exv4w1



 






Exhibit 4.1




SAFENET, INC.




21/2% CONVERTIBLE SUBORDINATED NOTES DUE 2010




 






INDENTURE




DATED AS OF DECEMBER 13, 2005




 






CITIBANK, N.A.,




AS TRUSTEE





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Other Definition
	 	 	11	 
	Section 1.03 Trust Indenture Act Provisions
	 	 	12	 
	Section 1.04 Rules of Construction
	 	 	12	 
	Article 2 THE SECURITIES
	 	 	13	 
	Section 2.01 Form and Dating
	 	 	13	 
	Section 2.02 Execution and Authentication
	 	 	14	 
	Section 2.03 Registrar, Paying Agent and Conversion Agent
	 	 	15	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	16	 
	Section 2.05 Lists of Holders of Securities
	 	 	16	 
	Section 2.06 Transfer and Exchange
	 	 	16	 
	Section 2.07 Replacement Securities
	 	 	18	 
	Section 2.08 Outstanding Securities
	 	 	18	 
	Section 2.09 Treasury Securities
	 	 	19	 
	Section 2.10 Temporary Securities
	 	 	19	 
	Section 2.11 Cancellation
	 	 	19	 
	Section 2.12 Legend; Additional Transfer and Exchange Requirements
	 	 	20	 
	Section 2.13 CUSIP Numbers
	 	 	24	 
	Article 3 MANDATORY REDEMPTION UPON SPECIAL TRIGGER EVENT AND PURCHASE UPON FUNDAMENTAL CHANGE
	 	 	24	 
	Section 3.01 Mandatory Redemption upon Special Trigger Event
	 	 	24	 
	Section 3.02 [Intentionally Omitted]
	 	 	24	 
	Section 3.03 Notice of Mandatory Redemption
	 	 	24	 
	Section 3.04 Effect of Mandatory Redemption
	 	 	25	 
	Section 3.05 Deposit of Mandatory Redemption Price
	 	 	26	 
	Section 3.06 [Intentionally Omitted]
	 	 	26	 
	Section 3.07 Conversion Arrangement In Connection with Mandatory Redemption
	 	 	26	 
	Section 3.08 Purchase at Holders’ Option upon a Fundamental Change
	 	 	27	 
	Section 3.09 Effect of Fundamental Change Purchase Notice
	 	 	29	 






 









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Section 3.10 Deposit of Fundamental Change Purchase Price
	 	 	30	 
	Section 3.11 Repayment to The Company
	 	 	31	 
	Section 3.12 [Intentionally Omitted]
	 	 	31	 
	Section 3.13 Securities Purchased in Part
	 	 	31	 
	Section 3.14 Compliance with Securities Laws upon Purchase of Securities
	 	 	31	 
	Section 3.15 Purchase of Securities in Open Market
	 	 	31	 
	Article 4 CONVERSION
	 	 	33	 
	Section 4.01 Conversion Privilege and Conversion Rate
	 	 	33	 
	Section 4.02 Conversion Procedure
	 	 	38	 
	Section 4.03 Fractional Shares
	 	 	40	 
	Section 4.04 Taxes on Conversion
	 	 	40	 
	Section 4.05 Company to Provide Stock
	 	 	40	 
	Section 4.06 Adjustment of Conversion Rate
	 	 	41	 
	Section 4.07 No Adjustment
	 	 	48	 
	Section 4.08 [Intentionally Omitted]
	 	 	48	 
	Section 4.09 Notice of Adjustment
	 	 	48	 
	Section 4.10 Notice of Certain Transactions
	 	 	48	 
	Section 4.11 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale
	 	 	49	 
	Section 4.12 Trustee’s Disclaimer
	 	 	50	 
	Section 4.13 Voluntary Increase
	 	 	50	 
	Section 4.14 Payment of Cash in Lieu of Common Stock
	 	 	51	 
	Article 5 COVENANTS
	 	 	53	 
	Section 5.01 Payment of Securities
	 	 	53	 
	Section 5.02 SEC and Other Reports
	 	 	53	 
	Section 5.03 Compliance Certificates
	 	 	54	 
	Section 5.04 Further Instruments and Acts
	 	 	54	 
	Section 5.05 Maintenance of Corporate Existence
	 	 	54	 
	Section 5.06 Rule 144A Information Requirement
	 	 	54	 
	Section 5.07 Stay, Extension and Usury Laws
	 	 	55	 
	Section 5.08 Payment of Liquidated Damages
	 	 	55	 
	Section 5.09 Maintenance of Office or Agency
	 	 	55	 
	Article 6 CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE
	 	 	57	 






ii









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Section 6.01 Company May Consolidate, Etc., Only on Certain Terms
	 	 	57	 
	Section 6.02 Successor Substituted
	 	 	57	 
	Article 7 DEFAULT AND REMEDIES
	 	 	58	 
	Section 7.01 Events of Default
	 	 	58	 
	Section 7.02 Acceleration
	 	 	60	 
	Section 7.03 Other Remedies
	 	 	60	 
	Section 7.04 Waiver of Defaults and Events of Default
	 	 	61	 
	Section 7.05 Control by Majority
	 	 	61	 
	Section 7.06 Limitations on Suits
	 	 	61	 
	Section 7.07 Rights of Holders to Receive Payment and to Convert
	 	 	62	 
	Section 7.08 Collection Suit by Trustee
	 	 	62	 
	Section 7.09 Trustee May File Proofs of Claim
	 	 	62	 
	Section 7.10 Priorities
	 	 	63	 
	Section 7.11 Undertaking for Costs
	 	 	63	 
	Article 8 TRUSTEE
	 	 	65	 
	Section 8.01 Obligations of Trustee
	 	 	65	 
	Section 8.02 Rights of Trustee
	 	 	66	 
	Section 8.03 Individual Rights of Trustee
	 	 	67	 
	Section 8.04 Trustee’s Disclaimer
	 	 	67	 
	Section 8.05 Notice of Default or Events of Default
	 	 	68	 
	Section 8.06 Reports by Trustee to Holders
	 	 	68	 
	Section 8.07 Compensation and Indemnity
	 	 	68	 
	Section 8.08 Replacement of Trustee
	 	 	69	 
	Section 8.09 Successor Trustee by Merger, Etc
	 	 	70	 
	Section 8.10 Eligibility; Disqualification
	 	 	70	 
	Section 8.11 Preferential Collection of Claims Against Company
	 	 	71	 
	Article 9 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	72	 
	Section 9.01 Satisfaction and Discharge of Indenture
	 	 	72	 
	Section 9.02 Application of Trust Money
	 	 	72	 
	Section 9.03 Repayment to Company
	 	 	73	 
	Section 9.04 Reinstatement
	 	 	73	 






iii









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Article 10 AMENDMENTS; SUPPLEMENTS AND WAIVERS
	 	 	74	 
	Section 10.01 Without Consent of Holders
	 	 	74	 
	Section 10.02 With Consent of Holders
	 	 	74	 
	Section 10.03 Compliance with Trust Indenture Act
	 	 	77	 
	Section 10.04 Revocation and Effect of Consents
	 	 	77	 
	Section 10.05 Notation on or Exchange of Securities
	 	 	77	 
	Section 10.06 Trustee to Sign Amendments, Etc
	 	 	77	 
	Section 10.07 Effect of Supplemental Indentures
	 	 	78	 
	Article 11 SUBORDINATION
	 	 	78	 
	Section 11.01 Agreement to Subordinate
	 	 	78	 
	Section 11.02 Payment to Holders
	 	 	78	 
	Section 11.03 Subrogation of Securities
	 	 	81	 
	Section 11.04 Authorization to Effect Subordination
	 	 	82	 
	Section 11.05 Notice to Trustee
	 	 	82	 
	Section 11.06 Trustee’s Relation to Senior Indebtedness
	 	 	83	 
	Section 11.07 No Impairment of Subordination
	 	 	84	 
	Section 11.08 Certain Conversions Deemed Payment
	 	 	84	 
	Section 11.09 Article Applicable to Paying Agents
	 	 	84	 
	Section 11.10 Senior Indebtedness Entitled to Rely
	 	 	85	 
	Section 11.11 Reinstatement
	 	 	85	 
	Section 11.12 Actions by Holders of Senior Indebtedness
	 	 	85	 
	Article 12 MISCELLANEOUS
	 	 	87	 
	Section 12.01 Trust Indenture Act Controls
	 	 	87	 
	Section 12.02 Notices
	 	 	87	 
	Section 12.03 Communications By Holders with Other Holder
	 	 	88	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent
	 	 	88	 
	Section 12.05 Record Date for Vote or Consent of Holders of Securities
	 	 	89	 
	Section 12.06 Rules by Trustee, Paying Agent, Registrar and Conversion Agent
	 	 	89	 
	Section 12.07 Legal Holidays
	 	 	89	 
	Section 12.08 Governing Law
	 	 	90	 
	Section 12.09 No Adverse Interpretation of Other Agreements
	 	 	90	 
	Section 12.10 No Recourse Against Others
	 	 	90	 






iv









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Section 12.11 No Security Interest Created
	 	 	90	 
	Section 12.12 Successors
	 	 	90	 
	Section 12.13 Multiple Counterparts
	 	 	90	 
	Section 12.14 Separability
	 	 	90	 
	Section 12.15 Table of Contents, Headings, Etc
	 	 	91	 
	 
	 	 	 	 
	Exhibit A
	 	 	A-1	 






v









 






CROSS REFERENCE TABLE*




	 	 	 	 	 
	TIA	 	 	 	INDENTURE
	SECTION	 	 	 	SECTION
	Section	 	310
	 	12.01
	 	 	310(a)(1)
	 	8.10
	 	 	(a)(2)
	 	8.10
	 	 	(a)(3)
	 	N.A.**
	 	 	(a)(4)
	 	N.A.
	 	 	(a)(5)
	 	8.10
	 	 	(b)
	 	8.10
	 	 	(c)
	 	N.A.
	Section	 	311
	 	12.01
	 	 	311(a)
	 	8.11
	 	 	(b)
	 	8.11
	 	 	(c)
	 	N.A.
	Section	 	312
	 	12.01
	 	 	312(a)
	 	2.05
	 	 	(b)
	 	12.03
	 	 	(c)
	 	12.03
	Section	 	313
	 	12.01
	 	 	313(a)
	 	8.06(a)
	 	 	(b)(1)
	 	N.A.
	 	 	(b)(2)
	 	8.06(a)
	 	 	(c)
	 	8.06(a)
	 	 	(d)
	 	8.06(b)
	Section	 	314
	 	12.01
	 	 	314(a)
	 	5.02(a); 5.03
	 	 	(b)
	 	N.A.
	 	 	(c)(1)
	 	2.02; 9.01; 12.04
	 	 	(c)(2)
	 	9.01; 12.04
	 	 	(c)(3)
	 	N.A.
	 	 	(d)
	 	N.A.
	 	 	(e)
	 	12.04
	 	 	(f)
	 	N.A.
	Section	 	315
	 	12.01
	 	 	315(a)
	 	8.01(b)
	 	 	(b)
	 	8.05
	 	 	(d)
	 	8.01(c)
	 	 	(d)(2)
	 	8.01(c)
	 	 	(d)(3)
	 	8.01(c)
	 	 	(e)
	 	7.11
	Section	 	316
	 	12.01
	 	 	316(a)
	 	7.05; 10.02(b)
	 	 	(b)
	 	7.07
	 	 	(c)
	 	12.05
	Section	 	317
	 	7.08; 7.09; 12.01
	Section	 	318
	 	12.01








 




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




 









 










     THIS INDENTURE dated as of December 13, 2005 is between SafeNet, Inc., a corporation duly
organized under the laws of the State of Delaware (the “Company”), and Citibank, N.A., a national
banking association organized and existing under the laws of the United States, as Trustee (the
“Trustee”).



     In consideration of the purchase of the Securities (as defined herein) by the Holders thereof,
both parties agree as follows for the benefit of the other and for the equal and ratable benefit of
the Holders of the Securities.



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



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



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



     “Aggregate Share Cap” means initially 20.2 shares of Common Stock per $1,000 principal amount
of Securities, subject to proportional adjustment in the same manner as the Conversion Rate upon
the occurrence of any of the events described in clauses (1) through (4) under Section 4.06(a).



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



     “Beneficial Ownership” means the definition such term is given in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act.



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



     “Business Day” means any weekday that is not a day on which banking institutions in The City
of New York are authorized or obligated to close.



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



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



 









 





     “Certificated Security” means a Security that is in substantially the form attached as Exhibit
A but that does not include the information or the schedule called for by footnote 1 thereof.



     “Change of Control” means the occurrence of any of the following after the date hereof: (i)
the acquisition by any Person of Beneficial Ownership (including any syndicate or group which would
be deemed to be a “person” under Section 13(d)(3) of the Exchange Act), directly or indirectly,
through a purchase, merger or other acquisition transaction or series of transactions, of shares of
the Company’s Capital Stock entitling that Person to exercise 50% or more of the total voting power
of all shares of the Company’s Capital Stock entitled to vote generally in elections of directors,
other than any acquisition by the Company, any of its subsidiaries or any of its employee benefit
plans; or (ii) the consolidation or merger of the Company with or into any other Person, any merger
of another Person into the Company, or any conveyance, transfer, sale, lease or other disposition
of all or substantially all of the Company’s properties and assets to another Person other than to
one or more of the Company’s wholly-owned subsidiaries, provided that this clause (ii) shall not
apply to (A) any transaction (x) that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of the Company’s Capital Stock and (y) pursuant to which
holders of the Company’s Capital Stock immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power of all shares of the
Capital Stock entitled to vote generally in elections of directors of the continuing or surviving
Person immediately after the transaction; or (B) any merger solely for the purpose of changing the
Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange
of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
or (iii) if, during any consecutive two-year period, individuals who at the beginning of that
two-year period constituted the Company’s Board of Directors, together with any new directors whose
election to the Company’s Board of Directors, or whose nomination for election by the Company’s
stockholders, was approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the Company’s Board of
Directors then in office. Notwithstanding anything to the contrary set forth herein, it will not
constitute a Change of Control if 100% of the consideration for the Common Stock (excluding cash
payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights)
in the transaction or transactions constituting a Change of Control consists of common stock or
American Depositary Shares representing shares of common stock, in each case which are traded on a
U.S. national securities exchange or quoted on the Nasdaq National Market, or which will be so
traded or quoted when issued or exchanged in connection with the Change of Control, and as a result
of such transaction or transactions the Securities become convertible solely into cash in an amount
equal to the lesser of $1,000 and the Conversion Value and, if the Conversion Value is greater than
$1,000, payment of the excess value in the form of such common stock, subject to the right to
deliver cash in lieu of all or a portion of such remaining shares, in substantially the same manner
as described under 4.14; provided that, with respect to an entity organized under the laws of a
jurisdiction outside the United States, such entity has a
worldwide total market capitalization of its equity securities of at least three times the
market capitalization of the Company before giving effect to the consolidation or merger.



2









 





     “Closing Price” means on any Trading Day, the reported last sale price per share (or if no
last sale price is reported, the average of the bid and ask prices per share or, if more than one
in either case, the average of the average bid and the average ask prices per share) on such date
reported by the Nasdaq National Market or, if the Common Stock (or the applicable security) is not
quoted on the Nasdaq National Market, as reported by the principal national or regional securities
exchange on which the Common Stock (or such other security) is listed. If the Common Stock (or
such other security) is not listed for trading on a United States national or regional securities
exchange and not reported by the Nasdaq National Market on the relevant date, the “Closing Price”
shall be the last quoted bid price for the Common Stock (or such other security) in the
over-the-counter market on the relevant date as reported by the National Quotation Bureau or
similar organization. If the Common Stock (or such other security) is not so quoted, the “Closing
Price” shall be the average of the midpoint of the last bid and ask prices for the Common Stock (or
such other security) on the relevant date from each of at least three independent nationally
recognized investment banking firms selected by the Company for this purpose.



     “Common Stock” means the common stock of the Company, par value $0.01 per share as it exists
on the date of this Indenture and any shares of any class or classes of Capital Stock of the
Company resulting from any reclassification or reclassifications thereof, or, in the event of a
merger, consolidation or other similar transaction involving the Company that is otherwise
permitted hereunder in which the Company is not the surviving corporation the common stock, common
equity interests, ordinary shares or depositary shares or other certificates representing common
equity interests of such surviving corporation or its direct or indirect parent corporation, and
which have no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not
subject to redemption by the Company; provided, however, that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable on conversion of
Securities shall be substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Company.



     “Conversion Price” per share of Common Stock as of any day means the result obtained by
dividing (i) $1,000 by (ii) the then applicable Conversion Rate, rounded to the nearest cent.



     “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion, which rate shall be initially 24.2131 shares of Common Stock for each $1,000 principal
amount of Securities, as adjusted from time to time pursuant to the provisions of this Indenture.



     “Conversion Reference Period” means:



3









 






     (i) for Securities that are surrendered for conversion during the Special Trigger Event
Conversion Period, the ten consecutive Trading Days beginning on the third Trading Day
following such Mandatory Redemption Date; and




     (ii) for Securities that are converted during the period beginning on the 30th day
prior to the Final Maturity Date of the Securities, the ten consecutive Trading Days
beginning on the third Trading Day following the Final Maturity Date; and




     (iii) in all other instances, the ten consecutive Trading Days beginning on the third
Trading Day following the Conversion Date.



     “Conversion Value” means, for each $1,000 principal amount of Securities, an amount equal to
the product of (i) the Conversion Rate in effect on the Conversion Date and (ii) the arithmetic
average of the Volume Weighted Average Price of the Common Stock for each of the ten consecutive
Trading Days of the Conversion Reference Period; provided that after the consummation of a
Fundamental Change in which the consideration is comprised entirely of cash, the amount in clause
(ii) of this definition shall be the cash price per share received by holders of the Common Stock
in such Fundamental Change.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time the
trust created by this Indenture shall be administered, which initially will be the office of
Citibank, N.A., located at 388 Greenwich Street, 14th Floor, New York, New York 10013.



     “Daily Share Amount” means, for each Trading Day of the Conversion Reference Period and for
each $1,000 principal amount of Securities surrendered for conversion, a number of shares (but in
no event less than zero) equal to (i) the amount of (a) the Volume Weighted Average Price for such
Trading Day multiplied by the Conversion Rate in effect on the Conversion Date, appropriately
adjusted to take into account the occurrence on such Trading Day of any event which would require
an anti-dilution adjustment, less (b) $1,000; divided by (ii) the Volume Weighted Average Price for
such Trading Day multiplied by 10.



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



     “Designated Senior Indebtedness” means any Senior Indebtedness, the outstanding aggregate
principal amount of which at the time of determination is equal to or greater than $25,000,000 and
that is specifically identified by the Company in the instrument governing or evidencing the
Indebtedness as “Designated Senior Indebtedness.”



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



     “Final Maturity Date” means December 15, 2010.



     “Fundamental Change” means the occurrence of a Change of Control or a Termination of Trading
following the original issuance of the Securities.



4









 





     “Fundamental Change Effective Date” means the date on which any Fundamental Change becomes
effective.



     “Fundamental Change Purchase Price” of any Security, means 100% of the principal amount of the
Security to be purchased plus accrued and unpaid interest, if any, and Liquidated Damages, if any,
to, but excluding, the Fundamental Change Purchase Date.



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, including those set forth in (1) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Financial Accounting Standards Board, (3) such other
statements by such other entity as approved by a significant segment of the accounting profession
and (4) the rules and regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in registration statements filed under the Securities
Act and periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.



     “Global Security” means a Security in global form that is in substantially the form attached
as Exhibit A and that includes the information and schedule called for in footnote 1 thereof and
which is deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.



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



     “Indebtedness” means, with respect to any Person on any date of determination, without
duplication, the principal or face amount of:




     (1) all of such Person’s indebtedness, payment obligations and other monetary
liabilities, contingent or otherwise, (A) for borrowed money, including overdrafts, foreign
exchange contracts, currency exchange agreements, interest rate protection agreements, and
any loans or advances from banks, whether or not evidenced by notes or similar instruments,
or (B) evidenced by credit or loan agreements, bonds, debentures, notes or similar
instruments, or incurred in connection with the acquisition of any property, services or
assets, whether or not the recourse of the lender is to the whole of such Person’s assets
or to only a portion thereof, other than any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in connection with the
obtaining of materials or services;




     (2) all of such Person’s reimbursement obligations and other monetary liabilities,
contingent or otherwise, with respect to letters of credit, bank guarantees,
bankers’ acceptances, surety bonds, performance bonds or other guaranty of contractual
performance;




     (3) all of such Person’s payment obligations and monetary liabilities, contingent or
otherwise, in respect of leases required, in conformity with GAAP, to be accounted for as
capitalized lease obligations on such Person’s balance sheet;



5









 






     (4) all of such Person’s payment obligations and other monetary liabilities, contingent
or otherwise, under any lease or related document, including a purchase agreement,
conditional sale or other title retention agreement, in connection with the lease of real
property or improvements thereon (or any personal property included as part of any such
lease) which provides that such Person is contractually obligated to purchase or cause a
third party to purchase the leased property or pay an agreed upon residual value of the
leased property, including such Person’s payment obligations under such lease or related
document to purchase or cause a third party to purchase such leased property or pay an
agreed upon residual value of the leased property to the lessor;




     (5) all of such Person’s payment obligations, contingent or otherwise, with respect to
an interest rate or other swap, cap, floor or collar agreement or hedge agreement, forward
contract or other similar instrument or agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement;




     (6) all of such Person’s direct or indirect guarantees or similar agreements by such
Person in respect of, and all of such Person’s payment obligations or monetary liabilities,
contingent or otherwise, to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, payment obligations or monetary liabilities of
another Person of the kinds described in clauses (1) through (5);




     (7) all indebtedness or other obligations of the kind described in clauses (1) through
(5) secured by any mortgage, pledge, lien or other encumbrance existing on property that is
owned or held by such Person, regardless of whether the indebtedness or other obligation
secured thereby shall have been assumed by such Person; and




     (8) any and all deferrals, renewals, extensions, refinancings and refundings of, or
amendments, modifications or supplements to, any indebtedness, payment obligation or
monetary liability of the kinds described in clauses (1) through (7).



     “Indenture” means this Indenture as amended or supplemented from time to time pursuant to the
terms of this Indenture, including the provisions of the TIA that are automatically deemed to be a
part of this Indenture by operation of the TIA.



     “Initial Purchaser” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.



     “Interest Payment Date” means June 15 and December 15 of each year, commencing June 15, 2006.



     “Issue Date” of any Security means the date on which the Security was originally issued or
deemed issued as set forth on the face of the Security.



     “Liquidated Damages” has the meaning specified in the Registration Rights Agreement. All
references herein to interest accrued or payable as of any date shall include any Liquidated
Damages accrued or payable as of such date as provided in the Registration Rights Agreement.



6









 





     “Mandatory Redemption Date” means the date on which the Securities shall be redeemed by the
Company pursuant to Section 3.01, which date shall be the 15th Business Day following
the Special Trigger Date.



     “Mandatory Redemption Price” when used with respect to any Security to be redeemed, means 100%
of the principal amount thereof, plus accrued and unpaid interest, if any, and Liquidated Damages,
if any, to but excluding the Mandatory Redemption Date.



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



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers;
provided, however, that for purposes of Sections 4.11 and 5.03, “Officers’ Certificate” means a
certificate signed by (a) the principal executive officer, principal financial officer or principal
accounting officer of the Company and (b) one other officer.



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



     “Person” or “person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act or any other entity.



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



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of December
13, 2005, between the Company and the Initial Purchaser, as amended from time to time in accordance
with its terms.



     “Regular Record Date” means, with respect to each Interest Payment Date, the June 1 or
December 1, as the case may be, next preceding such Interest Payment Date.



     “Representative” means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness.



     “Responsible Officer” means, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such person’s knowledge of and familiarity with the
particular subject.



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



7









 





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



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



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



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the up to $225,000,000 million aggregate principal amount ($250,000,000
aggregate principal amount if the initial purchaser exercises its over-allotment option to purchase
up to an additional $25,000,000 aggregate principal amount of notes in full) of 21/2% Convertible
Subordinated Notes due 2010, or any of them (each a “Security”), as amended or supplemented from
time to time, that are issued under this Indenture.



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



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



     “Senior Indebtedness” means the principal of, premium (if any) and interest, including any
interest accruing after the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in the proceeding, and rent payable on or
termination payment with respect to or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, the Company’s Indebtedness, whether secured or
unsecured, absolute or contingent, due or to become due, outstanding on the date of this Indenture
or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company,
including all deferrals, renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing. “Senior Indebtedness” does not include: (i) Indebtedness that
expressly provides that such Indebtedness will not be senior in right of payment to the Securities
or expressly provides that such Indebtedness is on parity with or junior in right of payment to the
Securities; (ii) any Indebtedness to any of the Company’s Subsidiaries, other than Indebtedness to
the Company’s Subsidiaries arising by reason of guarantees of the Company of Indebtedness of any
such Subsidiary to a Person that is not the Company’s Subsidiary; (iii) any liability for federal,
state, local or other taxes owed or owing by the Company; and (iv) Indebtedness for trade payables.



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



     “Special Trigger Date” means, in connection with the occurrence of the Special Trigger Event,
the fifth Trading Day within such ten consecutive Trading Day period on which the Closing Price per
share of Common Stock exceeded the Special Trigger Price.



     “Special Trigger Price” as of any day means 200% of the Conversion Price per share of Common
Stock on such day.



8









 





     “Stock Price” means the price paid, or deemed to be paid, per share of the Common Stock in
connection with a Fundamental Change as determined pursuant to Section 4.01(k).



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



     “Termination of Trading” means the termination (but not the temporary suspension) of trading
of the Common Stock, which will be deemed to have occurred if the Common Stock or other common
stock into which the Securities are convertible is neither listed for trading on a United States
national securities exchange nor approved for listing on the Nasdaq National Market or any similar
United States system of automated dissemination of quotations of securities prices, or traded in
over-the-counter securities markets, and no American Depository Shares or similar instruments for
such common stock are so listed or approved for listing in the United States.



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



     “Trading Day” means any day on which the Nasdaq National Market or, if the Common Stock is not
quoted on the Nasdaq National Market, the principal national or regional securities exchange on
which the Common Stock is listed, is open for trading or, if the Common Stock is not so listed,
admitted for trading or quoted, any Business Day. A Trading Day only includes those days that have
a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for
regular trading on the relevant exchange or trading system.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Trustee for $5 million principal amount of
Securities at approximately 3:30 p.m., New York City time, on such determination date from
three nationally recognized securities dealers the Company selects; provided that if three
such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably be obtained by the
Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for
$5 million principal amount of Securities from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the
product of the Closing Price of the Common Stock and the Conversion Rate per $1,000 principal
amount of Securities.



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



9









 





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



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



     “Volume Weighted Average Price” per share of Common Stock on any Trading Day means such price
as displayed on Bloomberg (or any successor service) page SFNT <equity> VAP in respect of the
period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or, if such price is
not available, the Volume Weighted Average Price means the market value per share of Common Stock
on such day as determined by a nationally recognized independent investment banking firm retained
for this purpose by the Company.



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



10









 





     Section 1.02 Other Definition.



	 	 	 	 	 
	Term	 	Defined in Section
	“Agent Members”
	 	 	2.01	 
	“Bankruptcy Law”
	 	 	7.01	 
	“Company Order”
	 	 	2.02	 
	“Conversion Trigger Price”
	 	 	4.01	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	4.02	 
	“Current Market Price”
	 	 	4.06	 
	“DTC”
	 	 	2.01	 
	“Depositary”
	 	 	2.01	 
	“Determination Date”
	 	 	4.06	 
	“Distributed Securities”
	 	 	4.06	 
	“Distribution Notice”
	 	 	4.01	 
	“Event of Default”
	 	 	7.01	 
	“Expiration Date”
	 	 	4.06	 
	“Expiration Time”
	 	 	4.06	 
	“Fundamental Change Company Notice”
	 	 	3.08	 
	“Fundamental Change Purchase Date”
	 	 	3.08	 
	“Fundamental Change Purchase Notice”
	 	 	3.08	 
	“Legal Holiday”
	 	 	12.07	 
	“Legend”
	 	 	2.12	 
	“Make Whole Premium”
	 	 	4.01	 
	“Notice of Default”
	 	 	7.01	 
	“Paying Agent”
	 	 	2.03	 
	“Primary Registrar”
	 	 	2.03	 
	“Purchase Agreement”
	 	 	2.01	 
	“Purchased Shares”
	 	 	4.06	 
	“record date”
	 	 	4.06	 
	“QIB”
	 	 	2.01	 
	“Receiver”
	 	 	7.01	 
	“Registrar”
	 	 	2.03	 
	“Rights”
	 	 	4.06	 
	“Rights Plan”
	 	 	4.06	 
	“Special Trigger Event”
	 	 	3.01	 
	“Special Trigger Event Conversion Period”
	 	 	4.01	 
	“Spinoff Securities”
	 	 	4.06	 
	“Spinoff Valuation Period”
	 	 	4.06	 
	“tender offer”
	 	 	4.06	 
	“Triggering Distribution”
	 	 	4.06	 






11









 






     Section 1.03 Trust Indenture Act Provisions.



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



“indenture securities” means the Securities;




“indenture security holder” means a Holder of a Security;




“indenture to be qualified” means this Indenture;




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



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



     Section 1.04 Rules of Construction.



     (a) Unless the context otherwise requires:




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




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




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




     (4) provisions apply to successive events and transactions;




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




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




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




     (8) all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits and
Sections, respectively, of or to this Indenture unless otherwise specified herein, and the
terms “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.



12









 





ARTICLE 2




THE SECURITIES




     Section 2.01 Form and Dating.



     The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange or automated quotation system rule or regulation or usage. The Company shall provide any
such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication. The Securities are being offered and sold by the Company pursuant
to a Purchase Agreement dated December 7, 2005 (the “Purchase Agreement”) between the Company and
the Initial Purchaser, in transactions exempt from, or not subject to, the registration
requirements of the Securities Act.



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



     (b) Global Securities In General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect replacements, exchanges, purchases, redemptions, or
conversions of such Securities. Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions given by the
Holder thereof as required by Section 2.12 and shall be made on the records of the Trustee and
the Depositary.



     Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary or under
the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall (1) prevent the Company, the Trustee or any agent of the



13









 




Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or (2) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Security.




     (c) Book Entry Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (1) shall be registered in the name of the Depositary or its nominee, (2) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (3)
shall bear legends substantially to the following effect:




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



     Section 2.02 Execution and Authentication.



     (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited to $225,000,000 aggregate principal amount ($250,000,000 aggregate
principal amount if the Initial Purchaser exercises its over-allotment option in full), except as
provided in Sections 2.06 and 2.07.



     (b) An Officer shall sign the Securities for the Company by manual or facsimile signature.
Typographic and other minor errors or defects in any such facsimile signature shall




14









 





not affect the validity or enforceability of any Security that has been authenticated and delivered by the
Trustee.




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



     (d) A Security shall not be valid until an authorized signatory of the Trustee by manual or
facsimile signature signs the certificate of authentication on the Security. The signature shall
be conclusive evidence that the Security has been authenticated under this Indenture.



     (e) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $225,000,000 ($250,000,000 if the Initial
Purchaser exercises its over-allotment option in full) upon receipt of a written order or orders of
the Company signed by an Officer of the Company (a “Company Order”). The Company order shall
specify the amount of Securities to be authenticated, shall provide that all such securities will
be represented by a Restricted Global Security and the date on which each original issue of
Securities is to be authenticated.



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



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



     Section 2.03 Registrar, Paying Agent and Conversion Agent.



     (a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices
or agencies where Securities may be presented for payment (each, a “Paying Agent”), one or more
offices or agencies where Securities may be presented for conversion (each, a “Conversion Agent”)
and one or more offices or agencies where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will at
all times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where
notices and demands to or upon the Company in respect of the Securities and this Indenture may be
served in the Borough of Manhattan, The City of New York. One of the Registrars (the “Primary
Registrar”) shall keep a register of the Securities and of their transfer and exchange.



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



15









 







the foregoing notice, the Trustee
shall act as such. The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 5.01 and Article 9).



     (c) The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee as an
office or agency where notices and demands to or upon the Company in respect of the Securities and
this Indenture shall be served.



     Section 2.04 Paying Agent to Hold Money in Trust.



     Prior to 12:00 p.m. (noon), New York City time, on the Business Day prior to each due date of
the payment of principal of, or interest on, any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest so becoming due. Subject to Section 9.02, a Paying
Agent shall hold in trust for the benefit of Holders of Securities or the Trustee all money held by
the Paying Agent for the payment of principal of, or interest on, the Securities, and shall notify
the Trustee of any failure by the Company (or any other obligor on the Securities) to make any such
payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before
12:00 p.m. (noon), New York City time, on each due date of the principal of, or interest on, any
Securities, segregate the money and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any time
during the continuance of any Default, upon written request to a Paying Agent, require such Paying
Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent. Upon doing
so, the Paying Agent (other than the Company) shall have no further liability for the money.



     Section 2.05 Lists of Holders of Securities.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Securities. If the Trustee is not
the Primary Registrar, the Company shall furnish to the Trustee on or before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of Holders of
Securities.



     Section 2.06 Transfer and Exchange.



     (a) Subject to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register a transfer thereof or
to exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested;
provided, however, that every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form and, if applicable, a transfer
certificate each in the form included in Exhibit A, and completed in a manner satisfactory to the
Registrar and duly executed by the Holder thereof or its attorney duly authorized in writing. To
permit registration of transfers and exchanges, upon surrender of any Security for registration of
transfer or exchange at an office or agency maintained pursuant to Section 2.03, the Company shall
execute and the Trustee shall authenticate Securities of a like



16









 







aggregate principal amount at the
Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or
the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto; provided that this sentence shall not apply to any
exchange pursuant to Section 2.10, 2.12(a), 3.06, 3.13, 4.02(e) or 10.05.



     (b) Neither the Company, any Registrar nor the Trustee shall be required to exchange or
register a transfer of (1) any Securities for a period of 15 days next preceding mailing of a
notice of Securities to be redeemed, (2) any Securities or portions thereof selected or called for
redemption (except, in the case of redemption of a Security in part, the portion thereof not to be
redeemed) or (3) any Securities or portions thereof in respect of which a Fundamental Change
Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).



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



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



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



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



     Section 2.07 Replacement Securities.



     (a) If any mutilated Security is surrendered to the Company, a Registrar or the Trustee, and
the Company, a Registrar and the Trustee receive evidence to their satisfaction of the destruction,
loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and
the Trustee such security or indemnity as will be required by them to save each of them harmless,
then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute, and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of
any such destroyed, lost or stolen Security, a new



17









 







Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.



     (b) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased or redeemed by the Company pursuant to Article 3, or
converted pursuant to Article 4, the Company in its discretion may, instead of issuing a new
Security, pay, redeem, purchase or convert such Security, as the case may be.



     (c) Upon the issuance of any new Securities under this Section 2.07, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto as a result of any Securities, at the request of any Holder, being issued to a
Person other than such Holder and any other reasonable expenses (including the reasonable fees and
expenses of the Trustee or the Registrar) in connection therewith.



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



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



     Section 2.08 Outstanding Securities.



     (a) Securities outstanding at any time are all Securities authenticated by the Trustee, except
for those canceled by it, those redeemed or purchased pursuant to Article 3, those converted
pursuant to Article 4, those delivered to the Trustee for cancellation or surrendered for transfer
or exchange and those described in this Section 2.08 as not outstanding.



     (b) If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Company receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     (c) If a Paying Agent (other than the Company or an Affiliate of the Company) holds in respect
of the outstanding Securities on a Mandatory Redemption Date, a Fundamental Change Purchase Date or
the Final Maturity Date money sufficient to pay the principal of (including premium, if any),
accrued interest and Liquidated Damages, if any, on Securities (or portions thereof) payable on
that date, then on and after such Mandatory Redemption Date, Fundamental Change Purchase Date or
Final Maturity Date, as the case may be, such Securities (or portions thereof, as the case may be)
shall cease to be outstanding and cash interest and Liquidated Damages, if any, on them shall cease
to accrue; provided that if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision thereof satisfactory to the Trustee has been
made.



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



18









 





     Section 2.09 Treasury Securities.



     In determining whether the Holders of the required principal amount of Securities have
concurred in any notice, direction, waiver or consent, securities owned by the Company or any other
obligor on the Securities or by any Affiliate of the Company or of such other obligor shall be
disregarded, except that, for purposes of determining whether the Trustee shall be protected in
relying on any such notice, direction, waiver or consent, only Securities which a Trust Officer of
the Trustee with responsibility for this Indenture actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with
respect to the Securities and that the pledgee is not the Company or any other obligor on the
Securities or any Affiliate of the Company or of such other obligor.



     Section 2.10 Temporary Securities.



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



     Section 2.11 Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any
Securities surrendered to them for transfer, exchange, redemption, purchase, payment or conversion.
The Trustee and no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with its customary
procedures or deliver the canceled Securities to the Company. All Securities which are redeemed,
purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Final
Maturity Date pursuant to Article 3 shall be delivered to the Trustee for cancellation, and the
Company may not hold or resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to Article 4.



     Section 2.12 Legend; Additional Transfer and Exchange Requirements.



     (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Securities attached
as Exhibit A (collectively, the “Legend”), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company and the Registrar such satisfactory
evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar,
as may be reasonably required by the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that



19









 







such Securities are not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security pursuant to a registration
statement that is effective at the time of such sale. Upon (1) provision of such satisfactory
evidence if requested, or (2) notification by the Company to the Trustee and Registrar of the sale
of such Security pursuant to a registration statement that is effective at the time of such sale,
the Trustee, at the written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend. If the Legend is removed from the face of a Security and the
Security is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.



     (b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person. Notwithstanding any other provisions
of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be
made only in accordance with this Section 2.12.



     (c) Subject to Section 2.12(b) and in compliance with Section 2.12(d), every Security shall be
subject to the restrictions on transfer provided in the Legend. Whenever any Restricted Security
other than a Restricted Global Security is presented or surrendered for registration of
transfer or in exchange for a Security registered in a name other than that of the Holder,
such Security must be accompanied by a certificate in substantially the form set forth in Exhibit
A, dated the date of such surrender and signed by the Holder of such Security, as to compliance
with such restrictions on transfer. The Registrar shall not be required to accept for such
registration of transfer or exchange any Security not so accompanied by a properly completed
certificate.



     (d) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the Registrar, an
Opinion of Counsel reasonably acceptable to the Company and the Registrar and addressed to the
Company and the Registrar, to the effect that the transfer of such Security has been made in
compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company
shall inform the Trustee of the effective date of any registration statement registering the offer
and sale of the Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the aforementioned
opinion of Counsel or registration statement.



20









 





     As used in Sections 2.12(c) and (d), the term “transfer” encompasses any sale, pledge,
transfer, hypothecation or other disposition of any Security.



     (e) The provisions below shall apply only to Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a single
Security for purposes of this Indenture.




     (2) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be registered in the name of any
Person other than the Depositary or one or more nominees thereof; provided that a Global
Security may be exchanged for securities registered in the names of any person designated by
the Depositary in the event that (A) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such Depositary
has ceased to be a “clearing agency” registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days after receiving such notice or
becoming aware that the Depositary has ceased to be a “clearing agency,” or (B) an Event of
Default has occurred and is continuing with respect to the
Securities. Any Global Security exchanged pursuant to subclause (A) above shall be so
exchanged in whole and not in part, and any Global Security exchanged pursuant to subclause
(B) above may be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any portion thereof
shall be a Global Security; provided further that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee thereof shall not
be a Global Security.




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




     (4) Subject to clause (6) of this Section 2.12(e), the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members and Persons



21









 






that may hold interests through Agent Members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.




     (5) In the event of the occurrence of any of the events specified in clause (2) of this
Section 2.12(e), the Company will promptly make available to the Trustee a reasonable supply
of Certificated Securities in definitive, fully registered form, without interest coupons.




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




     (7) At such time as all interests in a Global Security have been redeemed, converted,
canceled or exchanged for Securities in certificated form, such Global Security shall, upon
receipt thereof, be cancelled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Securities Custodian, subject to
Section 2.11 of this Indenture. At any time prior to such cancellation, if any interest in
a Global Security is redeemed, converted, canceled or exchanged for Securities in
certificated form, the principal amount of such Global Security shall, in accordance with
the standing procedures and instructions existing between the Depositary and the Securities
Custodian, be appropriately reduced, and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of the Trustee, to
reflect such reduction.



     (f) Until the expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision thereto), any stock certificate representing
Common Stock issued upon conversion of any Security shall bear a legend in substantially the
following form, unless such Common Stock has been sold pursuant to a registration statement that
has been declared effective under the Securities Act (and which continues to be effective at the
time of such transfer) or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto), or such Common Stock has been issued upon conversion of Securities
that have been transferred pursuant to a registration statement that has been declared effective
under the Securities Act or pursuant to Rule 144 under the Securities Act (or any successor
provision thereto), or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent:


THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES




22









 







ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION
UNDER THE SECURITIES ACT.



BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH SAFENET, INC. (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THE COMMON STOCK EVIDENCED HEREBY (OR ANY PREDECESSOR OF THE COMMON STOCK EVIDENCED
HEREBY) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRANSFER AGENT’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.




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



     Section 2.13 CUSIP Numbers.



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



23









 





ARTICLE 3




MANDATORY REDEMPTION UPON SPECIAL TRIGGER EVENT AND

PURCHASE UPON FUNDAMENTAL CHANGE




     Section 3.01 Mandatory Redemption upon Special Trigger Event.



     If the Closing Price per share of Common Stock on each of the five Trading Days in any period
of ten consecutive Trading Days is more than the Special Trigger Price (the “Special Trigger
Event”), the Company shall redeem all of the outstanding Securities for cash at the Mandatory
Redemption Price on the 15th Business Day following the Special Trigger Date.



     Section 3.02 [Intentionally Omitted].



     Section 3.03 Notice of Mandatory Redemption.



     (a) Within three Business Days following the Special Trigger Date, the Company shall mail or
cause to be mailed a notice of mandatory redemption to all Holders of Securities at such Holder’s
address as it appears on the Registrar’s books.



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




     (1) that the Special Trigger Event has occurred;




     (2) that; unless converted earlier, the Securities will be redeemed at the Mandatory
Redemption Price;




     (3) the Mandatory Redemption Date;




     (4) the Mandatory Redemption Price;




     (5) the Conversion Rate and any adjustment to the Conversion Rate resulting from the
Special Trigger Event;




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




     (7) that Securities must be presented and surrendered to a Paying Agent to collect the
Mandatory Redemption Price;




     (8) that Holders who wish to convert Securities must surrender such Securities for
conversion no later than the close of business on the second Business Day immediately
preceding the Mandatory Redemption Date and must satisfy the other requirements set forth in
paragraph 8 of the Securities and Article 4; and




     (9) that, unless the Company has failed to make the payment of such Mandatory
Redemption Price which is due and payable, interest and Liquidated Damages, if any, will
cease to accrue on and after the Mandatory Redemption Date.



24









 





     (c) If any of the Securities to be redeemed are in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the Applicable Procedures
applicable to redemptions. At the Company’s written request, which request shall (1) be
irrevocable once given and (2) set forth all relevant information required by clauses (1) through
(9) of Section 3.03(b), the Trustee shall give the notice of mandatory redemption to each Holder in
the Company’s name and at the Company’s expense; provided, however, that in all cases, the text of
such notice of mandatory redemption shall be prepared by the Company; and provided further that the
Company must make such request at least two Business Days prior to the date by which such notice of
mandatory redemption must be given to the Holders in accordance with this Section 3.03 (unless a
shorter period should be satisfactory to the Trustee).



     Section 3.04 Effect of Notice of Mandatory Redemption.



     Once the notice of mandatory redemption is mailed, Securities called for redemption shall
become due and payable on the Mandatory Redemption Date and at the Mandatory Redemption Price,
except for Securities that are converted on a Conversion Date prior to the Mandatory Redemption
Date in accordance with the provisions of Article 4. On or after the Mandatory Redemption Date and
upon presentation and surrender to a Paying Agent, Securities called for mandatory redemption shall
be paid at the Mandatory Redemption Price.



     Section 3.05 Deposit of Mandatory Redemption Price.



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



     (b) If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the
Mandatory Redemption Price for all outstanding Securities not previously surrendered for conversion
in accordance with this Indenture then, on the Mandatory Redemption Date, such Securities will
cease to be outstanding, whether or not any such Security is delivered to the Paying Agent, and the
rights of the Holder in respect thereof shall terminate (other than the right to receive the
Mandatory Redemption Price as aforesaid).



     Section 3.06 [Intentionally Omitted].



     Section 3.07 Conversion Arrangement In Connection with Mandatory Redemption.



     In connection with the mandatory redemption of Securities, the Company may arrange for the
purchase and conversion into Common Stock of any Securities by an agreement with one or more
investment banks or other purchasers to purchase such Securities by paying to a Paying



25









 







Agent (other than the Company or any of its Affiliates) in trust for the Holders, on or before 12:00 p.m.
(noon), New York City time, on the Business Day prior to the Mandatory Redemption Date, an amount
that, together with any amounts deposited with such Paying Agent by the Company for the redemption
of such Securities, is not less than the Mandatory Redemption Price. Notwithstanding anything to
the contrary contained in this Article 3, the obligation of the Company to pay the Mandatory
Redemption Price of such Securities shall be deemed to be satisfied and discharged to the extent
such amount is so paid by such purchasers;
provided, however, that nothing in this Section 3.07 shall relieve the Company of its
obligation to pay the Mandatory Redemption Price on Securities. If such an agreement with one or
more investment banks or other purchasers is entered into in connection with a mandatory
redemption, any Securities not surrendered for conversion by the Holders thereof prior to the
Mandatory Redemption Date may, at the option of the Company upon written notice to the Trustee, be
deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 4) surrendered by such purchasers
for conversion, all as of 12:00 p.m. (noon), New York City time, on the Mandatory Redemption Date,
subject to payment of the above amount as aforesaid. The Paying Agent shall hold and pay to the
Holders whose Securities are tendered for redemption any such amount paid to it for purchase in the
same manner as it would money deposited with it by the Company for the redemption of Securities.
Without the Paying Agent’s prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold it harmless against,
any loss, liability or expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and such purchasers, including the
costs and expenses incurred by the Paying Agent in the defense of any claim or liability arising
out of or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.



     Section 3.08 Purchase at Holders’ Option upon a Fundamental Change.



     (a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, to require the Company to repurchase for cash
all or any portion of the Securities of such Holder equal to $1,000 principal amount (or an
integral multiple thereof) at the Fundamental Change Purchase Price, on the date that is not less
than 30 days nor more than 45 days after the date of the Fundamental Change Company Notice pursuant
to subsection 3.08(b) (the “Fundamental Change Purchase Date”).



     (b) On or before the 30th day after the occurrence of a Fundamental Change, the Company shall
mail a written notice of the Fundamental Change and of the resulting repurchase right to the
Trustee, Paying Agent and to each Holder (and to beneficial owners as required by applicable law)
(the “Fundamental Change Company Notice”). The Fundamental Change Company Notice shall include the
form of a Fundamental Change Purchase Notice to be completed by the Holder and shall state:




     (1) the events causing such Fundamental Change;



26









 






     (2) the date (or expected date) of such Fundamental Change;




     (3) the last date by which the Fundamental Change Purchase Notice must be delivered to
elect the repurchase option pursuant to this Section 3.08;




     (4) the Fundamental Change Purchase Date;




     (5) the Fundamental Change Purchase Price;




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




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




     (8) the then effective Conversion Rate and any adjustments to the Conversion Rate
resulting from such Fundamental Change;




     (9) the procedures that the Holder must follow to exercise rights under Article 4 and
that Securities as to which a Fundamental Change Purchase Notice has been given may be
converted into Common Stock pursuant to Article 4 of this Indenture only to the extent that
the Fundamental Change Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;




     (10) the procedures that the Holder must follow to exercise rights under this Section
3.08;




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




     (12) that, unless the Company fails to pay such Fundamental Change Purchase Price,
Securities covered by any Fundamental Change Purchase Notice will cease to be outstanding
and interest and Liquidated Damages, if any, will cease to accrue on and after the
Fundamental Change Purchase Date; and




     (13) the CUSIP number of the Securities.


At the Company’s request, the Trustee shall give such Fundamental Change Company Notice in the
Company’s name and at the Company’s expense; provided, that, in all cases, the text of such
Fundamental Change Company Notice shall be prepared by the Company. If any of the Securities is in
the form of a Global Security, then the Company shall modify such notice to the extent necessary to
accord with the Applicable Procedures relating to the purchase of Global Securities.




     (c) A Holder may exercise its rights specified in Section 3.08(a) upon delivery of a written
notice (which shall be in substantially the form attached as Exhibit A under the heading
“Fundamental Change Purchase Notice” and which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Depositary’s
Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase Notice”) to
the Company or any Paying Agent at any time prior to the close of business



27









 







on the Business Day next
preceding the Fundamental Change Purchase Date, subject to extension to comply with applicable law.




     (1) The Fundamental Change Purchase Notice shall state: (A) the certificate number (if
such Security is held other than in global form) of the Security which the Holder will
deliver to be purchased (or, if the Security is held in global form, any other items
required to comply with the Applicable Procedures), (B) the portion of the principal
amount of the Security which the Holder will deliver to be purchased and (C) that such
Security shall be purchased as of the Fundamental Change Purchase Date pursuant to the terms
and conditions specified in the Securities and in this Indenture.




     (2) The delivery of a Security for which a Fundamental Change Purchase Notice has been
timely delivered to any Paying Agent and not validly withdrawn prior to, on or after the
Fundamental Change Purchase Notice (together with all necessary endorsements) at the office
of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental
Change Purchase Price therefor.




     (3) The Company shall only be obliged to purchase, pursuant to this Section 3.08, a
portion of a Security if the principal amount of such portion is $1,000 or an integral
multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security).




     (4) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying
Agent the Fundamental Change Purchase Notice contemplated by this Section 3.08(c) shall have
the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion
thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time
prior to the close of business on the Business Day prior to the Fundamental Change Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with
Section 3.09.




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




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



     Section 3.09 Effect of Fundamental Change Purchase Notice



     (a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Purchase
Notice from a Holder, the Holder of the Security in respect of which such Fundamental Change
Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as
specified in Section 3.09(b)) thereafter be entitled to receive the Fundamental Change Purchase
Price with respect to such Security, subject to the occurrence of the Fundamental Change Effective
Date and an absence of an Event of Default, or a continuation thereof (other than a Default in the
payment of the Fundamental Change Purchase Price). Such Fundamental Change Purchase Price shall be
paid to such Holder promptly following the later of



28









 







(1) the Fundamental Change Purchase Date
(provided that the conditions in Section 3.08 have been satisfied) and (2) the time of delivery of
such Security to a Paying Agent by the Holder thereof in the manner required by Section 3.08(c).
Securities in respect of which a Fundamental Change Purchase Notice has been given by the Holder
thereof may not be converted into shares of Common Stock pursuant to Article 4 on or after the date
of the delivery of such Fundamental
Change Purchase Notice unless such Fundamental Change Purchase Notice has first been validly
withdrawn in accordance with Section 3.09(b) with respect to the Securities to be converted.



     (b) A Fundamental Change Purchase Notice may be withdrawn by means of a written notice (which
may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically or by other
means in accordance with the Applicable Procedures) of withdrawal delivered by the Holder to a
Paying Agent at any time prior to the close of business on the Business Day immediately prior to
the Fundamental Change Purchase Date, specifying (1) the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted, (2) if
certificated Securities have been issued, the certificate number of the Security being withdrawn in
whole or in withdrawable part (or if the Securities are not certificated, such written notice must
comply with the Applicable Procedures) and (3) the portion of the principal amount of the Security
that will remain subject to the Fundamental Change Purchase Notice, which portion must be a
principal amount of $1,000 or an integral multiple thereof.



     Section 3.10 Deposit of Fundamental Change Purchase Price.



     (a) On or before 10:00 a.m. New York City time on the applicable Fundamental Change Purchase
Date, the Company shall deposit with the Trustee or with a Paying Agent (or if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of money (in immediately available funds), sufficient to pay
the aggregate Fundamental Change Purchase Price of all the Securities or portions thereof that are
to be purchased as of such Fundamental Change Purchase Date.



     (b) If a Paying Agent or the Trustee holds, in accordance with the terms hereof, money
sufficient to pay the Fundamental Change Purchase Price of any Security for which a Fundamental
Change Purchase Notice has been tendered and not withdrawn in accordance with this Indenture then,
on the Business Day following the applicable Fundamental Change Purchase Date, such Security will
cease to be outstanding, whether or not the Security is delivered to the Paying Agent or the
Trustee, and interest and Liquidated Damages, if any, shall cease to accrue, and the rights of the
Holder in respect of the Security shall terminate (other than the right to receive the Fundamental
Change Purchase Price as aforesaid). The Company shall publicly announce the principal amount of
Securities repurchased on or as soon as practicable after the Fundamental Change Purchase Date.



     (c) The Paying Agent will promptly return to the respective Holders thereof any Securities
with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with
this Indenture.



29









 





     (d) If a Fundamental Change Purchase Date falls after a Regular Record Date and on or before
the related Interest Payment Date, then interest on the Securities payable on such
Interest Payment Date will be payable to the Holders in whose names the Securities are
registered at the close of business on such Regular Record Date.



     Section 3.11 Repayment to The Company.



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



     Section 3.12 [Intentionally Omitted].



     Section 3.13 Securities Purchased in Part.



     Any Security that is to be purchased only in part shall be surrendered at the office of a
Paying Agent, and promptly after the Fundamental Change Purchase Date, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities, of such authorized denomination or denominations as may be
requested by such Holder (which must be equal to $1,000 principal amount or any integral thereof),
in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of
the Security so surrendered that is not purchased.



     Section 3.14 Compliance with Securities Laws upon Purchase of Securities.



     In connection with any offer to purchase of Securities under Section 3.08, the Company shall
(a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to either such Rule), and any other
tender offer rules, if applicable, under the Exchange Act, (b) file the related Schedule TO (or any
successor or similar schedule, form or report) if required under the Exchange Act, and (c)
otherwise comply with all federal and state securities laws in connection with such offer to
purchase or purchase of Securities, all so as to permit the rights of the Holders and obligations
of the Company under Sections 3.08 through 3.11 to be exercised in the time and in the manner
specified therein. To the extent that compliance with any such laws, rules and regulations would
result in a conflict with any of the terms hereof, this Indenture is hereby modified to the extent
required for the Company to comply with such laws, rules and regulations.



     Section 3.15 Purchase of Securities in Open Market.



     The Company (a) on or prior to the date that is two years from the latest issuance of any
Securities and in accordance with Section 2.11, shall surrender any Security purchased by the
Company pursuant to this Article 3 to the Trustee for cancellation, and (b) after such date
and in accordance with Section 2.11, may surrender such Security to the Trustee for cancellation.
Any securities surrendered to the Trustee for cancellation may not be reissued or resold by the
Company and will be canceled promptly in accordance with Section 2.11. The Company may repurchase
Securities in open market, by tender at any price or by negotiated transactions and



30









 







such Securities
may be reissued or resold, to the extent permitted by applicable law, or may be surrendered to the
Trustee for cancellation.



31









 





ARTICLE 4




CONVERSION




     Section 4.01 Conversion Privilege and Conversion Rate.



     (a) Subject to the obligation and the right of the Company to pay some or all of the
conversion consideration in cash in accordance with Section 4.14, and upon compliance with the
provisions of this Article 4, at the option of the Holder thereof, any Security or portion thereof
that is an integral multiple of $1,000 principal amount may be converted into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common
Stock prior to the close of business on the Business Day immediately preceding the Final Maturity
Date or such earlier date set forth in this Article 4, unless previously redeemed by the Company
upon the occurrence of a Special Trigger Event or purchased by the Company at the Holder’s option
upon the occurrence of a Fundamental Change, at the Conversion Rate in effect at such time,
determined as hereinafter provided and subject to the adjustments described below, only under the
following circumstances:




     (1) during any calendar quarter beginning after March 31, 2006, and only during such
calendar quarter, if, as of the last day of the immediately preceding calendar quarter, the
Closing Price per share of the Common Stock for at least 20 Trading Days in the period of
the 30 consecutive Trading Days ending on the last Trading Day of such preceding calendar
quarter was more than 120% of the Conversion Price (the “Conversion Trigger Price”);




     (2) upon the occurrence of the Special Trigger Event, the period from and after the
Special Trigger Date (the “Special Trigger Event Conversion Period”, provided, however, that
if the Company shall deliver the mandatory redemption notice at the time and in the manner
required by Section 3.03 hereof, the Special Trigger Event Conversion Period shall end at
the close of business on the second Business Day immediately preceding the Mandatory
Redemption Date);




     (3) if the Company distributes to all holders of Common Stock rights (including rights
under a stockholder rights agreement) or warrants entitling them to purchase, for a period
expiring within 45 days of the date of issuance, Common Stock at less than the Current
Market Price of the Common Stock on the day of issuance;




     (4) if the Company distributes to all holders of Common Stock, assets, debt securities
or rights to purchase the Company’s securities, which distribution has a per share value
exceeding 7.5% of the Closing Price of the Common Stock on the Business Day preceding the
declaration date for such distribution;




     (5) [Intentionally Omitted]




     (6) if a Fundamental Change occurs;



32









 






     (7) at any time during the period beginning on June 15, 2010 and ending at the close of
business on the Business Day immediately preceding the Final Maturity Date; or




     (8) during any five Business Day period after any five consecutive Trading Day period
in which the Trading Price per $1,000 principal amount of Securities, as determined
following a request by a Holder in accordance with the procedures described below in Section
4.01(e)(ii), for each day of that period was less than 98% of the product of the Closing
Price of the Common Stock and the Conversion Rate per $1,000 principal amount of Securities.



     (b) In the case of a distribution contemplated by clauses (3) and (4) of Section 4.01(a), the
Company shall notify Holders at least 20 days prior to the ex-dividend date for such distribution
(the “Distribution Notice”); provided that if the Company distributes rights pursuant to a
stockholder rights agreement, it will notify the Holders of the Securities on the Business Day
after the Company is required to give notice generally to its stockholders pursuant to such
stockholder rights agreement if such date is less than 20 days prior to the date of such
distribution. Once the Company has given the Distribution Notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of business on the last
Business Day preceding the ex-dividend date or the Company’s announcement that such distribution
will not take place. In the event of a distribution contemplated by clauses (3) and (4) of Section
4.01(a), Holders may not convert the Securities if the Holders will otherwise participate in such
distribution without converting their Securities. The Company will provide written notice to the
Conversion Agent as soon as reasonably practicable of any anticipated or actual event or
transaction that will cause or causes the Securities to become convertible pursuant to clauses (3)
or (4) of Section 4.01(a).



     (c) [Intentionally Omitted]



     (d) In the case of a transaction contemplated by clause (6) of section 4.01(a), the Company
will notify the Holders and Trustee at least 10 Trading Days prior to the anticipated Fundamental
Change Effective Date of any Fundamental Change that the Company knows or reasonably should know
will occur. If the Company does not know, and should not reasonably know, that a Fundamental
Change will occur until a date that is within 10 Trading Days before the anticipated Fundamental
Change Effective Date, the Company will notify the Holders and the Trustee promptly after the
Company has knowledge of such Fundamental Change. Holders may surrender Securities for conversion
at any time beginning 10 Trading Days before the anticipated Fundamental Change Effective Date of a
Fundamental Change and until the last Trading Day preceding the Fundamental Change Purchase Date.



     (e) (i) For each calendar quarter of the Company, beginning with the calendar quarter ending
March 31, 2006, the Conversion Agent, on behalf of the Company, will determine, on the first
Business Day following the last Trading Day of such calendar quarter, whether the Securities are
convertible pursuant to clause (1) of Section 4.01(a), and, if so, will notify the Trustee and the
Company in writing. Upon request of the Conversion Agent, the Company shall provide, or cause to
be provided to, the Conversion Agent the Closing Price per



33









 







share of Common Stock for the 30 consecutive Trading Days ending on the last Trading Day of
the preceding calendar quarter.



          (ii) The Trustee shall have no obligation to determine the Trading Price of the Securities and
whether the Securities are convertible pursuant to clause (8) of Section 4.01(a) unless the Company
has requested such determination in writing; and the Company shall have no obligation to make such
request unless a Holder of Securities provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Securities would be less than 98% of the product of
the Closing Price of the Common Stock and the Conversion Rate per $1,000 principal amount of
Securities. At such time, the Company shall instruct the Trustee to determine the Trading Price of
the Securities beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of the Securities is greater than 98% of the product of
the Closing Price of the Common Stock and the Conversion Rate per $1,000 principal amount of the
Securities.




     (f) The conversion rights pursuant to this Article 4 shall commence on the initial issuance
date of the Securities and expire at the close of business on the Business Day immediately
preceding the Final Maturity Date, but shall be exercisable only during the time periods specified
with respect to each circumstance pursuant to which the Securities become convertible, subject, in
the case of conversion of any Global Security, to any Applicable Procedures. If the Securities
become subject to mandatory redemption or a security is submitted or presented for purchase upon a
Fundamental Change pursuant to Article 3, such conversion right shall terminate at the close of
business on the second Business Day immediately preceding the Mandatory Redemption Date and on the
Business Day immediately preceding the Fundamental Change Purchase Date for such Security (unless
the Company shall fail to make the Mandatory Redemption Price or Fundamental Change Purchase Price
payment when due in accordance with Article 3, in which case the conversion right shall terminate
at the close of business on the date such failure is cured and such Security is redeemed or
purchased, as the case may be). If a Security is convertible as a result of a Fundamental Change,
such conversion right shall commence and terminate as set forth in Section 4.01(d). Securities in
respect of which a Fundamental Change Purchase Notice has been delivered may not be surrendered for
conversion pursuant to this Article 4 prior to a valid withdrawal of such Fundamental Change Notice
in accordance with the provisions of Article 3.



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



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



     (i) The Conversion Rate shall be adjusted in certain instances as provided in Sections 4.01(j)
and 4.01(k) and Section 4.06.



     (j) If there shall have occurred a Special Trigger Event, then the Conversion Rate per $1,000
principal amount of Securities otherwise in effect in respect of Securities that are converted
during the Special Trigger Event Conversion Period shall be increased by the amount,




34










 





if any, determined by reference to the table below, based on the Mandatory Redemption Date and the
Special Event Average Price (as defined below); provided that if the Special Event Average Price or
Mandatory Redemption Date are not set forth on the table: (i) if the actual Special Event Average
Price or the Mandatory Redemption Date is between two Special Event Average Prices on the table or
the actual Mandatory Redemption Date is between two Mandatory Redemption Dates on the table, the
Special Event Average Price will be determined by a straight-line interpolation between the
adjustment amounts set forth for the two Special Event Average Prices and the two Mandatory
Redemption Dates on the table based on a 365-day year, as applicable, (ii) if the Special Event
Average Price exceeds $500.00 per share, subject to adjustment as set forth herein, no adjustment
to the applicable Conversion Rate will be made, and (iii) if the Special Event Average Price is
less than $20.65 per share, subject to adjustment as set forth herein, no adjustment to the
applicable Conversion Rate will be made. The “Special Event Average Price” shall be the arithmetic
average of the Volume Weighted Average Price per share of Common Stock for each of the five Trading
Days ending on the second Trading Day prior to the Mandatory Redemption Date, provided that after
the consummation of a Fundamental Change in which the consideration is comprised entirely of cash,
the Special Event Average Price will be the cash price per share received by holders of Common
Stock in such Fundamental Change.




     The following table shows the amount, if any, by which the applicable Conversion Rate will
increase for each hypothetical Special Event Average Price and Mandatory Redemption Date set forth
below:



Make Whole Premium Upon a Special Trigger Event (Increase in Applicable Conversion Rate)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Mandatory Redemption Date	 
		 	December 13,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 
	Special Event Average Price	 	2005	 	 	2006	 	 	2007	 	 	2008	 	 	2009	 	 	2010	 
	$  20.65
	 	 	6.0532	 	 	 	4.8426	 	 	 	3.6320	 	 	 	2.4213	 	 	 	1.2107	 	 	 	0.0000	 
	    50.00
	 	 	2.5000	 	 	 	2.0000	 	 	 	1.5000	 	 	 	1.0000	 	 	 	0.5000	 	 	 	0.0000	 
	  100.00
	 	 	1.2500	 	 	 	1.0000	 	 	 	0.7500	 	 	 	0.5000	 	 	 	0.2500	 	 	 	0.0000	 
	  250.00
	 	 	0.5000	 	 	 	0.4000	 	 	 	0.3000	 	 	 	0.2000	 	 	 	0.1000	 	 	 	0.0000	 
	  500.00
	 	 	0.2500	 	 	 	0.2000	 	 	 	0.1500	 	 	 	0.1000	 	 	 	0.0500	 	 	 	0.0000	 






     The Special Event Average Prices set forth in the first column of the table above will be
adjusted as of any date on which the Conversion Rate of the Securities is adjusted, other than as a
result of an adjustment of the Conversion Rate by virtue of the provisions of this Section 4.01(j).
The adjusted Special Event Average Prices will equal the Special Event Average Prices applicable
immediately prior to such adjustment multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to the adjustment giving rise to the Special Event Average Price
adjustment and the denominator of which is the Conversion Rate as so adjusted. The Conversion Rate
adjustment amounts set forth in the table above will be adjusted in the same manner as the
Conversion Rate as set forth in Section 4.06 hereof.



     If a Holder surrenders its Securities for conversion during the Special Trigger Event
Conversion Period and such conversion is also deemed to be in connection with a Fundamental Change,
the Conversion Rate applicable to such Holder will only be adjusted by the greater of
the adjustments provided by this Section 4.01(j) or the adjustments provided by this Section
4.01(k).



35









 





     Notwithstanding the foregoing paragraph, in no event will the Conversion Rate exceed 30.2663
per $1,000 principal amount of Securities, subject to adjustment in the manner set forth in clauses
(1) through (4) of Section 4.06(a) hereof.



     (k) If there shall have occurred a Fundamental Change, then the Conversion Rater per $1,000
principal amount of Securities otherwise in effect in respect of Securities that are converted
during the period beginning 10 Trading Days before the anticipated Fundamental Change Effective
Date and ending at the close of business on the Business Day immediately preceding the Fundamental
Change Purchase Date shall be increased by the amount, if any, determined by reference to the
table below, based on the Fundamental Change Effective Date and the Stock Price of such Fundamental
Change; provided that if the Stock Price or Fundamental Change Effective Date are not set forth on
the table: (i) if the actual Stock Price on the Fundamental Change Effective Date is between two
Stock Prices on the table or the actual Fundamental Change Effective Date is between two
Fundamental Change Effective Dates on the table, the amount of the Conversion Rate adjustment will
be determined by a straight-line interpolation between the adjustment amounts set forth for the two
Stock Prices and the two Fundamental Change Effective Dates on the table based on a 365-day year,
as applicable, (ii) if the Stock Price on the Fundamental Change Effective Date exceeds $100.00 per
share, subject to adjustment as set forth herein, no adjustment to the applicable Conversion Rate
will be made, and (iii) if the Stock Price on the Fundamental Change Effective Date is less than
$33.04 per share, subject to adjustment as set forth herein, no adjustment to the applicable
Conversion Rate will be made. If Holders of the Common Stock receive only cash in the Fundamental
Change, the Stock Price shall be the cash amount paid per share of the Common Stock in connection
with the Fundamental Change. Otherwise, the Stock Price shall be equal to the average Closing
Prices of the Common Stock for each of the 10 Trading Days immediately preceding, but not
including, the applicable Fundamental Change Effective Date.



     The following table shows the amount, if any, by which the applicable Conversion Rate will
increase for each hypothetical Stock Price and Fundamental Change Effective Date set forth below:



Make Whole Premium Upon Fundamental Change (Increase in Applicable Conversion Rate)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
		 	December 13,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 	 	December 15,	 
	Stock Price on Effective Date	 	2005	 	 	2006	 	 	2007	 	 	2008	 	 	2009	 	 	2010	 
	$  33.04
	 	 	6.0532	 	 	 	6.0532	 	 	 	6.0532	 	 	 	6.0532	 	 	 	6.0532	 	 	 	0.0000	 
	    36.00
	 	 	5.0716	 	 	 	4.8590	 	 	 	4.6066	 	 	 	4.2985	 	 	 	3.8901	 	 	 	0.0000	 
	    38.00
	 	 	4.5450	 	 	 	4.2930	 	 	 	3.9880	 	 	 	3.6015	 	 	 	3.0558	 	 	 	0.0000	 
	    40.00
	 	 	4.1016	 	 	 	3.8221	 	 	 	3.4798	 	 	 	3.0402	 	 	 	2.4054	 	 	 	0.0000	 
	    42.00
	 	 	3.7268	 	 	 	3.4277	 	 	 	3.0609	 	 	 	2.5879	 	 	 	1.9032	 	 	 	0.0000	 
	    46.00
	 	 	3.2095	 	 	 	2.8996	 	 	 	2.4258	 	 	 	1.9277	 	 	 	1.2278	 	 	 	0.0000	 
	    50.00
	 	 	2.6922	 	 	 	2.3714	 	 	 	1.9828	 	 	 	1.4945	 	 	 	0.8427	 	 	 	0.0000	 
	    55.00
	 	 	2.2841	 	 	 	1.9741	 	 	 	1.6023	 	 	 	1.1496	 	 	 	0.5865	 	 	 	0.0000	 
	    60.00
	 	 	1.9844	 	 	 	1.6907	 	 	 	1.3452	 	 	 	0.9348	 	 	 	0.4558	 	 	 	0.0000	 
	    80.00
	 	 	1.3206	 	 	 	1.1041	 	 	 	0.8539	 	 	 	0.5844	 	 	 	0.2950	 	 	 	0.0000	 
	  100.00
	 	 	1.0248	 	 	 	0.8511	 	 	 	0.6600	 	 	 	0.4561	 	 	 	0.2345	 	 	 	0.0000	 






     The Stock Prices set forth in the first column of the table above will be adjusted as of
any date on which the Conversion Rate of the Securities is adjusted, other than as a result of an
adjustment of the Conversion Rate by virtue of the provisions of this Section 4.01(k). The
adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment
multiplied by a fraction, the numerator of which is the Conversion Rate immediately



36









 




prior to the
adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion
Rate as so adjusted. The Conversion Rate adjustment amounts set forth in the table above will be
adjusted in the same manner as the Conversion Rate as set forth in Section 4.06 hereof.




     If a Holder surrenders its Securities for conversion during the Special Trigger Event
Conversion Period and such conversion is also deemed to be in connection with a Fundamental Change,
the Conversion Rate applicable to such Holder will only be adjusted by the greater of the
adjustments provided in Section 4.01(j) or the adjustments provided in this Section 4.01(k).



     Notwithstanding the foregoing paragraph, in no event will the Conversion Rate exceed 30.2663
per $1,000 principal amount of Securities, subject to adjustment in the manner set forth in clauses
(1) through (4) of Section 4.06(a) hereof.



     (l) Except as set forth in Section 4.02(c), by delivering the amount of cash and/or the number
of shares of Common Stock issuable on conversion to the Trustee, the Company will be deemed to have
satisfied its obligation to pay the principal amount of the Securities so converted and its
obligation to pay accrued and unpaid interest, and Liquidated Damages if any, attributable to the
period from the most recent Interest Payment Date through the Conversion Date (which amount will be
deemed paid in full rather than cancelled, extinguished or forfeited).



     (m) Notwithstanding anything else contained herein, the Securities shall not become subject to
conversion by reason of a merger, consolidation, or other transaction effected with one of the
Company’s direct or indirect Subsidiaries for the purpose of changing the Company’s state of
incorporation to any other state within the United States or the District of Columbia.



     Section 4.02 Conversion Procedure.



     (a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security and deliver such notice to a Conversion Agent, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (4) pay all transfer or similar taxes, if
required pursuant to Section 4.04. The date on which the Holder satisfies all of those
requirements is the “Conversion Date.” Upon the conversion of a Security, the Company will pay the
cash and deliver the shares of Common Stock, as applicable, as promptly as practicable after the
later of the Conversion Date and the date that all calculations necessary to make such payment and
delivery have been made, but in no event later than five Business Days after the later of those
dates. Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be surrendered for
conversion in accordance with the Applicable Procedures as in effect from time to time.



     (b) The person in whose name the shares of Common Stock are issuable upon conversion shall be
deemed to be a holder of record of such Common Stock on the later of (i) the Conversion Date, (ii)
the expiration of the period in which the Company may elect to deliver cash in lieu of shares of
common stock, or (iii) if the Company elects to deliver cash in lieu of some, but not all, of such
shares of Common Stock, the date on which the amount of cash issuable per Security has been
determined; provided, however, that no surrender of a Security on



37









 




any Conversion Date when the
stock transfer books of the Company shall be closed shall be effective to constitute the person or
persons entitled to receive the shares of Common Stock upon conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next succeeding day on
which such stock transfer books are open; provided further that such conversion shall be at the
Conversion Rate in effect on the Conversion Date as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such
Security. Except as set forth in this Indenture, no payment or adjustment will be made for
dividends or distributions declared or made on shares of Common Stock issued upon conversion of a
Security prior to the issuance of such shares.




     (c) Holders of Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (excluding Securities or portions thereof called for redemption)
will receive the semi-annual interest payable on such Securities on the corresponding Interest
Payment Date notwithstanding the conversion. Upon surrender of any such Securities for conversion,
unless such Securities are being converted solely pursuant to Section 4.01(a)(2) or have been
surrendered for conversion following the regular record date immediately preceding the final
interest payment date (December 15, 2010), such Securities shall also be accompanied by payment in
funds acceptable to the Company of an amount equal to the interest payable on such corresponding
Interest Payment Date. Except as otherwise provided in this Section 4.02(c), no payment or
adjustment will be made for accrued interest on a converted Security.



     (d) Subject to Section 4.02(c), nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a Regular Record Date to receive
the interest payable on such Security on the related Interest Payment Date in accordance with the
terms of this Indenture, the Securities and the Registration Rights Agreement. If a Holder
converts more than one Security at the same time, the amount of cash to be paid and the number of
shares of Common Stock issuable upon the conversion, if any, (and the amount of any cash in lieu of
fractional shares pursuant to Section 4.03) shall be based on the aggregate principal amount of all
Securities so converted.



     (e) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an aggregate
principal amount equal to the, and in exchange for, unconverted portion of the principal
amount of such Security. A Security may be converted in part, but only if the principal amount of
such part is an integral multiple of $1,000 and the principal amount of such Security to remain
outstanding after such conversion is equal to $1,000 or any integral multiple of $1,000 in excess
thereof.



     (f) Upon the Company’s determination that a Holder is or will be entitled to convert their
Securities into shares of Common Stock pursuant to this Article 4, the Company will promptly after
making such determination issue a press release and use its reasonable efforts to



38









 




post such
information on the Company’s website or otherwise publicly disclose such information.




     Section 4.03 Fractional Shares.



     The Company will not issue fractional shares of Common Stock upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares that shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. In lieu of any fractional shares, the Company will pay an amount in cash
for the current market value of the fractional shares. The current market value of a fractional
share shall be determined (calculated to the nearest 1/100th of a share) by multiplying the
arithmetic average of the Volume Weighted Average Price of the Common Stock for each of the ten
consecutive Trading Days of the Conversion Reference Period by such fractional share and rounding
the product to the nearest whole cent.



     Section 4.04 Taxes on Conversion.



     If a Holder converts a Security, the Company shall pay any transfer, stamp or similar taxes or
duties related to the issue or delivery of shares of Common Stock upon such conversion. The
Company shall also pay any such tax with respect to cash received in lieu of fractional shares.
The Holder shall pay any such tax which is due because the Holder requests the shares to be issued
in a name other than the Holder’s name. The Conversion Agent may refuse to deliver the certificate
representing the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are
to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.



     Section 4.05 Company to Provide Stock.



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



     (b) All shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be
free from preemptive or similar rights and free of any lien or adverse claim as the result of any
action by the Company.



     (c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities.



     (d) [Intentionally Omitted]:



     Section 4.06 Adjustment of Conversion Rate.



39









 





     (a) The Conversion Rate shall be adjusted from time to time by the Company as follows:




     (1) If the Company shall pay a dividend or make a distribution to all holders of
outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect
immediately prior to the record date for the determination of shareholders entitled to
receive such dividend or other distribution shall be increased so that the same shall equal
the rate determined by multiplying the Conversion Rate in effect immediately prior to such
record date by a fraction of which the numerator shall be the sum of the number of shares of
Common Stock outstanding at the close of business on such record date plus the total number
of shares of Common Stock constituting such dividend or other distribution and of which the
denominator shall be the number of shares of Common Stock outstanding at the close of
business on such record date. Such adjustment shall be made successively whenever any such
dividend or distribution is made and shall become effective immediately after such record
date. For the purpose of this clause (1), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on Common Stock held in the treasury of the
Company. If any dividend or distribution of the type described in this clause is declared
but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.




     (2) If the Company shall subdivide its outstanding Common Stock into a greater number
of shares, or combine its outstanding Common Stock into a smaller number of shares, the
Conversion Rate in effect immediately prior to the day upon which such subdivision or
combination becomes effective shall be, in the case of a subdivision of Common Stock,
proportionately increased and, in the case of a combination of Common Stock, proportionately
reduced. Such adjustment shall be made successively whenever any such subdivision or
combination of the Common Stock occurs and shall become effective immediately after the date
upon which such subdivision or combination becomes effective.




     (3) If the Company shall issue rights or warrants to all holders of its outstanding
Common Stock entitling them (for a period expiring within 45 days after such issuance) to
subscribe for or purchase shares of Common Stock (or securities convertible into Common
Stock) at a price per share (or having a conversion price per share) less than the Current
Market Price per share of Common Stock (as determined in accordance with clause (9) of this
Section 4.06(a)) on the record date for the determination of shareholders entitled to
receive such rights or warrants, the Conversion Rate in effect immediately prior thereto
shall be adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close of business
on such record date plus the number of additional shares of Common Stock that such rights or
warrants entitle holders thereof to subscribe for or purchase (or into which such
convertible securities are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the
number of shares which



40









 






the aggregate offering price of the total number of shares of Common
Stock so offered for subscription or purchase (or the aggregate conversion price of the
convertible securities so offered for subscription or purchase, which shall be determined by
multiplying the number of shares of Common Stock issuable upon conversion of such
convertible securities by the conversion price per share of Common Stock pursuant to the
terms of such convertible securities) would purchase at the Current Market Price per share
of Common Stock on such record date. Such adjustment shall be made successively whenever
any such rights or warrants (or convertible securities) are issued, and shall become
effective immediately after such record date. To the extent that shares of Common Stock (or
securities convertible into Common Stock) are not delivered after the expiration of such
rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered. If such rights or warrants
are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if the record date for the determination of shareholders
entitled to receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the shareholders to subscribe for or purchase shares of Common
Stock at a price less than the Current Market Price per share of Common Stock and in
determining the aggregate offering price of the total number of shares of Common Stock so
offered, there shall be taken into account any consideration received by the Company for
such rights or warrants and any amount payable on exercise or conversion thereof, the value
of such consideration, if other than cash, to be determined by the Board of Directors.




     (4) If the Company shall make a dividend or other distribution to all holders of its
Common Stock of Capital Stock, other than Common Stock, or evidences of indebtedness or
other assets of the Company (excluding (x) any issuance of rights or warrants for which an
adjustment was made pursuant to Section 4.06(a)(3), (y) dividends or distributions in
connection with a reclassification, change, consolidation, merger,
combination, liquidation, dissolution, winding up, sale or conveyance resulting in a
change in the conversion consideration, or pursuant to any shareholder rights plan or (z)
any dividend or distribution paid exclusively in cash for which an adjustment was made
pursuant to Section 4.06(a)(6)) (the “Distributed Securities”), then in each such case
(unless the Company distributes such Distributed Securities for distribution to the Holders
of Securities on such dividend or distribution date as if each Holder had converted such
Security into Common Stock immediately prior to the record date with respect to such
distribution) the Conversion Rate in effect immediately prior to the record date fixed for
the determination of shareholders entitled to receive such dividend or distribution shall be
adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate
in effect immediately prior to such record date by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on such record date and of which
the denominator shall be Current Market Price per share on such record date less the fair
market value (as determined in good faith by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value and which shall be evidenced by an
Officers’ Certificate delivered to the Trustee) on such record date of the portion of the
Distributed Securities



41









 






so distributed applicable to one share of Common Stock (determined on
the basis of the number of shares of Common Stock outstanding at the close of business on
such record date). Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution. In the event that such
dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or distribution had
not been declared.




If the fair market value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on such record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of a security shall have
the right to receive upon conversion the amount of Distributed Securities so distributed
that such Holder would have received had such Holder converted each Security on such record
date. If the Board of Directors determines the fair market value of any distribution for
purposes of this Section 4.06(a)(4) by reference to the actual or when issued trading market
for any securities, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price of the Common Stock.




Notwithstanding the foregoing, if the securities distributed by the Company to all holders
of its Common Stock consist of Capital Stock of, or similar equity interests in, a
Subsidiary or other business unit of the Company (the “Spinoff Securities”), the Conversion
Rate shall be adjusted, unless the Company makes an equivalent distribution to the Holders
of the Securities, so that the same shall be equal to the rate determined by multiplying the
Conversion Rate in effect on the record date fixed for the determination of shareholders
entitled to receive such distribution by a fraction, the numerator of which shall be the sum
of (A) the average closing Price of one share of Common Stock over the
ten consecutive Trading Day period (the “Spinoff Valuation Period”) commencing on and
including the fifth Trading Day after the date on which ex-dividend trading commences for
such distribution on the Nasdaq National Market or such other U.S. national or regional
exchange or market on which the Common Stock is then listed or quoted and (B) the average of
the Closing Prices over the Spinoff Valuation Period of the Spinoff Securities multiplied by
the number of Spinoff Securities distributed in respect of one share of Common Stock and the
denominator of which shall be the average closing Price of one share of Common Stock over
the Spinoff Valuation Period, such adjustment to become effective immediately prior to the
opening of business on the fifteenth Trading Day after the date on which ex-dividend trading
commences; provided, however, that the Company may in lieu of the foregoing adjustment elect
to make adequate provision so that each Holder of Securities shall have the right to receive
upon conversion thereof the amount of such Spinoff Securities that such Holder of Securities
would have received if such Securities had been converted on the record date with respect to
such distribution.




     (5) With respect to any rights or warrants (the “Rights”) that may be issued or
distributed pursuant to any rights plan that the Company implements after the date of this
Indenture (a “Rights Plan”), in lieu of any adjustment required by any other provision of



42









 






this Section 4.06 upon conversion of the Securities into Common Stock, to the extent that
such Rights Plan is in effect upon such conversion, the Holders of Securities will receive,
with respect to the shares of Common Stock issued upon conversion, the Rights described
therein (whether or not the Rights have separated from the Common Stock at the time of
conversion), subject to the limitations set forth in and in accordance with any such Rights
Plan; provided that if, at the time of conversion, however, the Rights have separated from
the shares of Common Stock in accordance with the provisions of the Rights Plan so that
Holders would not be entitled to receive any rights in respect of the shares of Common Stock
issuable upon conversion of the Securities as a result of the timing of the Conversion Date,
the Conversion Rate will be adjusted as if the Company distributed to all holders of Common
Stock Distributed Securities as provided in the first paragraph of clause (4) of this
Section 4.06(a), subject to appropriate readjustment in the event of the expiration,
termination, repurchase or redemption of the Rights. Any distribution of rights or warrants
pursuant to a Rights Plan complying with the requirements set forth in the immediately
preceding sentence of this paragraph shall not constitute a distribution of rights or
warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of
this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result
of the issuance of any Rights, the distribution of separate certificates representing such
Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the
termination or invalidation of any Rights.




     (6) If the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering Distribution”) to all holders of its Common Stock a payment consisting
exclusively of cash (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or involuntary) the
Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying such Conversion Rate in effect immediately prior to the close of business on the
record date for such Triggering Distribution (a “Determination Date”) by a fraction of
which the numerator shall be such Current Market Price per share of the Common Stock on
the Determination Date and the denominator of which shall be the Current Market Price per
share of the Common Stock on the Determination Date less the amount of such cash dividend or
distribution applicable to one share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding at the close of business on the Determination Date),
such increase to become effective immediately prior to the opening of business on the day
following the date on which the Triggering Distribution is paid. If the amount of cash
dividend or distribution applicable to one share of Common Stock is equal to or greater than
the Current Market Price per share of the Common Stock on the Determination Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each Holder of a Security
shall have the right to receive upon conversion the amount of cash so distributed that such
Holder would have received had such Holder converted each Security on such Determination
Date. In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such divided or distribution had not been declared.




     (7) If any tender offer made by the Company or any of its Subsidiaries for all or any
portion of Common Stock shall expire, then, if the tender offer shall require the



43









 






payment to
shareholders of consideration per share of Common Stock having a fair market value
(determined as provided below) that exceeds the Closing Price per share of Common Stock on
the Trading Day next succeeding the last date (the “Expiration Date”) tenders could have
been made pursuant to such tender offer (as it may be amended) (the last time at which such
tenders could have been made on the Expiration Date is hereinafter sometimes called the
“Expiration Time”), the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior to the close
of business on the Expiration Date by a fraction of which the numerator shall be the sum of
(A) the fair market value of the aggregate consideration (the fair market value as
determined in good faith by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officer’s Certificate
delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the “Purchased Shares”) and (B) the product of the number of shares of Common
Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury
of the Company) at the Expiration Time and the Closing Price per share of Common Stock on
the Trading Day next succeeding the Expiration Date and the denominator of which shall be
the product of the number of shares of Common Stock outstanding (including Purchased Shares
but excluding any shares held in the treasury of the Company) at the Expiration Time
multiplied by the Closing Price per share of the Common Stock on the Trading Day next
succeeding the Expiration Date, such increase to become effective immediately prior to the
opening of business on the day following the Expiration Date. In the event that the Company
is obligated to purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or
all such purchases or any or all such purchases are rescinded, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would have been in effect based upon
the number of shares actually purchased, if any. If the application of this clause (7) of
Section 4.06(a) to any tender offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer under this clause (7).




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




     (9) For purposes of any computation under this Section 4.06, “Current Market Price”
shall mean the average of the daily Closing Prices per share of Common Stock for each of the
ten consecutive Trading Days immediately prior to the date in question; provided, however,
that if




     (A) the “ex” date (as hereinafter defined) for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment to
the Conversion Rate pursuant to Section 4.06(a) (1), (2), (3), (4), (5), (6) or (7)



44









 






occurs during such ten consecutive Trading Days, the Closing Price for each Trading
Day prior to the “ex” date for such other event shall be adjusted by dividing such
Closing Price by the same fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event;




     (B) the “ex” date for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 4.06(a) (1), (2), (3), (4), (5), (6) or (7) occurs on or after
the “ex” date for the issuance or distribution requiring such computation and prior
to the day in question, the Closing Price for each Trading Day on and after the “ex”
date for such other event shall be adjusted by dividing such Closing Price by the
reciprocal of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event; and




     (C) the “ex” date for the issuance or distribution requiring such computation
is prior to the day in question, after taking into account any adjustment required
pursuant to the immediately preceding clause (A) or (B) of this Section 4.06(a)(9),
the Closing Price for each Trading Day on or after such “ex” date shall be adjusted
by adding thereto the amount of any cash and the fair market value (as determined in
good faith by the Board of Directors in a manner consistent with any determination
of such value for purposes of Section 4.06(a)(4) or (7), whose determination shall
be conclusive and set forth in a Board Resolution) of the evidences of indebtedness,
            shares of capital stock or assets being distributed applicable to one share of
Common Stock as of the close of business on the day before such “ex” date.




For purposes of any computation under Section 4.06(a)(7), if the “ex” date for any event
(other than the tender offer that is the subject of the adjustment pursuant to Section
4.06(a)(7)) that requires an adjustment to the Conversion Rate pursuant to Section
4.06(a)(1), (2), (3), (4), (5) or (6) occurs on the date of the Expiration Time for the
tender or exchange offer requiring such computation or on the Trading Day next following the
Expiration Time, the Closing Price for each Trading Day on and after the “ex” date for such
other event shall be adjusted by dividing such Closing Price by the reciprocal of the
fraction by which the Conversion Rate is so required to be adjusted as a result of such
other event. For purposes of this Section 4.09(a) the term “ex” date, when used:




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




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



45









 






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




Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are
called for pursuant to this Section 4.06, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate the intent of this Section
4.06 and to avoid unjust or inequitable results as determined in good faith by the Board of
Directors.



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



     (c) For purposes of this Section 4.06, “record date” shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock have the right to
receive any cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged or converted into any combination of cash, securities or other property, the
date fixed for determination of shareholders entitled to receive such cash, security or other
property (whether or not such date is fixed by the Board of Directors or by statute, contract or
otherwise).



     (d) If one or more event occurs requiring an adjustment be made to the Conversion Rate for a
particular period, adjustments to the Conversion Rate shall be determined by the Company’s Board of
Directors to reflect the combined impact of such Conversion Rate adjustment events, as set out in
this Section 4.06, during such period.



     (e) Notwithstanding the provisions set forth in Section 4.06(a), in no event shall the
Conversion Rate exceed 30.2663 per $1,000 principal amount of Securities, subject to adjustment in
the manner set forth in clauses (1) through (4) of Section 4.06(a).



46









 





     Section 4.07 No Adjustment.



     (a) No adjustment in the Conversion Rate shall be required if Holders may participate in the
transactions set forth in Section 4.06 above (to the same extent as if the Securities had been
converted into Common Stock immediately prior to such transactions) without converting the
Securities held by such Holders.



     (b) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate as last adjusted; provided,
however, that any adjustments which would be required to be made but for this Section 4.07(b) shall
be carried forward and taken into account in any subsequent adjustment. All calculations under
this Article 4 shall be made to the nearest cent or to the nearest one-ten thousandth of a share,
as the case may be, with one half cent and 0.00005 of a share, respectively, being rounded upward.



     (c) No adjustment in the Conversion Rate shall be required for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a change in the par
value or a change to no par value of the Common Stock.



     (d) To the extent that the Securities become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash.



     Section 4.08 [Intentionally Omitted].



     Section 4.09 Notice of Adjustment.



     Whenever the Conversion Rate or conversion privilege is required to be adjusted pursuant to
this Indenture, the Company shall promptly mail to Holders a notice of the adjustment and file with
the Trustee an Officers’ Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. Failure to mail such notice or any defect therein shall not affect the
validity of any such adjustment. Unless and until the Trustee shall receive an Officers’
Certificate setting forth an adjustment of the Conversion Rate, the Trustee may assume without
inquiry that the Conversion Rate has not been adjusted and that the last Conversion Rate of which
it has knowledge remains in effect.



     Section 4.10 Notice of Certain Transactions.



     In the event that there is a dissolution or liquidation of the Company, the Company shall mail
to Holders and file with the Trustee a notice stating the proposed effective date. The Company
shall mail such notice at least 10 days before such proposed effective date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction referred to in this
Section 4.10.



     Section 4.11 Effect of Recapitalization, Reclassification, Consolidation, Merger or
Sale.



     If any of following events occur (each, a “Business Combination”):



47









 






     (1) any recapitalization, reclassification or change of the Common Stock, other than
changes resulting from a subdivision or a combination,




     (2) a consolidation, merger or combination involving the Company,




     (3) a sale, conveyance or lease to another corporation of all or substantially all of
the property and assets of the Company, other than one or more of the Company’s
subsidiaries, or




     (4) any statutory share exchange,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that the Holders of the Securities then outstanding will be
entitled thereafter to convert such Securities into the kind and amount of
shares of stock, other securities or other property or assets (including cash or any combination
thereof) which they would have owned or been entitled to receive upon such Business Combination had
such Securities been converted into Common Stock immediately prior to such Business Combination,
except that such Holders will not receive the Make Whole Premium if such Holder does not convert
its Securities “in connection with” the relevant Fundamental Change. A conversion of the
Securities by a Holder will be deemed for these purposes to be “in connection with” a Fundamental
Change if the notice of such conversion is provided in compliance with Section 4.02(a) to the
Conversion Agent on or subsequent to the date 10 Trading Days prior to the date announced by the
Company as the anticipated Fundamental Change Effective Date but before the close of business on
the Business Day immediately preceding the related Fundamental Change Purchase Date. In the event
holders of Common Stock have the opportunity to elect the form of consideration to be received in
such Business Combination, the Company shall make adequate provision whereby the Holders of the
Securities shall have a reasonable opportunity to determine the form of consideration into which
all of the Securities, treated as a single class, shall be convertible from and after the effective
date of such Business Combination. Such determination shall be (i) based on the weighted average
of elections made by Holders of the Securities who participate in such determination, (ii) subject
to any limitations to which all of the holders of the Common Stock are subject, such as pro-rata
reductions applicable to any portion of the consideration payable in such Business Combination and
(iii) conducted in such a manner as to be completed by the date which is the earliest of (a) the
deadline for elections to be made by stockholders of the Company, and (b) two Trading Days prior to
the anticipated effective date of the Business Combination. The Company shall provide notice of
the opportunity to determine the form of such consideration, as well as notice of the determination
made by Holders of the Securities (and the weighted average of elections), by posting such notice
with DTC and providing a copy of such notice to the Trustee. In the event the effective date of
the Business Combination is delayed beyond the initially anticipated effective date, Holders of the
Securities shall be given the opportunity to make subsequent similar determinations in regard to
such delayed effective date. The Company may not become a party to any such transaction unless its
terms are consistent the this Section 4.11. Such




48









 







supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 4. If, in the case of any such Business Combination, the stock or other
securities and assets receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and assets of a corporation other than the successor or purchasing
corporation, as the case may be, in such Business Combination, then such supplemental indenture
shall also be executed by such other corporation and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of Directors shall reasonably
consider necessary by reason of the foregoing, including to the extent practicable the provisions
providing for the repurchase rights set forth in Article 3 hereof. Notwithstanding anything
contained in this Section, and for the avoidance of doubt, this Section shall not affect the right
of a Holder to convert its Securities into shares of Common Stock prior to the effective date of
the Business Combination.




     Section 4.12 Trustee’s Disclaimer.



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



     (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.11, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officers’ Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 12.04.



     Section 4.13 Voluntary Increase.



     The Company from time to time may increase the Conversion Rate, to the extent permitted by
law, by any amount for any period of time if the period is at least 20 days, and the Company
provides 15 days’ prior written notice to any increase in the Conversion Rate to the Trustee and
Holders. The Company may also make such an increase to the Conversion Rate as the Board of
Directors determines would avoid or diminish U.S. federal income tax to holders of shares of Common
Stock in connection with a dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for U.S. federal income tax purposes.



     Notwithstanding the foregoing paragraph, in no event will the Conversion Rate exceed 30.2663
per $1,000 principal amount of Securities, subject to adjustment in the manner as set forth in
clauses (1) through (4) of Section 4.06(a) hereof.



     Section 4.14 Payment of Cash in Lieu of Common Stock.



     (a) In lieu of delivery of some or all of the shares of Common Stock otherwise issuable upon
notice of conversion of any Securities, Holders surrendering Securities for



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conversion shall
receive for each $1,000 principal amount of Securities surrendered for conversion: (A) cash in an
amount equal to the lesser of (1) $1,000 and (2) the Conversion Value; and (B) if the Conversion
Value is greater than $1,000, a number of shares of Common Stock equal to the sum of the Daily
Share Amounts for each of the ten consecutive Trading Days in the Conversion Reference Period,
subject to the Company’s right to deliver cash in lieu of all or a portion of such shares as set
forth in Section 4.14(b); provided that in no event shall the aggregate number of shares of Common
Stock to be issued pursuant to the foregoing clause (B), per $1,000 principal amount of Securities,
exceed the Aggregate Share Cap, without taking into account any election by the Company to deliver
cash in lieu of all or a portion of the shares of Common Stock otherwise deliverable as set forth
in Section 4.14(b). The Company will deliver
such cash and any shares of Common Stock, together with any cash payable for fractional
shares, to such Holder in accordance with Section 4.02(a).




     (b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Common Stock otherwise issuable pursuant to Section 4.14(a). In
such event, on any day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company will specify a percentage of the Daily Share Amount that will be settled in
cash (the “Cash Percentage”) and the amount of cash that the Company will pay in respect of each
Trading Day in the applicable Conversion Reference Period will equal the product of: (1) the Cash
Percentage, (2) the Daily Share Amount for such Trading Day and (3) the Volume Weighted Average
Price of the Common Stock for such Trading Day (provided that after the consummation of a
Fundamental Change in which the consideration is comprised entirely of cash, the amount used in
this clause (3) will be the cash price per share received by holders of the Common Stock in such
Fundamental Change). The number of shares that the Company shall deliver in respect of each
Trading Day in the applicable Conversion Reference Period will be a percentage of the Daily Share
Amount equal to 100% minus the Cash Percentage. Upon making a determination that a percentage of
the Daily Share Amount will be settled in cash, the Company shall promptly issue a press release
and disclose such information on its website prior to the first Trading Day of the applicable
Conversion Reference Period. If the Company does not specify a Cash Percentage by the start of the
applicable Conversion Reference Period, the Company shall settle 100% of the Daily Share Amount for
each Trading Day in the applicable Conversion Reference Period with shares of Common Stock;
provided, however, that the Company shall pay cash in lieu of fractional shares otherwise issuable
upon conversion of Securities.



     (c) For the purposes of Sections 4.14(a) and (b), in the event that any of Conversion Value,
Daily Share Amounts or Volume Weighted Average Price cannot be determined for all portions of the
Conversion Reference Period, the Company’s Board of Directors shall in good faith determine the
values necessary to calculate the Conversion Value, Daily Share Amounts and Volume Weighted Average
Price, as applicable.



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ARTICLE 5

COVENANTS




     Section 5.01 Payment of Securities.



     (a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the securities and this Indenture. A payment of principal or interest or
Liquidated Damages, if any, shall be considered paid on the date it is due if the Paying Agent
(other than the Company) holds by 12:00 p.m. (noon), New York City time, on that date money,
deposited by or on behalf of the Company sufficient to make the payment. Subject to Section 4.02,
accrued and unpaid interest on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
is registered at the close of business on the Regular Record Date for such interest at the office
or agency of the company maintained for such purpose. Principal, interest, Mandatory Redemption
Price, Fundamental Change Purchase Price and Liquidated Damages, if any, in each case if payable,
shall be considered paid on the applicable date due if on such date the Trustee or the Paying Agent
holds, in accordance with this Indenture, money sufficient to pay all such amounts then due. The
Company shall, to the fullest extent permitted by law, pay interest in immediately available funds
on overdue principal amount and interest at the annual rate borne by the Securities compounded
semiannually, which interest shall accrue from the date such overdue amount was originally due to
the date payment of such amount, including interest thereon, has been made or duly provided for.
All such interest shall be payable on demand.



     (b) Payment of the principal of and interest, if any, on the Securities shall be made at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York (which shall initially be at the address set forth in Section 2.03(c)) or at the
Corporate Trust Office of the Trustee in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts; provided, however,
that at the option of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address appears in the Register; provided further that a Holder
with an aggregate principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder if such Holder has provided wire
transfer instructions to the Trustee at least 10 Business Days prior to the payment date. Any wire
transfer instructions received by the Trustee will remain in effect until revoked by the Holder.



     Section 5.02 SEC and Other Reports.



     (a) The Company shall file all reports and other information and documents which it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and within 15
days after it files them with the SEC, the Company shall file copies of all such reports,
information and other documents with the Trustee; provided that any such reports, information and
documents filed with the SEC pursuant to its Electronic Data Gathering, Analysis and



51









 




Retrieval (or
EDGAR) system shall be deemed to be filed with the Trustee. The Company also shall comply with the
provisions of TIA Section 314(a).




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



     Section 5.03 Compliance Certificates.



     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending December 31, 2005), an Officers’ Certificate as
to the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any Default or Event of
Default. If such signer knows of such a Default or Event of Default, the Officers’ Certificate
shall describe the Default or Event of Default and the efforts to remedy the same. For the
purposes of this Section 5.03, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.



     Section 5.04 Further Instruments and Acts.



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



     Section 5.05 Maintenance of Corporate Existence.



     Subject to Article 6, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence.



     Section 5.06 Rule 144A Information Requirement.



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



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     Section 5.07 Stay, Extension and Usury Laws.



     The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of or accrued but unpaid interest or Liquidated Damages, if
any, on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture, and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.



     Section 5.08 Payment of Liquidated Damages.



     If Liquidated Damages are payable by the Company pursuant to the Registration Rights
Agreement, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating
(i) the amount of such Liquidated Damages that are payable, (ii) the reason why such Liquidated
Damages are payable and (iii) the date on which such Liquidated Damages are payable. Unless and
until a Trust Officer of the Trustee receives such a certificate, the Trustee may assume without
inquiry that no such Liquidated Damages are payable. If the Company has paid Liquidated Damages
directly to the Persons entitled to such Liquidated Damages, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.



     Section 5.09 Maintenance of Office or Agency.



     The Company will maintain an office or agency of the Trustee, Registrar and Paying Agent where
securities may be presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, purchase or redemption and where notices and demands to or upon the
company in respect of the Securities and this Indenture may be served. The Corporate Trust Office
shall initially be one such office or agency for all of the aforesaid purposes. The Company shall
give prompt written notice to the Trustee of the location, and of any change in the location, of
any such office or agency (other than a change in the location of the office of the Trustee). If
at any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the company of its obligation to maintain an office or agency.



53









 





ARTICLE 6




CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE




     Section 6.01 Company May Consolidate, Etc., Only on Certain Terms.



     The Company may not consolidate with or merge into any Person or convey, transfer or lease the
property and assets, substantially as an entity, of the Company to another Person, other than to
one or more of the Company’s wholly-owned subsidiaries, unless:




     (1) the Person (if other than the Company) formed by such consolidation or into which
the Company is merged, or the Person which acquires by conveyance, transfer or lease all or
substantially all of the properties and assets of the Company, shall (i) be a corporation,
limited liability company, partnership, trust or other business entity organized and
existing under the laws of the United States of America or any State thereof or the District
of Columbia and (ii) such Person (if other than the Company) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the obligations of the Company under the Securities and this Indenture and
the performance or observance of every covenant and provision of this Indenture and the
Securities required on the part of the Company to be performed or observed and the
conversion rights shall be provided for in accordance with Article 4, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company) formed by such consolidation or into which the Company
shall have been merged or by the Person which shall have acquired the Company’s assets;




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




     (3) if the Company will not be the resulting or surviving corporation, the Company
shall have, at or prior to the effective date of such consolidation, merger or transfer,
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer complies with this Article 6.01 and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture complies with this Article, and that all conditions precedent herein provided for
relating to such transaction have been complied with.



     Section 6.02 Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease substantially as an entity, of the properties and assets of the
Company and its Subsidiaries, taken as a whole, in accordance with Section 6.01, the
successor Person formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the



54









 




case of a
lease, and except for obligations the predecessor Person may have under a supplemental indenture,
the predecessor Person shall be relieved of all obligations and covenants under this Indenture and
the Securities.




ARTICLE 7




DEFAULT AND REMEDIES




     Section 7.01 Events of Default.



     (a) An “Event of Default” shall occur if:




     (1) the Company shall fail to pay when due the Principal or the Mandatory Redemption
Price or Fundamental Change Purchase Price of any Security, when the same becomes due and
payable whether at the Final Maturity Date, upon redemption, repurchase, acceleration or
otherwise, and regardless of whether such payment is permitted pursuant to the subordination
provisions under Article 11; or




     (2) the Company shall fail to pay an installment of cash interest or Liquidated
Damages, if any, on any of the Securities, which failure continues for 30 days after the
date when due, regardless of whether such payment is permitted pursuant to the subordination
provisions under Article 11; or




     (3) the Company shall fail to deliver when due all cash and shares of Common Stock, if
any, deliverable upon conversion of the Securities, which failure continues for 15 days,
regardless of whether such payment is permitted pursuant to the subordination provisions
under Article 11; or




     (4) the Company shall fail to perform or observe (or obtain a waiver with respect to)
any other term, covenant or agreement contained in the Securities or this Indenture for a
period of 60 days after receipt by the Company of a Notice of Default specifying such
failure; or




     (5) default in the payment of principal by the end of any applicable grace period or
resulting in acceleration of other Indebtedness of the Company for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has occurred
exceeds $25 million and such acceleration has not been rescinded or annulled or such
Indebtedness repaid within a period of 30 days after receipt of a Notice of Default,
provided that if any such default is cured, waived, rescinded or annulled, then the Event of
Default by reason thereof would be deemed not to have occurred; or




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




     (A) commences as a debtor a voluntary case or proceeding; or



55









 






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




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




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




     (E) files a petition in bankruptcy or answer or consent seeking reorganization
or relief; or




     (F) consents to the filing of such a petition or the appointment of or taking
possession by a Receiver; or




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




     (A) grants relief against the Company or any Significant Subsidiary of the
Company in an involuntary case or proceeding or adjudicates the Company or any
Significant Subsidiary of the Company insolvent or bankrupt;




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




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




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



     The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto)
or any similar federal or state law for the relief of debtors. The term “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



     (b) Notwithstanding Section 7.01(a), no Event of Default under clauses (4) or (5) of Section
7.01(a) shall occur until the Trustee notifies the Company in writing, or the Holders of at least
25% in aggregate principal amount of the Securities then outstanding notify the Company and the
Trustee in writing, of the Default (a “Notice of Default”), and the Company does not cure the
Default within the time specified in clause (4) or (5) of Section 7.01(a), as applicable, after
receipt of such notice. A notice given pursuant to this Section 7.01 shall be given by
registered or certified mail, must specify the Default, demand that it be remedied and state
that the notice is a Notice of Default. When any Default under this Section 7.01 is cured, it
ceases.



     (c) The Company will deliver to the Trustee, within five Business Days after becoming aware of
the occurrence of a Default or Event of Default, written notice thereof.



56









 





     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer with responsibility for this Indenture at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent of
any Holder or unless a Trust Officer with responsibility for this Indenture acquires actual
knowledge of such Event of Default in the course of performing other duties pursuant to this
Indenture.



     Section 7.02 Acceleration.



     If an Event of Default (other than an Event of Default specified in clause (6) or (7) of
Section 7.01(a)) occurs and is continuing with respect to the Company, the Trustee may, by notice
to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may, by notice to the Company and the Trustee, declare the principal amount and accrued
and unpaid interest, if any, and accrued and unpaid Liquidated Damages, if any, through the date of
declaration on all the Securities to be immediately due and payable. Upon such a declaration, such
principal amount and such accrued and unpaid interest, if any, and such accrued and unpaid
Liquidated Damages, if any, shall be due and payable immediately. If an Event of Default specified
in Section 7.01(a)(6) or (7) occurs in respect of the Company and is continuing, the principal
amount and accrued but unpaid interest, if any, and accrued and unpaid Liquidated Damages, if any,
on all the Securities shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders of Securities. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the Trustee may rescind
an acceleration and its consequences if (a) all existing Events of Default, other than the
nonpayment of the principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful,
interest (calculated at the rate per annum borne by the Securities) on overdue installments of
interest and overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 8.07 have been made. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.



     Section 7.03 Other Remedies.



     (a) If an Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy by proceeding at law or in equity to collect payment of
the principal amount and accrued and unpaid interest, if any, and accrued and unpaid
Liquidated Damages, if any, on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.



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



57









 





     Section 7.04 Waiver of Defaults and Events of Default.



     Subject to Sections 7.07 and 10.02, the Holders of a majority in aggregate principal amount of
the Securities then outstanding by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except an uncured Default or Event of Default in the payment of the
principal of, premium, if any, or any accrued but unpaid interest on any Security, an uncured
failure by the Company to convert any Securities into Common Stock or any Default or Event of
Default in respect of any provision of this Indenture or the Securities which, under Section 10.02,
cannot be modified or amended without the consent of the Holder of each Security affected. When a
Default or Event of Default is waived, it is cured and ceases.



     Section 7.05 Control by Majority.



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



     Section 7.06 Limitations on Suits.



     (a) A Holder may not pursue any remedy with respect to this Indenture or the Securities
(except actions for payment of overdue principal, premium, if any, or interest or for the
conversion of the Securities pursuant to Article 4) unless:




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




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




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




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




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



     (b) No Holder of a Security shall have any right under any provision of this Indenture or the
Securities to affect, disturb, or prejudice the rights of another Holder of a Security or to obtain
a preference or priority over another Holder of a Security.



58









 





     Section 7.07 Rights of Holders to Receive Payment and to Convert.



     Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of the principal amount, interest, Mandatory Redemption Price, Fundamental
Change Purchase Price, if any, or Liquidated Damages, if any, in respect of the Securities held by
such Holder, on or after the respective due dates expressed in the Securities and this Indenture,
(whether upon redemption, repurchase, or otherwise), and to convert such Security in accordance
with Article 4, and to bring suit for the enforcement of any such payment on or after such
respective due dates or for the right to convert in accordance with Article 4, is absolute and
unconditional and shall not be impaired or affected without the consent of the Holder.



     Section 7.08 Collection Suit by Trustee.



     If an Event of Default described in clause (1) or (2) of Section 7.01(a) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount owing with respect to
the Securities and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.



     Section 7.09 Trustee May File Proofs of Claim.



     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims and to distribute the
same, and any Receiver in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 8.07, and to the extent that such payment of the
reasonable compensation, expenses, disbursements and advances in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other property which the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.



     Section 7.10 Priorities.



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     (a) If the Trustee collects any money pursuant to this Article 7, it shall pay out the money
in the following order:




     (1) First, to the Trustee for amounts due under Section 8.07;




     (2) Second, to Holders for amounts due and unpaid on the Securities for the principal
amount, interest, and Liquidated Damages, as applicable, ratably, without preference or
priority of any kind, according to such respective amounts due and payable on the Holders’
Securities;




     (3) Third, to such other Person or Persons, if any, to the extent entitled thereto; and




     (4) Fourth, the balance, if any, to the Company.



     (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to
this Section 7.10.



     Section 7.11 Undertaking for Costs.



     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 7.11 does not apply to a
suit made by the Trustee, a suit by a Holder pursuant to Section 7.07, or a suit by Holders of more
than 10% in aggregate principal amount of the Securities then outstanding. This Section 7.11 shall
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from
this Indenture, as permitted by the TIA.




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ARTICLE 8




TRUSTEE




     Section 8.01 Obligations of Trustee.



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



     (b) Except during the continuance of an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge:




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




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




     This Section 8.01(b) shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA.



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




     (1) this paragraph does not limit the effect of Section 8.01(b);




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




     (3) the Trustee shall not be liable in its individual capacity with respect to any
action it takes or omits to take in good faith in accordance with this Indenture or a
direction received by it pursuant to Section 7.05.




     This Section 8.01(c) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of
the TIA and such Sections are hereby expressly excluded from this Indenture as permitted by
the TIA.




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



     (e) Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 8.01.



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



     Section 8.02 Rights of Trustee.



     (a) Subject to Section 8.01:




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




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




     (3) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys or custodians, and the Trustee
shall not be responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed by the Trustee with due care.




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




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




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



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     (7) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney at the sole
cost of the Company, and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand from the Company’s own funds.




     (8) The Trustee shall not be deemed to have notice or knowledge of any Default, Event
of Default, Fundamental Change or a Special Trigger Event unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event which is in
fact such a Default is received by the Trustee at the Corporate Trust office, and such
notice references the Securities and this Indenture. In the absence of receipt of such
notice or actual knowledge, the Trustee may conclusively assume that there is no Default,
Event of Default, Fundamental Change or Special Trigger Event.




     (9) 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, including, without
limitation as Paying Agent, Registrar and Conversion Agent, and to each agent, custodian and
other Person employed to act hereunder.




     (10) The right of the Trustee to perform any discretionary act enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be answerable for
other than its own gross negligence or willful misconduct in the performance of such act.



     Section 8.03 Individual Rights of Trustee.



     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee is subject to Sections 8.10 and 8.11.



     Section 8.04 Trustee’s Disclaimer.



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



     Section 8.05 Notice of Default or Events of Default.



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     If a Default or an Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder of a Security notice of all uncured Defaults or
Events of Default known to it within 90 days after it occurs or, if later, within 15 days after it
becomes known to the Trustee. However, the Trustee may withhold the notice if and for so long as a
committee of its Trust Officers in good faith determines that withholding notice is in the
interests of Holders of Securities, except in the case of a Default or an Event of Default in
payment of the principal of, or premium, if any, or interest on any Security when due or in the
payment of any redemption or purchase obligation, or the Company’s failure to convert Securities
when obligated to convert them. This Section 8.05 is in lieu of section 315(b) of the TIA and such
provision is expressly excluded from this Indenture as permitted by the TIA.



     Section 8.06 Reports by Trustee to Holders.



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



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



     Section 8.07 Compensation and Indemnity.



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



     (b) The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of
this Section 8.07 shall include its officers, directors, employees and agents) for, and hold it
harmless against, any and all loss, liability or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee), incurred by it in connection with
the acceptance or administration of its duties under this Indenture or any action or failure to act
as authorized or within the discretion or rights or powers conferred upon the Trustee hereunder
including the reasonable costs and expenses of the Trustee and its counsel in defending (including
reasonable legal fees and expenses) itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement effected without its prior



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written consent, which shall not
be unreasonably withheld. Anything in this Indenture to the contrary notwithstanding, in no event
shall the Trustee be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.




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



     (d) To secure the Company’s payment obligations in this Section 8.07, the Trustee shall have a
senior claim to which the Securities are hereby made subordinate on all money or property held or
collected by the Trustee. The obligations of the Company under this Section 8.07 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in clause (7) or (8) of Section 7.01(a) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of
this Section shall survive the termination of this Indenture.



     Section 8.08 Replacement of Trustee.



     (a) The Trustee may resign by so notifying the Company. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may remove the Trustee by so
notifying the Trustee and the Company and may, with the Company’s written consent, appoint a
successor Trustee. The Company may remove the Trustee at any time, so long as no Default or Event
of Default has occurred and is continuing, and appoint a Successor Trustee in accordance with this
Section 8.08.



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



     (c) If a successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of 10% in principal amount
of the Securities then outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee at the expense of the Company.



     (d) If the Trustee fails to comply with Section 8.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (e) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer



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




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



     (g) Notwithstanding replacement of the Trustee pursuant to this Section 8.08, the Company’s
obligations under Section 8.07 shall continue for the benefit of the retiring Trustee.



     Section 8.09 Successor Trustee by Merger, Etc.



     If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including the administration of this Indenture) to, another
corporation, the resulting, surviving or transferee corporation, without any further act, shall be
the successor Trustee; provided such transferee corporation shall qualify and be eligible under
Section 8.10. Such successor Trustee shall promptly mail notice of its succession to the Company
and each Holder.



     Section 8.10 Eligibility; Disqualification.



     The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA
Section 310(a). The Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. If at any time the Trustee shall cease to satisfy any such requirements, it shall
resign immediately in the manner and with the effect specified in this Article 8. The Trustee
shall be subject to the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee
from
filing with the SEC the application referred to in the penultimate paragraph of TIA Section
310(b).



     Section 8.11 Preferential Collection of Claims Against Company.



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



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ARTICLE 9



SATISFACTION AND DISCHARGE OF INDENTURE




     Section 9.01 Satisfaction and Discharge of Indenture.



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




     (A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.07 and (ii) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as provided
in Section 9.03) have been delivered to the Trustee for cancellation; or




     (B) all such Securities not theretofore delivered to the Trustee for
cancellation have become due and payable, provided, that




     (1) the Company has deposited with the Trustee or a Paying Agent (other than the
Company or any of its Affiliates) immediately available funds in trust for the purpose of
and in an amount sufficient to pay and discharge all indebtedness related to such Securities
not theretofore delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit.




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




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



     (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the conversion privilege and the Conversion Rate of the Securities pursuant
to Article 4, the obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Section 9.01(a), the provisions of
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 5.01 and 12.05, Article 4, and this Article 9, shall
survive until the Securities have been paid in full.



     Section 9.02 Application of Trust Money.



     Subject to the provisions of Section 9.03, the Trustee or a Paying Agent shall hold in trust,
for the benefit of the Holders, all money deposited with it pursuant to Section 9.01 and shall
apply the deposited money in accordance with this Indenture and the Securities to the payment of
the principal of and interest on the Securities.



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     Section 9.03 Repayment to Company.



     (a) The Trustee and each Paying Agent shall promptly pay to the Company upon request any
excess money (1) deposited with them pursuant to Section 9.01 and (2) held by them at any time.



     (b) The Trustee and each Paying Agent shall, subject to applicable abandonment property laws,
pay to the Company upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years after a right to such money has matured; provided, however,
that the Trustee or such Paying Agent, before being required to make any such payment, may at the
expense of the Company cause to be mailed to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein, which shall be at least 30 days
from the date of such mailing, any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law designates another person.



     Section 9.04 Reinstatement.



     (a) If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
9.02 by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as the Trustee or such
Paying Agent is permitted to apply all such money in accordance with Section 9.02; provided,
however, that if the Company has made any payment of the principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive any such payment from the money held by the Trustee or
such Paying Agent.



     (b) If pursuant to the last sentence of Section 9.01(a)(2), the Company withdraws its
previously deposited funds as a result of its exercise of its redemption right, the Company’s
obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit has occurred pursuant to Section 9.01.



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ARTICLE 10




AMENDMENTS; SUPPLEMENTS AND WAIVERS




     Section 10.01 Without Consent of Holders.



     (a) The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Holder of a Security for the purpose of:




     (1) evidencing a successor to the Company and the assumption by that successor of the
Company’s obligations under this Indenture and the Securities;




     (2) adding to the Company’s covenants for the benefit of the Holders or surrendering
any right or power conferred upon the Company;




     (3) securing the Company’s obligations in respect of the Securities;




     (4) evidencing and providing for the acceptance of the appointment of a successor
trustee in accordance with Article 8;




     (5) complying with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, as contemplated by this Indenture or
otherwise;




     (6) curing any ambiguity, omission, inconsistency or correcting or supplementing any
defective provision contained in this Indenture; or




     (7) modifying any other provisions of this Indenture in any manner that will not
adversely affect the rights of the Holders in any material respect.



     (b) The Company may, without consent of any Holder of a Security or the Trustee, amend this
Indenture for the purpose of surrendering the Company’s right to deliver cash in lieu of issuing
shares of Common Stock upon conversion of the Securities.



     Section 10.02 With Consent of Holders.



     (a) The Company and the Trustee may amend or supplement this Indenture or the Securities with
the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. However, subject to Section 10.04, without the written consent of
each Holder affected, an amendment, supplement or waiver may not:




     (1) alter the manner of calculation or rate of accrual of interest on any Security or
change the time of payment of any installment of interest on, or any Liquidated Damages with
respect to, any Security;



69









 






     (2) make any of the Securities payable in money or securities other than that stated in
the Securities;




     (3) change the stated maturity of any Security;




     (4) reduce the principal amount, Mandatory Redemption Price or Fundamental Change
Purchase Price (including any Make Whole Premium payable) (as applicable) with respect to
any of the Securities, or any Liquidated Damages, or the amount payable upon mandatory
redemption or purchase pursuant to Article 3, with respect to any Security;




     (5) make any change that adversely affects the conversion rights of a Holder in any
material respect;




     (6) make any change that adversely affects the rights of Holders to require the Company
to purchase Securities at the option of Holders;




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




     (8) change the currency of payment of principal of, or interest on, the Securities;




     (9) except as otherwise permitted or contemplated by Section 4.11, adversely affect the
conversion rights of the Securities; or




     (10) reduce the percentage in aggregate principal amount of Securities outstanding
necessary to modify or amend this Indenture or to waive any past Default or otherwise change
the provisions in this Indenture that relate to modifying or amending this Indenture.



     (b) Without limiting the provisions of Section 10.02(a) hereof, the Holders of a majority in
principal amount of the Securities then outstanding may, on behalf of all the Holders of all
Securities, (i) waive compliance by the Company with the restrictive provisions of this Indenture,
and (ii) waive any past Default of Event of Default under this Indenture and its consequences,
except an uncured failure to pay when due the principal amount, accrued and unpaid interest,
accrued and unpaid Liquidated Damages, Mandatory Redemption Price or Fundamental Change Purchase
Price, or in the obligation to deliver Common Stock or cash, if any and as applicable, or in
respect of any provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Security affected.



     (c) After an amendment, supplement or waiver under this Section 10.02 becomes effective, the
Company shall promptly mail to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.



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     Section 10.03 Compliance with Trust Indenture Act.



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



     Section 10.04 Revocation and Effect of Consents.



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



     (b) After an amendment, supplement or waiver becomes effective, it shall bind every Holder of
a Security.



     Section 10.05 Notation on or Exchange of Securities.



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



     Section 10.06 Trustee to Sign Amendments, Etc.



     The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this
Article 10 if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but
need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 8.01, shall be fully protected in
relying upon, an Opinion of Counsel stating that such amendment or supplemental indenture is
authorized or permitted by this Indenture. The Company may not sign an amendment or supplement
indenture until the Board of Directors approves it.



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     Section 10.07 Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article 10, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



ARTICLE 11




SUBORDINATION




     Section 11.01 Agreement to Subordinate.



     The Company covenants and agrees, and each Holder by accepting a Security likewise covenants
and agrees, that all Securities shall be issued subject to the provisions of this Article 11; and
each Person holding any Security, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees to be bound by such provisions.



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



     No provision of this Article 11 shall prevent the occurrence of any Default or Event of
Default hereunder.



     Section 11.02 Payment to Holders.



     No payment shall be made with respect to the principal of, or premium, if any, interest and
Liquidated Damages, if any, on the Securities (including, but not limited to, the Mandatory
Redemption Price in connection with a mandatory redemption or the Fundamental Change Purchase Price
with respect to the Securities subject to repurchase in accordance with Article 3 as provided in
this Indenture), and no redemption, repurchase or retirement of the Securities shall occur and no
deposit shall be made pursuant to Article 9 at a time when such deposited amounts would not
otherwise be permitted under this Article 11, other than through the delivery of Common Stock (but
not the cash portion of the Company’s conversion obligation) in respect of the conversion of
Securities if:




     (a) a default in the payment of principal, premium, interest, rent or other obligations
due on any Senior Indebtedness occurs and is continuing and the Trustee receives notice of
such default (or, in the case of Senior Indebtedness for which there is a period of grace,
in the event of such a default that continues beyond the period of grace, if any, specified
in the instrument or lease evidencing such Senior Indebtedness), unless



72









 






and until such
default shall have been cured or waived by the appropriate holders of the Senior
Indebtedness or shall have ceased to exist; or




     (b) a default, other than a payment default, on any Designated Senior Indebtedness
occurs and is continuing that then permits holders of such Designated Senior Indebtedness to
accelerate the maturity of all or any portion of such Designated Senior Indebtedness (or
would permit such holders to so accelerate with the giving of notice or the passage of time
or both) and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from
a Representative or holder of such Designated Senior Indebtedness or the Company.



     Subject to the provisions of Section 11.05, if the Trustee receives any Payment Blockage
Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until at least 360 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee (unless
such default was waived, cured or otherwise ceased to exist and thereafter subsequently reoccurred)
shall be, or be made, the basis for a subsequent Payment Blockage Notice, whether or not within a
period of 360 consecutive days.



     Unless this Article 11 otherwise prohibits payments on or distributions in respect of the
Securities at the time of such payments or distributions, the Company may and shall resume such
payments on and distributions:




     (A) in the case of a default referred to in clause (a) above, the date upon which the
default is cured or waived by the requisite holders of Senior Indebtedness or otherwise
ceases to exist, or




     (B) in the case of a default referred to in clause (b) above, the earliest to occur of
(i) the date on which such default is cured or waived or otherwise ceases to exist or such
Designated Senior Indebtedness is discharged or paid in full, (ii) 179 days pass after the
date on which the applicable Payment Blockage Notice is received, and (iii) such payment
blockage period shall have been terminated by written notice to the Company or the Trustee
from the Person initiating such payment blockage period, if the maturity of such Designated
Senior Indebtedness has not been accelerated.



     Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company (whether voluntary or involuntary) or in
bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon
all Senior Indebtedness shall first be paid in full in cash, or other payment satisfactory to the
holders of Senior Indebtedness before any payment is made on account of the principal of,
premium, if any, interest or Liquidated Damages, if any, on the Securities (including, but not
limited to, the Mandatory Redemption Price in connection with a mandatory redemption or the
Fundamental Change Purchase Price with respect to the Securities subject to repurchase in
accordance with Article 3 as provided in this Indenture); and upon any such dissolution or
winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency,



73









 




receivership
or other proceeding, any payment by the Company, or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders or the Trustee
would be entitled, except for the provision of this Article 11, shall (except as aforesaid) be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, or
as otherwise required by law or a court order) or their Representative or Representatives, as their
respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full in
cash, or other payment satisfactory to the holders of Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Trustee.




     For purposes of this Article 11, the words, “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article 11 with respect to
the Securities to the payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from
any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness
(other than leases which are not assumed by the Company or the new corporation, as the case may be)
are not, without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, transfer, sale, lease or other
disposition of its property as an entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article 6 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 11.02 if such other
corporation shall, as a part of such consolidation, merger, conveyance, transfer, sale, lease or
other disposition, comply with the conditions stated in Article 6.



     In the event of the acceleration of the Securities because of an Event of Default, no payment
or distribution shall be made to the Trustee or any Holders in respect of the principal of,
premium, if any, interest or Liquidated Damages, if any, on the Securities by the Company
(including, but not limited to, the Mandatory Redemption Price in connection with a mandatory
redemption or the Fundamental Change Purchase Price with respect to the Securities subject to
repurchase in accordance with Article 3 as provided in this Indenture), except payments and
distributions made by the Trustee as permitted by Section 11.05, until all Senior Indebtedness has
been paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness or
such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the
Securities is accelerated because of an Event of Default, the Company shall promptly notify holders
of Senior Indebtedness of such acceleration.



     In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the provisions of this Article
11, shall be received by the Trustee or any of the Holders before all Senior Indebtedness



74









 




is paid
in full, in cash or other payment satisfactory to the holders of Senior Indebtedness, or provision
is made for such payment thereof in accordance with its terms in cash or other payment satisfactory
to the holders of Senior Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their
Representative or Representatives, as their respective interests may appear, as calculated by the
Company.




     Nothing in this Section 11.02 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 8.07. This Section 11.02 shall be subject to the further provisions of Section
11.05.



     Section 11.03 Subrogation of Securities.



     After the payment in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness of all Senior Indebtedness (and all commitments with respect to such Senior
Indebtedness have terminated or expired), the rights of the Holders shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to
the provisions of this Article 11 (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the Senior Indebtedness
until the principal, premium, if any, interest or Liquidated Damages, if any, on the Securities
shall be paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness;
and, for the purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders or the Trustee would
be entitled except for the provisions of this Article 11, and no payment over pursuant to the
provisions of this Article 11, to or for the benefit of the holders of Senior Indebtedness by
Holders or the Trustee, shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness; and no payments or distributions of cash, property or securities to or for the
benefit of the Holders pursuant to the subrogation provisions of this Article 11, which would
otherwise have been paid to the holders of Senior Indebtedness, shall be deemed to be a payment by
the Company to or for the account of the Securities. It is understood that the provisions of this
Article 11 are and are intended solely for the purposes of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand.



     Nothing contained in this Article 11 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of (and premium, if any), interest or Liquidated
Damages, if any, on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holders from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture, subject to the rights, if any, under



75









 




this Article 11 of the holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.




     Upon any payment or distribution of assets of the Company referred to in this Article 11, the
Trustee, subject to the provisions of Section 8.01, and the Holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent jurisdiction in which
such bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or
a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon and all
other facts pertinent thereto or to this Article 11.



     Section 11.04 Authorization to Effect Subordination.



     Each Holder by accepting a Security authorizes and directs the Trustee on such Holder’s behalf
to take such action as may be necessary or appropriate to effectuate the subordination as provided
in this Article 11 and as may be requested in writing and as prepared by the holders of Senior
Indebtedness at their expense, and each Holder and appoints the Trustee to act as such Holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in Section 11.03 hereof
at least 30 days before the expiration of the time to file such claim, the holders of any Senior
Indebtedness or their Representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders and each Holder hereby appoints the holders of Senior Indebtedness or their
respective Representatives to act as its attorney-in-fact for any and all such purposes.



     Section 11.05 Notice to Trustee.



     The Company shall give prompt written notice in the form of an Officer’s Certificate to a
Responsible Officer of the Trustee and to any Paying Agent of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article 11. Notwithstanding the
provisions of this Article 11 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the making of any payment
of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this
Article 11, unless and until a Responsible Officer of the Trustee shall have received written
notice thereof at the office of the Trustee specified in Section 12.02 hereof from the Company (in
the form of an Officer’s Certificate) or a Representative or a holder or holders of Senior
Indebtedness; and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.01, shall be entitled in all respects to assume that no such facts exist;
provided that with respect to any such monies that may become payable for any purpose (including,
without limitation, the payment of the principal of, or premium, if any, or interest on any
Security) unless the Trustee shall have received, on a date not less than one Business Day
immediately prior to the date upon which by the terms hereof such monies shall become payable, the
notice provided for in this Section 11.05, then, anything in the first two paragraphs of Section
11.02 contained to the contrary notwithstanding, the Trustee shall have full power and authority



76









 




to
receive such monies and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on or after such prior
date; provided further that if the Trustee shall receive any such notice on the date upon which by
the terms hereof such monies shall become payable, the Trustee may, in its reasonable discretion,
waive the time for notice provided in the foregoing proviso. Nothing shall prevent any payment by
the Trustee to the holders of monies deposited with it pursuant to Article 9, and any such payment
shall not be subject to the provisions of Article 11; provided that, at the time of any such
deposit, such deposit and payment were permitted under this Article 11 without giving effect to the
first clause of this sentence.




     The Trustee, subject to the provisions of Section 8.01, shall be entitled to conclusively rely
on the delivery to it of a written notice by a Representative or a Person representing himself to
be a holder of Senior Indebtedness to establish that such notice has been given by a Representative
or a holder of Senior Indebtedness. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this Article 11, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the rights of such
Person under this Article 11, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such Person to receive
such payment.



     Section 11.06 Trustee’s Relation to Senior Indebtedness.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article 11 in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in Section 8.11 or elsewhere in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this Article 11 shall
apply to the claims of, or payment to, the Trustee under or pursuant to Section 8.07.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
11, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Section



     8.01, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay
over or deliver to Holders, the Company or any other Person money or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article 11 or otherwise.



     Section 11.07 No Impairment of Subordination.



     No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and



77









 




covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise be charged with.




     Section 11.08 Certain Conversions Deemed Payment.



     For the purposes of this Article 11 only, (a) the issuance and delivery of Junior Securities
upon conversion of Securities in accordance with Article 4 shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any), interest or Liquidated
Damages, if any, on the Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash (except in satisfaction of fractional
shares), securities (other than Junior Securities) or other property upon conversion of a Security
shall be deemed to constitute payment on account of the principal of such Security, the payment,
issuance and delivery of such cash being made subject to the subordination provisions of this
Article 11. For the purposes of this Section 11.08, the term “Junior Securities” means (1) shares
of any stock of any class of the Company or (2) securities of the Company which are subordinated in
right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article 11. Nothing contained in this Article
11 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders, the right, which
is absolute and unconditional, of the Holders to convert such Securities in accordance with Article
4.



     Section 11.09 Article Applicable to Paying Agents.



     If at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall (unless the
context otherwise requires) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that the first paragraph of Section
11.05 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.



     Section 11.10 Senior Indebtedness Entitled to Rely.



     The holders of Senior Indebtedness shall have the right to rely upon this Article 11, and no
amendment or modification of the provisions of this Article 11 that adversely affect the rights and
interests of such holders shall be effective as to such holders unless such holders shall have
agreed in writing thereto. Each Holder by accepting a Security acknowledges and agrees that the
provisions of Article 11 are, and are intended to be, an inducement and consideration to each
holder of Senior Indebtedness (whether such Senior Indebtedness was acquired or created before or
after the issuance of the Securities) to acquire and hold, or to continue to hold, such Senior
Indebtedness, and such holder of Senior Indebtedness shall be deemed conclusively to have relied on
the provisions of this Article 11 in acquiring and continuing to hold such Senior Indebtedness.



     Section 11.11 Reinstatement.



78









 





     To the extent the payment of or distribution in respect of any Senior Indebtedness (whether by
or on behalf of the Company as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any
receiver, trustee in bankruptcy, liquidating trustee, agent or similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such payment or
distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or similar Person, the Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.



     Section 11.12 Actions by Holders of Senior Indebtedness. The holders of the Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Indenture or the obligations of the Holders hereunder
to the holders of the Senior Indebtedness, do any one or more of the following:




     (a) change the manner, place or terms of payment or extend the time of payment of, or
renew or alter, the Senior Indebtedness or any instrument evidencing the same or any
agreement under which any Senior Indebtedness is outstanding or secured;




     (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise secured;




     (c) release any Person liable in any manner for the collection of Senior Indebtedness;




     (d) exercise or refrain from exercising any rights against the Company or any other
Person; and




     (e) take any other action in the reasonable business judgment of the holders of Senior
Indebtedness.



79









 





ARTICLE 12




MISCELLANEOUS




     Section 12.01 Trust Indenture Act Controls.



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



     Section 12.02 Notices.



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



	 	 	 
	 

	 	If to the Company, to:
	 
	 	 
	 

	 	SafeNet, Inc.
	 

	 	4690 Millennium Drive
	 

	 	Belcamp, Maryland 21017
	 

	 	Attention: General Counsel
	 

	 	Fax: (443) 327-1408
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Venable LLP
	 

	 	8010 Towers Crescent Drive
	 

	 	Suite 300
	 

	 	Vienna, Virginia 22182
	 

	 	Attention: Elizabeth Hughes
	 

	 	Fax: 703-821-8949
	 
	 	 
	 

	 	if to the Trustee, to:
	 
	 	 
	 

	 	Citibank, N.A.
	 

	 	388 Greenwich Street
	 

	 	14th Floor
	 

	 	New York, New York 10053
	 

	 	Attention: Agency and Trust
	 

	 	Fax: 212-816-5527






     Such notices or communications shall be effective when received.



80









 





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



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



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



     If the Company mails any notice to a Holder of a Security, it shall mail a copy to the Trustee
and each Registrar, Paying Agent and Conversion Agent.



     Section 12.03 Communications By Holders with Other Holder.



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



     Section 12.04 Certificate and Opinion as to Conditions Precedent.



     (a) Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of the Trustee:




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




     (2) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent (including any covenants, compliance with which constitutes a condition
precedent) have been complied with.



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




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




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



81









 






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




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


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




     Section 12.05 Record Date for Vote or Consent of Holders of Securities.



     The Company (or, in the event deposits have been made pursuant to Section 9.01, the Trustee)
may set a record date for purposes of determining the identity of Holders entitled to vote or
consent to any action by vote or consent authorized or permitted under this Indenture, which record
date shall not be more than 30 days prior to the date of the commencement of solicitation of such
action. Notwithstanding the provisions of Section 10.04, if a record date is fixed, those persons
who were Holders of Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to
be Holders after such record date.



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



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



     Section 12.07 Legal Holidays.



     A “Legal Holiday” is a Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York are authorized or obligated to close. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a Regular Record Date is a Legal Holiday, the
record date shall not be affected.



     Section 12.08 Governing Law.



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



     Section 12.09 No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.



     Section 12.10 No Recourse Against Others.



82









 





     All liability described in paragraph 17 of the Securities of any director, officer, employee
or shareholder, as such, of the Company hereby is waived and released by each of the Holders.



     Section 12.11 No Security Interest Created.



     Nothing in this Indenture or in the Securities, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar legislation, now in
effect or hereafter enacted and made effective, in any jurisdiction.



     Section 12.12 Successors.



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



     Section 12.13 Multiple Counterparts.



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



     Section 12.14 Separability.



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



     Section 12.15 Table of Contents, Headings, Etc.



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



[SIGNATURE PAGE FOLLOWS]




83









 





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



	 	 	 	 	 
	 	SAFENET, INC.

 	 
	 	By:  	/s/
A. Caputo	 
	 	 	Name:  	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/
Louis Piscitelli 	 
	 	 	Name:  Louis Piscitelli	 
	 	 	Title:  	 Vice President	 
	 




 









 








EXHIBIT A




[FORM OF FACE OF SECURITY]





     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.1



     THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.2



     BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH SAFENET, INC. (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) (THE “RESALE RESTRICTION TERMINATION DATE”)
ONLY (A) TO THE





 




			
	1	 	This paragraph should be included only if
the Security is a Global Security.
	 
	2	 	These paragraphs to be included only if the
Security is a Restricted Security.




A-1









 









COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.2




     THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE
HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.2



A-2









 





SAFENET, INC.

21/2% Convertible Subordinated Notes due 2010




     No. [______]     
                 
               
              
               
               
               
               
               
               
               
CUSIP: [______]



     SafeNet, Inc., a Delaware corporation, promises to pay to Cede & Co. or registered assigns the
principal amount of ______ ($______) on December 15, 2010.



     This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.



     Additional provisions of this Security are set forth on the other side of this Security.


Dated:




SIGNATURE PAGE FOLLOWS




A-3









 








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



	 	 	 	 	 
	 	SAFENET, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




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

Securities referred to in the within-mentioned Indenture.




CITIBANK, N.A.,

as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 	 
	 

	 	Authorized Signatory	 	 







A-4









 






[FORM OF REVERSE SIDE OF SECURITY)




SAFENET, INC.

CONVERTIBLE SUBORDINATED NOTES DUE 2010




1. INTEREST




     SafeNet, Inc., a Delaware corporation (the “Company”, which term shall include any successor
corporation under the Indenture hereinafter referred to), promises to pay interest on the principal
amount of this Security at the rate of 2.50% per annum. The Company shall pay interest
semiannually on June 15 and December 15 of each year (each an “Interest Payment Date”), commencing
June 15, 2006. Each payment of interest will include interest accrued through the day before the
relevant Interest Payment Date (or purchase or redemption date, as the case may be). Cash interest
will be computed on the basis of a 360-day year comprised of twelve 30-day months. Any reference
herein to interest accrued or payable as of any date shall include any Liquidated Damages accrued
or payable on such date as provided in the Registration Rights Agreement.



     No sinking fund is provided for the Securities.



2. METHOD OF PAYMENT




     The Company shall pay interest on this Security (except defaulted interest) to the person who
is the Holder of this Security at the close of business on June 1 or December 1, as the case may be
(each, a “Regular Record Date”), next preceding the related Interest Payment Date. The Holder must
surrender this Security to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of payment is legal tender
for payment of public and private debts. The Company may pay principal and interest in respect of
any Certificated Security by check or wire payable in such money; provided, however, that a Holder
with an aggregate principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder if such Holder has provided wire
transfer instructions to the Trustee at least 10 Business Days prior to the Payment Date. The
Company may mail an interest check to the Holder’s registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary or its nominee, all
payments hereon shall be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee.



     Any wire transfer instructions received by the Trustee will remain in effect until revoked by
the Holder.



3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT




     Initially, Citibank, N.A. (the “Trustee”, which term shall include any successor trustee under
the Indenture hereinafter referred to) will act as Paying Agent, Registrar and Conversion Agent.
The Company may change any Paying Agent, Registrar or Conversion Agent without notice to the
Holder. The Company or any of its Subsidiaries may, subject to certain limitations set forth in
the Indenture, act as Paying Agent or Registrar.



A-5









 





4. INDENTURE, LIMITATIONS




     This Security is one of a duly authorized issue of Securities of the Company designated as its
2.50% Convertible Subordinated Notes Due 2010 (the “Securities”), issued under an Indenture dated
as of December 13, 2005 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended, as in effect on the date of the Indenture. This Security is subject to
all such terms, and the Holder of this security is referred to the Indenture and said Act for a
statement of them. Capitalized Terms not otherwise defined herein have the meaning ascribed to
such terms in the Indenture.



     The Securities are unsecured, subordinated obligations of the Company limited to $225,000,000
aggregate principal amount ($250,000,000 aggregate principal amount if the Initial Purchaser
exercise its over-allotment option in full). The Indenture does not limit other debt of the
Company, secured or unsecured.



5. MANDATORY REDEMPTION UPON SPECIAL TRIGGER EVENT




     If the Closing Price per share of Common Stock on each of the five Trading Days in any period
of ten consecutive Trading Days is more than the Special Trigger Price (the “Special Trigger
Event”), the Company will be required to redeem all of the Securities outstanding for cash at a
redemption price (the “Mandatory Redemption Price”) equal to 100% of the principal amount of the
Securities, plus accrued and unpaid interest to the date of such redemption (the “Mandatory
Redemption Date”), which date shall be the 15th Business Day following the Special
Trigger Date.



6. NOTICE OF MANDATORY REDEMPTION




     Notice of mandatory redemption, as set forth in Section 3.03 of the Indenture, will be mailed
by first-class mail within three Business Days following the Special Trigger Date to each Holder of
Securities to be redeemed at its registered address. On and after the Mandatory Redemption Date,
subject to the deposit with the Paying Agent of funds sufficient to pay the Mandatory Redemption
Price, all outstanding Securities not previously surrendered for conversion will cease to be
outstanding, whether or not the Security is delivered to the Paying Agent, and the rights of the
Holder in respect thereof shall cease (other than the right to receive the Mandatory Redemption
Price).



7. PURCHASE OF SECURITIES OF HOLDERS’ OPTION UPON A FUNDAMENTAL CHANGE




     At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase for cash, subject to certain exceptions described in the
Indenture all or any part specified by the Holder (so long as the principal amount of such part is
$1,000 or an integral multiple of $1,000) of the Securities held by such Holder on a date specified
by the Company that is not less than 30 nor more than 45 days after the date of the Fundamental
Change Company Notice, at a purchase price equal to 100% of the principal amount thereof together
with accrued and unpaid interest, if any, and accrued and unpaid



A-6









 







Liquidated Damages, if any, to, but excluding, the Fundamental Change Purchase Date. The
Holder shall have the right to withdraw any Fundamental Change Purchase Notice (in whole or in a
portion thereof that is $1,000 or an integral multiple of $1,000) at any time prior to the close of
business on the Business Day next preceding the Fundamental Change Purchase Date by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture.



8. CONVERSION




     Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, a Holder may surrender for conversion any Security that is
$1,000 principal amount or integral multiples thereof. In lieu of receiving shares of Common
Stock, a Holder will receive, for each $1,000 principal amount of Securities surrendered for
conversion:




	 	-	 	cash in an amount equal to the lesser of (1) $,1000 and (2) the Conversion
Value, as defined in the Indenture; and
	 
	 	-	 	if the Conversion Value is greater than $1,000, a number of shares of Common
Stock, equal to the sum of the Daily Share Amounts, as defined in the Indenture, for
each of the ten consecutive Trading Days in the Conversion Reference Period, as defined
in the Indenture, subject to the Company’s right to deliver cash in lieu of all or a
portion of such shares as described in the Indenture;




provided that in no event shall the aggregate number of shares of Common Stock to be issued
pursuant to the foregoing clause, per $1,000 principal amount of Securities, exceed the Aggregate
Share Cap, as defined in the Indenture, without taking into account any election by the Company to
deliver cash in lieu of all or a portion of the shares of Common Stock otherwise deliverable as set
forth in the Indenture.




     The Conversion Rate on any Securities surrendered for conversion during the Special Trigger
Event Conversion Period or in connection with a Fundamental Change may be increased by an amount,
if any, determined in accordance with Section 4.01(j) or Section 4.01(k), respectively, of the
Indenture.



9. SUBORDINATION




     To the extent provided in the Indenture, the Securities are subordinated to Senior
Indebtedness, as defined in the Indenture, of the Company. To the extent provided in the
Indenture, Senior Indebtedness must be paid in full before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.



10. DENOMINATIONS, TRANSFER, EXCHANGE




     The Securities are in registered form, without coupons, in denominations of $1,000 principal
amount and integral multiples of $1,000 principal amount. A Holder may register the



A-7









 







transfer of or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and transfer documents.



11. PERSONS DEEMED OWNERS




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



12. UNCLAIMED MONEY




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



13. AMENDMENT, SUPPLEMENT AND WAIVER




     Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived in a particular
instance with the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency or make any other change that does not adversely affect the
rights of the Holders in any material respect. The Company may also amend the Indenture, without
consent of the Holders or the Trustee, for the purpose of surrendering the Company’s right to
deliver cash in lieu of issuing shares of Common Stock upon conversion of the Securities.



14. SUCCESSOR ENTITY




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



15. DEFAULTS AND REMEDIES




     Under the Indenture, an Event of Default shall occur if:




     (1) the Company shall fail to pay when due the Principal or the Mandatory Redemption
Price or Fundamental Change Purchase Price of any Security, when the same becomes due and
payable whether at the Final Maturity Date, upon redemption, repurchase, acceleration or
otherwise and regardless of whether such payment is permitted pursuant to the subordination
provisions under Article 11; or



A-8









 






     (2) the Company shall fail to pay an installment of cash interest or Liquidated
Damages, if any, on any of the Securities, which failure continues for 30 days after the
date when due, regardless of whether such payment is permitted pursuant to the subordination
provisions under Article 11; or




     (3) the Company shall fail to deliver when due all cash and shares of Common Stock, if
any, deliverable upon conversion of the Securities, which failure continues for 15 days,
regardless of whether such payment is permitted pursuant to the subordination provisions
under Article 11; or




     (4) the Company or any Significant Subsidiary of the Company shall fail to perform or
observe (or obtain a waiver with respect to) any other term, covenant or agreement contained
in the Securities or the Indenture for a period of 60 days after receipt by the Company of a
Notice of Default specifying such failure; or




     (5) default in the payment of principal by the end of any applicable grace period or
resulting in acceleration of other Indebtedness of the Company for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has occurred
exceeds $25 million and such acceleration has not been rescinded or annulled or such
Indebtedness repaid within a period of 30 days after receipt of a Notice of Default,
provided that if any such default is cured, waived, rescinded or annulled, then the Event of
Default by reason thereof would be deemed not to have occurred; or




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




     (A) commences as a debtor a voluntary case or proceeding; or




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




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




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




     (E) files a petition in bankruptcy or answer or consent seeking reorganization
or relief; or




     (F) consents to the filing of such a petition or the appointment of or taking
possession by a Receiver; or




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



A-9









 






     (A) grants relief against the Company or any Significant Subsidiary of the
Company in an involuntary case or proceeding or adjudicates the Company or any
Significant Subsidiary of the Company insolvent or bankrupt;




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




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


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




     The term “Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto)
or any similar federal or state law for the relief of debtors. The term “Receiver” means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.



     Notwithstanding the above, no Event of Default under clauses (4) or (5) above shall occur
until the Trustee notifies the Company in writing, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding notify the Company and the Trustee in writing,
of the Default (a “Notice of Default”), and the Company does not cure the Default within the time
specified in clause (4) or (5), as applicable, after receipt of such notice.



     If an Event of Default (other than an Event of Default specified in clause (6) or (7) above)
occurs and is continuing with respect to the Company, the Trustee may, by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the Securities then outstanding may,
by notice to the Company and the Trustee, declare the principal amount and accrued and unpaid
interest, if any, and accrued and unpaid Liquidated Damages, if any, through the date of
declaration on all the Securities to be immediately due and payable. Upon such a declaration, such
principal amount and such accrued and unpaid interest, if any, and such accrued and unpaid
Liquidated Damages, if any, shall be due and payable immediately. If an Event of Default specified
in clauses (6) or (7) occurs in respect of the Company and is continuing, the principal amount and
accrued but unpaid interest, if any, and accrued and unpaid Liquidated Damages, if any, on all the
Securities shall become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holders of Securities. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (a) all existing Events of Default, other than the nonpayment
of the principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful,
interest (calculated at the rate per annum borne by the Securities) on overdue installments of
interest and overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under the Indenture have been made. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. Holders may not enforce the Indenture or the Securities
except as provided in the Indenture. The



A-10









 







Trustee may require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing Default (except a Default in payment of
principal or interest) if and so long as it determines that withholding notice is in their
interests. The Company is required to file periodic certificates with the Trustee as to the
Company’s compliance with the Indenture and knowledge or status of any Default.



16. TRUSTEE DEALINGS WITH THE COMPANY




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



17. NO RECOURSE AGAINST OTHERS




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



18. AUTHENTICATION




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



19. ABBREVIATIONS AND DEFINITIONS




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



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



20. INDENTURE TO CONTROL; GOVERNING LAW




     In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control. This Security and the Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.



     The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: SafeNet, Inc., 4690 Millennium Drive, Belcamp, Maryland
21017, Attention: General Counsel (Fax: 443-327-1408).



A-11









 





ASSIGNMENT FORM




     To assign this Security, fill in the form below:



     I or we assign and transfer this Security to


 




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




 





 





 




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




and irrevocably appoint



 

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




	 	 	 
	 

	 	Your Signature
	 
	 	 
	Date:                                                             
	 	 
	 

	 	 
	 

	 	(Sign exactly as your name appears on the

other side of this Security)
	 
	 	 
	* Signature guaranteed by:
	 	 
	 
	 	 
	By:                                                             
	 	 








 




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




A-12









 










CONVERSION NOTICE




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



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



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



 




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


 



 




 




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




	 	 	 
	 

	 	Your Signature
	 
	 	 
	Date:                                                             
	 	 
	 

	 	 
	 

	 	(Sign exactly as your name appears on the other side of this Security)
	 
	 	 
	* Signature guaranteed by:
	 	 
	 
	 	 
	By:                                                             
	 	 








 




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




A-13









 










FUNDAMENTAL CHANGE REPURCHASE NOTICE




To: SafeNet, Inc.




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



	 	 	 
	Date:                                                             
	 	 
	 

	 	 
	 

	 	Signature (s)
	 
	 	 
	 

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

	 	 
	 

	 	Signature Guaranty
	Principal amount to be redeemed (in an
integral multiple of $1,000, if less than all):
	 	 








 




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




A-14









 










SCHEDULE OF EXCHANGES OF SECURITIES1




     The following exchanges, purchase, redemptions, purchases or conversions of a part of this
Global Security have been made:



	 	 	 	 	 	 	 
	Principal Amount of

	 	 	 	 	 	 
	this Global Note

	 	 	 	 	 	 
	Following Such 

	 	 	 	 	 	 
	Decrease Date of


	 	Authorized

	 	Amount of Decrease

	 	Amount of Increase

	Exchange (or


	 	Signatory of

	 	in Principal Amount

	 	in Principal Amount

	Increase)


	 	Securities Custodian

	 	of this Global Note

	 	of this Global Note

	 

	 	 
	 	 
	 	 







 




			
	1.	 	This schedule should be included only if the Security is a Global Security.




A-15









 










CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF RESTRICTED SECURITIES




Re: 2.50% Convertible Subordinated Notes Due 2010 (the “Securities”) of SafeNet, Inc.




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



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




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



     In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with transfer restrictions relating to the
Securities as provided in Section 2.12 of the Indenture dated as of December 13, 2005 between
SafeNet, Inc. and Citibank, N.A., as trustee (the “Indenture”), and the transfer of such Security
is being made pursuant to an effective registration statement under the Securities Act of 1933, as
amended (the “Securities Act”) (check applicable box) or the transfer or exchange, as the case may
be, of such Security does not require registration under the Securities Act because (check
applicable box):



	 	 	 
	                    

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

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

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

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

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

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






A-16









 






	 	 	 
	                    

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






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



	 	 	 
	Date:                                                             
	 	 
	 

	 	 
	 

	 	(Insert Name of Transferor)







A-17