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Exhibit 4.01    
    


ADAPTEC, INC.  


 3/4% CONVERTIBLE SENIOR SUBORDINATED SECURITIES DUE 2023  




INDENTURE  


DATED AS OF DECEMBER 22, 2003  




 WELLS FARGO BANK, N.A.,

AS TRUSTEE  











 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	 	SECTION 1.1.	 	DEFINITIONS	 	1
	 	SECTION 1.2.	 	OTHER DEFINITIONS	 	7
	 	SECTION 1.3.	 	TRUST INDENTURE ACT PROVISIONS	 	9
	 	SECTION 1.4.	 	RULES OF CONSTRUCTION	 	9
	

ARTICLE 2 THE SECURITIES	
 	

10
	 	SECTION 2.1.	 	FORM AND DATING	 	10
	 	SECTION 2.2.	 	EXECUTION AND AUTHENTICATION	 	10
	 	SECTION 2.3.	 	REGISTRAR, PAYING AGENT AND CONVERSION AGENT	 	11
	 	SECTION 2.4.	 	PAYING AGENT TO HOLD MONEY IN TRUST	 	11
	 	SECTION 2.5.	 	SECURITYHOLDER LISTS	 	11
	 	SECTION 2.6.	 	TRANSFER AND EXCHANGE	 	12
	 	SECTION 2.7.	 	REPLACEMENT SECURITIES	 	13
	 	SECTION 2.8.	 	OUTSTANDING SECURITIES	 	13
	 	SECTION 2.9.	 	TREASURY SECURITIES	 	14
	 	SECTION 2.10.	 	TEMPORARY SECURITIES	 	14
	 	SECTION 2.11.	 	CANCELLATION	 	14
	 	SECTION 2.12.	 	LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS	 	14
	 	SECTION 2.13.	 	CUSIP NUMBERS	 	17
	

ARTICLE 3 REDEMPTION AND PURCHASE	
 	

17
	 	SECTION 3.1.	 	TO REDEEM; NOTICE TO TRUSTEE	 	17
	 	SECTION 3.2.	 	SELECTION OF SECURITIES TO BE REDEEMED	 	17
	 	SECTION 3.3.	 	NOTICE OF REDEMPTION	 	18
	 	SECTION 3.4.	 	EFFECT OF NOTICE OF REDEMPTION	 	18
	 	SECTION 3.5.	 	DEPOSIT OF REDEMPTION PRICE	 	19
	 	SECTION 3.6.	 	SECURITIES REDEEMED IN PART	 	19
	 	SECTION 3.7.	 	CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION	 	19
	 	SECTION 3.8.	 	PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL	 	20
	 	SECTION 3.9.	 	EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE	 	23
	 	SECTION 3.10.	 	DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE	 	23
	 	SECTION 3.11.	 	PURCHASE OF SECURITIES AT OPTION OF THE HOLDER ON SPECIFIED DATES	 	23
	 	SECTION 3.12.	 	SECURITIES PURCHASED IN PART	 	26
	 	SECTION 3.13.	 	COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES	 	26
	 	SECTION 3.14.	 	PURCHASE OF SECURITIES IN OPEN MARKET	 	27
	

ARTICLE 4 CONVERSION	
 	

27
	 	SECTION 4.1.	 	CONVERSION PRIVILEGE AND CONVERSION RATE	 	27
	 	SECTION 4.2.	 	CONVERSION PROCEDURE	 	30
	 	SECTION 4.3.	 	FRACTIONAL SHARES	 	31
	 	SECTION 4.4.	 	TAXES ON CONVERSION	 	31
	 	SECTION 4.5.	 	COMPANY TO PROVIDE STOCK	 	31
	 	SECTION 4.6.	 	ADJUSTMENT OF CONVERSION RATE	 	32
	 	SECTION 4.7.	 	NO ADJUSTMENT	 	36
	 	SECTION 4.8.	 	ADJUSTMENT FOR TAX PURPOSES	 	36
	 	SECTION 4.9.	 	NOTICE OF ADJUSTMENT	 	37
	 	SECTION 4.10.	 	NOTICE OF CERTAIN TRANSACTIONS	 	37







	 	SECTION 4.11.	 	EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE	 	37
	 	SECTION 4.12.	 	TRUSTEE'S DISCLAIMER	 	38
	 	SECTION 4.13.	 	VOLUNTARY INCREASE	 	38
	

ARTICLE 5 [Intentionally Omitted]	
 	

38
	

ARTICLE 6 COVENANTS	
 	

38
	 	SECTION 6.1.	 	PAYMENT OF SECURITIES	 	38
	 	SECTION 6.2.	 	SEC REPORTS	 	39
	 	SECTION 6.3.	 	COMPLIANCE CERTIFICATES	 	39
	 	SECTION 6.4.	 	FURTHER INSTRUMENTS AND ACTS	 	39
	 	SECTION 6.5.	 	MAINTENANCE OF CORPORATE EXISTENCE	 	40
	 	SECTION 6.6.	 	RULE 144A INFORMATION REQUIREMENT	 	40
	 	SECTION 6.7.	 	STAY, EXTENSION AND USURY LAWS	 	40
	 	SECTION 6.8.	 	PAYMENT OF LIQUIDATED DAMAGES	 	40
	

ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	
 	

41
	 	SECTION 7.1.	 	COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS	 	41
	 	SECTION 7.2.	 	SUCCESSOR SUBSTITUTED	 	41
	

ARTICLE 8 DEFAULT AND REMEDIES	
 	

42
	 	SECTION 8.1.	 	EVENTS OF DEFAULT	 	42
	 	SECTION 8.2.	 	ACCELERATION	 	43
	 	SECTION 8.3.	 	OTHER REMEDIES	 	43
	 	SECTION 8.4.	 	WAIVER OF DEFAULTS AND EVENTS OF DEFAULT	 	44
	 	SECTION 8.5.	 	CONTROL BY MAJORITY	 	44
	 	SECTION 8.6.	 	LIMITATIONS ON SUITS	 	44
	 	SECTION 8.7.	 	RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT	 	44
	 	SECTION 8.8.	 	COLLECTION SUIT BY TRUSTEE	 	45
	 	SECTION 8.9.	 	TRUSTEE MAY FILE PROOFS OF CLAIM	 	45
	 	SECTION 8.10.	 	PRIORITIES	 	45
	 	SECTION 8.11.	 	UNDERTAKING FOR COSTS	 	46
	

ARTICLE 9 TRUSTEE	
 	

46
	 	SECTION 9.1.	 	DUTIES OF TRUSTEE	 	47
	 	SECTION 9.2.	 	RIGHTS OF TRUSTEE	 	48
	 	SECTION 9.3.	 	INDIVIDUAL RIGHTS OF TRUSTEE	 	48
	 	SECTION 9.4.	 	TRUSTEE'S DISCLAIMER	 	48
	 	SECTION 9.5.	 	NOTICE OF DEFAULT OR EVENTS OF DEFAULT	 	48
	 	SECTION 9.6.	 	REPORTS BY TRUSTEE TO HOLDERS	 	48
	 	SECTION 9.7.	 	COMPENSATION AND INDEMNITY	 	48
	 	SECTION 9.8.	 	REPLACEMENT OF TRUSTEE	 	49
	 	SECTION 9.9.	 	SUCCESSOR TRUSTEE BY MERGER, ETC	 	50
	 	SECTION 9.10.	 	ELIGIBILITY; DISQUALIFICATION	 	50
	 	SECTION 9.11.	 	PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY	 	50
	

ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE	
 	

50
	 	SECTION 10.1.	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	50
	 	SECTION 10.2.	 	APPLICATION OF TRUST MONEY	 	51
	 	SECTION 10.3.	 	REPAYMENT TO COMPANY	 	51
	 	SECTION 10.4.	 	REINSTATEMENT	 	51
	

ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS	
 	

52
	 	SECTION 11.1.	 	WITHOUT CONSENT OF HOLDERS	 	52
	 	SECTION 11.2.	 	WITH CONSENT OF HOLDERS	 	52







	 	SECTION 11.3.	 	COMPLIANCE WITH TRUST INDENTURE ACT	 	53
	 	SECTION 11.4.	 	REVOCATION AND EFFECT OF CONSENTS	 	53
	 	SECTION 11.5.	 	NOTATION ON OR EXCHANGE OF SECURITIES	 	54
	 	SECTION 11.6.	 	TRUSTEE TO SIGN AMENDMENTS, ETC	 	54
	 	SECTION 11.7.	 	EFFECT OF SUPPLEMENTAL INDENTURES	 	54
	

ARTICLE 12 SECURITY	
 	

54
	 	SECTION 12.1.	 	SECURITY	 	54
	

ARTICLE 13 SUBORDINATION	
 	

56
	 	SECTION 13.1.	 	AGREEMENT OF SUBORDINATION	 	56
	 	SECTION 13.2.	 	PAYMENTS TO HOLDERS	 	57
	 	SECTION 13.3.	 	SUBROGATION OF SECURITIES	 	59
	 	SECTION 13.4.	 	AUTHORIZATION TO EFFECT SUBORDINATION	 	60
	 	SECTION 13.5.	 	NOTICE TO TRUSTEE	 	60
	 	SECTION 13.6.	 	TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS	 	61
	 	SECTION 13.7.	 	NO IMPAIRMENT OF SUBORDINATION	 	61
	 	SECTION 13.8.	 	CERTAIN CONVERSIONS DEEMED PAYMENT	 	61
	 	SECTION 13.9.	 	ARTICLE APPLICABLE TO PAYING AGENTS	 	62
	 	SECTION 13.10.	 	SENIOR INDEBTEDNESS ENTITLED TO RELY	 	62
	

ARTICLE 14 MISCELLANEOUS	
 	

62
	 	SECTION 14.1.	 	TRUST INDENTURE ACT CONTROLS	 	62
	 	SECTION 14.2.	 	NOTICES	 	62
	 	SECTION 14.3.	 	COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS	 	63
	 	SECTION 14.4.	 	CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT	 	63
	 	SECTION 14.5.	 	RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS	 	63
	 	SECTION 14.6.	 	RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT	 	64
	 	SECTION 14.7.	 	LEGAL HOLIDAYS	 	64
	 	SECTION 14.8.	 	GOVERNING LAW	 	64
	 	SECTION 14.9.	 	NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS	 	64
	 	SECTION 14.10.	 	NO RECOURSE AGAINST OTHERS	 	64
	 	SECTION 14.11.	 	SUCCESSORS	 	64
	 	SECTION 14.12.	 	MULTIPLE COUNTERPARTS	 	64
	 	SECTION 14.13.	 	SEPARABILITY	 	64
	 	SECTION 14.14.	 	TABLE OF CONTENTS, HEADINGS, ETC	 	64









 
 

CROSS-REFERENCE TABLE*    
    



	TIA

SECTION
	 	 
	 	INDENTURE

SECTION
	 
	Section	 	310	 	14.1	 
	 	 	310(a)(1)	 	9.10	 
	 	 	(a)(2)	 	9.10	 
	 	 	(a)(3)	 	N.A.	**
	 	 	(a)(4)	 	N.A.	 
	 	 	(a)(5)	 	9.10	 
	 	 	(b)	 	9.10	 
	 	 	(c)	 	N.A.	 
	Section	 	311	 	14.1	 
	 	 	311(a)	 	9.11	 
	 	 	(b)	 	9.11	 
	 	 	(c)	 	N.A.	 
	Section	 	312	 	14.1	 
	 	 	(a)	 	N.A.	 
	 	 	(b)	 	14.3	 
	 	 	(c)	 	14.3	 
	Section	 	313	 	14.1	 
	 	 	313(a)	 	9.6	(a)
	 	 	(b)(1)	 	N.A.	 
	 	 	(b)(2)	 	9.6	(a)
	 	 	(c)	 	9.6	(a)
	 	 	(d)	 	N.A.	 
	Section	 	314	 	14.1	 
	 	 	314(a)	 	N.A.	 
	 	 	(b)	 	12.1	(g)
	 	 	(c)(1)	 	N.A.	 
	 	 	(c)(2)	 	N.A.	 
	 	 	(c)(3)	 	N.A.	 
	 	 	(d)	 	12.1	(f)
	 	 	(e)	 	N.A.	 
	 	 	(f)	 	N.A.	 
	Section	 	315	 	14.1	 
	Section	 	316	 	14.1	 
	Section	 	317	 	14.1	 
	Section	 	318(c)	 	14.1	 






	*
	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 22, 2003 is between Adaptec, Inc., a corporation duly organized under the laws of the State of Delaware (the  "Company"), and Wells Fargo Bank, National Association, 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 Company's 3/4% Convertible Senior Subordinated Notes due 2023. 


        The
Securities will be partially secured pursuant to the terms of the Pledge Agreement (as defined herein) by Pledged Securities (as defined herein). 


 
 

ARTICLE 1
  DEFINITIONS AND INCORPORATION BY REFERENCE    
    



 SECTION 1.1. DEFINITIONS.  




        "3% Convertible Subordinated Notes" means those certain notes issued pursuant to that certain Indenture, dated as
of March 5, 2002, by and between the Company and the Trustee. 


        "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. 


        "Additional Pledged Securities" shall have the meaning set forth in Section 1.3 of the Pledge Agreement. 


        "Agent" means any Registrar, Paying Agent or Conversion Agent. 


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



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


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


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



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


        "Certificated Security" means a Security that is in substantially the form attached hereto as  Exhibit A and that does not include the information or the schedule
called for by footnotes 1 and 3 thereof. 


        "Closing Time" has the meaning specified in the Purchase Agreement. 



        "Common Stock" means the common stock of the Company, $0.001 par value per share, as it exists on the date of this Indenture and any
shares of any class or classes of capital stock of the Company resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, 


1





 



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. 


        "Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business shall be
administered which office at the date of the execution of this Indenture is located at 707 Wilshire Boulevard, 17th Floor, Los Angeles, CA 90017; Attention: Corporate Trust Department
(Adaptec, Inc.—3/4% Convertible Senior Subordinated Notes due 2023) or at any other time at such other address as the Trustee may designate from time to time by
notice to the Company. 


        "Date of Delivery" has the meaning specified in the Purchase Agreement. 


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


        "Designated Senior Indebtedness" means any particular senior indebtedness in which the instrument creating or evidencing the senior
indebtedness or the assumption or guarantee thereof (or any related documents or agreements to which the Company is a party) expressly provides that such indebtedness shall be "Designated Senior
Indebtedness" for purposes of this Indenture (provided that such instrument, agreement or other document may place limitations and conditions on the right of such senior indebtedness to exercise the
rights of Designated Senior Indebtedness). 


        "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 22, 2023. 


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


        "Global Security" means a permanent global security that is in substantially the form attached hereto as  Exhibit A and that includes the information and schedule
called for by footnotes 1 and 3 thereof and which is deposited with the Depositary or
its custodian and registered in the name of the Depositary or its nominee. 


        "Holder" or "Securityholder" means the person in whose name a Security is registered on
the Primary Registrar's books. 


2






 



        "indebtedness" means, with respect to any person, without duplication: 


	(1)
	all
indebtedness, obligations and other liabilities, contingent or otherwise of such person:



	(a)
	for
borrowed money, including obligations in respect of overdrafts, foreign exchange contracts, currency exchange agreements, interest rate protection agreements, and any loans or
advances from financial institutions, whether or not evidenced by notes or similar instruments, or



	(b)
	evidenced
by bonds, debentures, notes or similar instruments, whether or not the recourse of the holder is to all of such person's assets or to only a portion thereof, other than any
trade payable 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 liabilities, contingent or otherwise, with respect to letters of credit, bank guarantees or bankers' acceptances,



	(3)
	all
of such person's obligations and 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, or under other leases for facilities, equipment or related assets, whether or not capitalized, entered into or leased for financing purposes,



	(4)
	all
of such person's obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase 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 and thereby guarantee a residual value of leased property to the lessor and all of such person's obligations under such lease or related document to purchase or to cause a
third party to purchase the leased property (whether or not such lease transaction is characterized as an operating lease or a capitalized lease in accordance with GAAP),



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



	(6)
	all
of such person's direct or indirect guaranties or similar agreements to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of indebtedness,
obligations or liabilities of another person of the kind described in clauses (1) through (5),



	(7)
	any
indebtedness or other obligations described in clauses (1) through (6) secured by any mortgage, pledge, lien or other encumbrance existing on property which is owned
or held by such person, regardless of whether the indebtedness or other obligation secured thereby has been assumed by such person, and



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



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



        "Initial Pledged Securities" means the U.S. Government Obligations identified in Schedule I to the Pledge Agreement. 


        "Initial Purchasers" means Merrill Lynch, Pierce, Fenner & Smith Incorporated and Banc of America Securities LLC. 


        "Interest Payment Date" means June 22 and December 22 of each year. 


3





 



        "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset given to secure indebtedness, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge, charge or security interest). 



        "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. 


        "Non-Payment Default" means any event of default with respect to any Designated Senior Indebtedness other than any Payment
Default pursuant to which the maturity thereof may be accelerated. 


        "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 by two Officers; provided, however,
that for purposes of Sections 4.11 and 6.3, "Officers' Certificate" means a certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company and by one other Officer. 



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


        "Payment Default" shall mean a default in payment, whether at scheduled maturity, upon scheduled installment, by acceleration or
otherwise, of principal, or premium, if any, or interest on Designated Senior Indebtedness beyond any applicable grace period. 


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


        "Pledge Account" has the meaning specified in the Pledge Agreement. 


        "Pledge Agreement" means the Pledge Agreement, dated as of December 22, 2003, between the Company and the Trustee, as such
agreement may be amended, restated, supplemented or otherwise modified from time to time, including all annexes and schedules attached thereto. 



        "Pledged Securities" means the U.S. Government Obligations to be purchased by the Company and held in the Pledged Account in accordance
with the Pledge Agreement. 


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


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


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



        "Registration Rights Agreement" means the Registration Rights Agreement, dated as of December 22, 2003, between the Company and the
Initial Purchasers. 


4





 

        "Regular Record Date" means, with respect to each Interest Payment Date, the June 7 or December 7, as the case may be,
immediately preceding such Interest Payment Date. 


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


        "Representative" means (a) the Trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with
respect to any Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness issued pursuant to an agreement providing for
voting arrangements as among the holders or owners of such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting with the consent of the required persons necessary to bind such
holders or owners of such Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness. 


        "Restricted Global Security" means a Global Security that is a Restricted Security. 


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



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



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


        "SEC"means the Securities and Exchange Commission. 


        "Securities" means the 3/4% Convertible Senior Subordinated Notes due 2023 or any of them (each, a "Security"), as amended
or supplemented from time to time, that are issued under this Indenture. 



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


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


        "Senior Indebtedness" means the principal of, premium, if any, interest, including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for postpetition interest is allowable as a claim in any such proceeding, and rent payable on or in connection with, and all fees, costs,
expenses and other amounts accrued or due on or in connection with, indebtedness of the Company, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed, guaranteed
or in effect guaranteed by the Company, including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the foregoing, unless in the case of any
particular indebtedness the instrument creating or evidencing the same or the assumption or guarantee thereof expressly provides that such indebtedness shall not be senior in right of payment to the
Securities or expressly provides that such indebtedness is on the same basis or junior to the Securities. Notwithstanding the foregoing, any indebtedness may only be Senior Indebtedness if either
(i) the indebtedness is secured by a mortgage, pledge, security interest, lien or similar encumbrance and shall remain secured; or (ii) the instrument, indenture or agreement governing
or evidencing the indebtedness, or any related agreement to which the Company is a party, expressly provides that such indebtedness shall be Senior Indebtedness for purposes of this Indenture. Senior
Indebtedness does not include any indebtedness of the Company to any Subsidiary of the Company, nor does it include any of the Company's trade payables or obligations with respect to its outstanding
3% Convertible Subordinated Notes. If any payment made to any holder of any Senior Indebtedness or its Representative with respect to such Senior Indebtedness is rescinded or must otherwise be
returned by such holder or Representative upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the reinstated Indebtedness of the Company arising as a result of such
rescission or return shall constitute Senior Indebtedness effective as of the date of such rescission or return. 


5





 



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


        "TIA" means the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder as in effect on the date of this
Indenture, except as provided in Section 11.3, and except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect on
another date. 


        "Trading Day" means (i) if the Common Stock is quoted on the Nasdaq National Market or any other system of automated dissemination
of quotations of securities prices, days on which trades may be effected through such system, (ii) if the Common Stock is listed or admitted for trading on any national or regional securities
exchange, days on which such national or regional securities exchange is open for business, or (iii) if the Common Stock is not listed on a national or regional securities exchange or quoted on
the Nasdaq National Market or any other system of automated dissemination of quotation of securities prices, days on which the Common Stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price for the Common Stock are available. 



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


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


        "Unrestricted Certificated Security" means a Certificated Security that is not a Restricted Security. 



        "Unrestricted Global Security" means a Global Security that is not a Restricted Security. 


        "U.S. Government Obligations" means (i) securities that are (x) direct obligations of the United States of America, for the
payment of which the full faith and credit of the United States is pledged or (y) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the United
States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the stated maturity thereof, or (ii) any mutual fund that has at least 95% of its assets continuously invested in investments of the type described in
clause (i) above and has the highest rating attainable by Moody's Investor Services and Standard & Poor's Ratings Services, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation for the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt. 


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


6





 



 SECTION 1.2. OTHER DEFINITIONS.  



	Term
	 	Defined in Section

	"Agent Members"	 	2.1
	"applicable share price"	 	4.1
	"Bankruptcy Law"	 	8.1
	"beneficial owner"	 	3.8
	"beneficially owned"	 	3.8
	"Change in Control"	 	3.8
	"Change in Control Purchase Date"	 	3.8
	"Change in Control Purchase Notice"	 	3.8
	"Change in Control Purchase Price"	 	3.8
	"Closing Price"	 	4.6
	"Company Order"	 	2.2
	"Company Put Right Notice"	 	3.12
	"Continuing Directors"	 	3.8
	"Conversion Agent"	 	2.3
	"Conversion Date"	 	4.2
	"Conversion Price"	 	4.1
	"Conversion Rate"	 	4.1
	"Conversion Value"	 	4.1
	"Current Market Price"	 	4.6
	"Custodian"	 	8.1
	"DTC"	 	2.1
	"Depositary"	 	2.1
	"Determination Date"	 	4.6
	"Distributed Securities"	 	4.6
	"Distribution Notice"	 	4.1
	"Event of Default"	 	8.1
	"Exchange Act"	 	3.8
	"Expriation Date"	 	4.6
	"Expiration Time"	 	4.6
	"group"	 	3.8
	"Legal Holiday"	 	14.7
	"Legend"	 	2.12
	"Merger Notice"	 	4.1
	"Notice of Default"	 	8.1
	"Paying Agent"	 	2.3
	"Payment Blockage Period"	 	13.3
	"person"	 	3.8
	"Primary Registrar"	 	2.3
	"Principal Value Conversion"	 	4.1
	"Purchase Agreement"	 	2.1
	"Purchased Shares"	 	4.6
	"Put Right Purchase Date"	 	3.12
	"Put Right Purchase Notice"	 	3.12
	"Put Right Purchase Price"	 	3.12
	"QIB"	 	2.1
	"Registrar"	 	2.3
	"Rights"	 	4.6





7





 

	"Rights Plan"	 	4.6
	"Spinoff Securities"	 	4.6
	"Spinoff Valuation Period"	 	4.6
	"tender offer"	 	4.6
	"Trading Price"	 	4.1
	"trading price condition"	 	4.1
	"Trigger Event"	 	4.6
	"Triggering Distribution"	 	4.6
	"unissued shares"	 	3.8
	"voting stock"	 	3.8





 SECTION 1.3. TRUST INDENTURE ACT PROVISIONS.  




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


        "indenture
to be qualified" means this Indenture; 


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



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



 SECTION 1.4. RULES OF CONSTRUCTION.  



	(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)
	"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. 





8





 




 
 

ARTICLE 2
  THE SECURITIES    
    



 SECTION 2.1. FORM AND DATING.  




        The Securities and the Trustee's certificate of authentication shall be substantially in the respective forms set forth in  Exhibit A,which Exhibit is incorporated in and made part of this Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication. The
Securities are being offered and sold by the Company pursuant to a Purchase Agreement dated December 16, 2003 (the "Purchase Agreement") between
the Company and the Initial Purchasers, in transactions exempt from, or not subject to, the registration requirements of the Securities Act. 


	(a)
	Restricted Global Securities. All of the Securities are initially being offered and sold to qualified institutional buyers as defined
in Rule 144A (collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and 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 participation 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 hereof 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 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 Subsection 2.1(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 


9





 

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


 SECTION 2.2. EXECUTION AND AUTHENTICATION.  



	(a)
	The
aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is limited to $225,000,000 except as provided in Sections 2.6 and 2.7.



	(b)
	An
Officer shall sign the Securities for the Company by manual or facsimile signature attested by the manual or facsimile signature of the Secretary or an Assistant Secretary of the
Company. Typographic and other minor errors or defects in any such facsimile signature shall not affect the validity or enforceability of any Security which has been authenticated and delivered by the
Trustee.



	(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 manually 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 upon receipt of a written order or
orders of the Company signed by two Officers 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 


10





 

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 2.3. 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. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company may
act as Paying Agent (except for the purposes of Section 6.1 and Article 10).



	(c)
	The
Company hereby initially designates the Trustee as Paying Agent, Registrar, Custodian (as defined in Section 8.1) and Conversion Agent, and each of the Corporate Trust
Office of the Trustee and the office of the Trustee, c/o Wells Fargo Bank, in the Borough of Manhattan, The City of New York, one such office or agency of the Company for each of the aforesaid
purposes. 



 SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.  




        Prior to 11:00 a.m., New York City time, on each due date of the principal of, or interest, on any Securities, the Company shall deposit or cause to be
deposited with a Paying Agent a sum sufficient to pay such principal or interest, so becoming due. Subject to Section 10.2, a Paying Agent shall hold in trust for the benefit of Securityholders
or the Trustee all money held by the Paying Agent for the payment of principal of, or interest, on the Securities, and shall notify the Trustee of any default by the Company (or any other obligor on
the Securities) in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 11:00 a.m., New York City time, on each due date of the
principal of, or interest, on any Securities, segregate the money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee,
and the Trustee may at any time during the continuance of any default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all sums so held in trust by
such Paying Agent. Upon doing so, the Paying Agent (other than the Company) shall have no further liability for the money. 



 SECTION 2.5. SECURITYHOLDER LISTS.  




        The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders.
If the Trustee is not the Primary Registrar, the Company shall furnish to the Trustee on or before each semiannual Interest Payment 


11





 

Date
and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders. 



 SECTION 2.6. TRANSFER AND EXCHANGE.  



	(a)
	Subject
to compliance with any applicable additional requirements contained in Section 2.12, when a Security is presented to a Registrar with a request to register a transfer
thereof or to exchange such Security for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested;  provided, however,
 that every Security presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form included in Exhibit A, and in form satisfactory to the Registrar duly
executed by the Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at
an office or agency maintained pursuant to Section 2.3, the Company shall execute and the Trustee shall authenticate Securities of a like aggregate principal amount at the Registrar's request.
Any exchange or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto, and provided, that this sentence shall not apply to any exchange pursuant to Section 2.10, 2.12(a), 3.6, 3.13, 4.2(e) or 11.5.



	(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 Change in Control Purchase Notice has been delivered and not withdrawn by the Holder thereof (except,
in the case of the purchase of a Security in part, the portion thereof not to be purchased).



	(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 2.3 hereof shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by
such Registrar of Securities upon transfer or exchange of Securities. 


12







  





        (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 2.7. REPLACEMENT SECURITIES.  




        (a)   If
any mutilated Security is surrendered to the Company, a Registrar or the Trustee, or the Company, a Registrar and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Security, and there is delivered to the Company, the applicable Registrar and the Trustee such security or indemnity as will be required by them to save each
of them harmless, then, in the absence of notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding. 


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


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


        (d)   Every
new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly issued hereunder. 



        (e)   The
provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities. 



 SECTION 2.8. OUTSTANDING SECURITIES.  




        (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 2.8
as not outstanding. 


        (b)   If
a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Company receives proof satisfactory to it that the replaced Security is
held by a bona fide purchaser. 


13





 



        (c)   If
a Paying Agent (other than the Company or an Affiliate of the Company) holds in respect of the outstanding Securities on a Redemption Date, a Change in Control
Purchase Date or the Final Maturity Date money sufficient to pay the principal of (including premium, if any) and accrued interest on Securities (or portions thereof) payable on that date, then on and
after such Redemption Date, Change in Control Purchase Date, or the Final Maturity Date, as the case may be, such Securities (or portions thereof, as the case may be) shall cease to be outstanding and
interest on them shall cease to accrue; 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 2.9, a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Security. 



 SECTION 2.9. TREASURY SECURITIES.  




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



 SECTION 2.10. TEMPORARY SECURITIES.  




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



 SECTION 2.11. CANCELLATION.  




        The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee or its agent any Securities surrendered to them for transfer, exchange, redemption, 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 deliver the canceled Securities to the Company. All Securities which
are redeemed, purchased, purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee for cancellation, and the Company
may not hold or resell such Securities or issue any new Securities to replace any such Securities or any Securities that any Holder has converted pursuant to Article 4. 



 SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.  




        (a)   If
Securities are issued upon the transfer, exchange or replacement of Securities subject to restrictions on transfer and bearing the legends set forth on the forms of
Securities attached hereto as Exhibit A (collectively, the "Legend"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such
satisfactory evidence, which shall 


14





 

include
an opinion of counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer
set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act or that such Securities
are not "restricted" within the meaning of Rule 144 under the Securities Act; provided that no such evidence need be supplied in connection with
the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (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 the succeeding paragraph, every Security shall be subject to the restrictions on transfer provided in the Legend other than a Restricted Global Security.
Whenever any Restricted Security other than a Restricted Global Security is presented or surrendered for registration of transfer or for exchange for a Security registered in a name other than that of
the Holder, such Security must be accompanied by a certificate in substantially the form set forth in Exhibit A, dated the date of such surrender
and signed by the Holder of such Security, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Security
not so accompanied by a properly completed certificate. 


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



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


15





 



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



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


        (2)   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. 


        (3)   Subject
to the provisions of clause (5) of this Subsection 2.12(e), the registered Holder may grant proxies and otherwise authorize any Person, including Agent
Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities. 


        (4)   In
the event of the occurrence of any of the events specified in clause (1) of this Subsection 2.12(e) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons. 


        (5)   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 



16





 




on
whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Security. 



 SECTION 2.13. CUSIP NUMBERS.  




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


 
 

ARTICLE 3
  REDEMPTION AND PURCHASE    
    



 SECTION 3.1. TO REDEEM; NOTICE TO TRUSTEE.  




        (a)   Prior
to December 22, 2008, the Securities shall not be redeemable. The Company may, at its option, redeem the Securities (i) on December 22, 2008
at a Redemption Price equal to 100.25% of the principal amount of the Securities being redeemed, and (ii) after December 22, 2008, at a Redemption Price equal to 100% of the principal
amount of the Securities being redeemed, in each case, for cash in whole, or from time to time in part (which must be equal to $1,000 or any integral multiple thereof), plus accrued and unpaid
interest to, but excluding, the Redemption Date; provided that if the Redemption Date falls after a Regular Record Date and on or before an Interest
Payment Date, then the interest will be payable to the Holders in whose names the Securities were registered at the close of business on such Regular Record Date. Securities or portions of the
Securities called for redemption may be converted by the Holder in accordance with the provisions of Article 4 until the close of business on the Business Day prior to the Redemption Date. 



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



 SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED.  




        (a)   If
less than all of the Securities are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall, at least 20 days but not more
than 60 days prior to the Redemption Date, select the Securities to be redeemed. The Trustee shall make the selection from the Securities outstanding and not previously called for redemption by
lot, or in its discretion, on a pro rata basis. Securities in denominations of $1,000 may only be redeemed in whole. The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of
Securities called for redemption. 


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


17





 



redemption
of such Securities shall be treated by the Trustee as outstanding for the purpose of such selection. 



 SECTION 3.3. NOTICE OF REDEMPTION.  




        (a)   At
least 20 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption to each Holder of
Securities to be redeemed at such Holder's address as it appears on the Registrar's books. 


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



        (1)   the
Redemption Date; 


        (2)   the
Redemption Price; 


        (3)   the
then effective Conversion Price and Conversion Rate; 


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


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


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


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


        (8)   if
any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon presentation and
surrender of such Security, a new Security or Securities in aggregate principal amount equal to the unredeemed portion thereof will be issued. 




        (c)   If
any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to redemptions. At the Company's written request, which request shall (1) be irrevocable once given and (2) set forth all relevant information
required by clauses (1) through (8) of Subsection 3.3(b), the Trustee shall give the notice of redemption to each Holder in the Company's name and at the Company's expense. 


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



 SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.  




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


18





 

accrued
and unpaid interest, up to but not including the Redemption Date; provided that if the Redemption Date falls after a Regular Record Date and on
or before an Interest Payment Date, then interest on the Securities will be payable to the Holders in whose names the Securities are registered at the close of business on such Regular Record Date. 



 SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.  




        Prior to 11:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company acts as Paying Agent,
shall segregate and hold in trust) an amount of money (in immediately available funds if deposited on such Redemption Date) sufficient to pay the Redemption Price of, and any accrued and unpaid
interest payable upon redemption on, all Securities to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have been delivered by the Company
to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose because of the conversion of
Securities pursuant to Article 4 or, if such money is then held by the Company in trust and is not required for such purpose, it shall be discharged from the trust. 



 SECTION 3.6. SECURITIES REDEEMED IN PART.  




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



 SECTION 3.7. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.  




        In connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities called for redemption by an agreement
with one or more investment banks or other purchasers to purchase such Securities by paying to a Paying Agent (other than the Company or any of its Affiliates) in trust for the Holders, on or before
11:00 a.m. New York City time, on the 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 Redemption Price, together with any accrued and unpaid interest accrued to, but not including, the Redemption Date of such Securities. Notwithstanding anything to the contrary contained
in this Article 3, the obligation of the Company to pay the Redemption Price of such Securities, including all accrued and unpaid interest, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers; provided, however, that nothing in this Section 3.7 shall relieve the Company of its obligation
to pay the Redemption Price, plus any accrued and unpaid interest, to but excluding the relevant Redemption Date, on Securities called for redemption. If such an agreement with one or more investment
banks or other purchasers is entered into, any Securities called for redemption and not surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the option of
the Company upon written notice to the Trustee, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained
in Article 4) surrendered by such purchasers for conversion, all as of 11:00 a.m., New York City time, on the Redemption Date, subject to payment of the above amount as aforesaid. The
Paying Agent shall hold and pay to the Holders whose Securities are selected for redemption any such amount paid to it for purchase in the same manner as it would money deposited with it by the
Company for the redemption of Securities. Without the Paying Agent's prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities
shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Paying Agent
from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such 


19





 

arrangement
for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and expenses incurred by the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. 



 SECTION 3.8. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL.  




        (a)   If
at any time the Securities remain outstanding there shall have occurred a Change in Control, all or any portion of the Securities of any Holder equal to $1,000 or a
integral multiple of $1,000, shall be purchased by the Company, at the option of such Holder, at a purchase price equal to 100% of the principal amount of the Securities to be purchased, together with
interest accrued and unpaid to, but excluding, the Change in Control Purchase Date (the "Change in Control Purchase Price"), on the date (the  "Change in Control Purchase
Date") that is 30 days after the date of the Change in Control Purchase Notice; provided,
however, if the Change in Control Purchase Date falls after a Regular Record Date but on or before the related Interest Payment Date, then the interest on the Securities
payable on such date shall be payable to the Holders in whose name the Securities were registered at the close of business on such Regular Record Date. 


        (b)   Whenever
in this Indenture (including Sections 2.1, 8.1 and 8.7 hereof) or in the form of Securities there is a reference, in any context, to the principal of any
Securities as of any time, such reference shall be deemed to include reference to the Change in Control Purchase Price payable in respect to such Securities to the extent that such Change in Control
Purchase Price is, was or would be so payable at such time, and express mention of the Change in Control Purchase Price in any provision of this Indenture shall not be construed as excluding the
Change in Control Purchase Price in those provisions of this Indenture when such express mention is not made. 


        (c)   A
"Change in Control" of the Company, or any successor entity that is subject to the terms of this Indenture, shall be
deemed to have occurred at such time after the original issuance of Securities as any of the following events shall occur: 



        (1)   Any
"person" or "group" is or becomes the "beneficial owner," directly or indirectly, of shares of voting stock of the Company representing 50% or more of the total
voting power of all outstanding classes of voting stock of the Company or has the power, directly or indirectly, to elect a majority of the members of the Board of Directors; 


        (2)   The
Company consolidates with, or merges with or into, another person or the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company, or any person consolidates with, or merges with or into, the Company, in any such event other than pursuant to a transaction in which the persons that
"beneficially owned," directly or indirectly, shares of voting stock of the Company immediately prior to such transaction "beneficially own," directly or indirectly, shares of voting stock,
representing at least a majority of the total voting power of all outstanding classes of voting stock of the surviving or transferee person; 


        (3)   Continuing
Directors do not constitute a majority of the Board of Directors (or, if applicable, a successor corporation to the Company). "Continuing Directors" shall
mean, as of any date of determination, any member of the Board of Directors who (i) was a member of such Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election; or 


        (4)   A
liquidation or dissolution of the Company. 



20





 

        Notwithstanding
anything to the contrary set forth in this Section 3.8, a Change in Control will not be deemed to have occurred if either: 



        (A)  the
last sale price of the Company's Common Stock for any five trading days within: 



          (i)  the
period of ten consecutive trading days immediately after the later of the Change in Control or the public announcement of the Change in Control, in the case of a
Change in Control resulting solely from a Change in Control under the Section 3.8(c)(1) above, or 



         (ii)  the
period of ten consecutive trading days immediately preceding the Change in Control, in the case of a Change in Control under the Sections 3.8(c)(2) and
(3) above, 





is
at least equal to 105% of the Conversion Price in effect on such day; or 



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




        For
purposes of this Change in Control definition: 


        "person"
or "group" have the meanings given to them for purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor provisions, and the term "group" includes any group
acting for the purpose of acquiring, holding or disposing of securities with in the meaning of Rule 13d-5(b)(1) under the Exchange Act, or any successor provision; 



        a
"beneficial owner" will be determined in accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of this Indenture, except that the number of
shares of voting stock of the Company will be deemed to include, in addition to all outstanding shares of voting stock of the Company and unissued shares deemed to be held by the "person" or "group"
or other person with respect to which the Change in Control determination is being made, all unissued shares deemed to be held by all other persons; 


        "beneficially
owned" has a meaning correlative to that of beneficial owner; 


        "unissued
shares" means shares of voting stock not outstanding that are subject to options, warrants, rights to purchase or conversion privileges exercisable within 60 days of the
date of determination of a Change in Control; and 


        "voting
stock" means any class or classes of Capital Stock pursuant to which the holders of Capital Stock under ordinary circumstances have the power to vote in the election of the board
of directors, managers or trustees of any person or other persons performing similar functions irrespective of whether or not, at the time, Capital Stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any contingency. 



        (d)   Within
10 days after the occurrence of a Change in Control, the Company, or, at the written request and expense of the Company, the Trustee, shall mail a written
notice of the Change in Control to the Trustee (if the Trustee does not mail such notice) and to each Holder (and to beneficial owners as required by applicable law). The notice shall include the form
of a Change in Control Purchase Notice to be completed by the Holder and shall state: 



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



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



21





 




        (3)   the
Change in Control Purchase Date; 


        (4)   the
Change in Control Purchase Price; 



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


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


        (7)   the
name and address of each Paying Agent and Conversion Agent and that the Securities must be surrendered to the Paying Agent to collect payment; 


        (8)   the
then effective Conversion Price and Conversion Rate; 


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


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


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




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


        (e)   A
Holder may exercise its rights specified in Subsection (a) of this Section 3.8 upon delivery of a written notice (which shall be in substantially the
form included in Exhibit A hereto and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically or by other means in accordance with the Depositary's customary procedures) of the exercise of such rights (a  "Change in Control Purchase
Notice") to any Paying Agent at any time prior to the close of business on the Business Day next preceding the Change in
Control Purchase Date. 



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


        (2)   The
Company shall only be obliged to purchase pursuant to this Section 3.8, a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Security also apply to the purchase of such portion of such Security. 



        (3)   Notwithstanding
anything herein to the contrary, any Holder delivering to a Paying Agent the Change in Control Purchase Notice contemplated by this Subsection 3.8(e)
shall have the right to withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time prior to
the close of business on the Business Day next preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9. 


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



        (5)   Anything
herein to the contrary notwithstanding, in the case of Global Securities, any Change in Control Purchase Notice may be delivered or withdrawn and such
Securities may be 



22





 




surrendered
or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time. 


 SECTION 3.9. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.  




        (a)   Upon
receipt by any Paying Agent of the Change in Control Purchase Notice specified in Subsection 3.8(e), the Holder of the Security in respect of which such Change in
Control Purchase Notice was given shall (unless such Change in Control Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the Change in Control Purchase Price with
respect to such Security. Such Change in Control Purchase Price shall be paid to such Holder promptly following the later of (1) the Change in Control Purchase Date with respect to such
Security (provided that the conditions in Subsection 3.8(e) 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 Subsection 3.8(e). Securities in respect of which a Change in Control Purchase Notice has been given by the Holder thereof may not be converted into
shares of Common Stock pursuant to Article 4 on or after the date of the delivery of such Change in Control Purchase Notice unless such Change in Control Purchase Notice has first been validly
withdrawn in accordance with Subsection (b) immediately below with respect to the Securities to be converted. 


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



 SECTION 3.10. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.  




        (a)   On
or before 11:00 a.m. New York City time on the Change in Control Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent (other than
the Company or an Affiliate of the Company) an amount of money (in immediately available funds if deposited on such Change in Control Purchase Date) sufficient to pay the aggregate Change in Control
Purchase Price of all the Securities or portions thereof that are to be purchased on such Change in Control Purchase Date. The manner in which the deposit required by this Section 3.10 is made
by the Company shall be at the option of the Company, provided that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall
have immediately available funds on the Change in Control Purchase Date. 


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



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




        Securities shall be purchased in cash in whole or in part (which must be equal to $1,000 or any integral multiple thereof) by the Company, at the option of
Holders, in accordance with the provisions 


23





 

of
this Article 3 and paragraph 8 of the Securities promptly on December 22, 2008, December 22, 2013 and December 22, 2018 (each, a "Put
Right Purchase Date"), at a purchase price per Security equal to (i) 100.25% of the aggregate principal amount of the Security, if the Security is purchased on
December 22, 2008, and (ii) 100% of the aggregate principal amount of the Security if the Security is purchased on December 22, 2013 or December 22, 2018, in each case,
together with any accrued and unpaid interest up to but not including the applicable Put Right Purchase Date (the "Put Right Purchase Price"); provided
that if the Put Right Purchase Date falls after a Regular Record Date and on or before the related Interest Payment Date, any interest on the Securities will be payable to the Holders in whose names
the Securities were registered at the close of business on such Regular Record Date. 


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



        (1)   the
Put Right Purchase Price, the Put Right Purchase Date and the Conversion Price and Conversion Rate then in effect; 


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


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


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


        (5)   that
the Put Right Purchase Price for any Security as to which a Put Right Purchase Notice has been given and not withdrawn will be paid promptly following the later of
the Put Right Purchase Date and the time of surrender of such Security as described in subclause (4) above; 


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


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


        (8)   the
procedures for withdrawing a Put Right Purchase Notice (including pursuant to the terms of Subsection 3.11(f)); 



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


        (10) the
CUSIP number of the Securities. 




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


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


24







  





        (d)   To exercise its rights pursuant to this Section 3.12, the Holder shall deliver to the Paying Agent of a written notice of purchase in the form set forth in  Exhibit A attached hereto (a "Put Right Purchase Notice") at any time from the opening of
business on the date that is 20 Business Days prior to the applicable Put Right Purchase Date until the close of business on the Put Right Purchase Date stating: 



        (1)   if
certificated Securities have been issued, the certificate number of the Security which the Holder will deliver to be purchased (or if the Securities are not
certificated, the Put Right Purchase Notice must comply with the procedures of the Depositary applicable to purchases), 


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


        (3)   that
such Security shall be purchased as of the applicable Put Right Purchase Date pursuant to the terms and conditions in this Section 3.12. 




        (e)   The
Company shall purchase all Securities with respect to which a Put Right Purchase Notice is given and not withdrawn, upon the later of the applicable Put Right
Purchase Date and delivery of such Securities to the Paying Agent (together with all necessary endorsements) at the offices of the Paying Agent (if the Securities are not certificated, such delivery
must comply with the procedures of the Depositary applicable to purchases). Delivery of such Security shall be a condition to receipt by the Holder of the Put Right Purchase Price therefor. The Put
Right Purchase Price shall be paid pursuant to this Section 3.12 only if the Security delivered to the Paying Agent conforms in all respects to the description thereof in the related Put Right
Purchase Notice, as determined by the Company. 


        (f)    Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the Put Right Purchase Notice contemplated by this Section 3.12 shall
have the right to withdraw such Put Right Purchase Notice at any time prior to the close of business on the Put Right Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
specifying: 



        (1)   the
certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted (or, if the Securities are not certificated, the
withdrawal notice must comply with the procedures of the Depositary applicable to withdrawals), 


        (2)   the
aggregate principal amount of the Security (which must be equal to $1,000 or any integral multiple thereof) with respect to which such notice of withdrawal is being
submitted, and 


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




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


        (h)   On
or before 5:00 p.m. (local time in the City of New York) on the Business Day following the Put Right Purchase Date, the Company shall deposit with the Trustee
or with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of money (in
immediately available funds if deposited on such Put Right Purchase Date) sufficient to pay the aggregate Put Right Purchase Price of all the Securities or portions thereof which are to be purchased
as of the Put Right Purchase Date. The manner in which the deposit required by this Section 3.12(e) is made by the Company shall be at the option of the Company;  provided that such deposit shall be
made in a manner such that the Trustee or a Paying Agent shall have immediately available funds by the close of
business on the Business Day after the Put Right Purchase Date. 


25





 



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


        (2)   The
Put Right Purchase Price shall be paid to such Holder with respect to Securities for which a Put Right Purchase Notice has been tendered and not withdrawn, subject
to receipt of funds by the Paying Agent, promptly following the later of (A) the Put Right Purchase Date with respect to such Security (provided
that the conditions in Subsection 3.12(f) have been satisfied) and (B) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by
Section 3.12(f). Securities in respect of which a Put Right Purchase Notice has been given by the Holder thereof; if convertible pursuant to Article 4 hereof, may not be converted on or
after the date of the delivery of such Put Right Purchase Notice, unless such Put Right Purchase Notice has first been validly withdrawn as specified in Subsection 3.12(g). 


        (3)   To
the extent that the aggregate amount of cash deposited by the Company pursuant to this Subsection 3.12(i) exceeds the aggregate Put Right Purchase Price of the
Securities or portions thereof that the Company is obligated to purchase, then promptly after the Put Right Purchase Date the Trustee or a Paying Agent, as the case may be, shall return any such
excess cash to the Company. 




        (i)    The
Company shall only be obligated to purchase, pursuant to this Section 3.12, 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. 


        (j)    Upon
receipt by the Paying Agent of the Put Right Purchase Notice specified in subsection 3.12 (f), the Holder of the Security in respect of which such Put Right
Purchase Notice was given shall (unless such Put Right Purchase Notice is withdrawn as specified herein) thereafter be entitled to receive solely the Put Right Purchase Price with respect to such
Security. 



 SECTION 3.12. SECURITIES PURCHASED IN PART.  




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



 SECTION 3.13. COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES  




        In connection with any offer to purchase of Securities under Section 3.8 or Section 3.12, the Company shall (a) comply with
Rule 13e-4 and Rule 14e-1 (or any successor to either such Rule), 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 3.8 through 3.12 to be exercised in the time and in the manner specified therein. 


26





 

 SECTION 3.14. PURCHASE OF SECURITIES IN OPEN MARKET  




        The Company (a) shall, on or prior to the date that is two years from the latest issuance of any Securities in accordance with Section 2.11
surrender any Security purchased by the Company pursuant to this Article 3 to the Trustee for cancellation, and (b) after such date, may (the extent permitted by applicable law) reissue
or sell such Security or surrender such Security to the Trustee for cancellation as aforesaid. 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. 


 
 

ARTICLE 4
  CONVERSION    
    



 SECTION 4.1. CONVERSION PRIVILEGE AND CONVERSION RATE.  




        (a)   Subject
to and upon compliance with the provisions of this Article and the Securities, at the option of the Holder thereof, any Security or portion thereof that is an
integral multiple of $1,000 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 of the Company on or prior to
the close of business on the Final Maturity Date, unless previously redeemed by the Company or purchased by the Company at the Holders' option and unless the Holder has delivered (and not withdrawn) a
Change of Control Purchase Notice pursuant to Section 3.9 or a Put Right Purchase Notice pursuant to Section 3.12, at the Conversion Rate, determined as hereinafter provided, in effect
at the time of conversion and subject to the adjustments described below, only under the following circumstances: 



        (1)   prior
to December 22, 2021, on any date during any fiscal quarter (and only during such fiscal quarter) after the fiscal quarter ending December 31, 2003,
if the Closing Price per share of the Common Stock was more than 120% of the then current Conversion Price for at least 20 Trading Days in the period of the 30 consecutive Trading Days ending on the
last Trading Day of the previous fiscal quarter; 


        (2)   on
or after December 22, 2021, at all times on or after any date on which the Closing Price per share of the Common Stock is more than 120% of the then current
Conversion Price of the Securities; 


        (3)   until
the close of business on the Business Day prior to the Redemption Date if the Company elects to redeem the Securities pursuant to Article 3 hereof; 


        (4)   during
the period set forth in Subsection 4.1(b), if the Company distributes to all or substantially all holders of Common Stock rights, options or warrants entitling
them to purchase Common Stock at less than the Closing Price per share of the Common Stock on the Trading Day preceding the declaration for such distribution; 


        (5)   during
the period set forth in Subsection 4.1(b),if the Company distributes to all or substantially all holders of Common Stock cash, assets, debt securities or capital
stock, which distribution has a per share value as determined by the Board of Directors exceeding 10% of the Closing Price per share of the Common Stock on the day preceding the declaration for such
distribution; 


        (6)   during
the period set forth in Subsection 4.1(c), (A) if the Company becomes a party to a consolidation, merger or binding share exchange pursuant to which all or
substantially all of the Company's Common Stock would be converted to cash, securities or other property, (B) if a Change in Control occurs, or (C) if an event occurs that would have
been a Change in Control but for the existence of one of the Change in Control exceptions set forth in the proviso to Section 3.8(c) of this Indenture; or 



27





 




        (7)   during
the five consecutive Business Day period following any five consecutive Trading Day period at any time in which the average of the Trading Prices for the
Securities for such five consecutive Trading Day period was less than 98% of the average Conversion Value (as defined below) for the Securities for such five consecutive Trading Day period
("trading price condition"); provided that upon any conversion of Securities pursuant to this
clause (7) if, on the applicable Conversion Date, the Closing Price per share of Common Stock is greater than or equal to the then current Conversion Price of the Securities and less than or
equal to 120% of the then current Conversion Price of the Securities then such Holder shall receive shares of Common Stock, with a value equal to the principal amount of the Securities (a  "Principal Value
Conversion"); provided, further, that any Common Stock delivered upon a Principal Value
Conversion will be valued at the greater of the Conversion Price of the Securities as of the Conversion Date and the applicable share price (as defined below) as of the Conversion Date. 




        The
Company will deliver shares of Common Stock, together with any cash payable for fraction shares, to such Holder no later than the third Business Day following the determination of
the applicable share price. The "applicable share price" shall mean the average of the Closing Price per share of Common Stock over the five Trading Day
period starting the third Trading Day following the Conversion Date. The "Conversion Value" for the Securities is equal to the product of (i) the
Closing Price per share of the Common Stock on a given day and (ii) the then current Conversion Rate. The "Trading Price" of the Securities on
any date of determination means the average of the secondary
market bid quotations per Security obtained by the Conversion Agent for $5,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date
from two independent nationally recognized securities dealers the Company selects, which may include either or both of the Initial Purchasers, provided
that if at least two such bids cannot be reasonably obtained by the Conversion Agent, but one such bid can be reasonably obtained by the Conversion Agent, this one bid will be used. If the Conversion
Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from a nationally recognized securities dealer or if in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities, then the Trading Price of the Securities will be deemed to be less than 98% of the then current Conversion Rate
multiplied by the Closing Price of Common Stock on such determination date. 


        (b)   In
the case of a distribution contemplated by clauses (4) and (5) of Subsection 4.1(a), the Company shall notify Holders at least 20 days prior to
the ex-dividend date for such distribution (the "Distribution Notice"). 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. Notwithstanding the foregoing, in the event of a distribution contemplated by clauses (4) and (5) of Subsection 4.1(a), Holders may not convert the
Securities if the Holders may participate in such distribution without converting their Securities. 


        (c)   In
the case of a transaction contemplated by clause (6) of Subsection 4.1(a), the Company will notify Holders at least 25 days prior to the anticipated
effective date of such transaction (the "Merger Notice"). Holders may surrender Securities for conversion at any time from and after the date which is
15 days prior to the anticipated effective date of such transaction until the date which is 15 days after the actual effective date of such transaction. If the Company is party to a
transaction contemplated by subclause (6)(A) of Subsection 4.1(a), then at the effective time of the transaction, the right to convert a Security into shares of Common Stock shall be changed into a
right to convert such Security into the kind and amount of cash, securities or other property that the Holders would have received if the Holders had converted such Security into shares of Common
Stock immediately prior to the actual effective date of the transaction. This Subsection 4.1(c) shall not limit the rights of the Holders pursuant to Section 3.8. 


28





 



        (d)   For
each fiscal quarter of the Company commencing prior to December 22, 2021, beginning after the fiscal quarter ending December 31, 2003, (1) the
Conversion Agent will determine, on behalf of the Company, on the first Business Day following the last Trading Day of each fiscal quarter whether the Securities are convertible pursuant to
clause (1) of Subsection 4.1(a), and, if so, will notify the Company. From December 22, 2021, the Conversion Agent will determine, on behalf of the Company, on a daily basis, whether the
Securities are convertible pursuant to clause (2) of Subsection 4.1(a) and, if so, will notify the Company. 



        (e)   The
Conversion Agent shall have no obligation to determine the Trading Price of the Securities unless the Company has requested such determination; and the Company shall
have no obligation to make such request unless a Holder provides the Company with reasonable evidence that the Trading Price of the Securities is reasonably likely to be less than 98% of the
Conversion Value; at such time, the Company shall instruct the Conversion Agent to determine the Trading Price and Conversion Value of the Securities beginning on the next Trading Day and on each
successive Trading Day for 10 consecutive Trading Days to determine whether the average of the Trading Prices for the Securities for any five consecutive Trading Day period within such 10 Trading Day
period is less than 98% of the average Conversion Value of the Securities over such five Trading Day period and to notify the Company accordingly. 


        (f)    The
Company will provide written notice to the Conversion Agent as soon as reasonably practicable of the occurrence of any actual event or transaction that causes the
Securities to become convertible pursuant to clauses (4) or (5) of Subsection 4.1(a). 


        (g)   The
conversion right, subject to the conditions described in this Section 4.1, shall commence on the initial issuance date of the Securities and expire at the
close of business on the Final Maturity Date, subject, in the case of conversion of any Global Security, to any Applicable Procedures. If a Security is called for redemption or submitted or presented
for purchase pursuant to Article 3, such conversion right shall terminate at the close of business on the Business Day immediately preceding the Redemption Date, or the Business Day following
the Change in Control Purchase Date or Put Right Purchase Date, as the case may be, for such Security (unless the Company shall default in making the Redemption Price payment, Change in Control
Purchase Price payment or Put Right 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
default is cured and such Security is redeemed or purchased, as the case may be). Securities in respect of which a Change in Control Purchase Notice or a Put Right Purchase Notice, as the case may be,
has been delivered may not be surrendered for conversion pursuant to this Article 4 prior to a valid withdrawal of such Change in Control Notice or Put Right Purchase Notice, as the case may be
in accordance with the provisions of Article 3. 


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


        (i)    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. 



        (j)    The
rate at which shares of Common Stock shall be delivered upon conversion (herein called the "Conversion Rate") shall
be initially 85.4409 shares of Common Stock for each $1,000 principal amount of Securities. The Conversion Rate shall be adjusted in certain instances as provided in this Article 4. The
"Conversion Price" shall equal $1,000 divided by the Conversion Rate and shall be adjusted when the Conversion Price is so adjusted in accordance with
this Article 4. 


29





 



 SECTION 4.2. CONVERSION PROCEDURE.  




        (a)   To
convert a Security, a Holder must (1) complete and manually sign the conversion notice on the back of the Security and deliver such notice to a Conversion
Agent, (2) surrender the Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent, and (4) pay
any transfer or similar tax, if required. The date on which the Holder satisfies all of those requirements is the "Conversion Date." As soon as
practicable after the Conversion Date, the Company shall deliver to the Holder through a Conversion Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and
cash in lieu of any fractional shares pursuant to Section 4.3. 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 issued upon conversion is registered shall be deemed to be a holder of record of such Common Stock on the Conversion
Date; provided, however, that no surrender of a Security on 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. 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. 


        (c)   Securities
so surrendered for conversion (in whole or in part) during the period from the close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date (excluding (1) Securities or portions thereof called for redemption or presented for purchase pursuant to Article 3 hereof on a Redemption Date, a
Change in Control Purchase Date or Put Right Purchase Date, as the case may be, occurring during the period beginning at the close of business on a Regular Record Date and ending at the opening of
business on the fifth Business Day after the next succeeding Interest Payment Date or (2) Securities that are submitted for conversion between the Regular Record Date for the final interest
payment and the opening of business on the final Interest Payment Date) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being converted, and such interest shall be payable to the registered Holder of such Security as of that Regular Record Date
notwithstanding the conversion of such Security, subject to the provisions of this Indenture relating to the payment of defaulted interest by the Company. Except as otherwise provided in this
Section 4.2, no payment or adjustment will be made for accrued interest on a converted Security. If the Company defaults in the payment of interest payable on such Interest Payment Date, the
Company shall promptly repay such funds to such Holder. 


        (d)   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, the Pledge Agreement and the Registration Rights Agreement. If a
Holder converts more than one Security at the same time, the number of shares of Common Stock issuable upon the conversion shall be based on the aggregate principal amount of Securities converted. 



        (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, at the expense of the Company, a new Security or Securities of authorized denominations in an aggregate 


30





 



principal
amount equal to the 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. 



 SECTION 4.3. FRACTIONAL SHARES.  




        The Company will not issue fractional shares of Common Stock upon conversion of Securities. In lieu thereof, the Company will pay an amount in cash for the
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
Closing Price (determined as set forth in Section 4.6(d)) of the Common Stock on the Conversion Date by such fractional share and rounding the product to the nearest whole cent. 



 SECTION 4.4. TAXES ON CONVERSION.  




        If a Holder converts a Security, the Company shall pay any transfer, stamp or similar taxes or duties related to the issue or delivery of shares of Common Stock
upon such conversion. However, the Holder shall pay any such tax with respect to cash received in lieu of fractional shares. In addition, 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 4.5. 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. 



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


31





 



 SECTION 4.6. ADJUSTMENT OF CONVERSION RATE.  




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



        (1)   In
case the Company shall (A) pay a dividend on its Common Stock in shares of Common Stock, (B) make a distribution on its Common Stock in shares of Common
Stock, (C) subdivide its outstanding Common Stock into a greater number of shares, or (D) combine its outstanding Common Stock into a smaller number of shares, the Conversion Rate in
effect immediately prior thereto shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which it
would have owned had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (1) shall become effective immediately after
the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination. 


        (2)   In
case the Company shall issue rights or warrants to all holders of its Common Stock entitling them (for a period of not more than 60 days after such issuance)
to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per
share of Common Stock (as determined in accordance with subsection (4) of this Section 4.6(a)) on the record date for the determination of stockholders entitled to receive such rights,
options 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 on such record date plus the number of additional shares of Common Stock
offered (or into which the convertible securities so offered are convertible) and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number
of shares which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of the convertible securities so offered, which shall be
determined by multiplying the number of shares of Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Common Stock pursuant to the terms of such
convertible securities) would purchase at the Current Market Price per share (as defined in subsection (4) of this Section 4.6(a)) of Common Stock on such record date. Such adjustment
shall be made successively whenever any such rights, options or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such
rights, options or warrants are exercisable not all rights, options or warrants shall have been exercised, the adjusted Conversion Rate shall be immediately readjusted to what it would have been based
upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued). 



        (3)   In
case the Company shall distribute to all holders of its Common Stock any shares of capital stock of the Company (other than Common Stock), evidences of indebtedness
or other non-cash assets (including securities of any person other than the Company but excluding (A) dividends or distributions paid exclusively in cash or (B) dividends or
distributions referred to in subsection (1) of this Section 4.6(a)), or shall distribute to all holders of its Common Stock rights or warrants to subscribe for or purchase any of its
securities (excluding those rights and warrants referred to in subsection (2) of this Section 4.6(a)) and also excluding the distribution of rights to all holders of Common Stock
pursuant to a Rights Plan (as defined below) adopted before or after the date of this Indenture), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the current Conversion Rate by a fraction of which the numerator shall be the Current Market Price per share (as defined in subsection (4) of this
Section 4.6(a)) of the Common Stock on such record date and of which 



32





 




the
denominator shall be Current Market Price per share (as defined in subsection (4) of this Section 4.6(a)) of the Common Stock on the record date mentioned below less the fair market
value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers' Certificate
delivered to the Trustee) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such rights, options or warrants applicable to one
share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the record date). Such adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the determination of stockholders entitled to receive such distribution. 




        In
the event the then fair market value (as so determined) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such
rights or warrants applicable to one share of Common Stock is equal to or greater than the Current Market Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of a Security shall have the right to receive upon conversion the amount of capital stock, evidences of indebtedness or other non-cash
assets so distributed or of such rights or warrants such holder would have received had such holder converted each Security on such record date. In the event that such dividend or distribution is not
so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of this Section 4.6(a)(3) 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, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the record date with respect to
such distribution by a fraction: the numerator of which shall be the sum of (x) 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 on the Common Stock on The Nasdaq National Market or such other
national or regional exchange or market on which the Common Stock is then
listed or quoted and (y) the average Closing Price over the Spinoff Valuation Period of the portion of the securities so distributed applicable to 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 reserve the pro rata
portion of such Securities so that each Holder of securities shall have the right to receive upon conversion the amount of such shares of capital stock or similar equity interests of such Subsidiary
or business unit that such Holder of Securities would have received if such Holder of Securities had converted such Securities on the record date with respect to such distribution. 


        With
respect to any rights (the "Rights") that may be issued or distributed pursuant to any rights plan of the Company (any Rights that may be issued pursuant to any rights plan being
referred to as, a "Rights Plan"), 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, in
addition to the Common Stock, the Rights described therein (whether or not the Rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in any such
Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set 


33





 



forth
in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.6(a)(3). 


        Rights
or warrants (other than rights issued pursuant to a Rights Plan) distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock (including
issuances of Common Stock upon conversion of the Securities), shall be deemed not to have been distributed for purposes of this Section 4.6 (and no adjustment to the Conversion Price under this
Section 4.6 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if
any is required) to the Conversion Rate shall be made under this Section 4.6(a)(3). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the
date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 4.6 was made, (1) in the case of any such rights or warrants which shall all have been redeemed, purchased by the Company or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption, purchase by the Company or repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained
such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been
terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. 



        (4)   In
case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all holders of its Common Stock cash, 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 Business Day immediately preceding the day on which such
Triggering Distribution is declared ("Determination Date") by a fraction of which the numerator shall be such Current Market Price per share of the Common Stock (as determined in accordance with
subsection (4) of this Section 4.6(a)) on the Determination Date and the denominator of which shall be the Current Market Price per share of the Common Stock (as determined in accordance
with subsection (4) of this Section 4.6(a)) on the Determination Date less the sum of the aggregate amount of cash, paid or payable within such 12 months (including, without
limitation, the Triggering Distribution) applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date), 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. 


        (5)   In
case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall expire, then immediately prior to the opening of business on the day after
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 



34





 




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 (x) the aggregate consideration (determined as aforesaid) payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares and excluding any shares held
in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (4) of this Section 4.6(a)) 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 tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (4) of this
Section 4.6(a)) 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
the application of this Section 4.6(a)(3)(B) to any tender offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this
Section 4.6(a)(3)(B). 



        (A)  For
purposes of this Section 4.6(3), 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. 




        (6)   For
the purpose of any computation under subsections (2) and (3) of this Section 4.6(a), the current market price (the "Current Market Price") per
share of Common Stock on any date shall be deemed to be the average of the daily closing prices for the 30 consecutive Trading Days commencing 45 Trading Days before (A) the Determination Date
or the Expiration Date, as the case may be, with respect to distributions or tender offers under subsection (3) of this Section 4.6(a) or (B) the record date with respect to
distributions, issuances or other events requiring such computation under subsection (3) or (4) of this Section 4.6(a). The closing price (the "Closing Price") for each day shall
be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the Nasdaq National Market or,
if the Common Stock is not listed or admitted to trading on the Nasdaq National Market, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if
not listed or admitted to trading on the Nasdaq National Market or any national securities exchange, the last reported sales price of the Common Stock as quoted on Nasdaq or, in case no reported sales
takes place, the average of the closing bid and asked prices as quoted on Nasdaq or any comparable system or, if the Common Stock is not quoted on Nasdaq or any comparable system, the closing sales
price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If no such prices are available, the Current Market Price per share shall be the fair value of a share of Common Stock as reasonably determined by
the Board of Directors (which shall be evidenced by an Officers' Certificate delivered to the Trustee). 



35







  




        (7)   In
any case in which this Section 4.6 shall require that an adjustment be made following a record date or a Determination Date or Expiration Date, as the case may
be, established for purposes of this Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate
described in Section 4.9) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the shares of Common Stock and other capital stock of
the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Rate prior
to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the
Company of the right to receive such shares. If any distribution in respect of which an adjustment to the Conversion Rate is required to be made as of the record date or Determination Date or
Expiration Date therefor is not thereafter made or paid by the Company for any reason, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such record date
had not been fixed or such effective date or Determination Date or Expiration Date had not occurred. 




        (f)    For
purposes of this Section 4.6, "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 stockholders 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). 



 SECTION 4.7. NO ADJUSTMENT.  




        (a)   No
adjustment in the Conversion Rate shall be required if Holders may participate in the transactions set forth in Section 4.6 above 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 by reason of this Section 4.7 would otherwise be required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations under this Article 4 shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be. 


        (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, and interest shall not be
payable to Holders on such cash. 



 SECTION 4.8. ADJUSTMENT FOR TAX PURPOSES.  




        The Company shall be entitled to make such increases in the Conversion Rate, in addition to those required by Section 4.6, as it in its discretion shall
determine to be advisable in order that any stock dividends, subdivisions of shares, distributions of rights to purchase stock or securities or distributions of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable. Any such change in the Conversion Rate shall also be made to the Conversion Price. 


36





 

 SECTION 4.9. 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. 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: 


        (a)   the
Company takes any action which would require an adjustment in the Conversion Rate; 



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


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



        (1)   the
Company shall mail to Holders and file with the Trustee a notice stating the proposed record date or effective date, as the case may be. The Company shall mail such
notice at least 10 days before such proposed record date or effective date. Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in
clause (a), (b) or (c) of this Section 4.10. 


 SECTION 4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE.  




        (a)   If
any of the following shall occur, namely: (1) any reclassification or change of shares of Common Stock issuable upon conversion of the Securities (other than a
change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination or any other transaction or event for which an adjustment is
provided in Section 4.6); (2) any statutory share exchange, consolidation or merger or combination to which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or change (other than in par value, or from par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination) in, outstanding shares of Common Stock; or (3) any sale or conveyance of all or substantially all the property and assets of the Company, directly or indirectly,
to any person, then the Company and any such successor, purchasing or transferee corporation, as the case may be, shall, as a condition precedent to such reclassification, change, combination,
statutory share exchange, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture to this Indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, change,
combination, statutory share exchange, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, combination, statutory share exchange, consolidation, merger, sale or conveyance. Such supplemental indenture shall provide for adjustments of the Conversion Rate which
shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Rate provided for in this Article 4. If, in the case of any such consolidation, merger, combination,
statutory share exchange, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities
and property of a person other than the successor, purchasing or transferee corporation, as the case may be, in such consolidation, merger, combination, statutory share exchange, sale or 


37





 

conveyance,
then such supplemental indenture shall also be executed by such other person and shall contain such additional provisions to protect the interests of the Holders of the Securities as the
Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.11 shall similarly apply to successive reclassifications, changes,
combinations, consolidations, mergers, sales or conveyances. 


        (b)   In
the event the Company shall execute a supplemental indenture pursuant to this Section 4.11, the Company shall promptly file with the Trustee (1) an
Officers' Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or property (including cash) receivable by Holders of the Securities upon the
conversion of their Securities after any such reclassification, change, combination, consolidation, merger, sale or conveyance, any adjustment to be made with respect thereto and that all conditions
precedent have been complied with and (2) an Opinion of Counsel that all conditions precedent thereto and hereunder have been complied with, and shall promptly mail notice thereof to all
Holders. 



 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 including the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.9. The Trustee makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities, and the Trustee shall not be responsible for the Company's failure to comply with any provisions of this Article 4. 


        (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 with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.11. 



 SECTION 4.13. VOLUNTARY INCREASE.  




        The Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least 20 days and if the increase
is irrevocable during the period if the Board of Directors determines that such increase would be in the best interest of the Company or to avoid or diminish income tax to holders of shares of our
Common Stock in connection with a dividend or distribution of stock or similar event, and the Company provides 15 days prior notice of any increase in the Conversion Rate;  provided, however, that
in no event may the Company increase the Conversion Rate so that the adjusted Conversion Price would be less than the par value
of a share of Common Stock. Any such change in the Conversion Rate shall also be made to the Conversion Price. 


 
 

ARTICLE 5
  
    [Intentionally Omitted]    
    


 
 

ARTICLE 6
  COVENANTS    
    



 SECTION 6.1. 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. An installment of
principal or interest or Liquidated Damages, if any, shall be considered paid on the date it is due if the Paying Agent (other 


38





 

than
the Company) holds by 11:00 a.m., New York City time, on that date money, deposited by or on behalf of the Company sufficient to pay the installment. Subject to Section 4.2 hereof,
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. The Company shall, to the fullest extent permitted
by law, pay interest in immediately available funds on overdue principal (including premium, if any) and overdue installments of interest at the rate borne by the Securities. 


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



 SECTION 6.2. SEC 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 Retrieval system
shall be deemed to be filed with the Trustee. 


        (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 6.3. COMPLIANCE CERTIFICATES.  




        The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company (beginning with the fiscal year ending
March 31, 2004), an Officers' Certificate as to the signer's knowledge of the Company's compliance with all conditions and covenants on its part contained in this Indenture and stating whether
or not the signer knows of any default or Event of Default. If such signer knows of such a default or Event of Default, the Officers' Certificate shall describe the default or Event of Default and the
efforts to remedy the same. For the purposes of this Section 6.3, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of
this Indenture. 



 SECTION 6.4. FURTHER INSTRUMENTS AND ACTS.  





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


39





 

 SECTION 6.5. MAINTENANCE OF CORPORATE EXISTENCE.  




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



 SECTION 6.6. RULE 144A INFORMATION REQUIREMENT.  




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



 SECTION 6.7. STAY, EXTENSION AND USURY LAWS.  




        The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest
(including 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 6.8. 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 a 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 is 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. 


40





 
 
 

ARTICLE 7
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE    
    



 SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.  




        The Company shall not consolidate with or merge into any other Person (in a transaction in which the Company is not the surviving corporation) or convey, transfer
or lease its properties and assets substantially as an entirety to any Person, unless: 


        (1)   in
case the Company shall consolidate with or merge into another Person (in a transaction in which the Company is not the surviving corporation) or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company substantially as an entirety is a corporation, limited liability company, partnership, trust or other entity, is organized and
validly existing under the laws of the United States of America, any State thereof and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest including Liquidated Damages, if any, on all the Securities and the performance or observance
of every covenant of this Indenture on the part of the Company to be performed or observed and the conversion rights shall be provided for in accordance with Article 4, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the 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; and 



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


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



 SECTION 7.2. SUCCESSOR SUBSTITUTED.  




        Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with Section 7.1, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Securities and the
Pledge Agreement. 


41





 
 
 

ARTICLE 8
  DEFAULT AND REMEDIES    
    



 SECTION 8.1. EVENTS OF DEFAULT.  




        (a)   An
"Event of Default" shall occur upon: 



        (1)   the
failure of the Company to pay the principal of, or premium, if any, on any Security at the Final Maturity Date, upon a redemption or purchase pursuant to
Article 3, or otherwise, whether or not such payment is prohibited by the provisions in Article 13 herein. 



        (2)   the
failure of the Company to pay any interest, including Liquidated Damages, if any, on any Security when due that continues for 30 days, whether or not such
payment is prohibited by the provisions in Article 13 herein, provided that a failure to make any of the first ten scheduled interest payments on
the Securities on the applicable Interest Payment Date will constitute an Event of Default with no grace or cure period; 


        (3)   the
failure of the Company to perform or observe any other covenant required by this Indenture, if such failure continues for 60 days after the Notice of Default
specified below is given; 


        (4)   the
Company pursuant to or within the meaning of any Bankruptcy Law: 



        (A)  commences
a voluntary case or proceeding; 


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


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


        (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 Custodian; or 




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



        (A)  is
for relief against the Company in an involuntary case or proceeding or adjudicates the Company insolvent or bankrupt; 


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


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





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



        (6)   the
Pledge Agreement ceases to be in full force and effect, or enforceable, prior to the expiration thereof in accordance with its terms. 




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


        (b)   A
default under clause (3) of Subsection 8.1(a) is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding notify the Company and the Trustee, in writing of the default, and the Company does 


42





 



not
cure the default within the time specified in clause (3) of Subsection 8.1(a) after receipt of such notice. The notice given pursuant to this Section 8.1 must specify the
default, demand that it be remedied and state that the notice is a Notice of Default. When any default under this Section 8.1 is cured, it ceases. 



        (c)   The
Company will deliver to the Trustee, within 5 Business Days of becoming aware of the occurrence of an Event of Default, written notice thereof. In addition, the
Company shall deliver to the Trustee, within 10 days after it becomes aware of the occurrence thereof, written notice of any event which with the lapse of time would become an Event of Default
under clause (3) of Subsection 8.1(a). 


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



 SECTION 8.2. ACCELERATION.  




        If an Event of Default (other than an Event of Default specified in clause (4) or (5) of Subsection 8.1(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 all accrued and unpaid interest, to the date of acceleration on the Securities then outstanding (if not then due and payable) to be due and payable upon any such
declaration, and the same shall become and be immediately due and payable. If an Event of Default specified in clause (4) or (5) of Subsection 8.1(a) occurs and is continuing with
respect to the Company, the principal amount, and all accrued and unpaid interest, of the Securities then outstanding shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (a) all existing Events of Default, other than the nonpayment of the principal of the Securities which has become due solely by such declaration of acceleration, have
been cured or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the rate per annum borne by the Securities) on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 9.7 have been made. No such rescission shall affect any subsequent default or
impair any right consequent thereto. 



 SECTION 8.3. OTHER REMEDIES.  




        (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
the payment of the principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture. 


        (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 law. 


43





 



 SECTION 8.4. WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.  




        Subject to Sections 8.7 and 11.2, the Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing default or Event of Default and its consequences, except a default or Event of Default in the payment of the principal of, premium, if any, or interest on any Security, a failure by
the Company to convert any Securities into Common Stock or any default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 11.2, cannot be
modified or amended without the consent of the Holder of each Security affected. When a default or Event of Default is waived, it is cured and ceases. 



 SECTION 8.5. CONTROL BY MAJORITY.  




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



 SECTION 8.6. LIMITATIONS ON SUITS.  




        (a)   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 for
the conversion of the Securities pursuant to Article 4) unless: 



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


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


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



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


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




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



 SECTION 8.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.  




        Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of the principal of and interest on the Security,
on or after the respective due dates expressed in the Security and this Indenture, to convert such Security in accordance with Article 4 and to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder. 


44





 

 SECTION 8.8. COLLECTION SUIT BY TRUSTEE.  




        If an Event of Default in the payment of principal or interest specified in clause (1) or (2) of Subsection 8.1(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 of principal and accrued interest
remaining unpaid, together with, to the extent that payment of such interest is lawful interest on overdue principal and overdue installments of interest in each case at the rate per annum borne by
the Securities and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel. 



 SECTION 8.9. TRUSTEE MAY FILE PROOFS OF CLAIM.  




        The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property and shall be entitled and empowered to collect and receive any money or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 9.7, and to the extent that such payment of the reasonable compensation, expenses, disbursements and advances in any such
proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property
which the Holders may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. 



 SECTION 8.10. PRIORITIES.  




        (a)   If
the Trustee collects any money pursuant to this Article 8, it shall pay out the money in the following order: 



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


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


        (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 8.10. 


45





 

 SECTION 8.11. UNDERTAKING FOR COSTS.  




        In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 8.11 does not apply to a suit made by the Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in aggregate principal amount of the
Securities then outstanding. 


 
 

ARTICLE 9
  TRUSTEE    
    



 SECTION 9.1. DUTIES OF TRUSTEE.  




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


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



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


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




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



        (1)   this
paragraph does not limit the effect of Subsection (b) of this Section 9.1; 



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


        (3)   the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to
Section 8.5. 




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


Every
provision of this Indenture that in any way relates to the Trustee is subject to Subsections (a), (b), (c) and (d) of this Section 9.1. 


        (e)   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. 


46





 



 SECTION 9.2. RIGHTS OF TRUSTEE.  




        (a)   Subject
to Section 9.1: 



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


        (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 12.4(b). The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion. 



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


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


        (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 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. 


        (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. 


        (8)   The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written
notice from the Company or the Holders of at least 25% of the aggregate principal amount of the then outstanding Securities 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. 



        (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. 



47







  




 SECTION 9.3. INDIVIDUAL RIGHTS OF TRUSTEE.  




        The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 9.10 and 9.11. 



 SECTION 9.4. TRUSTEE'S DISCLAIMER.  




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



 SECTION 9.5. NOTICE OF DEFAULT OR EVENTS OF DEFAULT.  




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



 SECTION 9.6. REPORTS BY TRUSTEE TO HOLDERS.  




        (a)   If
a report is required by TIA Section 313, within 60 days after each December 31, beginning with the December 31 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such December 31 that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b)(2) and (c). 


        (b)   A
copy of each report at the time of its mailing to Securityholders 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 9.7. 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 9.7 shall include its officers, directors, employees and
agents) for, and hold it harmless against, any and all loss, liability or expense including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), (including
reasonable legal fees and expenses) 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 


48





 



defending
itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Company need not pay for any settlement effected without its prior written consent, which shall not be unreasonably withheld. 



        (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 or bad faith. 


        (d)   To
secure the Company's payment obligations in this Section 9.7, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all
money or property held or collected by the Trustee, except for the Pledged Securities and such money or property held in trust to pay the principal of and interest on particular Securities. The
obligations of the Company under this Section 9.7 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. 



        (e)   When
the Trustee incurs expenses or renders services after an Event of Default specified in clause (6) or (7) of Subsection 8.1(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 9.8. 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 may, with the Company's written consent, appoint a successor Trustee. The Company may remove the Trustee if: 



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


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



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


        (4) the
Trustee becomes incapable of acting. 




        (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. 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 45 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of
10% in principal amount of the Securities then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Company. 


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


        (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 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. 


49





 



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



 SECTION 9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.  




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



 SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.  




        The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent holding
company) shall have a combined capital and surplus of at least $50,000,000. If at any time the Trustee shall cease to satisfy any such requirements, it shall resign immediately in the manner and with
the effect specified in this Article 9. The Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee from filing with the SEC the
application referred to in the penultimate paragraph of TIA Section 310(b). 



 SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.  




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


 
 

ARTICLE 10
  SATISFACTION AND DISCHARGE OF INDENTURE    
    



 SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.  




        (a)   (1)
This Indenture shall cease to be of further effect (except as to any surviving rights of conversion, registration of transfer or exchange of Securities herein
expressly provided for and except as further provided below), and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when 



        (2)   either




        (A)  all
Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.7 and (ii) Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or 


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



          (i)  have
become due and payable, 


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



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





50





 








        (3)   and
the Company has deposited with the Trustee or a Paying Agent (other than the Company or any of its Affiliates) as trust funds in trust for the purpose of and in an
amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the Final Maturity Date or Redemption Date, as the case may be. In the event that the Company exercises its right to redeem the
Securities as provided in Article 3, the Company shall have the right to withdraw its funds previously deposited with the Trustee or Paying Agent pursuant to the immediately preceding sentence; 


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



        (5)   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 to the Trustee under Section 9.7, and, if money shall have been
deposited with the Trustee pursuant to clause (2) of Subsection 10.1(a), the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12 and 12.5, Articles 3 and 4, the last paragraph of
Section 6.2 and this Article 10, shall survive until the Securities have been paid in full. 



 SECTION 10.2. APPLICATION OF TRUST MONEY.  




        Subject to the provisions of Section 10.3, the Trustee or a Paying Agent shall hold in trust, for the benefit of the Holders, all money deposited with it
pursuant to Section 10.1 and shall apply the deposited money in accordance with this Indenture and the Securities to the payment of the principal of and interest on the Securities. 



 SECTION 10.3. 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 10.1 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 10.4. REINSTATEMENT.  




        (a)   If
the Trustee or any Paying Agent is unable to apply any money in accordance with Section 10.2 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 10.1 until such time as the Trustee or such Paying Agent is permitted to apply all such money in accordance with
Section 10.2; provided, however, that if the Company has made any payment of the principal of or interest on any Securities because of the 


51





 

reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive any such payment from the money held by the Trustee or such Paying Agent. 


        (b)   If
pursuant to the last sentence of Section 10.1(1), the Company withdraws its previously deposited funds as a result of its exercise of its redemption right, the
Company's obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit has occurred pursuant to Section 10.1. 


 
 

ARTICLE 11
  AMENDMENTS, SUPPLEMENTS AND WAIVERS    
    



 SECTION 11.1. WITHOUT CONSENT OF HOLDERS.  




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



        (1)   adding
to the Company's covenants for the benefit of the Holders; 


        (2)   surrendering
any right or power conferred upon the Company; 


        (3)   providing
for conversion rights of Holders if any reclassification or change of Common Stock or any consolidation, merger or sale of all or substantially all of the
Company's assets occurs; 


        (4)   increasing
the Conversion Rate, provided that the increase will not adversely affect the interests of Holders in any
material respect; 


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



        (6)   making
any changes or modifications to this Indenture necessary in connection with the registration of the Securities under the Securities Act as contemplated by the
Registration Rights Agreement, provided that this action does not adversely affect the interests of the Holders in any material respect; 


        (7)   curing
any ambiguity, omission, inconsistency or correcting or supplementing any defective provision contained in this Indenture;  provided that such modification or amendment does not, in the good faith
opinion of the Board of Directors and the Trustee, adversely affect the
interests of the Holders in any material respect; 


        (8)   adding
or modifying any other provisions which the Company and the Trustee may deem necessary or desirable and which will not adversely affect the interests of the
Holders in any material respect; 


        (9)   complying
with the provisions of this Indenture in the event of a merger, consolidation or transfer of assets (including the provisions of Section 4.11 and
Article 7); or 


        (10) providing
for uncertificated Securities in addition to the Certificated Securities so long as such uncertificated Securities are in registered form for purposes of the
Internal Revenue Code of 1986, as amended. 


 SECTION 11.2. 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 or by the adoption of a resolution at a meeting of Holders at which a quorum is present by at least a majority in aggregate principal amount of the
Securities represented at the meeting. The Holders of at least a majority in aggregate principal amount of the Securities then 


52





 

outstanding
may waive compliance in a particular instance by the Company with any provision of this Indenture or the Securities without notice to any Holder. However, notwithstanding the foregoing but
subject to Section 11.4, without the written consent of each Holder affected, an amendment, supplement or waiver, including a waiver pursuant to Section 8.4, may not: 



        (1)   change
the maturity of the principal of or any installment of interest on, or any Liquidated Damages with respect to any Security; 


        (2)   reduce
the principal amount of, premium, if any, or interest on, or any Liquidated Damages, or the amount payable upon redemption or purchase pursuant to
Article 3, with respect to any Security; 


        (3)   reduce
the interest rate or interest, including any Liquidated Damages with respect to any Security; 


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


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


        (6)   modify
the Company's obligation to purchase Securities at the option of Holders or the Company's right to redeem Securities, in a manner adverse to the Holders; 


        (7)   except
as otherwise permitted or contemplated by provisions of this Indenture concerning corporate reorganizations, adversely affect the purchase option of Holders upon
a Change in Control or the conversion rights of Holders; 


        (8)   modify
the provisions of this Indenture or the Pledge Agreement relating to the pledge of securities as contemplated under Article 13 in a manner that adversely
affects the interests of the Holders in any material respect; 


        (9)   modify
the subordination provisions of the Securities in a manner adverse to the Holders in any material respect; 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. 




        (b)   After
an amendment, supplement or waiver under this Section 11.2 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. 



 SECTION 11.3. COMPLIANCE WITH TRUST INDENTURE ACT.  




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



 SECTION 11.4. 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. 


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        (b)   After
an amendment, supplement or waiver becomes effective, it shall bind every Securityholder, unless it makes a change described in any of clauses (1) through
(8) of Subsection 11.2(a). In that case the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder's Security. 



 SECTION 11.5. NOTATION ON OR EXCHANGE OF SECURITIES.  




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



 SECTION 11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.  




        The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 11 if the amendment or supplemental indenture does not
adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but need not sign it. In signing or refusing to sign such amendment
or supplemental indenture, the Trustee shall be entitled to receive and, subject to Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel stating that such amendment or
supplemental indenture is authorized or permitted by this Indenture. The Company may not sign an amendment or supplement indenture until the Board of Directors approves it. 



 SECTION 11.7. EFFECT OF SUPPLEMENTAL INDENTURES.  




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


 
 

ARTICLE 12
  SECURITY    
    



 SECTION 12.1. SECURITY.  




        (a)   At
the Closing Time, the Company shall purchase and pledge to the Trustee as security for the exclusive benefit of the Holders (and not for the benefit of other
creditors of the Company), the Initial Pledged Securities in such amount as will be sufficient, upon receipt of scheduled interest and principal payments of such Initial Pledged Securities, as
computed by the Company and verified for mathematical accuracy by a nationally recognized firm of independent public accountants selected by the Company or the Trustee, to provide for payment in full
of the first ten scheduled interest payments (up to and including the interest payment due on December 22, 2008), but excluding Liquidated Damages, on the Securities when due. 



        (b)   The
Initial Pledged Securities shall be pledged by the Company to the Trustee for the exclusive benefit of the Holders and shall be held by the Trustee in the Pledge
Account. Immediately prior to each of the first ten scheduled Interest Payment Dates, the Trustee will release from the Pledge Account proceeds sufficient to pay the interest then due on the
Securities if the Company has not made other provision for payment of such interest, and shall apply such proceeds to pay such interest on behalf of the Company. 


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        (c)   The
Initial Pledged Securities and the Pledge Account shall also secure the repayment of the principal amount and Liquidated Damages, if any, on the Securities only to
the extent provided in the Pledge Agreement. 


        (d)   On
each relevant Date of Delivery (if such Date of Delivery is different from the Closing Time), the Company shall (1) enter into a supplement to the Pledge
Agreement and comply with the terms and provisions thereof and (2) purchase the Additional Pledged Securities to be pledged to the Trustee for the exclusive benefit of the Holders in such
amount as will be sufficient upon receipt of scheduled interest and principal payments of such Additional Pledged Securities, as computed by the Company and verified for mathematical accuracy by a
nationally recognized firm of independent public accountants selected by the Company or the Trustee, to provide for payment in full of the first ten scheduled interest payments due on the Securities
issued in connection therewith. The Additional Pledged Securities shall be pledged by the Company to the Trustee for exclusive benefit of the Holders and shall be held by the Trustee in the Pledged
Account pending disposition pursuant to the Pledge Agreement. 


        (e)   Each
Holder, by its acceptance of a Security, (i) consents and agrees to the terms of the Pledge Agreement (including, without limitation, the provisions
providing for foreclosure and release of the Pledged Securities) as the same may be in effect or may be amended from time to time in writing by the parties thereto; (ii) authorizes and directs
the Trustee to enter into the Pledge Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith, and (iii) consents to any amendments to the Pledge
Agreement, and authorizes the Trustee to enter into any amendments to the Pledge Agreement, without the consent of Holders, provided that no amendment that would materially adversely affect the rights
of the Holders may be effected without the consent of each Holder affected thereby. The Company shall do or cause to be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Pledge Agreement, to assure and confirm to the Trustee the security interest in the Pledged Securities contemplated hereby, by the Pledge Agreement or any part
thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Securities secured hereby, according to the intent and purpose
herein expressed. The Company shall take, or shall cause to be taken, upon request of the Trustee, any and all actions reasonably required to cause the Pledge Agreement to create and maintain, as
security for the obligations of the Company under this Indenture and the Securities as provided in the Pledge Agreement, valid and enforceable first priority perfected liens in and on all the Pledged
Securities, in favor of the Trustee for its benefit and the ratable benefit of the Holders, superior to and prior to the rights of third Persons and subject to no other Liens. 


        (f)    The
release of any Pledged Securities pursuant to the Pledge Agreement will not be deemed to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Pledged Securities are released pursuant to this Indenture and the Pledge Agreement. To the extent applicable, the Company shall cause Section 314(d) of the TIA
relating to the release of property or securities from the Lien and security interest of the Pledge Agreement and relating to the substitution therefor of any property or securities to be subjected to
the Lien and security interest of the Pledge Agreement to be complied with. Any certificate or opinion required by Section 314(d) of the TIA may be made by an Officer of the Company, except in
cases where Section 314(d) of the TIA requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert
selected by the Company. 


        (g)   The
Company shall cause Section 314(b) of the TIA, relating to Opinions of Counsel regarding the Lien under the Pledge Agreement, to be complied with. The Trustee
may, to the extent permitted by Section 7.01 and 7.02 hereof, accept as conclusive evidence of compliance of the foregoing provisions the appropriate statements contained in such Opinions of
Counsel. 


55





 



        (h)   The
Trustee may, in its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or appropriate in order to
(1) enforce any of the terms of the Pledge Agreement and (2) collect and receive any and all amounts payable in respect of the obligations of the Company thereunder. The Trustee shall
have the authority necessary in order to institute and maintain such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders in
the Pledged Securities (including the authority to institute and maintain suits or proceedings to restrain the enforcement of, or compliance with, any legislative or other governmental enactment, rule
or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders or the Trustee). 


        (i)    Beyond
the exercise of reasonable care in the custody and preservation thereof, the Trustee shall have no duty as to any Pledged Securities in its possession or any
income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto, and the Trustee shall not be responsible for filing any financing or continuation
statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Pledged Securities.
The Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Securities in its possession if the Pledged Securities are accorded treatment substantially
equal to that which it accords its own property or property held in similar accounts and shall not be liable or responsible for any loss or diminution in the value of any of the Pledged Securities, by
reason of the act or omission of the Trustee, any carrier, forwarding agency or other agent or bailee selected by the Trustee in good faith. 


        (j)    The
Trustee shall not be responsible for the existence, genuineness or value of any of the Pledged Securities or for the validity, perfection, priority or enforceability
of the Liens in any of the Pledged Securities, whether impaired by operation of law or otherwise, for the validity or sufficiency of the Pledged Securities or any agreement or assignment contained
therein, for the validity of the title of the Company to the Pledged Securities, for insuring the Pledged Securities or for the payment of taxes, charges, assessments or Liens upon the Pledged
Securities or otherwise as to the maintenance of the Pledged Securities. The Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this
Indenture or the Pledge Agreement by the Company. 


 
 

ARTICLE 13
  SUBORDINATION    
    



 SECTION 13.1. AGREEMENT OF SUBORDINATION.  




        The Company covenants and agrees, and each Holder of Securities issued hereunder by its acceptance thereof likewise covenants and agrees, that all Securities
shall be issued subject to the provisions of this
Article 13; and each Person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such provisions. 



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


        The
Securities are hereby expressly designated as "Senior Indebtedness" and "Designated Senior Indebtedness" with respect to the 3% Convertible Subordinated Notes. 


56





 



        No
provision of this Article 13 shall prevent the occurrence of any default or Event of Default hereunder. 



 SECTION 13.2. PAYMENTS TO HOLDERS.  




        No payment shall be made with respect to the principal of, or premium, if any, or interest (including Liquidated Damages, if any) on the Securities (including,
but not limited to, the Redemption Price with respect to the Securities called for redemption, the Put Right Purchase Price with respect to the Securities purchased at the option of the Holder or the
Change in Control Purchase Price with respect to the Securities subject to purchase in accordance with Article 3 as provided in this Indenture or any other purchase or acquisition with respect
to the Securities), or any other payment with respect to the Securities, whether in cash, property or securities, except (a) payments and distributions made by the Trustee as permitted by the
first or second paragraph of Section 13.5 and (b) payments made pursuant to the Pledge Agreement, if: 


          (i)  a
default in the payment of principal, premium, if any, interest or other obligations due on any Designated Senior Indebtedness occurs and is continuing (or, in the
case of Designated Senior Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease
evidencing such Designated Senior Indebtedness), unless and until such default shall have been cured or waived in writing or shall have ceased to exist or the Designated Senior Indebtedness giving
rise to such Payment Default shall have been discharged or paid in full in cash or cash equivalents (or otherwise to the extent Holders accept satisfaction of amounts due by settlement in other than
cash or cash equivalents); or 


         (ii)  a
default, other than a default referred to in clause (i) of this Section 13.2, on a Designated Senior Indebtedness occurs and is continuing that then
permits holders of such Designated Senior Indebtedness to accelerate its maturity and the Trustee receives a notice of the default (a "Payment Blockage Notice") from a Representative or holder of
Designated Senior Indebtedness. 


        Subject
to the provisions of Section 13.5, if the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section unless and until at least 365 days shall have elapsed since the 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, unless such Non-Payment Default has been cured or waived for a period of not less than 90
consecutive days subsequent to the commencement of such initial Payment Blockage Period. 


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


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


        (b)   in
the case of a default referred to in clause (ii) above, the earlier of the date on which such default is cured or waived or ceases to exist, 179 days
pass after receipt of the Payment Blockage Notice (provided that any Designated Senior Indebtedness as to which notice was given shall not theretofore have been accelerated), the date on which such
Designated Senior Indebtedness is discharged or paid in full or the date on which such Payment Blockage Period shall have been terminated by written notice to the Trustee or the Company from the
Representative initiating such Payment Blockage Period, unless, in each case, this Article 13 otherwise prohibits the payment or distribution at the time of such payment or distribution. 


        Upon
any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or
winding-up or 


57





 



liquidation
or reorganization of the Company (whether voluntary or involuntary) or in bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash, or other payments satisfactory to the holders of Senior Indebtedness, before any payment is made on account of the principal of, premium, if any, or
interest (including Liquidated Damages, if any) on the Securities (including, but not limited to, the Redemption Price with respect to the Securities called for redemption, the Put Right Purchase
Price with respect to the Securities purchased at the option of the Holder or the Change in Control Purchase Price with respect to the Securities subject to purchase in accordance with
Article 3 as provided in this Indenture, but excluding payments made pursuant to Article 10 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings
for such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled, except for the provision of this Article 13, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, or as otherwise required by law or a court
order) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full in cash, or other payment satisfactory to the holders of Senior Indebtedness, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the Securities or to the Trustee. 


        For
purposes of this Article 13, the words, "cash, property or securities" shall not be deemed to include (a) cash paid or other distributions of property or securities
made from the Pledge Account pursuant to the Pledge Agreement or (b) 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 13 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 or lease of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in
Article 7 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 13.2 if such other corporation shall, as a part of
such consolidation, merger, conveyance, transfer, sale or lease comply with the conditions stated in Article 7. 


        In
the event of the acceleration of the Securities because of an Event of Default, no payment or distribution shall be made to the Trustee or any Holder of Securities in respect of the
principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Securities (including, but not limited to, the Redemption Price with respect to the Securities called for
redemption, the Put Right Purchase Price with respect to the Securities purchased at the option of the Holder or the Change in Control Purchase Price with respect to the Securities subject to purchase
in accordance with Article 3 as provided in this Indenture), except (a) payments and distributions made by the Trustee as permitted by the first or second paragraph of
Section 13.5 and (b) payments made pursuant to the Pledge 


58





 



Agreement,
until all Senior Indebtedness has been paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded in accordance with the
terms of this Indenture. If payment of the Securities is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of such acceleration. 



        In
the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities
(including, without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in
full, in cash or other payment satisfactory to the holders of Senior Indebtedness, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to
the holders of Senior Indebtedness, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full, in cash
or other payment satisfactory to the holders of Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. 


        Nothing
in this Section 13.2 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 9.7. This Section 13.2 shall be subject to the
further provisions of Section 13.5. 



 SECTION 13.3. SUBROGATION OF SECURITIES.  




        Subject to the payment in full, in cash or other payment satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness, the rights of the Holders
of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article 13 (equally and
ratably with the holders of all indebtedness of the Company which by its express terms is subordinated to other indebtedness of the Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal,
premium, if any, and interest (including Liquidated Damages, if any) on the Securities, and any other obligation with respect to the Securities, shall be paid in full in cash or other payment
satisfactory to the holders of Senior Indebtedness; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article 13, and no payment over pursuant to the provisions of this
Article 13, to or for the benefit of the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the Holders of the Securities pursuant to the subrogation provisions of this Article 13, 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 13 are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. 



        Nothing
contained in this Article 13 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if
any) and interest on the 


59





 



Securities
as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this Article 13 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 13, the Trustee, subject to the provisions of Section 9.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to the
Holders of the Securities, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon and all other facts pertinent thereto or to this Article 13. 



 SECTION 13.4. AUTHORIZATION TO EFFECT SUBORDINATION.  




        Each Holder of a Security by the Holder's acceptance thereof authorizes and directs the Trustee on the Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 13 and appoints the Trustee to act as the Holder's attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 13.3 hereof at least 30 days before
the expiration of the time to file such claim, the holders of any Senior Indebtedness or their representatives are hereby authorized to file an appropriate claim for and on behalf of the Holders of
the Securities. 



 SECTION 13.5. NOTICE TO TRUSTEE.  




        The Company shall give prompt written notice in the form of an Officers' Certificate to a Trust Officer of the Trustee and to any Paying Agent of any fact known
to the Company which would prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in respect of the Securities pursuant to the provisions of this Article 13.
Notwithstanding the provisions of this Article 13 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 13, unless and until a Trust Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office from the Company (in the form of an Officers' Certificate) or a Representative or a Holder or Holders of Senior Indebtedness or from any
trustee thereof; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 9.1, shall be entitled in all respects to assume that no such facts exist;
provided that if on a date not fewer than one Business Day prior to the date upon which by the terms hereof any such monies may become payable for any purpose (including, without limitation, the
payment of the principal of, or premium, if any, or interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 13.5,
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. Notwithstanding anything in this Article 13 to the contrary, nothing
shall prevent any payment by the Trustee to the Holders of monies deposited with it pursuant to Article 10, and any such payment shall not be subject to the provisions of Article 13. 


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        The
Trustee, subject to the provisions of Section 9.1, shall be entitled to rely on the delivery to it of a written notice by a Representative or a person representing himself to
be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been given by a Representative or a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to
the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article 13, 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 13, 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 13.6. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.  




        The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 13 in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in Section 9.11 or elsewhere in this Indenture shall deprive the Trustee of any of its rights as such
holder. 


        With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this
Article 13, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Section 9.1, the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay
over or deliver to Holders of Securities, the Company or any other person money or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article 13 or otherwise. 



 SECTION 13.7. NO IMPAIRMENT OF SUBORDINATION.  




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



 SECTION 13.8. CERTAIN CONVERSIONS DEEMED PAYMENT.  




        For the purposes of this Article 13 only, (1) the issuance and delivery of junior securities upon conversion of Securities in accordance with
Article 4 shall not be deemed to constitute a payment or distribution on account of the principal of (or premium, if any) or interest on Securities or on account
of the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash (except in satisfaction of fractional shares pursuant to Section 4.3), property or
securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this
Section 13.8, the term "junior securities" means (a) shares of any stock of any class of the Company, or (b) securities of the Company which are subordinated in right of payment
to all Senior Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article. Nothing contained in this Article 13 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with
Article 4. 


61







  




 SECTION 13.9. ARTICLE APPLICABLE TO PAYING AGENTS.  




        If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided, however, that the first paragraph of Section 13.5 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent. 



 SECTION 13.10. SENIOR INDEBTEDNESS ENTITLED TO RELY.  




        The holders of Senior Indebtedness (including, without limitation, Designated Senior Indebtedness) and their representatives shall have the right to rely upon
this Article 13, and no provision contained herein may be amended, supplemented or otherwise modified without the prior written consent of such holders or their representatives in accordance
with the documents governing the terms of such Senior Indebtedness. 


 
 

ARTICLE 14
  MISCELLANEOUS    
    



 SECTION 14.1. TRUST INDENTURE ACT CONTROLS.  




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



 SECTION 14.2. NOTICES.  




        Any demand, authorization notice, request, consent or communication shall be given in writing and delivered in person or mailed by first-class mail, postage
prepaid, addressed as follows or transmitted 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: 


Adaptec, Inc.

691 South Milpitas Blvd.

Milpitas, CA 95035

Attention: Treasurer

Facsimile No.: (408) 262-2533 


with
a copy to: 


Fenwick &
West LLP

Silicon Valley Center

801 California Street

Mountain View, CA 94041

Attention: Dennis DeBroeck

Facsimile No. (650) 938-5200 


if
to the Trustee, to: 


Wells
Fargo Bank, N.A.

707 Wilshire Boulevard, 17th Floor

Los Angeles, CA 90017

Attn: Corporate Trust Department (Adaptec, Inc.—3/4% Convertible Senior Subordinated Notes due 2023)

Facsimile No.: (213)614-3355 



62





 





        Such
notices or communications shall be effective when received. 


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


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


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



 SECTION 14.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.  




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



 SECTION 14.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.  




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



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


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




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



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


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


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


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




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



 SECTION 14.5. RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.  




        The Company (or, in the event deposits have been made pursuant to Section 10.1, the Trustee) may set a record date for purposes of determining the identity
of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall not be more than thirty (30) days prior to the date
of the commencement of solicitation of such action. Notwithstanding the provisions of Section 11.4, if a record date is fixed, those persons who were 


63





 

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 14.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT.  




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



 SECTION 14.7. LEGAL HOLIDAYS.  




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



 SECTION 14.8. GOVERNING LAW.  




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



 SECTION 14.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.  




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



 SECTION 14.10. NO RECOURSE AGAINST OTHERS.  




        All liability described in paragraph 18 of the Securities of any director, officer, employee or stockholder, as such, of the Company is waived and
released. 



 SECTION 14.11. SUCCESSORS.  




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



 SECTION 14.12. MULTIPLE COUNTERPARTS.  




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



 SECTION 14.13. SEPARABILITY.  




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



 SECTION 14.14. TABLE OF CONTENTS, HEADINGS, ETC.  




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


[SIGNATURE
PAGE FOLLOWS] 


64







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



	 	 	Adaptec, Inc.
	

 	
 	

By:	


	 	 	Name:

Title:
	

 	
 	

By:	


	 	 	Name:

Title:
	

 	
 	
Wells Fargo Bank, N.A., as Trustee
	

 	
 	

By:	


	 	 	Name:

Title:




65






  



 
 

EXHIBIT A
  [FORM OF FACE OF SECURITY]    
    


        UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO ADAPTEC, INC. (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) 




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




        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. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.(2) 




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



        THE
HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH ADAPTEC, INC. OR ANY AFFILIATE OF ADAPTEC, INC. WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY) ONLY (A) TO ADAPTEC, INC. OR ANY PARENT OR SUBSIDIARY THEREOF, (B) 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 


A-1





 



UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,[TO CONFORM TO TRANSFER RESTRICTIONS IN THE OFFERING MEMORANDUM] OR
(D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO ADAPTEC, INC.'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, 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) 




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



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




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


A-2





 
 
 

ADAPTEC, INC.    
    



	

CUSIP:                              	
 	

R-          






 
 

3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2023    



        Adaptec, Inc.,
a Delaware corporation (the "Company", which term shall include any successor corporation under the Indenture referred to on the reverse hereof), promises to pay to
                              , or registered assigns, the principal sum
of                              Dollars
($            ) on December 22, 2023 or such greater or lesser amount as is indicated on the Schedule of
Exchanges of Securities on the other side of this Security.(3) 




	(3)
	This
phrase should be included only if the Security is a Global Security. 



Interest
Payment Dates: June 22 and December 22. 


Regular
Record Dates: June 7 and December 7. 


        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. 


SIGNATURE
PAGE FOLLOWS 


A-3





 

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



	 	 	Adaptec, Inc.
	

 	
 	
By:

        

	 	 	Name:  
	 	 	Title:  
	

 	
 	

By:

        

	 	 	Name:
	 	 	Title:
	

Dated:	
 	

 	

 
	

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

 
	
Wells Fargo Bank, N.A.,
 as Trustee	
 	

 	

 
	

By:

        
 Authorized Signatory	
 	

 	

 



A-4











  



[FORM OF REVERSE SIDE OF SECURITY]  


 
 

ADAPTEC, INC.
  3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2023    
    


1.     INTEREST  


        Adaptec, 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  3/4% per annum. The Company shall pay interest semiannually on June 22 and
December 22 of each year, commencing June 22, 2004. Interest on the Securities shall accrue from the most recent date to which interest has been paid or, if no interest has been paid,
from December 22, 2003; provided, however, that if there is not an existing default in the payment of interest and if this Security is
authenticated between a Regular Record Date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year 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 7 or
December 7, as the case may be, (each, a Regular Record Date) immediately 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,
however, pay principal and interest in respect of any Certificated Security by check or wire payable in such money; provided, however, that a Holder
with an aggregate principal amount in excess of $2,000,000 will be paid by wire transfer in immediately available funds at the election of such Holder if such Holder has provided wire transfer
instructions to the Company. The Company may mail an interest check to the Holder's registered address. Notwithstanding the foregoing, so long as this 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. 


3.     PAYING AGENT, REGISTRAR AND CONVERSION AGENT  


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


4.     INDENTURE, LIMITATIONS  


        This
Security is one of a duly authorized issue of Securities of the Company designated as its 3/4% Convertible Senior Subordinated Notes due 2023 (the "Securities"),
issued under an Indenture dated as of December 22, 2003 (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 


A-5





 



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. 


        The
Securities are subordinated unsecured obligations of the Company limited to $225,000,000 aggregate principal amount. The Indenture does not limit other debt of the Company, secured
or unsecured. 


5.     OPTIONAL REDEMPTION  


        Prior
to December 22, 2008, this Security shall not be redeemable. The Company may, at its option, redeem this Security (i) on December 22, 2008 at a Redemption
Price equal to 100.25% of the principal amount of the Securities being redeemed, and (ii) at any time after December 22, 2008, at a Redemption Price equal to 100% of the principal amount
of the Securities being redeemed, in each case for cash, in whole, or from time to time in part (which must be equal to $1,000 or any integral multiple thereof), plus accrued and unpaid interest to,
but excluding, the Redemption Date; provided that if the Redemption Date falls after a Regular Record Date and on or before an Interest Payment Date,
then the interest will be payable to the Holders in whose names this Security is registered at the close of business on such Regular Record Date. Securities or portions of the Securities called for
redemption shall be convertible by the Holder until the close of business on the Business Day prior to the Redemption Date. 



6.     NOTICE OF REDEMPTION  


        Notice
of redemption, as set forth in Section 3.3 of the Indenture, will be mailed by first-class mail at least 20 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at its registered address. Securities in denominations larger than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On
and after the Redemption Date, subject to the deposit with the Paying Agent of funds sufficient to pay the Redemption Price plus accrued interest to, but excluding, the Redemption Date, interest shall
cease to accrue on Securities or portions of them called for redemption. 


7.     PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL  


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


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


        At
the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase for cash all or any part specified by the Holder (so
long as the principal amount of such part is $1,000 or an integral multiple of $1,000 in excess thereof) of the Securities held by such Holder on the applicable Put Right Purchase Date at the
applicable Put Right 


A-6





 



Purchase
Price. The Holder shall have the right to withdraw any Put Right Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at any
time prior to the close of business on the Put Right Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture. 



9.     CONVERSION  


        Subject
to and upon compliance with the provisions of the Indenture, at the option of the Holder thereof, any Security or portion thereof that is an integral multiple of $1,000 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 of the Company on or prior to the close of business on the Final
Maturity Date, unless previously redeemed to the Company or purchased by the Company at the Holders' option, at the Conversion Rate, determined as provided in the Indenture, in effect at the time of
conversion and subject to the adjustments described below, only under the following circumstances: 



        (1)   prior
to December 22, 2021, on any date during any fiscal quarter (and only during such fiscal quarter) after the fiscal quarter ending December 31, 2003,
if the Closing Price per share of the Common Stock was more than 120% of the then current Conversion Price for at least 20 Trading Days in the period of the 30 consecutive Trading Days ending on the
last Trading Day of the previous fiscal quarter; 


        (2)   on
or after December 22, 2021, at all times on or after any date on which the Closing Price per share of the Common Stock is more than 120% of the then current
Conversion Price of the Securities; 


        (3)   until
the close of business on the Business Day prior to the Redemption Date if the Company elects to redeem the Securities pursuant to Article 3 of the
Indenture; 


        (4)   if
the Company distributes to all or substantially all holders of Common Stock rights, options or warrants entitling them to purchase Common Stock at less than the
Closing Price per share of the Common Stock on the day preceding the declaration for such distribution; 


        (5)   if
the Company distributes to all or substantially all holders of Common Stock cash, assets, debt securities or capital stock, which distribution has a per share value
as determined by the Board of Directors exceeding 10% of the Closing Price per share of the Common Stock on the day preceding the declaration for such distribution; or 


        (6)   (A)
if the Company becomes a party to a consolidation, merger or binding share exchange pursuant to which all or substantially all of the Company's Common Stock would be
converted to cash, securities or other property, (B) if a Change in Control occurs, or (C) if an event occurs that would have been a Change in Control but for the existence of one of the
Change in Control exceptions set forth in the proviso to Section 3.8(c) of this Indenture. 


        (7)   during
the five consecutive Business Day period following any five consecutive Trading Day period at any time in which the average of the Trading Prices for the
Securities for such five Trading Day period was less than 98% of the average Conversion Value (as defined below) for the Securities for such five Trading Day period ("trading
price condition"); provided that upon any conversion of Securities pursuant to this trading price condition if, on the applicable Conversion Date, the Closing Price per share
of Common Stock is greater than or equal to the then current Conversion Price of the Securities and less than or equal to 120% of the then current Conversion Price of the Securities then such Holder
shall receive shares of Common Stock, with a value equal to the principal amount of the Securities (a "Principal Value Conversion"); provided, further,
that any Common Stock delivered upon a Principal Value Conversion will be valued at the greater of the Conversion Price of the Securities as of the Conversion Date and the applicable share price (as
defined below) as of the Conversion Date. 


A-7





 



        The
Company will deliver shares of Common Stock, together with any cash payable for fraction shares, to such Holder no later than the third Business Day following the determination of
the applicable share price. The "applicable share price" shall mean the average of the Closing Price per share of Common Stock over the five Trading Day
period starting the third Trading Day following the Conversion Date. The "Conversion Value" for the Securities is equal to the product of (i) the
Closing Price per share of the Common Stock on a given day and (ii) the then current Conversion Rate. The "Trading Price" of the Securities on
any date of determination means the average of the secondary market bid quotations per Security obtained by the Conversion Agent for $5,000,000 principal amount of the Securities at approximately
3:30 p.m., New York City time, on such determination date from two independent nationally recognized securities dealers the Company selects, which may include either or both of the Initial
Purchasers, provided that if at least two such bids cannot be reasonably obtained by the Conversion Agent, but one such bid can be reasonably obtained
by the Conversion Agent, this one bid will be used. If the Conversion Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from a nationally recognized
securities dealer or if in the Company's reasonable judgment, the bid quotations are not indicative of the secondary market value of the Securities, then the Trading Price of the Securities will be
deemed to be less than 98% of the then current Conversion Rate multiplied by the Closing Price of Common Stock on such determination date. 


10.   DENOMINATIONS, TRANSFER, EXCHANGE  



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



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


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 any Holder. 


A-8





 



14.   SUBORDINATION  


        The
payment of principal, or premium, if any, and interest on the Securities will be subordinated in right of payment, as set forth in the Indenture, to the prior payment in full in cash
or cash equivalents (or otherwise to the extent Holders accept satisfaction of amounts due by settlement in other than cash or cash equivalents) of all senior indebtedness whether outstanding on the
date of the Indenture or thereafter incurred. 



15.   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) be released from those obligations. 


16.   DEFAULTS AND REMEDIES  



        This
Holder of this Security is entitled to certain remedies upon the occurrence of an Event of Default as set out in Article 8 of the Indenture. 


17.   TRUSTEE DEALINGS WITH THE COMPANY  


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


18.   NO RECOURSE AGAINST OTHERS  


        A
director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the 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. 


19.   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. 


20.   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. 


A-9





 



21.   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 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: Adaptec, Inc., 691 South Milpitas Blvd.,
Milpitas, CA 95035, (408) 945-4600, Attention: Terry Roelands. 


A-10





 
 
 

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. 



	Date:	 	 	Your Signature:
	 	
	 	

	 	 	 	(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-11






 




 
 

CONVERSION NOTICE    
    


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


        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)





	Date:	 	 	Your Signature:
	 	
	 	

	 	 	 	(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





 




 
 

OPTION TO ELECT PURCHASE
  UPON A CHANGE IN CONTROL    
    


To:    Adaptec, Inc.



        The
undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Adaptec, Inc. (the "Company") as to the occurrence of a Change in
Control 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 Indenture referred to in this Security at the Change in Control Purchase Price, together with accrued interest to, but excluding, such
date, to the registered Holder hereof. 



	Dated:	
	 	

	

 	

 	
 	

 Signature(s)
	

 	

 	
 	

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

 	

 	
 	

 Signature Guaranty
	Principal amount to be redeemed

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

	
 	

 





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


A-13






  



 
 

OPTION TO ELECT PURCHASE
  ON SPECIFIED DATES    
    


To: Adaptec, Inc. 


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



	

Dated:	
 	

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

 	
 	

 Signature Guaranty





Principal
amount to be redeemed

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





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


A-14





 
 
 

SCHEDULE OF EXCHANGES OF SECURITIES(3)    
    


        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 Exchange (or Increase)
	 	Authorized

Signatory of

Securities

Custodian
	 	Amount of Decrease in

Principal Amount

of this Global Note
	 	Amount of

Increase in

Principal Amount

of this Global Note

	 	 	 	 	 	 	 




A-15





 
 
 

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
  OF TRANSFER OF RESTRICTED SECURITIES(3)    
    


Re:
3/4% Convertible Senior Subordinated Notes due 2023 (the "Securities") of Adaptec, Inc. 



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



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




        The
Transferor has requested a Registrar or the Trustee to exchange or register the transfer of such 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 22, 2003 between Adaptec, Inc. and Wells Fargo Bank, National Association., 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): 



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



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



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



	o
	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.



	o
	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.



	o
	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). 




        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-16









QuickLinks



Exhibit 4.01



TABLE OF CONTENTS


CROSS-REFERENCE TABLE


ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE

ARTICLE 2 THE SECURITIES


ARTICLE 3 REDEMPTION AND PURCHASE


ARTICLE 4 CONVERSION


ARTICLE 5 [Intentionally Omitted]

ARTICLE 6 COVENANTS

ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

ARTICLE 8 DEFAULT AND REMEDIES

ARTICLE 9 TRUSTEE



ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE

ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS

ARTICLE 12 SECURITY

ARTICLE 13 SUBORDINATION


ARTICLE 14 MISCELLANEOUS


EXHIBIT A [FORM OF FACE OF SECURITY]

ADAPTEC, INC.

3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2023


ADAPTEC, INC. 3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2023

ASSIGNMENT FORM

CONVERSION NOTICE

OPTION TO ELECT PURCHASE UPON A CHANGE IN CONTROL


OPTION TO ELECT PURCHASE ON SPECIFIED DATES

SCHEDULE OF EXCHANGES OF SECURITIES(3)

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF RESTRICTED SECURITIES(3)