payment of Securities*                                                              |
| Section 6.02.  *SEC Reports*                                                                        |
| Section 6.03.  *Compliance Certificates*                                                            |
| Section 6.04.  *Further Instruments and Acts*                                                       |
| Section 6.05.  *Maintenance of Corporate Existence*                                                 |
| Section 6.06.  *Rule 144A Information Requirement*                                                  |
| Section 6.07.  *Stay, Extension and Usury Laws*                                                     |
| Section 6.08.  *Payment of Additional Interest*                                                     |
|                                                                                                     |
| Article  7                                                                                               |
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER  OR LEASE                                                    |
|                                                                                                     |
| Section 7.01.  *Company May Consolidate, Etc, only on Certain Terms*                                |
| Section 7.02.  *Successor Substituted*                                                              |
|                                                                                                     |
| Article  8                                                                                               |
| DEFAULT AND REMEDIES                                                                                     |
|                                                                                                     |
| Section 8.01.  *Events of Default*                                                                  |
| Section 8.02.  *Acceleration*                                                                       |
| Section 8.03.  *Other Remedies*                                                                     |

 

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| Section 8.04.  *Waiver of Defaults and Events of Default*            |
|---------------------------------------------------------------------------|
| Section 8.05.  *Control by Majority*                                 |
| Section 8.06.  *Limitations on Suits*                                |
| Section 8.07.  *Rights of Holders to Receive Payment and to Convert* |
| Section 8.08.  *Collection Suit by Trustee*                          |
| Section 8.09.  *Trustee May File Proofs of Claim*                    |
| Section 8.10.  *Priorities*                                          |
| Section 8.11.  *Undertaking for Costs*                               |
|                                                                      |
| Article  9                                                                |
| TRUSTEE                                                                   |
|                                                                      |
| Section 9.01.  *Duties of Trustee*                                   |
| Section 9.02.  *Rights of Trustee*                                   |
| Section 9.03.  *Individual Rights of Trustee*                        |
| Section 9.04.  *Trustee’s Disclaimer*                           |
| Section 9.05.  *Notice of Default or Events of Default*              |
| Section 9.06.  *Reports by Trustee to Holders*                       |
| Section 9.07.  *Compensation and Indemnity*                          |
| Section 9.08.  *Replacement of Trustee*                              |
| Section 9.09.  *Successor Trustee by Merger, Etc*                    |
| Section 9.10.  *Eligibility; Disqualification*                       |
| Section 9.11.  *Preferential Collection of Claims against Company*   |
|                                                                      |   |
| Article  10                                                               |
| SATISFACTION AND DISCHARGE OF INDENTURE                                   |
|                                                                      |
| Section 10.01.  *Satisfaction and Discharge of Indenture*            |
| Section 10.02.  *Application of Trust Money*                         |
| Section 10.03.  *Repayment to Company*                               |
| Section 10.04.  *Reinstatement*                                      |
|                                                                      |
| Article  11                                                               |
| AMENDMENTS, SUPPLEMENTS AND WAIVERS                                       |
|                                                                      |
| Section 11.01.  *Without Consent of Holders*                         |
| Section 11.02.  *With Consent of Holders*                            |
| Section 11.03.  *Compliance with Trust Indenture Act*                |
| Section 11.04.  *Revocation and Effect of Consents*                  |
| Section 11.05.  *Notation on or Exchange of Securities*              |
| Section 11.06.  *Trustee to Sign Amendments, Etc*                    |
| Section 11.07.  *Effect of Supplemental Indentures*                  |
|                                                                      |
| Article  12                                                               |
| MISCELLANEOUS                                                             |
|                                                                      |
| Section 12.01.  *Trust Indenture Act Controls*                       |
| Section 12.02.  *Notices*                                            |
| Section 12.03.  *Communications by Holders with Other Holders*       |

 

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| Section 12.04.  *Certificate and Opinion as to Conditions Precedent*             |
|---------------------------------------------------------------------------------------|
| Section 12.05.  *Record Date for Vote or Consent of Securityholders*             |
| Section 12.06.  *Rules by Trustee, Paying Agent, Registrar and Conversion Agent* |
| Section 12.07.  *Legal Holidays*                                                 |
| Section 12.08.  *Governing Law*                                                  |
| Section 12.09.  *No Adverse Interpretation of Other Agreements*                  |
| Section 12.10.  *No Recourse against Others*                                     |
| Section 12.11.  *Successors*                                                     |
| Section 12.12.  *Multiple Counterparts*                                          |
| Section 12.13.  *Separability*                                                   |
| Section 12.14.  *Table of Contents, Headings, Etc*                               |
|                                                                                  |   |
| EXHIBIT  A                                                                            | Form  of Security |
|                                                                                  |   |
| EXHIBIT  B                                                                            | Form  of Certificate for Exchange or Registration of Transfer to Regulation S  Global Security |
|                                                                                  |   |
| EXHIBIT  C                                                                            | Form  of Certificate for Exchange or Registration of Transfer to Restricted Global  Security |

 

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

 

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

 

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

 

In consideration of the premises and thepurchase of the Securities by the Holders thereof, both parties agree asfollows for the benefit of the other and for the equal and ratable benefit ofthe registered Holders of the Company’s 1.25% Convertible Subordinated Notesdue May 15, 2008.

 

ARTICLE 1

DEFINITIONSAND INCORPORATION BY REFERENCE

 

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

 

“**Affiliate**” means, with respect to anyspecified person, any other person directly or indirectly controlling orcontrolled by or under direct or indirect common control with such specifiedperson.  For the purposes of thisdefinition, “control” when used with respect to any person means the power todirect 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 theforegoing.

 

“**Agent**” means any Registrar, Paying Agent orConversion Agent.

 

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“**Applicable Procedures**” means, with respectto any transfer or exchange of beneficial ownership interests in a GlobalSecurity, the rules and procedures of the Depositary, Euroclear andClearstream, in each case to the extent applicable to such transfer orexchange.

 

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

 

“**Business Day**” means each day that is not aLegal Holiday.

 

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

 

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

 

“**Certificated Security**” means a Securitythat is in substantially the form attached hereto as Exhibit A and that doesnot include the information or the schedule called for by footnotes 1, 2 and 4thereof.

 

“**Clearstream**” means Clearstream Banking S.A.

 

“**Common Stock**” means the common stock of theCompany, $0.01 par value, as it exists on the date of this Indenture and anyshares of any class or classes of Capital Stock of the Company resulting fromany reclassification or reclassifications thereof and which have no preferencein respect of dividends or of amounts payable in the event of any voluntary orinvoluntary liquidation, dissolution or winding-up of the Company and which arenot subject to redemption by the Company; *provided*, *however*, that if at any timethere shall be more than one such resulting class, the shares of each suchclass then so issuable on conversion of Securities shall be substantially inthe proportion which the total number of shares of such class resulting fromall such reclassifications bears to the total number of shares of all suchclasses resulting from all such reclassifications.

 

“**Company**” means the party named as such inthe first paragraph of this Indenture until a successor replaces it pursuant tothe applicable provisions of this Indenture, and thereafter “Company” shallmean such successor Company.

 

“**Company Order**” means a written order ororders of the Company signed by two Officers of the Company.

 

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

 

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

 

“**Designated Senior Indebtedness**” means anyparticular Senior Indebtedness of the Company in which the instrument creatingor evidencing the same or the assumption or guarantee thereof (or any relatedagreements or documents to which the Company is a party) expressly providesthat such Senior Indebtedness shall be “Designated Senior Indebtedness” forpurposes of this Indenture (*provided**that*such instrument,agreement or other document may place limitations and conditions on the rightof such Senior Indebtedness to exercise the rights of Designated SeniorIndebtedness). If any payment made to any holder of any Designated SeniorIndebtedness or its Representative with respect to such Designated SeniorIndebtedness is rescinded or must otherwise be returned by such holder orRepresentative upon the insolvency, bankruptcy or reorganization of the Companyor otherwise, the reinstated Indebtedness of the Company arising as a result ofsuch rescission or return shall constitute Designated Senior Indebtednesseffective as of the date of such rescission or return.

 

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

 

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

 

“**Final Maturity Date**” means May 15, 2008.

 

“**GAAP**” means accounting principles generallyaccepted in the United States of America as in effect as of the date of thisIndenture, including those set forth in (1) the opinions and pronouncements ofthe Accounting Principles Board of the American Institute of Certified PublicAccountants, (2) the statements and pronouncements of the Financial AccountingStandards Board, (3) such other statements by such other entity as approved bya significant segment of the accounting profession and (4) the rules andregulations of the SEC governing the inclusion of financial statements(including pro forma financial statements) in registration statements filedunder the Securities Act and periodic reports required

 

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to be filed pursuant to Section 13 of the Exchange Act, includingopinions and pronouncements in staff accounting bulletins and similar writtenstatements from the accounting staff of the SEC.

 

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

 

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

 

“**Indebtedness**” means, with respect to anyPerson, without duplication, (a) all indebtedness, obligations and otherliabilities (contingent or otherwise) of such Person (i) for borrowed money(including obligations of such Person in respect of overdrafts, foreignexchange contracts, currency exchange agreements, interest rate protectionagreements, and any loans or advances from banks, whether or not evidenced bynotes or similar instruments) or (ii) evidenced by credit or loan agreements,bonds, debentures, notes or similar instruments (whether or not the recourse ofthe lender is to the whole of the assets of such Person or to only a portionthereof) (other than any accounts payable or other accrued current liability orobligation incurred in the ordinary course of business in connection with theobtaining of materials or services), (b) all reimbursement obligations andother liabilities (contingent or otherwise) of such Person with respect toletters of credit, bank guarantees or bankers’ acceptances, (c) all obligationsand liabilities (contingent or otherwise) of such Person (i) in respect ofleases of such Person required, in conformity with GAAP, to be accounted for ascapitalized lease obligations on the balance sheet of such Person (asdetermined by the Company), or (ii) under any lease or related document(including a purchase agreement, conditional sale or other title retentionagreement) in connection with the lease of real property or improvement thereon(or any personal property included as part of any such lease) which providesthat such Person is contractually obligated to purchase or cause a third partyto purchase the leased property or pay an agreed upon residual value of theleased property to the lessor (whether or not such lease transaction ischaracterized as an operating lease or a capitalized lease in accordance withGAAP), (d) all obligations (contingent or otherwise) of such Person withrespect to any interest rate or other swap, cap, floor or collar agreement,hedge agreement, forward contract, or other similar instrument or agreement orforeign currency hedge, exchange, purchase or similar instrument or agreement;(e) all direct or indirect guarantees, agreements to be jointly liable orsimilar agreements by such Person in respect of, and obligations or liabilitiesof such Person to purchase or otherwise acquire or otherwise assure a creditoragainst loss in respect of, indebtedness, obligations or liabilities of anotherPerson of the kind described in clauses (a) through (d), (f) any indebtednessor other obligations described in clauses (a) through (e) secured by anymortgage, pledge, lien or other encumbrance existing on property which is ownedor held by such Person, regardless of whether the indebtedness or other

 

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

 

“**Indenture**” means this Indenture as amendedor supplemented from time to time pursuant to the terms of this Indenture.

 

“**Initial Purchasers**” means Credit SuisseFirst Boston LLC and Lehman Brothers Inc.

 

“**Officer**” means the Chairman or anyCo-Chairman of the Board, any Vice Chairman of the Board, the Chief ExecutiveOfficer, the President, any Vice President, the Chief Financial Officer, theController, the Secretary or any Assistant Controller or Assistant Secretary ofthe Company or any of the officers of the Company designated in writing to theTrustee by the Company.

 

“**Officers’ Certificate**” means a certificatesigned by two Officers; *provided*, *however*, that for purposesof Sections 4.11 and 6.03, “**Officers’ Certificate**” means a certificatesigned by the Chief Executive Officer, Chief Financial Officer or Controller ofthe Company and by one other Officer.

 

“**Opinion of Counsel**” means a written opinionfrom legal counsel.  The counsel may bean employee of or counsel to the Company or the Trustee.

 

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

 

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

 

“**QIB**” means a “qualified institutionalbuyer” as defined in Rule 144A.

 

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

 

**“RegulationS”** means Regulation S under the Securities Act or anysuccessor for such Rule.

 

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

 

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

 

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

 

“**Rule 144**” means Rule 144 under theSecurities Act or any successor to such Rule.

 

“**Rule 144A**” means Rule 144A under theSecurities Act or any successor to such Rule.

 

“**SEC**” means the Securities and ExchangeCommission.

 

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

 

“**Securities Act**” means the Securities Act of1933, as amended, and the rules and regulations promulgated thereunder, as ineffect from time to time.

 

“**Securities Custodian**” means the Trustee, ascustodian with respect to the Securities in global form, or any successorthereto.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Trust Officer**” means, with respect to theTrustee, any officer assigned to the Corporate Trust Office, and also, withrespect to a particular matter, any other officer to whom such matter isreferred because of such officer’s knowledge of and familiarity with theparticular subject.

 

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

 

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

 

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

 

“**Voting Stock**” of a Person means all classesof Capital Stock or other interests (including partnership interests) of suchPerson then outstanding and normally entitled (without regard to the occurrenceof any contingency) to vote in the election of directors, managers or trusteesthereof.

 

Section 1.02*.  Other Definitions.*

 
| **Term**                                      |   | **Defined in Section** |
|-----------------------------------------------|--------|------------------------|
|                                          |   |                   |
| “Agent Members”                     |   | 2.06                   |
| “Bankruptcy Law”                    |   | 8.01                   |
| “Change in Control”                 |   | 3.02(a)                |
| “Change in Control Purchase Date”   |   | 3.02(a)                |
| “Change in Control Purchase Notice” |   | 3.02(c)                |
| “Change in Control Purchase Price”  |   | 3.02(a)                |
| “Closing Price”                     |   | 4.06(d)                |
| “Conversion Agent”                  |   | 2.03                   |
| “Conversion Date”                   |   | 4.02                   |
| “Conversion Price”                  |   | 4.06                   |
| “Current Market Price”              |   | 4.06(d)                |
| “Custodian”                         |   | 8.01                   |
| “DTC”                               |   | 2.01                   |
| “Depositary”                        |   | 2.01                   |
| “Determination Date”                |   | 4.06(c)                |
| “Event of Default”                  |   | 8.01                   |
| “Expiration Date”                   |   | 4.06(c)                |
| “Expiration Time”                   |   | 4.06(c)                |
| “Legal Holiday”                     |   | 12.07                  |
| “Legend”                            |   | 2.12                   |
| “NNM”                               |   | 4.06(d)                |
| “Paying Agent”                      |   | 2.03                   |
| “Payment Blockage Notice”           |   | 5.02                   |
| “Primary Registrar”                 |   | 2.03                   |
| “Purchase Agreement”                |   | 2.01                   |
| “Purchased Shares”                  |   | 4.06(c)                |
| “Registrar”                         |   | 2.03                   |
| “Regulation S Global Security”      |   | 2.01                   |
| “Restricted Global Security”        |   | 2.01                   |

 

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| **Term**                            |   | **Defined in Section** |
|-------------------------------------|--------|------------------------|
|                                |   |                   |
| “Restricted Period”       |   | 2.01                   |
| “Rights Plan”             |   | 4.06(c)                |
| “Triggering Distribution” |   | 4.06(c)                |
| “Trigger Event”           |   | 4.06(c)                |
| “Unissued Shares”         |   | 3.02(a)                |

 

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

 

“indenture securities” means the Securities;

 

“indenture security holder” means aSecurityholder;

 

“indenture to be qualified” means thisIndenture;

 

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

 

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

 

Section 1.04*.  Rules of Construction. *Unless the context otherwiserequires:

 

(A)                              a term has the meaningassigned to it;

 

(B)                                an accounting term nototherwise defined has the meaning assigned to it in accordance with GAAP;

 

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

 

(D)                               provisions apply tosuccessive events and transactions;

 

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

 

(F)                                 the masculine genderincludes the feminine and the neuter;

 

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

 

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

 

ARTICLE 2

THESECURITIES

 

Section 2.01*.  Form and Dating. *The Securities and the Trustee’s certificate ofauthentication shall be substantially in the respective forms set forth inExhibit A, which Exhibit is incorporated in and made part of this Indenture.The Securities may have notations, legends or endorsements required by law,stock exchange rule or usage.  TheCompany shall provide any such notations, legends or endorsements to theTrustee in writing.  Each Security shallbe dated the date of its authentication. The Securities are being offered and sold by the Company pursuant to aPurchase Agreement, dated April 29, 2003 (the “**Purchase Agreement**”), amongthe Company and the Initial Purchasers, in transactions exempt from, or notsubject to, the registration requirements of the Securities Act.

 

Securities offered and sold in their initialdistribution in reliance on Regulation S shall be initially represented by oneor more global securities (collectively, the “**Regulation S Global Security**”)issued in fully registered form without interest coupons, substantially in theform of Security set forth in Exhibit A, with such applicable legends as areprovided for in Exhibit A.  SuchRegulation S Global Security shall be registered in the name of the DepositoryTrust Company (“**DTC**”) (such depositary, or any successor thereto, beinghereinafter referred to as the “**Depositary**”) or its nominee and depositedwith the Securities Custodian, duly executed by the Company and authenticatedby the Trustee as hereinafter provided, for credit to the respective accountsat the Depositary of the depositories for Euroclear Bank S.A./N.V., as operatorof Euroclear, or Clearstream.  Untilsuch time as the Restricted Period shall have terminated, investors may holdbeneficial interests in such Regulation S Global Securities only throughEuroclear and Clearstream, unless delivery of such beneficial interest shall bemade through the Restricted Global Security in accordance with thecertification requirements discussed below in Section 2.12(b)(iii).  After such time as the Restricted Periodshall have terminated, such certification requirements shall no longer berequired for such transfers.  As usedherein, the term “**Restricted Period**” means the period up to(but not including) the 365th day following the later of (i) the date of thecommencement of the offering of Securities and (ii) the last original issuancedate of the Securities.

 

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Securities offered and sold in their initialdistribution in reliance on Rule 144A shall be issued in the form of one ormore global securities (collectively, the “**Restricted Global Security**”) in fullyregistered form without interest coupons, substantially in the form of Securityset forth in Exhibit A, with such applicable legends as are provided for inExhibit A.  Such Restricted GlobalSecurity shall be registered in the name of the Depositary or its nominee anddeposited with the Securities Custodian, duly executed by the Company andauthenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the Restricted Global Securitymay be increased or decreased from time to time by adjustments made on therecords of the Securities Custodian in connection with a corresponding decreaseor increase in the aggregate principal amount of the Regulation S GlobalSecurity, as hereinafter provided.

 

Section 2.02*.  Execution and Authentication. *An Officer shall sign theSecurities for the Company by manual or facsimile signature attested by themanual or facsimile signature of the Secretary or an Assistant Secretary of theCompany.  Typographic and other minorerrors or defects in any such facsimile signature shall not affect the validityor enforceability of any Security which has been authenticated and delivered bythe Trustee.

 

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

 

A Security shall not be valid until anauthorized signatory of the Trustee manually signs the certificate ofauthentication on the Security.  Thesignature shall be conclusive evidence that the Security has been authenticatedunder this Indenture.

 

Securities, upon the execution of thisIndenture, or from time to time thereafter, may be executed by the Company anddelivered to the Trustee for authentication, and the Trustee shall thereuponauthenticate and deliver said Securities to or upon the written order of theCompany.

 

The Trustee shall act as the initialauthenticating agent.  Thereafter, theTrustee may appoint an authenticating agent acceptable to the Company toauthenticate Securities.  Anauthenticating agent may authenticate Securities whenever the Trustee may doso.  Each reference in this Indenture toauthentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the samerights as an Agent to deal with the Company or an Affiliate of the Company.

 

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

 

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Section 2.03*.  Registrar, Paying Agent and ConversionAgent. *The Company shallmaintain one or more offices or agencies where Securities may be presented forregistration of transfer or for exchange (each, a “**Registrar**”), one or moreoffices or agencies where Securities may be presented for payment (each, a “**Paying Agent**”),one or more offices or agencies where Securities may be presented forconversion (each, a “**Conversion Agent**”) and one or more officesor agencies where notices and demands to or upon the Company in respect of theSecurities and this Indenture may be served. The Company will at all times maintain a Paying Agent, Conversion Agent,Registrar and an office or agency where notices and demands to or upon theCompany in respect of the Securities and this Indenture may be served in theBorough of Manhattan, The City of New York. One of the Registrars (the “**Primary Registrar**”) shall keep a registerof the Securities and of their transfer and exchange.

 

The Company shall enter into an appropriateagency agreement with any Agent that is not a party to this Indenture.  The agreement shall implement the provisionsof this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of anyAgent not a party to this Indenture.  Ifthe Company fails to maintain a Registrar, Paying Agent, Conversion Agent oragent for service of notices and demands in any place required by thisIndenture, or fails to give the foregoing notice, the Trustee shall act assuch.  The Company or any Affiliate ofthe Company may act as Paying Agent (except for the purposes of Section 6.01and Article 10).

 

The Company hereby initially designates theTrustee as Paying Agent, Primary Registrar, Securities Custodian and ConversionAgent, and each of the Corporate Trust Office of the Trustee and the office oragency of the Trustee in the Borough of Manhattan, The City of New York, shallbe considered one such office or agency of the Company for each of theaforesaid purposes.

 

Section 2.04*.  Paying Agent to Hold Money in Trust. *Prior to 11:00 a.m., New YorkCity time, on each due date of the principal of or interest, if any, on anySecurities, the Company shall deposit with a Paying Agent a sum sufficient topay such principal or interest, if any, so becoming due.  Subject to Section 5.02, a Paying Agentshall hold in trust for the benefit of Securityholders or the Trustee all moneyheld by the Paying Agent for the payment of principal of or interest, if any,on the Securities, and shall notify the Trustee of any default by the Company(or any other obligor on the Securities) in making any such payment.  If the Company or an Affiliate of theCompany acts as Paying Agent, it shall, before 11:00 a.m., New York City time,on each due date of the principal of or interest on any Securities, segregatethe money and hold it as a separate trust fund.  The Company at any time may require a Paying Agent to pay allmoney held by it to the Trustee, and the Trustee may at any time during thecontinuance of any default, upon written request to a Paying Agent, requiresuch Paying Agent to pay forthwith to the Trustee all sums so held in trust by suchPaying Agent.  Upon

 

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doing so, the Paying Agent (other than the Company) shall have nofurther liability for the money.

 

Section 2.05*.  Securityholder Lists. *The Trustee shall preserve in ascurrent a form as is reasonably practicable the most recent list available toit of the names and addresses of Securityholders.  If the Trustee is not the Primary Registrar, the Company shallfurnish to the Trustee on or before each semiannual interest payment date, andat such other times as the Trustee may request in writing, a list in such formand as of such date as the Trustee may reasonably require of the names andaddresses of Securityholders.

 

Section 2.06*.  Transfer and Exchange.*

 

(a)                        Subjectto compliance with any applicable additional requirements contained in Section2.12, when a Security is presented to a Registrar with a request to register atransfer thereof or to exchange such Security for an equal principal amount ofSecurities of other authorized denominations, the Registrar shall register thetransfer or make the exchange as requested; *provided*, *however*, that every Securitypresented or surrendered for registration of transfer or exchange shall be dulyendorsed or accompanied by an assignment form in the form included inExhibit A and, if applicable, a transfer certificate in the form includedin Exhibit B or C, as applicable, and in form satisfactory to the Registrarduly executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers andexchanges, upon surrender of any Security for registration of transfer orexchange at an office or agency maintained pursuant to Section 2.03, theCompany shall execute and the Trustee shall authenticate Securities of a likeaggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be withoutcharge, except that the Company or the Registrar may require payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto, and *provided*, that this sentence shall notapply to any exchange pursuant to Section 2.10, 2.12(a), 3.05, 4.02 (lastparagraph) or 11.05.

 

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

 

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

 

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

 

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

 

The Trustee shall have no obligation or dutyto monitor, determine or inquire as to compliance with any restrictions ontransfer imposed under this Indenture or under applicable law with respect toany transfer of any interest in any Security (including any transfers betweenor among members of, or participants in, the Depositary (“**Agent Members**”) or otherbeneficial owners of interests in any Global Security) other than to requiredelivery of such certificates and other documentation or evidence as areexpressly required by, and to do so if and when expressly required by the termsof, this Indenture, and to examine the same to determine substantial complianceas to form with the express requirements hereof.

 

Section 2.07*.  Replacement Securities. *If any mutilated Security issurrendered to the Company, a Registrar or the Trustee, or the Company, aRegistrar and the Trustee receive evidence to their satisfaction of thedestruction, loss or theft of any Security, and there is delivered to theCompany, the applicable Registrar and the Trustee such security or indemnity aswill be required by them to save each of them harmless, then, in the absence ofnotice to the Company, such Registrar or the Trustee that such Security hasbeen acquired by a bona fide purchaser, the Company shall execute, and upon itswritten request the Trustee shall authenticate and deliver, in exchange for anysuch mutilated Security or in lieu of any such destroyed, lost or stolenSecurity, a new Security of like tenor and principal amount, bearing a numbernot contemporaneously outstanding.

 

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

 

Upon the issuance of any new Securities underthis Section 2.07, the Company may require the payment of a sum sufficient tocover any tax or other governmental charge that may be imposed in relationthereto and any other reasonable expenses (including the reasonable fees andexpenses of the Trustee or the Registrar) in connection therewith.

 

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Every new Security issued pursuant to thisSection 2.07 in lieu of any mutilated, destroyed, lost or stolen Security shallconstitute an original additional contractual obligation of the Company,whether or not the mutilated, destroyed, lost or stolen Security shall be atany time enforceable by anyone, and shall be entitled to all benefits of thisIndenture equally and proportionately with any and all other Securities dulyissued hereunder.

 

The provisions of this Section 2.07 are (tothe extent lawful) exclusive and shall preclude (to the extent lawful) allother rights and remedies with respect to the replacement or payment ofmutilated, destroyed, lost or stolen Securities.

 

Section 2.08*.  Outstanding Securities. *Securities outstanding at anytime are all Securities authenticated by the Trustee, except for those canceledby it, those converted pursuant to Article IV, those delivered to it forcancellation or surrendered for transfer or exchange and those described inthis Section 2.08 as not outstanding.

 

If a Security is replaced pursuant to Section2.07, it ceases to be outstanding unless the Company receives proofsatisfactory to it that the replaced Security is held by a bona fide purchaser.

 

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

 

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

 

Section 2.09*.  Treasury Securities. *In determining whether theHolders of the required principal amount of Securities have concurred in anynotice, direction, waiver or consent, Securities owned by the Company or anyother obligor on the Securities or by any Affiliate of the Company or of such otherobligor shall be disregarded, except that, for purposes of determining whetherthe Trustee shall be protected in relying on any such notice, direction, waiveror consent, only Securities which a Trust Officer of the Trustee actually knowsare so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not bedisregarded if the pledgee establishes to the satisfaction of the Trustee thepledgee’s right so to act with respect to the Securities and that the pledgeeis not the Company or any other obligor on the Securities or any Affiliate ofthe Company or of such other obligor.

 

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Section 2.10*.  Temporary Securities. *Until definitive Securities areready for delivery, the Company may prepare and execute, and, upon receipt of aCompany Order, the Trustee shall authenticate and deliver, temporarySecurities.  Temporary Securities shallbe substantially in the form of definitive Securities but may have variationsthat the Company with the consent of the Trustee considers appropriate fortemporary Securities.  Withoutunreasonable delay, the Company shall prepare and the Trustee shallauthenticate and deliver definitive Securities in exchange for temporarySecurities.

 

Section 2.11*.  Cancellation. *The Company at any time may deliver Securities to theTrustee for cancellation.  TheRegistrar, the Paying Agent and the Conversion Agent shall forward to theTrustee or its agent any Securities surrendered to them for transfer, exchange,payment or conversion.  The Trustee andno one else shall cancel, in accordance with its standard procedures, allSecurities surrendered for transfer, exchange, payment, conversion orcancellation.  All Securities which arepurchased or otherwise acquired by the Company or any of its Subsidiaries priorto the Final Maturity Date shall be delivered to the Trustee for cancellation,and the Company may not hold or resell such Securities or issue any newSecurities to replace any such Securities or any Securities that any Holder hasconverted pursuant to Article 4.

 

Section 2.12*.  Legend; Additional Transfer and ExchangeRequirements.*

 

(a)                        IfSecurities are issued upon the transfer, exchange or replacement of Securitiessubject to restrictions on transfer and bearing the legends set forth on theforms of Securities attached hereto as Exhibit A (collectively, the “**Legend**”),or if a request is made to remove the Legend on a Security, the Securities soissued shall bear the Legend, or the Legend shall not be removed, as the casemay be, unless there is delivered to the Company and the Registrar suchsatisfactory evidence, which shall include an opinion of counsel if requestedby the Company or such Registrar, as may be reasonably required by the Companyand the Registrar, that neither the Legend nor the restrictions on transfer setforth therein are required to ensure that transfers thereof will not violatethe registration requirements of the Securities Act; *provided**that*nosuch evidence need be supplied in connection with the sale of such Securitypursuant to a registration statement that is effective at the time of suchsale.  Upon (i) provision of suchsatisfactory evidence if requested, or (ii) notification by the Company to theTrustee and Registrar of the sale of such Security pursuant to a registrationstatement that is effective at the time of such sale, the Trustee, at thewritten direction of the Company, shall authenticate and deliver a Securitythat does not bear the Legend. If the Legend is removed from the face of aSecurity and the Security is subsequently held by an Affiliate of the Company,the Legend shall be reinstated.

 

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(b)                       Notwithstandingany other provisions of this Indenture or the Securities (but subject toSection 2.01), transfers of a Global Security, in whole or in part, transfersand exchanges of interests therein of the kinds described in clauses (ii),(iii), (iv) and (v) below and exchanges of interests in Global Securities, and transfersor exchanges of other Securities as described in clause (vi) below, shall bemade only in accordance with this Section 2.12(b).  Transfers and exchanges subject to this Section 2.12 shall alsobe subject to the other provisions of this Indenture that are not inconsistentwith this Section 2.12.

 

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

 

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

 

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

 

(iii)                       RegulationS Global Security to Restricted Global Security.  If during the Restricted Period the holder of a beneficialinterest in the Regulation S Global Security wishes to transfer such interestto a Person who wishes to take delivery thereof in the form of a beneficialinterest in the Restricted Global Security, such transfer may be effected,subject to the Applicable Procedures, only in accordance with this Section2.12(b)(iii).  Upon receipt by theTrustee, as Registrar, at its office in The City of New York of (A) writteninstructions given in accordance with the Applicable Procedures from an AgentMember directing the Trustee to credit or cause to be credited to a specifiedAgent Member’s account a beneficial interest in the Restricted Global Securityin a principal amount equal to that of the beneficial interest in theRegulation S Global Security to be so transferred, (B) a written order given inaccordance with the Applicable Procedures containing information regarding theaccount of the Agent Member to be credited with, and the account of the AgentMember (and, if applicable, the Euroclear or Clearstream account, as the casemay be) to be debited for, such beneficial interest and (C) a certificate insubstantially the form set forth in Exhibit C given by the holder of suchbeneficial interest, the Trustee, as Registrar, shall instruct the Depositaryto reduce the principal amount of the Regulation S Global Security and toincrease the principal amount of the Restricted Global Security, by theprincipal amount of the beneficial interest in the Regulation S Global Securityto be so transferred, and to credit or cause to be credited to the account ofthe Person specified in such instructions a beneficial interest in theRestricted Global Security having a principal amount equal to the amount bywhich the principal amount of the Regulation S Global Security, as the case maybe, was reduced upon such transfer.

 

(iv)                      RestrictedGlobal Security to Restricted Global Security.  If the holder of a beneficial interest in the Restricted GlobalSecurity wishes at any time to transfer such interest to a Person who wishes totake delivery thereof in such form, such transfer may be effected, subject tothe Applicable Procedures, only in accordance with thisSection 2.12(b)(iv).  Upon receiptby the Trustee, as Registrar, at its office in The City of New York of(A) a written order given in accordance with the Applicable Procedurescontaining information regarding the account of the Agent Member to be creditedwith, and the account of the Agent Member to be debited for, such beneficialinterest and (B) a certificate in substantially the form set forth inExhibit C given by the holder of such beneficial interest, the Trustee, asSecurity Registrar, shall instruct the Depositary to

 

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credit orcause to be credited to the account of the Person specified in suchinstructions to be credited a beneficial interest in the Restricted GlobalSecurity having a principal amount equal to the amount specified in suchinstructions.

 

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

 

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

 

(vii)                   Interestsin Regulation S Global Security to be Held Through Euroclear or Clearstream.  Until the termination of the RestrictedPeriod, interests in the Regulation S Global Security may be held only throughAgent Members acting for and on behalf of Euroclear and Clearstream, providedthat this clause (vii) shall not prohibit any transfer in accordance withSection 2.12(b)(iii) or Section 2.12(b)(v) hereof.

 

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

 

(d)         Theprovisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only toGlobal Securities:

 

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

 

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(ii)                          Securitiesissued in exchange for a Global Security or any portion thereof shall be issuedin definitive, fully registered form, without interest coupons, shall have anaggregate principal amount equal to that of such Global Security or portionthereof to be so exchanged, shall be registered in such names and be in suchauthorized denominations as the Depositary shall designate and shall bear theapplicable legends provided for herein. Any Global Security to be exchanged inwhole shall be surrendered by the Depositary to the Trustee, as Registrar. Withregard to any Global Security to be exchanged in part, either such GlobalSecurity shall be so surrendered for exchange or, if the Trustee is acting ascustodian for the Depositary or its nominee with respect to such GlobalSecurity, the principal amount thereof shall be reduced, by an amount equal tothe portion thereof to be so exchanged, by means of an appropriate adjustmentmade on the records of the Trustee. Upon any such surrender or adjustment, theTrustee shall authenticate and deliver the Security issuable on such exchangeto or upon the order of the Depositary or an authorized representative thereof.

 

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

 

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

 

(v)                         NeitherAgent Members nor any other Persons on whose behalf Agent Members may act(including Euroclear and Clearstream and account holders and participantstherein) shall have any rights under this Indenture with respect to any Global Securityregistered in the name of the Depositary or any nominee thereof, or under anysuch Global Security, and the Depositary or such nominee, as the case may be,may be treated by the Company, the Trustee and any agent of the Company or theTrustee as the absolute owner and holder of such Global Security for allpurposes whatsoever. Notwithstanding the foregoing, nothing herein shallprevent the Company, the Trustee or any agent of the Company or the Trusteefrom giving effect to any written certification, proxy or other authorizationfurnished by the Depositary or such nominee, as the case may be, or impair, asbetween the Depositary, its Agent Members and any other person on whose behalfan Agent Member may act, the operation of customary practices of such Personsgoverning the exercise of the rights of a holder of any Security.

 

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Section 2.13*.  CUSIP Numbers. *The Company in issuing the Securities may use one ormore “CUSIP” numbers (if then generally in use), and, if so, the Trustee shalluse “CUSIP” numbers in notices of purchase as a convenience to Holders; *providedthat*any such notice may state that no representation is made as tothe correctness of such numbers either as printed on the Securities or ascontained in any notice of a purchase and that reliance may be placed only onthe other identification numbers printed on the Securities, and any suchpurchase shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trusteeof any change in the “CUSIP” numbers.

 

ARTICLE 3

PURCHASES

 

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

 

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

 

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

 

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

 

(2)                                  the Companyconsolidates with, or merges with or into, another Person or the Company sells,assigns, conveys, transfers, leases or otherwise disposes of all orsubstantially all of the assets of the Company, or any Person consolidateswith, or merges with or into, the Company, in any such event other thanpursuant to a transaction in which the Persons that “beneficially owned” (asdefined below), directly or indirectly, shares of Voting Stock of the Companyimmediately prior to such transaction “beneficially own” (as defined below),directly or indirectly, shares of Voting Stock of the Company representing atleast

 

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

 

(3)                                  the holders ofCapital Stock of the Company approve any plan or proposal for the liquidationor dissolution of the Company (whether or not otherwise in compliance with theterms hereof).

 

For the purpose of the definition of “Changein Control”, (i) “person” and “group” have the meanings given such terms underSection 13(d) and 14(d) of the Exchange Act or any successor provision toeither of the foregoing, and the term “group” includes any group acting for thepurpose of acquiring, holding or disposing of securities within the meaning ofRule 13d-5(b)(1) under the Exchange Act (or any successor provision thereto),(ii) a “beneficial owner” shall be determined in accordance with Rule 13d-3under the Exchange Act, as in effect on the date of this Indenture, except thatthe number of shares of Voting Stock of the Company shall be deemed to include,in addition to all outstanding shares of Voting Stock of the Company andUnissued Shares deemed to be held by the “person” or “group” (as such terms aredefined above) or other Person with respect to which the Change in Controldetermination is being made, all Unissued Shares deemed to be held by all otherPersons, and (iii) the terms “beneficially owned” and “beneficially own” shallhave meanings correlative to that of “beneficial owner”.  The term “**Unissued Shares**” means sharesof Voting Stock not outstanding that are subject to options, warrants, rightsto purchase or conversion privileges exercisable within 60 days of the date ofdetermination of a Change in Control.

 

Notwithstanding anything to the contrary setforth in this Section 3.02(d), a Change in Control will not be deemed to haveoccurred if either:

 

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

 

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

 

(b)                                 Within 15 BusinessDays after the occurrence of a Change in Control, the Company shall mail awritten notice of the Change in Control to the

 

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

 

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

 

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

 

(3)                                  the Change in ControlPurchase Date;

 

(4)                                  the Change in ControlPurchase Price;

 

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

 

(6)                                  briefly, theconversion rights of the Securities;

 

(7)                                  the name and addressof each Paying Agent and Conversion Agent;

 

(8)                                  the Conversion Priceand any adjustments thereto;

 

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

 

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

 

(11)                            the procedures forwithdrawing a Change in Control Purchase Notice, including a form of notice ofwithdrawal; and

 

(12)                            that the Holder mustsatisfy the requirements set forth in the Securities in order to convert theSecurities.

 

If any of the Securities is in the form of aGlobal Security, then the Company shall modify such notice to the extentnecessary to accord with the procedures of the Depositary applicable to therepurchase of Global Securities.

 

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

 

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

 

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

 

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

 

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

 

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

 

Anything herein to the contrarynotwithstanding, in the case of Global Securities, any Change in ControlPurchase Notice may be delivered or withdrawn and such Securities may besurrendered or delivered for purchase in accordance with the ApplicableProcedures as in effect from time to time.

 

Section 3.03*.  Effect of Change in Control PurchaseNotice. *Upon receipt by anyPaying Agent of the Change in Control Purchase Notice specified in Section3.02(c), the Holder of the Security in respect of which such Change in ControlPurchase Notice was given shall (unless such Change in Control Purchase Noticeis withdrawn as specified below) thereafter be entitled to receive the Changein Control Purchase Price with respect to such Security.  Such Change in Control Purchase Price shallbe paid to such Holder promptly following the later of (a) the Change inControl Purchase Date with respect to such Security (*provided* the conditions inSection 3.02(c) have been satisfied) and (b) the time of delivery of suchSecurity to a Paying Agent by the Holder thereof in the manner required bySection 3.02(c).  Securities in respectof which a Change in Control Purchase Notice has been given by the Holder thereofmay not be converted into shares of Common Stock pursuant to Article 4 on orafter the date

 

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

 

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

 

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

 

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

 

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

 

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Section 3.06*.  Compliance with Securities Laws uponPurchase of Securities. *Inconnection with any offer to purchase or purchase of Securities under Section3.02, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or anysuccessor to either such Rule), if applicable, under the Exchange Act, (ii)file the related Schedule TO (or any successor or similar schedule, form orreport) if required under the Exchange Act, and (iii) otherwise comply with allfederal and state securities laws in connection with such offer to purchase orpurchase of Securities, all so as to permit the rights of the Holders andobligations of the Company under Section 3.02 through 3.05 to be exercised inthe time and in the manner specified therein.

 

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

 

ARTICLE 4

CONVERSION

 

Section 4.01*.  Conversion Privilege. *Subject to the further provisionsof this Article 4 and paragraph 6 of the Securities, a Holder of a Security mayconvert the principal amount of such Security (or any portion thereof equal to$1,000 or any multiple of $1,000 in excess thereof) into Common Stock at anytime prior to the close of business on the Final Maturity Date, at theConversion Price then in effect; *provided*, *however*, that, if suchSecurity is submitted or presented for purchase pursuant to Article 3, suchconversion right shall terminate at the close of business on the Business Dayimmediately preceding the Change in Control Purchase Date, for such Security orsuch earlier date as the Holder presents such Security for purchase (unless theCompany shall default in making the Change in Control Purchase Price paymentwhen due, in which case the conversion right shall terminate at the close ofbusiness on the date such default is cured and such Security is purchased, asthe case may be).  The number of sharesof Common Stock issuable upon conversion of a Security shall be determined bydividing the principal amount of the Security or portion thereof surrenderedfor conversion by the Conversion Price in effect on the Conversion Date.  The initial Conversion Price is set forth inparagraph 6 of the Securities and is subject to adjustment as provided in thisArticle 4.

 

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

 

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

 

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

 

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

 

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

 

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Securities so surrendered for conversion (inwhole or in part) during the period from the close of business on any regularrecord date to the opening of business on the next succeeding interest paymentdate (excluding Securities or portions thereof presented for purchase upon aChange in Control on a Change in Control Purchase Date during the periodbeginning at the close of business on a regular record date and ending at theopening of business on the first Business Day after the next succeedinginterest payment date, or if such interest payment date is not a Business Day,the second such Business Day) shall also be accompanied by payment in fundsacceptable to the Company of an amount equal to the interest payable on suchinterest payment date on the principal amount of such Security then beingconverted, and such interest shall be payable to such registered Holdernotwithstanding the conversion of such Security, subject to the provisions ofthis Indenture relating to the payment of defaulted interest by theCompany.  Except as otherwise providedin this Section 4.02, no payment or adjustment will be made for accruedinterest on a converted Security.  Ifthe Company defaults in the payment of interest payable on such interestpayment date, the Company shall promptly repay such funds to such Holder.

 

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

 

Upon surrender of a Security that isconverted in part, the Company shall execute, and the Trustee shallauthenticate and deliver to the Holder, a new Security equal in principalamount to the unconverted portion of the Security surrendered.

 

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

 

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

 

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refuse to deliver the certificate representing the Common Stock beingissued in a name other than the Holder’s name until the Conversion Agentreceives a sum sufficient to pay any tax which will be due because the sharesare to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any taxwithholding required by law or regulation.

 

Section 4.05*.  Company to Provide Stock. *The Company shall, prior toissuance of any Securities hereunder, and from time to time as may benecessary, reserve, out of its authorized but unissued Common Stock, asufficient number of shares of Common Stock to permit the conversion of alloutstanding Securities into shares of Common Stock.

 

All shares of Common Stock delivered uponconversion of the Securities shall be newly issued shares, shall be dulyauthorized, validly issued, fully paid and nonassessable and shall be free frompreemptive rights and free of any lien or adverse claim.

 

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

 

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

 

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

 

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

 

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

 

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

 

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distribution of rights to all holders of Common Stock pursuant to theadoption of a stockholders rights plan or the detachment of such rights underthe terms of such stockholder rights plan), then in each such case theConversion Price shall be adjusted so that the same shall equal the pricedetermined by multiplying the current Conversion Price by a fraction of whichthe numerator shall be the Current Market Price per share (as defined insubsection (d) of this Section 4.06) of the Common Stock on the record datementioned below less the fair market value on such record date (as determinedby the Board of Directors, whose determination shall be conclusive evidence ofsuch fair market value and which shall be evidenced by an Officers’ Certificatedelivered to the Trustee) of the portion of the Capital Stock, evidences ofindebtedness or other non-cash assets so distributed or of such rights orwarrants applicable to one share of Common Stock (determined on the basis ofthe number of shares of Common Stock outstanding on the record date), and ofwhich the denominator shall be the Current Market Price per share (as definedin subsection (d) of this Section 4.06) of the Common Stock on such recorddate.  Such adjustment shall be madesuccessively whenever any such distribution is made and shall become effectiveimmediately after the record date for the determination of stockholdersentitled to receive such distribution.

 

In the event the then fair market value (asso determined) of the portion of the Capital Stock, evidences of indebtednessor other non-cash assets so distributed or of such rights or warrants applicableto one share of Common Stock is equal to or greater than the Current MarketPrice per share of the Common Stock on such record date, in lieu of theforegoing adjustment, adequate provision shall be made so that each holder of aSecurity shall have the right to receive upon conversion the amount of CapitalStock, evidences of indebtedness or other non-cash assets so distributed or ofsuch rights or warrants such holder would have received had such holderconverted each Security on such record date. In the event that such dividend or distribution is not so paid or made,the Conversion Price shall again be adjusted to be the Conversion Price whichwould then be in effect if such dividend or distribution had not been declared.  If the Board of Directors determines thefair market value of any distribution for purposes of this Section 4.06(c) byreference to the actual or when issued trading market for any securities, itmust in doing so consider the prices in such market over the same period usedin computing the Current Market Price of the Common Stock.

 

Upon conversion of the Securities into CommonStock, to the extent that the Company’s preferred shares rights plan (“**Rights Plan**”)is still in effect upon such conversion, or in the event that the Companyimplements any other Rights Plan, to the extent such Rights Plan has beenimplemented and is still in effect upon such conversion, the holders ofSecurities will receive, in addition to the Common Stock, the rights describedtherein (whether or not the rights have separated from the Common Stock at thetime of conversion), subject to the limitations set forth in the RightsPlan.  Any distribution of rights orwarrants

 

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

 

Rights or warrants distributed by the Companyto all holders of Common Stock entitling the holders thereof to subscribe foror purchase shares of the Company’s Capital Stock (either initially or undercertain circumstances), which rights or warrants, until the occurrence of aspecified event or events (“**Trigger Event**”):  (i) are deemed to be transferred with such shares of CommonStock; (ii) are not exercisable; and (iii) are also issued in respect of futureissuances of Common Stock, shall be deemed not to have been distributed forpurposes of this Section 4.06 (and no adjustment to the Conversion Price underthis Section 4.06 will be required) until the occurrence of the earliestTrigger Event, whereupon such rights and warrants shall be deemed to have beendistributed and an appropriate adjustment (if any is required) to the ConversionPrice shall be made under this Section 4.06(c).  If any such right or warrant, including any such existing rightsor warrants distributed prior to the date of this Indenture, are subject toevents, upon the occurrence of which such rights or warrants become exercisableto purchase different securities, evidences of indebtedness or other assets,then the date of the occurrence of any and each such event shall be deemed tobe the date of distribution and record date with respect to new rights or warrantswith such rights (and a termination or expiration of the existing rights orwarrants without exercise by any of the holders thereof).  In addition, in the event of anydistribution (or deemed distribution) of rights or warrants, or any TriggerEvent or other event (of the type described in the preceding sentence) withrespect thereto that was counted for purposes of calculating a distributionamount for which an adjustment to the Conversion Price under this Section 4.06was made, (1) in the case of any such rights or warrants which shall all havebeen repurchased without exercise by any holders thereof, the Conversion Priceshall be readjusted upon such final repurchase to give effect to suchdistribution or Trigger Event, as the case may be, as though it were a cashdistribution, equal to the per share repurchase price received by a holder orholders of Common Stock with respect to such rights or warrants (assuming suchholder had retained such rights or warrants), made to all holders of CommonStock as of the date of such repurchase, and (2) in the case of such rights orwarrants which shall have expired or been terminated without exercise by anyholders thereof, the Conversion Price shall be readjusted as if such rights andwarrants had not been issued.

 

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

 

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

 

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

 

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all cash distributions to all or substantially all holders of itsCommon Stock made within the 12 months preceding the Expiration Date and inrespect of which no Conversion Price adjustment pursuant to this Section 4.06has been made, exceeds an amount equal to 10.0% of the product of the CurrentMarket Price per share of Common Stock (as determined in accordance withsubsection (d) of this Section 4.06) as of the last date (the “**ExpirationDate**”) tenders could have been made pursuant to such tender offer(as it may be amended) (the last time at which such tenders could have beenmade on the Expiration Date is hereinafter sometimes called the “**ExpirationTime**”) multiplied by the number of shares of Common Stockoutstanding (including tendered shares but excluding any shares held in thetreasury of the Company) at the Expiration Time, then, immediately prior to theopening of business on the day after the Expiration Date, the Conversion Priceshall be reduced so that the same shall equal the price determined bymultiplying the Conversion Price in effect immediately prior to the close ofbusiness on the Expiration Date by a fraction of which the numerator shall be theproduct of the number of shares of Common Stock outstanding (including tenderedshares but excluding any shares held in the treasury of the Company) at theExpiration Time multiplied by the Current Market Price per share of the CommonStock (as determined in accordance with subsection (d) of this Section 4.06) onthe Trading Day next succeeding the Expiration Date and the denominator shallbe the sum of (x) the aggregate consideration (determined as aforesaid) payableto stockholders based on the acceptance (up to any maximum specified in theterms of the tender offer) of all shares validly tendered and not withdrawn asof the Expiration Time (the shares deemed so accepted, up to any such maximum,being referred to as the “**Purchased Shares**”) and (y) the product ofthe number of shares of Common Stock outstanding (less any Purchased Shares andexcluding any shares held in the treasury of the Company) at the ExpirationTime and the Current Market Price per share of Common Stock (as determined inaccordance with subsection (d) of this Section 4.06) on the Trading Day nextsucceeding the Expiration Date, such reduction to become effective immediatelyprior to the opening of business on the day following the Expiration Date.  In the event that the Company is obligatedto purchase shares pursuant to any such tender offer, but the Company ispermanently prevented by applicable law from effecting any or all suchpurchases or any or all such purchases are rescinded, the Conversion Priceshall again be adjusted to be the Conversion Price which would have been ineffect based upon the number of shares actually purchased.  If the application of this Section4.06(c)(2) to any tender offer would result in an increase in the ConversionPrice, no adjustment shall be made for such tender offer under this Section4.06(c)(2).

 

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

 

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

 

(d)                       Forthe purpose of any computation under subsections (b) and (c) of this Section4.06, the current market price (the “**Current Market Price**”) per share of CommonStock on any date shall be deemed to be the average of the daily closing pricesfor the 30 consecutive Trading Days commencing 45 Trading Days before (i) theDetermination Date or the Expiration Date, as the case may be, with respect todistributions or tender offers under subsection (c) of this Section 4.06 or(ii) the record date with respect to distributions, issuances or other eventsrequiring such computation under subsection (b) or (c) of this Section4.06.  The closing price (the “**ClosingPrice**”) per share of Common Stock for each day shall be the reportedlast sales price or, in case no such reported sale takes place on such date,the average of the reported closing bid and asked prices in either case on theNasdaq National Market (the “**NNM**”) or, if the Common Stock is not listedor admitted to trading on the NNM, on the principal national securitiesexchange on which the Common Stock is listed or admitted to trading or, if notlisted or admitted to trading on the NNM or any national securities exchange, thereported last sales price of the Common Stock as quoted on NASDAQ or, in caseno reported sales takes place, the average of the closing bid and asked pricesas quoted on NASDAQ or any comparable system or, if the Common Stock is notquoted on NASDAQ or any comparable system, the closing sales price or, in caseno reported sale takes place, the average of the closing bid and asked prices,as furnished by any two members of the National Association of SecuritiesDealers, Inc. selected from time to time by the Company for that purpose.  If no such prices are available, the CurrentMarket Price per share shall be the fair value of a share of Common Stock asdetermined by the Board of Directors (which shall be evidenced by an Officers’Certificate delivered to the Trustee).

 

(e)                        Inany case in which this Section 4.06 shall require that an adjustment be madefollowing a record date or a Determination Date or Expiration Date, as the casemay be, established for purposes of this Section 4.06, the Company may elect todefer (but only until five Business Days following the filing by the Companywith the Trustee of the certificate described in Section 4.09) issuing to theHolder of any Security converted after such record date or Determination Dateor Expiration Date the shares of Common Stock and other Capital Stock of theCompany issuable upon such conversion over and above the shares of Common Stockand other Capital Stock of the Company issuable upon such conversion only onthe basis of the Conversion Price prior to adjustment; and, in lieu of theshares the issuance of which is so deferred, the Company shall issue or causeits transfer agents to issue due bills or other appropriate evidence preparedby the Company of the right to receive such shares.  If any distribution in respect of which an adjustment to theConversion Price is required to be made as of the record date or DeterminationDate or Expiration Date therefor is not

 

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

 

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

 

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

 

To the extent that the Securities becomeconvertible into the right to receive cash, no adjustment need be madethereafter as to the cash.  Interestwill not accrue on the cash.

 

Section 4.08*.  Adjustment for Tax Purposes. *The Company shall be entitled tomake such reductions in the Conversion Price, in addition to those required bySection 4.06, as it in its discretion shall determine to be advisable in orderthat any stock dividends, subdivisions of shares, distributions of rights topurchase stock or securities or distributions of securities convertible into orexchangeable for stock hereafter made by the Company to its stockholders shallnot be taxable.

 

Section 4.09*.  Notice of Adjustment. *Whenever the Conversion Price orconversion privilege is adjusted, the Company shall promptly mail toSecurityholders a notice of the adjustment and file with the Trustee anOfficers’ Certificate briefly stating the facts requiring the adjustment andthe manner of computing it.  Unless anduntil the Trustee shall receive an Officers’ Certificate setting forth anadjustment of the Conversion Price, the Trustee may assume without inquiry thatthe Conversion Price has not been adjusted and that the last Conversion Priceof which it has knowledge remains in effect.

 

Section 4.10*.  Notice of Certain Transactions.*

 

In the event that:

 

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

 

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(2)                                  the Companyconsolidates or merges with, or transfers all or substantially all of itsproperty and assets to, another corporation and stockholders of the Companymust approve the transaction; or

 

(3)                                  there is adissolution or liquidation of the Company,

 

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

 

Section 4.11*.  Effect of Reclassification, Consolidation,Merger or Sale on Conversion Privilege. *If any of the following shall occur, namely:  (a) any reclassification or change of sharesof Common Stock issuable upon conversion of the Securities (other than a changein par value, or from par value to no par value, or from no par value to parvalue, or as a result of a subdivision or combination, or any other change forwhich an adjustment is provided in Section 4.06); (b) any consolidation ormerger or combination to which the Company is a party other than a merger inwhich the Company is the continuing corporation and which does not result inany reclassification of, or change (other than in par value, or from par valueto no par value, or from no par value to par value, or as a result of asubdivision or combination) in, outstanding shares of Common Stock; or (c) anysale or conveyance as an entirety or substantially as an entirety of theproperty and assets of the Company, directly or indirectly, to any person, thenthe Company, or such successor, purchasing or transferee corporation, as thecase may be, shall, as a condition precedent to such reclassification, change,combination, consolidation, merger, sale or conveyance, execute and deliver tothe Trustee a supplemental indenture providing that the Holder of each Securitythen outstanding shall have the right to convert such Security into the kindand amount of shares of stock and other securities and property (includingcash) receivable upon such reclassification, change, combination,consolidation, merger, sale or conveyance by a holder of the number of sharesof Common Stock deliverable upon conversion of such Security immediately priorto such reclassification, change, combination, consolidation, merger, sale orconveyance.  Such supplemental indentureshall provide for adjustments of the Conversion Price which shall be as nearlyequivalent as may be practicable to the adjustments of the Conversion Priceprovided for in this Article 4.  If, inthe case of any such consolidation, merger, combination, sale or conveyance,the stock or other securities and property (including cash) receivablethereupon by a holder of Common Stock include shares of stock or othersecurities and property of a person other than the successor, purchasing ortransferee corporation, as the case may be, in such consolidation, merger,combination, sale or conveyance, then such supplemental indenture shall also beexecuted by such other person and shall contain such additional provisions toprotect the interests of the Holders of the

 

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Securities as the Board of Directors shall reasonably considernecessary by reason of the foregoing. The provisions of this Section 4.11 shall similarly apply to successivereclassifications, changes, combinations, consolidations, mergers, sales orconveyances.

 

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

 

Section 4.12*.  Trustee’s Disclaimer. *The Trustee shall have no duty todetermine when an adjustment under this Article 4 should be made, how it shouldbe made or what such adjustment should be, but may accept as conclusiveevidence of that fact or the correctness of any such adjustment, and shall beprotected in relying upon, an Officers’ Certificate including the Officers’Certificate with respect thereto which the Company is obligated to file withthe Trustee pursuant to Section 4.09. The Trustee makes no representation as to the validity or value of anysecurities or assets issued upon conversion of Securities, and the Trustee shallnot be responsible for the Company’s failure to comply with any provisions ofthis Article 4.

 

The Trustee shall not be under anyresponsibility to determine the correctness of any provisions contained in anysupplemental indenture executed pursuant to Section 4.11, but may accept asconclusive evidence of the correctness thereof, and shall be fully protected inrelying upon, the Officers’ Certificate with respect thereto which the Companyis obligated to file with the Trustee pursuant to Section 4.11.

 

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

 

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ARTICLE 5

SUBORDINATION

 

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

 

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

 

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

 

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

 

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

 

(ii)                                  a default, other thana payment default, on a Designated Senior Indebtedness occurs and is continuingthat then permits holders of such Designated Senior Indebtedness to accelerateits maturity and the Trustee receives a notice of the default (a “**PaymentBlockage Notice**”) from the Company, a Representative or holder ofDesignated Senior Indebtedness or the Company.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

In the event of the acceleration of theSecurities because of an Event of Default, no payment or distribution shall bemade to the Trustee or any Holder of Securities in respect of the principal of,premium, if any, or interest (including Additional Interest, if any) on theSecurities by the Company (including, but not limited to the Change in ControlPurchase Price with respect to the Securities subject to purchase in accordancewith Article 3 as provided in this Indenture), except payments anddistributions made by the Trustee as permitted by Section 5.05, until allSenior Indebtedness has been paid in full in cash or other payment satisfactoryto the holders of Senior Indebtedness or such acceleration is rescinded inaccordance with the terms of this Indenture. If payment of the Securities isaccelerated because of an Event of Default, the Company shall promptly notifyholders of Senior Indebtedness of such acceleration.

 

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

 

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

 

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

 

Section 5.03*.  Subrogation of Securities. *Subject to the payment in full,in cash or other payment satisfactory to the holders of Senior Indebtedness, ofall Senior Indebtedness, the rights of the Holders of the Securities shall besubrogated to the extent of the payments or distributions made to the holdersof such Senior Indebtedness pursuant to the provisions of this Article 5(equally and ratably with the holders of all indebtedness of the Company whichby its express terms is subordinated to other indebtedness of the Company tosubstantially the same extent as the Securities are subordinated and isentitled to like rights of subrogation) to the rights of the holders of SeniorIndebtedness to receive payments or distributions of cash, property orsecurities of the Company applicable to the Senior Indebtedness until theprincipal, premium, if any, and interest (including Additional Interest, ifany) on the Securities shall be paid in full in cash or other payment satisfactoryto the holders of Senior Indebtedness; and, for the purposes of suchsubrogation, no payments or distributions to the holders of the SeniorIndebtedness of any cash, property or securities to which the Holders of theSecurities or the Trustee would be entitled except for the provisions of thisArticle 5, and no payment pursuant to the provisions of this Article 5, to orfor the benefit of the holders of Senior Indebtedness by Holders of theSecurities or the Trustee, shall, as between the Company, its creditors otherthan holders of Senior Indebtedness, and the Holders of the Securities, bedeemed to be a payment by the Company to or on account of the SeniorIndebtedness; and no payments or distributions of cash, property or securitiesto or for the benefit of the Holders of the Securities pursuant to thesubrogation provisions of this Article 5, which would otherwise have been paidto the holders of Senior Indebtedness shall be deemed to be a payment by theCompany to or for the account of the

 

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

 

Nothing contained in this Article 5 orelsewhere in this Indenture or in the Securities is intended to or shallimpair, as among the Company, its creditors other than the holders of SeniorIndebtedness, and the Holders of the Securities, the obligation of the Company,which is absolute and unconditional, to pay to the Holders of the Securitiesthe principal of (and premium, if any) and interest on the Securities as andwhen the same shall become due and payable in accordance with their terms, oris intended to or shall affect the relative rights of the Holders of theSecurities and creditors of the Company other than the holders of the SeniorIndebtedness, nor shall anything herein or therein prevent the Trustee or theHolder of any Security from exercising all remedies otherwise permitted byapplicable law upon default under this Indenture, subject to the rights, ifany, under this Article 5 of the holders of Senior Indebtedness in respect ofcash, property or securities of the Company received upon the exercise of anysuch remedy.

 

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

 

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

 

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

 

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to any Paying Agent of any fact known to the Company which wouldprohibit the making of any payment of monies to or by the Trustee or any PayingAgent in respect of the Securities pursuant to the provisions of this Article5.  Notwithstanding the provisions ofthis Article 5 or any other provision of this Indenture, the Trustee shall notbe charged with knowledge of the existence of any facts which would prohibitthe making of any payment of monies to or by the Trustee in respect of theSecurities pursuant to the provisions of this Article 5, unless and until aTrust Officer of the Trustee shall have received written notice thereof at theCorporate Trust Office from the Company (in the form of an Officers’Certificate) or a Representative or a holder or holders of Senior Indebtedness(or a trustee on behalf of such holder or holders); and before the receipt ofany such written notice, the Trustee, subject to the provisions of Section9.01, shall be entitled in all respects to assume that no such facts exist; *providedthat*if on a date not less than one Business Day prior to the dateupon which by the terms hereof any such monies may become payable for anypurpose (including, without limitation, the payment of the principal of, orpremium, if any, or interest on any Security) the Trustee shall not havereceived, with respect to such monies, the notice provided for in this Section5.05, then, anything herein contained to the contrary notwithstanding, theTrustee shall have full power and authority to receive such monies and to applythe same to the purpose for which they were received, and shall not be affectedby any notice to the contrary which may be received by it on or after suchprior date. Notwithstanding anything in this Article 5 to the contrary, nothingshall prevent any payment by the Trustee to the Holders of monies depositedwith it pursuant to Article 10, and any such payment shall not be subject tothe provisions of Article 5.

 

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

 

Section 5.06*.  Trustee’s Relation to SeniorIndebtedness. *The Trustee inits individual capacity shall be entitled to all the rights set forth in thisArticle 5 in respect of any Senior Indebtedness at any time held by it, to thesame extent as

 

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any other holder of Senior Indebtedness, and nothing in Section 9.11 orelsewhere in this Indenture shall deprive the Trustee of any of its rights assuch holder.

 

With respect to the holders of SeniorIndebtedness, the Trustee undertakes to perform or to observe only such of itscovenants and obligations as are specifically set forth in this Article 5, andno implied covenants or obligations with respect to the holders of SeniorIndebtedness shall be read into this Indenture against the Trustee. The Trusteeshall not be deemed to owe any fiduciary duty to the holders of SeniorIndebtedness and, subject to the provisions of Section 9.01, the Trustee shallnot be liable to any holder of Senior Indebtedness if it shall pay over ordeliver to Holders of Securities, the Company or any other person money orassets to which any holder of Senior Indebtedness shall be entitled by virtueof this Article 5 or otherwise.

 

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

 

Section 5.08*.  Certain Conversions Deemed Payment. *For the purposes of this Article5 only, (1) the issuance and delivery of junior securities upon conversion ofSecurities in accordance with Article 4 shall not be deemed to constitute apayment or distribution on account of the principal of (or premium, if any) orinterest on Securities or on account of the purchase or other acquisition ofSecurities, and (2) the payment, issuance or delivery of cash (except insatisfaction of fractional shares pursuant to Section 4.03), property orsecurities (other than junior securities) upon conversion of a Security shall bedeemed to constitute payment on account of the principal of such Security. Forthe purposes of this Section 5.08, the term “junior securities” means (a)shares of any stock of any class of the Company, or (b) securities of theCompany which are subordinated in right of payment to all Senior Indebtednesswhich may be outstanding at the time of issuance or delivery of such securitiesto substantially the same extent as, or to a greater extent than, theSecurities are so subordinated as provided in this Article. Nothing containedin this Article 5 or elsewhere in this Indenture or in the Securities isintended to or shall impair, as among the Company, its creditors other thanholders of Senior Indebtedness and the Holders, the right, which is absoluteand unconditional, of the Holder of any Security to convert such Security inaccordance with Article 4.

 

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

 

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

 

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

 

ARTICLE 6

COVENANTS

 

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

 

Payment of the principal of (and premium, ifany) and any interest on the Securities shall be made at the office or agencyof the Company maintained for that purpose in the Borough of Manhattan, TheCity of New York or at the Corporate Trust Office of the Trustee in such coinor currency of the United States of America as at the time of payment is legaltender for payment of public and private debts; *provided*, *however*,that at the option of the Company payment of interest may be made by checkmailed to the address of the Person entitled thereto as such address appears inthe Register; *provided further* that a Holder with an aggregate principalamount in excess of $2,000,000 will be paid by wire transfer in immediatelyavailable funds at the election of such Holder if such Holder has provided wiretransfer instructions to the Company at least 10 Business Days prior to thepayment date.

 

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

 

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

 

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

 

Section 6.03*.  Compliance Certificates. *The Company shall deliver to theTrustee, within 90 days after the end of each fiscal year of the Company(beginning with the fiscal year ending June 30, 2003), an Officers’Certificate as to the signer’s knowledge of the Company’s compliance with allconditions and covenants on its part contained in this Indenture and statingwhether or not the signers know of any default or Event of Default.  If such signers know of such a default orEvent of Default, the Officers’ Certificate shall describe the default or Eventof Default and the efforts to remedy the same. For the purposes of this Section 6.03, compliance shall be determinedwithout regard to any grace period or requirement of notice provided pursuantto the terms of this Indenture.

 

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

 

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

 

Section 6.06*.  Rule 144A Information Requirement. *Within the period prior to theexpiration of the holding period applicable to sales thereof under Rule 144(k)under the Securities Act (or any successor provision), the Company covenantsand agrees that it shall, during any period in which it is not subject toSection 13 or 15(d) under the Exchange Act, upon the request of any Holder orbeneficial holder of the Securities make available to such Holder or beneficialholder of Securities or any Common Stock issued upon conversion thereof whichcontinue to be Restricted Securities in connection with any sale thereof andany prospective purchaser of Securities or such Common Stock designated by suchHolder or beneficial holder, the information required pursuant to Rule144A(d)(4) under the Securities Act or such Common Stock and it will take suchfurther action as any Holder or beneficial holder of such Securities or suchCommon Stock may reasonably request, all to the extent required from time totime to enable such Holder or beneficial holder to sell its Securities orCommon Stock without registration under the Securities Act within thelimitation of the

 

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

 

Section 6.07*.**  Stay, Extension and Usury Laws. *The Company covenants (to theextent that it may lawfully do so) that it shall not at any time insist upon,plead, or in any manner whatsoever claim or take the benefit or advantage of,any stay, extension or usury law or other law which would prohibit or forgivethe Company from paying all or any portion of the principal of, premium, ifany, or interest (including Additional Interest, if any) on the Securities ascontemplated herein, wherever enacted, now or at any time hereafter in force,or which may affect the covenants or the performance of this Indenture, and theCompany (to the extent it may lawfully do so) hereby expressly waives allbenefit or advantage of any such law and covenants that it will not, by resortto any such law, hinder, delay or impede the execution of any power hereingranted to the Trustee, but will suffer and permit the execution of every suchpower as though no such law had been enacted.

 

Section 6.08*.  Payment of Additional Interest. *If Additional Interest is payableby the Company pursuant to the Registration Rights Agreement, the Company shalldeliver to the Trustee a certificate to that effect stating (i) the amount ofsuch Additional Interest that is payable and (ii) the date on which suchAdditional Interest is payable.  Unlessand until a Trust Officer of the Trustee receives such a certificate, theTrustee may assume without inquiry that no such Additional Interest ispayable.  If the Company has paidAdditional Interest directly to the Persons entitled to it, the Company shalldeliver to the Trustee a certificate setting forth the particulars of suchpayment.

 

ARTICLE 7

CONSOLIDATION,MERGER, CONVEYANCE, TRANSFER OR LEASE

 

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

 

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

 

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be a corporation, limited liability company, partnership or trustorganized and validly existing under the laws of the United States of America,any State thereof or the District of Columbia and shall expressly assume, by anindenture supplemental hereto, executed and delivered to the Trustee, in formreasonably satisfactory to the Trustee, the due and punctual payment of theprincipal of and any premium and interest on all the Securities and theperformance or observance of every covenant of this Indenture on the part ofthe Company to be performed or observed and the conversion rights shall beprovided for in accordance with Article 4, by supplemental indenture reasonablysatisfactory in form to the Trustee, executed and delivered to the Trustee, bythe Person (if other than the Company) formed by such consolidation or intowhich the Company shall have been merged or by the Person which shall haveacquired the Company’s assets;

 

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

 

(3)                                  the Company hasdelivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,each stating that such consolidation, merger, conveyance, transfer or leaseand, if a supplemental indenture is required in connection with suchtransaction, such supplemental indenture comply with this Article and that allconditions precedent herein provided for relating to such transaction have beencomplied with.

 

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

 

ARTICLE 8

DEFAULT ANDREMEDIES

 

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

 

(1)                                  the Company defaultsin the payment of any interest or Additional Interest, if any, payable to allholders of Transfer Restricted Securities (as defined in the RegistrationRights Agreement) on any Security when the same becomes

 

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

 

(2)                                  the Company defaultsin the payment of any principal of (including, without limitation, any premium,if any, on) any Security when the same becomes due and payable (whether atmaturity, on a Change of Control Purchase Date or otherwise), whether or notsuch payment shall be prohibited by the provisions of Article 5 hereof;

 

(3)                                  the Company fails tocomply with any of its other covenants contained in the Securities or thisIndenture and the default continues and is not cured or waived for the periodand after the notice specified below;

 

(4)                                  the Company defaultsin the payment of the purchase price of any Security when the same becomes dueand payable, whether or not such payment shall be prohibited by the provisionsof Article 5 hereof; or

 

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

 

(6)                                  any indebtednessunder any bond, debenture, note or other evidence of indebtedness for moneyborrowed by the Company or any Significant Subsidiary (all or substantially allof the outstanding voting securities of which are owned, directly orindirectly, by the Company) or under any mortgage, indenture or instrumentunder which there may be issued or by which there may be secured or evidencedany indebtedness for money borrowed by the Company or any SignificantSubsidiary (all or substantially all of the outstanding voting securities ofwhich are owned, directly or indirectly, by the Company) (an “**Instrument**”)with a principal amount then outstanding in excess of U.S. $15,000,000, whethersuch indebtedness now exists or shall hereafter be created, is not paid atfinal maturity of the Instrument (either at its stated maturity or uponacceleration thereof), and such indebtedness is not discharged, or suchacceleration is not rescinded or annulled, within a period of 30 days afterthere shall have been given, by registered or certified mail, to the Company bythe Trustee or to the Company and the Trustee by the Holders of at least 25% inaggregate principal amount of the outstanding Securities a written noticespecifying such default and requiring the Company to cause such indebtedness tobe discharged or cause such default to be cured or waived or such accelerationto be rescinded or annulled and stating that such notice is a “Notice ofDefault” hereunder; or

 

(7)                                  the Company or anySignificant Subsidiary, pursuant to or within the meaning of any BankruptcyLaw:

 

(A)                      commences a voluntary case orproceeding;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

and in each case the order or decree remains unstayed and in effect for60 consecutive days.

 

The term “**Bankruptcy Law**” means Title11 of the United States Code (or any successor thereto) or any similar federalor state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator,sequestrator or similar official under any Bankruptcy Law.

 

A default under clause (3) above is not anEvent of Default until the Trustee notifies the Company, or the Holders of atleast 25% in aggregate principal amount of the Securities then outstandingnotify the Company and the Trustee, in writing, of the default, and the Companydoes not cure the default within 60 days after receipt of such notice. Thenotice given pursuant to this Section 8.01 must specify the default, demandthat it be remedied and state that the notice is a “Notice of Default.”  When any default under this Section 8.01 iscured, it ceases.

 

The Trustee shall not be charged withknowledge of any Event of Default unless written notice thereof shall have beengiven to a Trust Officer at the Corporate Trust Office of the Trustee by theCompany, a Paying Agent, any Holder or any agent of any Holder.

 

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

 

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Trustee may, by notice to the Company, or the Holders of at least 25%in aggregate principal amount of the Securities then outstanding may, by noticeto the Company and the Trustee, declare all unpaid principal of the Securitiesoutstanding on the date of acceleration (if not then due and payable) to be dueand payable upon any such declaration, and the same shall become and beimmediately due and payable.  If anEvent of Default specified in clause (7) or (8) of Section 8.01 occurs, allunpaid principal of the Securities then outstanding shall ipso facto become andbe immediately due and payable without any declaration or other act on the partof the Trustee or any Holder.  TheHolders of a majority in aggregate principal amount of the Securities thenoutstanding by notice to the Trustee and the Company may rescind anacceleration and its consequences if (a) all existing Events of Default, otherthan the nonpayment of the principal of the Securities which has become duesolely by such declaration of acceleration, have been cured or waived; (b) tothe extent the payment of such interest is lawful, interest (calculated at therate per annum borne by the Securities) on overdue installments of interest andoverdue principal, which has become due otherwise than by such declaration ofacceleration, has been paid or deposited with the Trustee; (c) the rescissionwould not conflict with any judgment or decree of a court of competentjurisdiction; and (d) all payments due to the Trustee and any predecessorTrustee under Section 9.07 have been made. No such rescission shall affect any subsequent default or impair anyright consequent thereto.

 

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

 

The Trustee may maintain a proceeding even ifit does not possess any of the Securities or does not produce any of them inthe proceeding.  A delay or omission bythe Trustee or any Securityholder in exercising any right or remedy accruingupon an Event of Default shall not impair the right or remedy or constitute awaiver of or acquiescence in the Event of Default.  No remedy is exclusive of any other remedy.  All available remedies are cumulative to theextent permitted by law.

 

Section 8.04*.  Waiver of Defaults and Events ofDefault. *Subject to Section8.07 and 11.02, the Holders of a majority in aggregate principal amount of theSecurities then outstanding by notice to the Trustee may waive an existingdefault or Event of Default and its consequence, except a default or Event ofDefault in the payment of the principal of, premium, if any, or interest on anySecurity, a failure by the Company to convert any Securities into Common Stockor any default or Event of Default in respect of any provision of thisIndenture or the Securities which, under Section 11.02, cannot be modified oramended

 

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

 

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

 

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

 

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

 

(2)                                  the Holders of atleast 25% in aggregate principal amount of the then outstanding Securities makea written request to the Trustee to pursue the remedy;

 

(3)                                  such Holder orHolders offer to the Trustee reasonable indemnity to the Trustee against anyloss, liability or expense;

 

(4)                                  the Trustee does notcomply with the request within 60 days after receipt of the notice, request andoffer of indemnity; and

 

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

 

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

 

Section 8.07*.  Rights of Holders to Receive Payment and toConvert. *Notwithstanding anyother provision of this Indenture, the right of any Holder of a Security toreceive payment of the principal of and interest on the Security, on or afterthe respective due dates expressed in the Security and this Indenture, toconvert such Security in accordance with Article 4 and to bring suit for the

 

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

 

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

 

Section 8.09*.  Trustee May File Proofs of Claim. *The Trustee may file such proofsof claim and other papers or documents as may be necessary or advisable inorder to have the claims of the Trustee (including any claim for the reasonablecompensation, expenses, disbursements and advances of the Trustee, its agentsand counsel) and the Holders allowed in any judicial proceedings relative tothe Company (or any other obligor on the Securities), its creditors or itsproperty and shall be entitled and empowered to collect and receive any moneyor other property payable or deliverable on any such claims and to distributethe same, and any Custodian in any such judicial proceeding is herebyauthorized by each Holder to make such payments to the Trustee and, in theevent that the Trustee shall consent to the making of such payments directly tothe Holders, to pay to the Trustee any amount due to it for the reasonablecompensation, expenses, disbursements and advances of the Trustee, its agentsand counsel, and any other amounts due the Trustee under Section 9.07, and tothe extent that such payment of the reasonable compensation, expenses,disbursements and advances in any such proceedings shall be denied for anyreason, payment of the same shall be secured by a lien on, and shall be paidout of, any and all distributions, dividends, money, securities and otherproperty which the Holders may be entitled to receive in such proceedings,whether in liquidation or under any plan of reorganization or arrangement orotherwise.  Nothing herein containedshall be deemed to authorize the Trustee to authorize or consent to, or, onbehalf of any Holder, to authorize, accept or adopt any plan of reorganization,arrangement, adjustment or composition affecting the Securities or the rightsof any Holder thereof, or to authorize the Trustee to vote in respect of theclaim of any Holder in any such proceeding.

 

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

 

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First, to the Trustee for amounts due underSection 9.07;

 

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

 

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

 

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

 

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

 

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

 

ARTICLE 9

TRUSTEE

 

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

 

(b)                       Exceptduring the continuance of an Event of Default:

 

(1)                                  theTrustee need perform only those duties as are specifically set forth in thisIndenture and no others; and

 

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

 

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

 

(c)                                  The Trustee may notbe relieved from liability for its own negligent action, its own negligentfailure to act, or its own willful misconduct, except that:

 

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

 

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

 

(3)                                  theTrustee shall not be liable with respect to any action it takes or omits totake in good faith in accordance with a direction received by it pursuant toSection 8.05.

 

(d)                                 No provision of thisIndenture shall require the Trustee to expend or risk its own funds orotherwise incur any financial liability in the performance of any of its dutieshereunder or in the exercise of any of its rights or powers unless the Trusteeshall have received adequate indemnity in its reasonable opinion againstpotential costs and liabilities incurred by it relating thereto.

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)                                 The Trustee shall notbe liable for any action it takes or omits to take in good faith which itbelieves to be authorized or within its rights or powers under the Indenture.

 

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

 

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

 

(g)                                 The Trustee shall notbe bound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, direction, consent, order, bond, debenture, note, other evidence ofindebtedness or other paper or document, but the Trustee, in its discretion,may make such further inquiry or investigation into such facts or matters as itmay see fit, and, if the Trustee shall determine to make such further inquiryor investigation, it shall be entitled to examine the books, records andpremises of the Company, personally or by agent or attorney at the sole cost ofthe Company and shall incur no liability or additional liability of any kind byreason of such inquiry or investigation.

 

(h)                                 The Trustee shall notbe deemed to have notice of any Default or Event of Default unless a TrustOfficer of the Trustee has actual knowledge thereof or unless written notice ofany event which is in fact such a default is received by the Trustee at theCorporate Trust Office, and such notice references the Securities, thisIndenture, and that of an Event of Default has occurred.

 

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

 

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

 

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rights it would have if it were not Trustee.  Any Agent may do the same with like rights.  However, the Trustee is subject to Sections9.10 and 9.11.

 

Section 9.04*.  Trustee’s Disclaimer. *The Trustee makes norepresentation as to the validity or adequacy of this Indenture or theSecurities, it shall not be accountable for the Company’s use of the proceedsfrom the Securities, and it shall not be responsible for any statement in theSecurities other than its certificate of authentication.

 

Section 9.05*.  Notice of Default or Events of Default. *If a default or an Event ofDefault occurs and is continuing and if it is known to the Trustee, the Trusteeshall mail to each Securityholder notice of the default or Event of Defaultwithin 90 days after receiving notice thereof. However, the Trustee may withhold the notice if and so long as acommittee of its Trust Officers in good faith determines that withholdingnotice is in the interests of Securityholders, except in the case of a defaultor an Event of Default in payment of the principal of or interest on anySecurity.

 

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

 

A copy of each report at the time of itsmailing to Securityholders shall be mailed to the Company and filed with theSEC and each stock exchange, if any, on which the Securities are listed.  The Company shall notify the Trusteewhenever the Securities become listed on any stock exchange or listed oradmitted to trading on any quotation system and any changes in the stockexchanges or quotation systems on which the Securities are listed or admittedto trading and of any delisting thereof.

 

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

 

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

 

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determined by the income of the Trustee), (including reasonable legalfees and expenses) incurred by it in connection with the acceptance oradministration of its duties under this Indenture or any action or failure toact as authorized or within the discretion or rights or powers conferred uponthe Trustee hereunder including the reasonable costs and expenses of theTrustee and its counsel in defending itself against any claim or liability inconnection with the exercise or performance of any of its powers or dutieshereunder.  The Trustee shall notify theCompany promptly of any claim asserted against the Trustee for which it mayseek indemnity.  The Company need notpay for any settlement without its written consent, which shall not beunreasonably withheld.

 

The Company need not reimburse the Trusteefor any expense or indemnify it against any loss or liability incurred by itresulting from its gross negligence, willful misconduct, recklessness or badfaith.

 

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

 

When the Trustee incurs expenses or rendersservices after an Event of Default specified in clause (7) or (8) of Section8.01 occurs, the expenses and the compensation for the services are intended toconstitute expenses of administration under any Bankruptcy Law. The provisionsof this Section shall survive the termination of this Indenture.

 

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

 

(1)                                  theTrustee fails to comply with Section 9.10;

 

(2)                                  theTrustee is adjudged a bankrupt or an insolvent;

 

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

 

(4)                                  theTrustee becomes incapable of acting.

 

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

 

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

 

If the Trustee fails to comply with Section9.10, the Company may remove the Trustee and any Holder may petition any courtof competent jurisdiction for the removal of the Trustee and the appointment ofa successor Trustee.

 

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

 

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

 

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

 

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

 

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

 

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specified in this Article 9. The Trustee shall be subject to the provisions of TIA Section310(b).  Nothing herein shall preventthe Trustee from filing with the SEC the application referred to in thepenultimate paragraph of TIA Section 310(b).

 

Section 9.11*.  Preferential Collection of Claims againstCompany. *The Trustee shallcomply with TIA Section 311(a), excluding any creditor relationship listed inTIA Section 311(b).  A Trustee who hasresigned or been removed shall be subject to TIA Section 311(a) to the extentindicated therein.

 

ARTICLE 10

SATISFACTIONAND DISCHARGE OF INDENTURE

 

Section 10.01*.  Satisfaction and Discharge ofIndenture. *This Indentureshall cease to be of further effect (except as to any surviving rights ofconversion, registration of transfer or exchange of Securities herein expresslyprovided for and except as further provided below), and the Trustee, on demandof and at the expense of the Company, shall execute proper instrumentsacknowledging satisfaction and discharge of this Indenture, when

 

(1)                                  either

 

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

 

(B)                                all such Securities nottheretofore delivered to the Trustee for cancellation

 

(i)                                     have become dueand payable, or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Trustee and each Paying Agent shall payto the Company upon request any money held by them for the payment of principalor interest that remains unclaimed for two years after a right to such moneyhas matured; *provided*, *however*, that the Trustee or such PayingAgent, before being required to make any such payment, may at the expense ofthe Company cause to be mailed to each Holder entitled to such money noticethat such money remains unclaimed and that after a date specified therein,which shall be at least 30 days from the date of such mailing, any unclaimedbalance of such money then remaining will be repaid to the Company.  After payment to the Company, Holders entitledto money must look to the Company for payment as general creditors unless anapplicable abandoned property law designates another person.

 

Section 10.04*.  Reinstatement. *If the Trustee or any Paying Agent is unable to applyany money in accordance with Section 10.02 by reason of any legal proceeding orby reason of any order or judgment of any court or governmental authorityenjoining, restraining or otherwise prohibiting such application, then theCompany’s obligations under this Indenture and the Securities shall be revivedand reinstated as though no deposit had occurred

 

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

 

ARTICLE 11

AMENDMENTS,SUPPLEMENTS AND WAIVERS

 

Section 11.01*.  Without Consent of Holders. *The Company and the Trustee mayamend or supplement this Indenture or the Securities without notice to orconsent of any Securityholder:

 

(a)                        to complywith Section 4.11 and 7.01;

 

(b)                       to cure anyambiguity, defect or inconsistency;

 

(c)                        to makeany other change that does not adversely affect the rights of anySecurityholder;

 

(d)                       to complywith the provisions of the TIA;

 

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

 

(f)                          toappoint a successor Trustee.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)                       adverselyaffect the right of Holders to convert Securities other than as provided in orunder Article 4 of this Indenture;

 

(i)                           reducethe percentage of the aggregate principal amount of the outstanding Securitieswhose Holders must consent to a modification or amendment;

 

(j)                           reducethe percentage of the aggregate principal amount of the outstanding Securitiesnecessary for the waiver of compliance with certain provisions of thisIndenture or the waiver of certain defaults under this Indenture; and

 

(k)                        modify anyof the provisions of this Section or Section 8.04, except to increase any suchpercentage or to provide that certain provisions of this Indenture cannot bemodified or waived without the consent of the Holder of each outstandingSecurity affected thereby.

 

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

 

After an amendment, supplement or waiverunder this Section 11.02 becomes effective, the Company shall mail to theHolders affected thereby a notice briefly describing the amendment, supplementor waiver.  Any failure of the Companyto mail such notice, or any defect therein, shall not, however, in any wayimpair or affect the validity of any such amendment, supplement or waiver. Anamendment or supplement under this Section 11.02 or under Section 11.01 may notmake any change that adversely affects the rights under Article 5 of any

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

ARTICLE 12

MISCELLANEOUS

 

Section 12.01*.  Trust Indenture Act Controls. *If any provision of thisIndenture limits, qualifies or conflicts with the duties imposed by any ofSections 310 to 317, inclusive, of the TIA through operation of Section318(c) thereof, such imposed duties shall control.

 

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

 

If to the Company, to:

 

DuPont Photomasks, Inc.

131 Old Settlers Boulevard

Round Rock, Texas  78664

Attention: General Counsel

Facsimile No.:  (512) 310-6544

 

If to the Trustee, to:

 

JPMorgan Chase Bank

600 Travis, Suite 1150

Houston, Texas  77002

Attn:  Corporate TrustDepartment (DuPont Photomasks, Inc. —1.25% Convertible Subordinated Notes Due May 15, 2008)

Facsimile No.:  (713) 577-5200

 

Such notices or communications shall beeffective when received.

 

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

 

Any notice or communication mailed to aSecurityholder shall be mailed by first-class mail or delivered by an overnightdelivery service to it at its address shown on the register kept by the PrimaryRegistrar.

 

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Failure to mail a notice or communication toa Securityholder or any defect in it shall not affect its sufficiency withrespect to other Securityholders.  If anotice or communication to a Securityholder is mailed in the manner providedabove, it is duly given, whether or not the addressee receives it.

 

Section 12.03*.  Communications by Holders with OtherHolders. *Securityholders maycommunicate pursuant to TIA Section 312(b) with other Securityholders withrespect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar andany other person shall have the protection of TIA Section 312(c).

 

Section 12.04*.  Certificate and Opinion as to ConditionsPrecedent. *(a) Upon anyrequest or application by the Company to the Trustee to take any action underthis Indenture, the Company shall furnish to the Trustee at the request of theTrustee:

 

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

 

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

 

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

 

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

 

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

 

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

 

(4)                                  a statement as towhether or not, in the opinion of such person, such condition or covenant hasbeen complied with;

 

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

 

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

 

Section 12.06*.  Rules by Trustee, Paying Agent, Registrarand Conversion Agent. *TheTrustee may make reasonable rules (not inconsistent with the terms of thisIndenture) for action by or at a meeting of Holders.  Any Registrar, Paying Agent or Conversion Agent may makereasonable rules for its functions.

 

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

 

Section 12.08*.  Governing Law. *This Indenture and the Securities shall be governedby, and construed in accordance with, the laws of the State of New York, withoutregard to principles of conflicts of laws.

 

Section 12.09*.  No Adverse Interpretation of OtherAgreements. *This Indenturemay not be used to interpret another indenture, loan or debt agreement of theCompany or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpretthis Indenture.

 

Section 12.10*.  No Recourse against Others. *All liability described inparagraph 15 of the Securities of any director, officer, employee orstockholder, as such, of the Company is waived and released.

 

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

 

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Section 12.12*.  Multiple Counterparts. *The parties may sign multiplecounterparts of this Indenture.  Eachsigned counterpart shall be deemed an original, but all of them togetherrepresent the same agreement.

 

Section 12.13*.  Separability. *In case any provisions in this Indenture or in theSecurities shall be invalid, illegal or unenforceable, the validity, legalityand enforceability of the remaining provisions shall not in any way be affectedor impaired thereby.

 

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

 

[SIGNATURE PAGE FOLLOWS]

 

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

 
|   | DuPont Photomasks, Inc. |
|--------|-------------------------|
|   |                    |
|   |                    |
|   | By:                     | /s/  Peter S. Kirlin |
|   |                    | Name: | Peter S. Kirlin |
|   |                    | Title: | Chairman and Chief Executive Officer |

 
|   | JPMorgan Chase Bank, as Trustee |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             | /s/  Carol Logan |
|   |                            | Name: | Carol Logan |
|   |                            | Title: | Vice President and Trust Officer |

 

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**EXHIBIT A**

 

**[FORM OF FACE OF SECURITY]**

** **

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

 

[UNLESS THIS CERTIFICATE IS PRESENTED BY ANAUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITSAGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATEISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (ANDANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANYTRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSONIS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTERESTHEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTUREHEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR ANOMINEE THEREOF.  THIS SECURITY ISEXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THEDEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THEINDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIESIN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BYTHE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARYTO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY ORANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSORDEPOSITARY.](2)

 

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

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

 

A-1

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THIS SECURITY (OR ITS PREDECESSOR) WASORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITEDSTATES SECURITIES ACT OF 1933 (THE “**SECURITIES ACT**”), AND THIS SECURITY AND THESHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLDOR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLEEXEMPTION THEREFROM.  EACH PURCHASER OFTHIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BERELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACTPROVIDED BY RULE 144A OR REGULATION S THEREUNDER.

 

THE HOLDER OF THIS SECURITY AGREES FOR THEBENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES OF COMMON STOCKISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISETRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLERREASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144AUNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCEWITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROMREGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IFAVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THESECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANYAPPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDERWILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THISSECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.  IN ANY CASE, THE HOLDER HEREOF WILL NOT,DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THESECURITIES EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.

 

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

 

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

 

A-2

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**DUPONT PHOTOMASKS, INC.**

 
| CUSIP:                     |   | [R][S]                   |
|--------------------------------------------------------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------|

 

1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY15, 2008

 

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

 

Interest Payment Dates:  May 15and November 15

 

Record Dates:  May 1 andNovember 1

 

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

 

SIGNATURE PAGE FOLLOWS

 

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

 

A-3

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

 
|   | DUPONT PHOTOMASKS, INC. |
|--------|-------------------------|
|   |
|   |                    |
|   | By:                     |   |   |
|   | Name:                   |
|   | Title:                  |
|        |                         |  |  |  |

 
| Attest: |
|---------|
|    |
|    |
| By:     |   |   |
|    | Name: |
|    | Title: |

 

Dated:

 

Trustee’s Certificate of Authentication:  This is one of theSecurities referred to in the within-mentioned Indenture.

 
| JPMORGAN CHASE BANK,  as Trustee |
|----------------------------------|
|                             |
|                             |
| By:                              |   |   |
|                             | Authorized Signatory: |

 

 

A-4

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**[FORM OF REVERSE SIDE OF SECURITY]**

** **

**DUPONT PHOTOMASKS, INC.1.25% CONVERTIBLE SUBORDINATED NOTES DUE MAY 15, 2008**

** **

1.                                       INTEREST

 

DuPont Photomasks, Inc., a Delawarecorporation (the “**Company**”, which term shall include anysuccessor under the Indenture hereinafter referred to), promises to payinterest on the principal amount of this Note at the rate of 1.25% perannum.  The Company shall pay interestsemiannually on May 15 and November 15 of each year, commencing November 15, 2003.  Interest on the Notes shall accrue from themost recent date to which interest has been paid or, if no interest has beenpaid, from May 5, 2003; *provided*, *however*, that if there isnot an existing default in the payment of interest and if this Note isauthenticated between a record date referred to on the face hereof and the nextsucceeding interest payment date, interest shall accrue from such interestpayment date.  Interest will be computedon the basis of a 360-day year of twelve 30-day months.  Any reference herein to interest accrued orpayable as of any date shall include any Additional Interest accrued or payableon such date as provided in the Registration Rights Agreement.

 

2.                                       METHODOF PAYMENT

 

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

 

3.                                       PAYING AGENT,REGISTRAR AND CONVERSION AGENT

 

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

 

A-5

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

 

4.                                       INDENTURE

 

This Note is one of a duly authorized issueof Securities of the Company designated as its 1.25% Convertible SubordinatedNotes Due May 15, 2008 (the “**Notes**”), issued under an Indenture dated asof May 5, 2003 (together with any supplemental indentures thereto, the “**Indenture**”),between the Company and the Trustee. The terms of this Note include those stated in the Indenture and those requiredby or made part of the Indenture by reference to the Trust Indenture Act of1939, as amended, as in effect on the date of the Indenture.  This Note is subject to all such terms, andthe Holder of this Note is referred to the Indenture and said Act for astatement of them.

 

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

 

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

 

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

 

6.                                       CONVERSION

 

A Holder of a Note may convert the principalamount of such Note (or any portion thereof equal to $1,000 or any multiple of$1,000 in excess thereof) into shares of Common Stock at any time prior to theclose of business on May 15, 2008; *provided*, *however*, that if the Note issubject to purchase upon a Change in Control, the conversion right willterminate at the close of business on the Business Day immediately precedingthe Change in Control Purchase Date, as the case may be, for such Note or suchearlier date as the Holder presents such Note

 

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

 

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

 

To convert a Note, a Holder must (a) completeand manually sign the conversion notice set forth below and deliver such noticeto a Conversion Agent, (b) surrender the Note to a Conversion Agent, (c)furnish appropriate endorsements and transfer documents if required by aRegistrar or a Conversion Agent, and (d) pay any transfer or similar tax, ifrequired.  Notes so surrendered forconversion (in whole or in part) during the period from the close of businesson any regular record date to the opening of business on the next succeedinginterest payment date (excluding Notes or portions thereof subject to purchaseupon a Change in Control on a Change in Control Purchase Date during the periodbeginning at the close of business on a regular record date and ending at theopening of business on the first Business Day after the next succeedinginterest payment date, or if such interest payment date is not a Business Day,the second such Business Day) shall also be accompanied by payment in fundsacceptable to the Company of an amount equal to the interest payable on suchinterest payment date on the principal amount of such Note then beingconverted, and such interest shall be payable to such registered Holdernotwithstanding the conversion of such Note, subject to the provisions of thisIndenture relating to the payment of defaulted interest by the Company.  If the Company defaults in the payment ofinterest payable on such interest payment date, the Company shall promptlyrepay such funds to such Holder.  AHolder may convert a portion of a Note equal to $1,000 or any multiple thereof.

 

A Note in respect of which a Holder haddelivered a Change in Control Purchase Notice exercising the option of suchHolder to require the Company to purchase such Note may be converted only ifthe Change in Control Purchase Notice is withdrawn in accordance with the termsof the Indenture.

 

7.                                       SUBORDINATION

 

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

 

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the prior payment in full of all Senior Indebtedness of theCompany.  Any Holder by accepting thisNote agrees to and shall be bound by such subordination provisions andauthorizes the Trustee to give them effect. In addition to all other rights ofSenior Indebtedness described in the Indenture, the Senior Indebtedness shallcontinue to be Senior Indebtedness and entitled to the benefits of thesubordination provisions irrespective of any amendment, modification or waiverof any terms of any instrument relating to the Senior Indebtedness or anyextension or renewal of the Senior Indebtedness.

 

8.                                       DENOMINATIONS,TRANSFER, EXCHANGE

 

The Notes are in registered form, withoutcoupons, in denominations of $1,000 and multiples of $1,000.  A Holder may register the transfer of orexchange Notes in accordance with the Indenture.  The Registrar may require a Holder, among other things, tofurnish appropriate endorsements and transfer documents and to pay any taxes orother governmental charges that may be imposed in relation thereto by law orpermitted by the Indenture.

 

9.                                       PERSONS DEEMEDOWNERS

 

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

 

10.                                 UNCLAIMED MONEY

 

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

 

11.                                 AMENDMENT, SUPPLEMENTAND WAIVER

 

Subject to certain exceptions, the Indentureor the Notes may be amended or supplemented with the consent of the Holders ofat least a majority in aggregate principal amount of the Notes thenoutstanding, and an existing default or Event of Default and its consequence orcompliance with any provision of the Indenture or the Notes may be waived in aparticular instance with the consent of the Holders of a majority in aggregateprincipal amount of the Notes then outstanding.  Without the consent of or notice to any Holder, the Company andthe Trustee may amend or supplement the Indenture or the Notes to, among otherthings, cure any ambiguity, defect or inconsistency or make any other changethat does not adversely affect the rights of any Holder.

 

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12.                                 SUCCESSOR ENTITY

 

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

 

13.                                 DEFAULTS AND REMEDIES

 

Under the Indenture, an Event of Defaultincludes:  (i) default for 30 days inpayment of any interest or Additional Interest on any Notes; (ii) default inpayment of any principal (including, without limitation, any premium, if any)on the Notes when due; (iii) failure by the Company for 60 days after writtennotice to it to comply with any of its other agreements contained in theIndenture or the Notes; (iv) default in the payment of the purchase price ofthe Notes when due; (v) failure to provide a Change of Control Notice asrequired in the Indenture; (vi) default in the payment of certain indebtednessof the Company or a Significant Subsidiary and (vii) certain events ofbankruptcy, insolvency or reorganization of the Company or any SignificantSubsidiary.  If an Event of Default(other than as a result of certain events of bankruptcy, insolvency orreorganization of the Company) occurs and is continuing, the Trustee or theHolders of at least 25% in aggregate principal amount of the Notes thenoutstanding may declare all unpaid principal to the date of acceleration on theNotes then outstanding to be due and payable immediately, all as and to theextent provided in the Indenture.  If anEvent of Default occurs as a result of certain events of bankruptcy, insolvencyor reorganization of the Company, unpaid principal of the Notes thenoutstanding shall become due and payable immediately without any declaration orother act on the part of the Trustee or any Holder, all as and to the extentprovided in the Indenture.  Holders maynot enforce the Indenture or the Notes except as provided in theIndenture.  The Trustee may requireindemnity satisfactory to it before it enforces the Indenture or theNotes.  Subject to certain limitations,Holders of a majority in aggregate principal amount of the Notes thenoutstanding may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders noticeof any continuing default (except a default in payment of principal orinterest) if it determines that withholding notice is in their interests.  The Company is required to file periodicreports with the Trustee as to the absence of default.

 

14.                                 TRUSTEE DEALINGS WITHTHE COMPANY

 

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

 

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15.                                 NO RECOURSE AGAINSTOTHERS

 

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

 

16.                                 AUTHENTICATION

 

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

 

17.                                 ABBREVIATIONS ANDDEFINITIONS

 

Customary abbreviations may be used in thename of the Holder or an assignee, such as: TEN COM (= tenants in common), TENENT (= tenants by the entireties), JT TEN (= joint tenants with right ofsurvivorship and not as tenants in common), CUST (= Custodian) and UGMA (=Uniform Gifts to Minors Act).

 

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

 

18.                                 INDENTURE TO CONTROL;GOVERNING LAW

 

In the case of any conflict between theprovisions of this Note and the Indenture, the provisions of the Indentureshall control.  This Note shall begoverned by, and construed in accordance with, the laws of the State of NewYork, without regard to principals of conflicts of law.

 

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

 

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**ASSIGNMENT FORM**

** **

To assign this Note, fill in the form below:

 

I or we assign and transfer this Note to

 

 

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

 

 

 

 

 

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

 

and irrevocably appoint

 

 

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

 
|   | Company Name                                                        |
|--------|---------------------------------------------------------------------|
|   |                                                                |
| Date:  |                                                                |   |   |   |
|   | (Sign exactly as your name appears on  the other side of this Note) |
|        |                                                                     |  |  |  |

 
| *Signature guaranteed by: |   |
|---------------------------|--------|
|                      |   |
|                      |   |
| By:                       |   |   |   |   |
|                           |        |  |  |  |

 

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

 

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**CONVERSION NOTICE**

** **

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

 

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

 

If you want the stock certificate made out inanother person’s name, fill in the form below:

 

 

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

 

 

 

 

 

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

 

and irrevocably appoint

 

 

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

 
|   |                                                                |
|--------|---------------------------------------------------------------------|
|   | Company Name                                                        |
|   |                                                                |
| Date:  |                                                                |   |   |   |
|   | (Sign exactly as your name appears on  the other side of this Note) |
|        |                                                                     |  |  |  |

 
| *Signature guaranteed by: |
|---------------------------|
|                      |
|                      |
| By:                       |   |   |

 

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

 

A-12

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**OPTION TO ELECT REPURCHASEUPON A CHANGE OF CONTROL**

** **

To:                              DuPontPhotomasks, Inc.

 

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

 
| Dated:                                                                                                                                                                                                                                                                                                                                           |                                                                                                                                                                                                  |   |   |   |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |   |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |   |
|                                                                                                                                                                                                                                                                                                                                             | Signature(s)                                                                                                                                                                                          |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |
|                                                                                                                                                                                                                                                                                                                                             | Signature(s) must be guaranteed by a qualified guarantor institution  with membership in an approved signature guarantee program pursuant to Rule  17Ad-15 under the Securities Exchange Act of 1934. |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |   |
|                                                                                                                                                                                                                                                                                                                                             | Signature Guaranty                                                                                                                                                                                    |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |
| Principal amount to be redeemed                                                                                                                                                                                                                                                                                                                  |                                                                                                                                                                                                  |
| (in a multiple of $1,000, if less than all):                                                                                                                                                                                                                                                                                                     |                                                                                                                                                                                                  |
|                                                                                                                                                                                                                                                                                                                                             |                                                                                                                                                                                                  |
|                                                          |                                                                                                                                                                                                  |   |
|                                                                                                                                                                                                                                                                                                                                                  |                                                                                                                                                                                                       |        |        |        |  |

 

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

 

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**SCHEDULE OF EXCHANGES OF NOTES(5)**

 

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

 
| **Principal Amount  of this Global Note  Following Such  Decrease Date  of Exchange (or  Increase)** |   | **Authorized  Signatory of  Securities  Custodian** |       | **Amount of  Decrease  in  Principal Amount  of this Global Note** |       | **Amount of  Increase in  Principal Amount  of this Global Note** |       |
|------------------------------------------------------------------------------------------------------|--------|-----------------------------------------------------|------------|--------------------------------------------------------------------|------------|-------------------------------------------------------------------|------------|
|                                                                                                 |   |                                                | ** ** |                                                               | ** ** |                                                              | ** ** |

 

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

 

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**EXHIBIT B**

 

**[FORMOF CERTIFICATE FOR EXCHANGE OR REGISTRATION OFTRANSFER TO REGULATION S GLOBAL SECURITY](6)**

 

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

 

JPMorgan Chase Bank, as trustee

600 Travis, Suite 1150

Houston, Texas  77002

 

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

 

Dear Ladies and Gentlemen:

 

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

 

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

 

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

 

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

 

(2)                                  either:

 

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

 

A-15

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(i)                                     at the time thebuy order was originated, the transferee was outside the United States or theTransferor and any person acting on its behalf reasonably believed and believesthat the transferee was outside the United States; or

 

(ii)                                  the transaction wasexecuted in, on or through the facilities of a designated offshore securitiesmarket and neither the Transferor nor any person acting on its behalf knowsthat the transaction was prearranged with a buyer in the United States;

 

(3)                                  no directed sellingefforts have been made in contravention of the requirements of Rule 904(b) ofRegulation S;

 

(4)                                  the transaction isnot part of a plan or scheme to evade the registration requirements of theSecurities Act; and

 

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

 

(6)                                  With respect totransfers made in reliance on Rule 144, the Securities are being transferred ina transaction permitted by Rule 144 under the Securities Act; and with respectto transfer made in reliance on Rule 144A, that such Securities are beingtransferred in accordance with Rule 144A under the Securities Act to atransferee that the Transferor reasonably believes is purchasing the Securitiesfor its own account or an account with respect to which the transfereeexercises sole investment discretion and the transferee and any such account isa “qualified institutional buyer” within the meaning of Rule 144A, in atransaction meeting the requirements of Rule 144A and in accordance withapplicable securities laws of any state of the United States or any otherjurisdiction.

 

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

 

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

 

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

 

This certificate and the statements contained herein are made for yourbenefit and the benefit of the Company and the Initial Purchasers, and you andeach of them is entitled to rely on the contents of this certificate.  Terms used in this certificate and nototherwise defined in the Indenture have the meanings set forth in Regulation Sunder the Securities Act.

 
|                        |   |
|-----------------------------|--------|
|                        |   |   |
| [Insert Name of Transferor] |   |
|                        |   |
|                        |   |
| By:                         |   |   |
|                        | Name:  |
|                        | Title: |
|                        |
| Dated:                      |   |   |   |
|                             |        |  |  |  |  |

 

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**EXHIBIT C**

 

**[FORMOF CERTIFICATE FOR EXCHANGE OR REGISTRATION OFTRANSFER TO RULE 144A RESTRICTED GLOBAL SECURITY](7)**

 

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

 

JPMorgan Chase Bank, as trustee

600 Travis, Suite 1150

Houston, Texas  77002

 

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

 

Dear Ladies and Gentlemen:

 

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

 

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

 

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

 

[CHECK ONE]

 

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

 

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

 

A-18

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“qualifiedinstitutional buyer” within the meaning of Rule 144A in a transaction meetingthe requirements of Rule 144A;

 

or

 

                                                suchtransfer is being effected pursuant to and in accordance with Rule 144 underthe Securities Act;

 

or

 

                                                suchtransfer is being effected pursuant to an effective registration statementunder the Securities Act;

 

or

 

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

 

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

 

Upon giving effect to this request (i) to exchange a beneficialinterest in Regulation S Global Securities for a beneficial interest inRestricted Global Securities, (ii) to exchange a beneficial interest in GlobalSecurities for a beneficial interest in Securities in certificated form or(iii) to exchange a beneficial interest in Securities in certificated form fora beneficial interest in Securities in certificated form, the resultingbeneficial interest shall be subject to the restrictions on transfer applicableto Restricted Global Securities pursuant to the Indenture and the SecuritiesAct.

 

A-19

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This certificate and the statements contained herein are made for yourbenefit and the benefit of the Company and the Initial Purchaser, and you andeach of them is entitled to rely on the contents of this certificate.  Terms used in this certificate and nototherwise defined in the Indenture have the meanings set forth in Regulation Sunder the Securities Act.

 

 
|                        |   |   |
|-----------------------------|--------|--------|
| [Insert Name of Transferor] |   |
|                        |
|                        |
| By:                         |   |   |
|                        | Name:  |
|                        | Title: |
|                        |
| Dated:                      |   |   |   |
|                             |        |        |  |  |  |

 

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