Indenture dated as of 03/23/04



 Exhibit 4.1 
  

Greater Bay Bancorp 
  
 Zero Coupon Senior Convertible Contingent 
 Debt Securities due 2024 
  

  
 INDENTURE 
  
 Dated as of March 23, 2004 
  

  
 Wilmington Trust Company 
  
 TRUSTEE 
  

  









 TABLE OF CONTENTS 
  

			
	 	  	Page


	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE	  	 
		
	 Section 1.1 Definitions
	  	1
	 Section 1.2 Other Definitions
	  	6
	 Section 1.3 Incorporation by Reference of Trust Indenture Act
	  	7
	 Section 1.4 Rules of Construction
	  	8
	 Section 1.5 Acts of Holders
	  	8
		
	ARTICLE II THE SECURITIES	  	 
		
	 Section 2.1 Form and Dating
	  	9
	 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 and Securities in Trust
	  	11
	 Section 2.5 Securityholder Lists
	  	12
	 Section 2.6 Transfer and Exchange
	  	12
	 Section 2.7 Replacement Securities
	  	13
	 Section 2.8 Outstanding Securities; Determinations of Holders’ Action
	  	14
	 Section 2.9 Temporary Securities
	  	15
	 Section 2.10 Cancellation
	  	15
	 Section 2.11 Persons Deemed Owners
	  	15
	 Section 2.12 Global Securities
	  	15
	 Section 2.13 CUSIP Numbers
	  	20
	 Section 2.14 Ranking
	  	20
		
	ARTICLE III REDEMPTION AND PURCHASES	  	 
		
	 Section 3.1 Right to Redeem; Notices to Trustee
	  	20
	 Section 3.2 Selection of Securities to Be Redeemed
	  	21
	 Section 3.3 Notice of Redemption
	  	21
	 Section 3.4 Effect of Notice of Redemption
	  	22
	 Section 3.5 Deposit of Redemption Price
	  	22
	 Section 3.6 Securities Redeemed in Part
	  	22
	 Section 3.7 Purchase of Securities at Option of the Holder
	  	23
	 Section 3.8 Purchase of Securities at Option of the Holder upon Change in Control
	  	25
	 Section 3.9 Effect of Purchase Notice or Change in Control Purchase Notice
	  	28
	 Section 3.10 Deposit of Purchase Price or Change in Control Purchase Price
	  	29
	 Section 3.11 Securities Purchased in Part
	  	29
	 Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of Securities
	  	29
	 Section 3.13 Repayment to the Company
	  	30
		
	ARTICLE IV COVENANTS	  	 
		
	 Section 4.1 Payment of Securities
	  	30

  










			
	 Section 4.2 SEC and Other Reports
	  	30
	 Section 4.3 Compliance Certificate
	  	31
	 Section 4.4 Further Instruments and Acts
	  	31
	 Section 4.5 Maintenance of Office or Agency
	  	31
	 Section 4.6 Delivery of Certain Information
	  	31
	 Section 4.7 Tax Treatment of Securities
	  	32
		
	ARTICLE V SUCCESSOR CORPORATION	  	 
		
	 Section 5.1 When Company May Merge or Transfer Assets
	  	32
		
	ARTICLE VI DEFAULTS AND REMEDIES	  	 
		
	 Section 6.1 Events of Default
	  	33
	 Section 6.2 Acceleration
	  	34
	 Section 6.3 Other Remedies
	  	35
	 Section 6.4 Waiver of Past Defaults
	  	35
	 Section 6.5 Control by Majority
	  	35
	 Section 6.6 Limitation on Suits
	  	35
	 Section 6.7 Rights of Holders to Receive Payment
	  	36
	 Section 6.8 Collection Suit by Trustee
	  	36
	 Section 6.9 Trustee May File Proofs of Claim
	  	36
	 Section 6.10 Priorities
	  	37
	 Section 6.11 Undertaking for Costs
	  	37
	 Section 6.12 Waiver of Stay, Extension or Usury Laws
	  	37
		
	ARTICLE VII TRUSTEE	  	 
		
	 Section 7.1 Duties of Trustee
	  	38
	 Section 7.2 Rights of Trustee
	  	39
	 Section 7.3 Individual Rights of Trustee
	  	40
	 Section 7.4 Trustee’s Disclaimer
	  	40
	 Section 7.5 Notice of Defaults
	  	40
	 Section 7.6 Reports by Trustee to Holders
	  	41
	 Section 7.7 Compensation and Indemnity
	  	41
	 Section 7.8 Replacement of Trustee
	  	41
	 Section 7.9 Successor Trustee by Merger
	  	42
	 Section 7.10 Eligibility; Disqualification
	  	42
	 Section 7.11 Preferential Collection of Claims Against Company
	  	42
		
	ARTICLE VIII DISCHARGE OF INDENTURE	  	 
		
	 Section 8.1 Discharge of Liability on Securities
	  	43
	 Section 8.2 Repayment to the Company
	  	43
		
	ARTICLE IX AMENDMENTS	  	 
		
	 Section 9.1 Without Consent of Holders
	  	43
	 Section 9.2 With Consent of Holders
	  	44
	 Section 9.3 Compliance with Trust Indenture Act
	  	44

  

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	 Section 9.4 Revocation and Effect of Consents, Waivers and Actions
	  	44
	 Section 9.5 Notation on or Exchange of Securities
	  	45
	 Section 9.6 Trustee to Sign Supplemental Indentures
	  	45
	 Section 9.7 Effect of Supplemental Indentures
	  	45
		
	ARTICLE X CONVERSIONS	  	 
		
	 Section 10.1 Conversion Privilege
	  	45
	 Section 10.2 Conversion Procedure; Conversion Rate; Fractional Shares
	  	47
	 Section 10.3 Adjustments of Conversion Rate for Common Stock
	  	48
	 Section 10.4 Consolidation or Merger of the Company
	  	57
	 Section 10.5 Notice of Adjustment
	  	58
	 Section 10.6 Notice in Certain Events
	  	58
	 Section 10.7 Company to Reserve Stock; Registration; Listing
	  	59
	 Section 10.8 Taxes on Conversion
	  	59
	 Section 10.9 Conversion After Record Date
	  	60
	 Section 10.10 Cash Conversion Option
	  	60
	 Section 10.11 Company Determination Final
	  	61
	 Section 10.12 Responsibility of Trustee for Conversion Provisions
	  	61
	 Section 10.13 Unconditional Right of Holders to Convert
	  	61
		
	ARTICLE XI MISCELLANEOUS	  	 
		
	 Section 11.1 Trust Indenture Act Controls
	  	62
	 Section 11.2 Notices
	  	62
	 Section 11.3 Communication by Holders with Other Holders
	  	63
	 Section 11.4 Certificate and Opinion as to Conditions Precedent
	  	63
	 Section 11.5 Statements Required in Certificate or Opinion
	  	63
	 Section 11.6 Separability Clause
	  	63
	 Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	  	63
	 Section 11.8 Legal Holidays
	  	63
	 Section 11.9 Governing Law
	  	64
	 Section 11.10 No Recourse Against Others
	  	64
	 Section 11.11 Successors
	  	64
	 Section 11.12 Multiple Originals
	  	64

  

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 INDENTURE dated as of March 23, 2004 between GREATER BAY BANCORP, a California corporation
(“Company”), and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (“Trustee”). 
  
 Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s Zero Coupon
Senior Convertible Contingent Debt Securities due 2024: 
  
 ARTICLE
I 
  
 DEFINITIONS AND INCORPORATION BY REFERENCE 
  
 Section 1.1 Definitions 
  
 “144A Global Security” means a permanent Global Security in the
form of the Security attached hereto as Exhibit A-1, and that is deposited with and registered in the name of the Depositary, representing Securities sold in reliance on Rule 144A under the Securities Act. 
  
 “Accreted Conversion Price”, with respect to a Security as of any
date, shall mean the quotient of (x) the sum of the Issue Price of the Security plus the accreted Issue Discount on such security to such date, divided by (y) the Conversion Rate then in effect. 
  
 “Additional Interest” shall have the meaning specified in the
Registration Rights Agreement. 
  
 “Affiliate” of any
specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control” when used with respect to any
specified person means the power to direct or cause the direction of 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. 
  
 “Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each
case to the extent applicable to such transaction and as in effect from time to time. 
  
 “Average Conversion Value” means, with respect to any period, the sum of the Conversion Values for each trading day during the period divided by the number of Trading Days in the period. 
  
 “Bankruptcy Law” means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors. 
  
 “Board of
Directors” means either the board of directors of the Company or any duly authorized committee of such board. 
  









 “Board Resolution” means one or more resolutions, certified by the secretary of the Board of
Directors to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee. 
  
 “Business Day” means, with respect to any Security, a day that in the City of New York, is not a day on which banking institutions are
authorized by law or regulation to close or a day that is not a day on which the Corporate Trust Office of the Trustee is closed for business. 
  
 “Capital Stock” for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that corporation. 
  
 “Certificated Securities” means Securities that are in the form of the Securities attached hereto as Exhibit A-2. 
  
 “Closing Price” of the shares of Common Stock on any date means the closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices) on such date as reported on the Nasdaq National Market or, if the shares of Common Stock are not listed on the Nasdaq
National Market, as reported on the principal securities exchange or inter-dealer quotation system on which the shares of Common Stock are then quoted. In the absence of such quotations, the Company shall be entitled to determine the sales price on
the basis of such quotations as it considers appropriate. 
  
 “Common Stock” shall mean the shares of common stock, no par value per share, of the Company as they exist on the date of this Indenture or any other shares of Capital Stock of the Company into which such common stock shall be
reclassified or changed. 
  
 “Company” means the party
named as the “Company” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply
to any subsequent such successor or successors. 
  
 “Company
Request” or “Company Order” means a written request or order signed in the name of the Company by any two Officers. 
  
 “Conversion Agent” shall mean initially the Trustee and its successors and assigns. 
  
 “Conversion Date” means, with respect to any Holder, the date on
which such Holder has satisfied all the requirements to convert its Securities. 
  
 “Conversion Value” means, at any time, the product of (x) the Closing Price at such time and (y) the then-current Conversion Rate. 
  
 “Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is located at c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration, or such other


  

 2 








 
address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company). 
  
 “Default” means any event which is, or after notice or passage of time or both would be, an Event of Default. 
  
 “Ex-Dividend Time” means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the shares of Common Stock trade regular way on the principal inter-dealer quotation system or securities market on which the shares of Common Stock are then traded without the right to
receive such issuance or distribution. 
  
 “Exchange
Act” means the Securities Exchange Act of 1934, as amended. 
  
 “Global Securities” means Securities that are in the form of the Securities attached hereto as Exhibit A-1, and to the extent that such Securities are required to bear the Legend required by Section 2.6, such Securities will be in
the form of a 144A Global Security. 
  
 “Holder” or
“Securityholder” means a person in whose name a Security is registered on the Registrar’s books. 
  
 “Indebtedness” means, without duplication, the principal or face amount of (i) all obligations for borrowed money, (ii) all obligations
evidenced by debentures, notes or other similar instruments, (iii) all obligations in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (v) all obligations as lessee which are capitalized in accordance with generally accepted accounting principles, and (vi) all
Indebtedness of others guaranteed by the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries is legally responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in,
others). 
  
 “Indenture” means this Indenture, as
amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof. 
  
 “Initial Purchaser” means Lehman Brothers Inc., as initial purchaser under the Purchase Agreement. 
  
 “Institutional Accredited Investor” means an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act. 
  
 “Issue Date” of any Security means the date on which the Security was originally issued or deemed issued as set forth on the face of the
Security. 
  
 “Issue Discount” of any Security means the
difference between the Issue Price and the Principal Amount at Maturity of the Security as set forth on the face of the Security. 
  

 3 








 “Issue Price” of any Security means, in connection with the original issuance of such Security,
the initial issue price at which the Security is sold as set forth on the face of the Security. 
  
 “Moody’s” means Moody’s Investor Services, Inc. 
  
 “Officer” means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, any
Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of the Company. 
  
 “Officers’ Certificate” means a written certificate containing the information specified in Sections 11.4 and
11.5, signed in the name of the Company by any two Officers, and delivered to the Trustee. An Officers’ Certificate given pursuant to Section 4.3 shall be signed by an authorized financial or accounting Officer of the Company but need not
contain the information specified in Sections 11.4 and 11.5. 
  
 “Opinion of Counsel” means a written opinion containing the information specified in Sections 11.4 and 11.5, from legal counsel who is acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Company or the
Trustee. 
  
 “Outstanding”, when used with respect to a
Security, means, as of the date of determination, all Securities heretofore authenticated and delivered under this Indenture, except Securities: 
  
 (1) previously canceled by the Trustee or delivered to the Trustee for cancellation; 
  
 (2) for the payment or redemption of which money in the necessary amount has been previously deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture; and 
  
 (3) which have been paid in exchange for or in lieu of other Securities which have been authenticated and delivered pursuant to this Indenture, other than any such Security in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company. 
  
 “Person” means any individual, corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. 
  
 “Principal Amount at Maturity” of a Security means the Principal Amount at Maturity as set forth on the face of the Security. 
  
 “Purchase Agreement” means the Purchase Agreement, dated as of
March 23, 2004, between the Company and the Initial Purchaser relating to the offering and sale of the Securities. 
  

 4 








 “Redemption Date” or “redemption date” shall mean the date specified for redemption
of the Securities in accordance with the terms of the Securities and this Indenture. 
  
 “Redemption Price” or “redemption price” shall have the meaning set forth in paragraph 5 of the Securities. 
  

“Register” means the Company’s method for recording the registration of transfer or for exchange of the Securities. 
  
 “Registration Rights Agreement” means the Resale Registration
Rights Agreement dated as of March 23, 2004 between the Company and the Initial Purchaser. 
  
 “Responsible Officer” shall mean, when used with respect to the Trustee, any officer of the Trustee within the Corporate Trust Office of the Trustee with direct responsibility for the administration of this
Indenture and shall also mean, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject. 
  
 “Restricted Security” means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1 and A-2 of this Indenture. 
  
 “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time. 
  
 “SEC” means the Securities and Exchange Commission. 
  
 “Securities” means any of the Company’s Zero Coupon Senior
Convertible Contingent Debt Securities (CODESSM) due 2024, as amended or supplemented from time to time, issued
under this Indenture. 
  
 “Securities Act” means the
Securities Act of 1933, as amended. 
  
 “Securityholder”
or “Holder” means a person in whose name a Security is registered on the Registrar’s books. 
  
 “Standard & Poor’s” means Standard & Poor’s rating services. 
  
 “Stated Maturity”, when used with respect to any Security, means the date specified in such Security as the fixed
date on which an amount equal to the Principal Amount at Maturity of such Security is due and payable. 
  
 “Subsidiary” means any person of which at least a majority of the outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. 
  
 “Tax Event” has the meaning as set forth in paragraph 1 of the Security. 
  
 “TIA” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture; provided, however, that in
the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. 
  

 5 








 “Trading Day” means a day during which trading in securities generally occurs on the Nasdaq
National Market or, if the Common Stock is not listed on the Nasdaq National Market, on the principal other national or regional securities exchange on which the Common Stock then is listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the principal other market or inter-dealer quotation system on which the Common Stock is then traded. 
  
 “Trading Price” of the Securities on any date of determination means: 
  
 (1) the average of the secondary market bid quotations per Securities obtained by the Company or the Conversion Agent for
$10,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; 
  
 (2) if at least three such bids cannot reasonably be obtained by the Company
or the Conversion Agent, but two such bids are obtained, then the average of the two bids shall be used; 
  
 (3) if only one such bid can reasonably be obtained by the Company or the Conversion Agent, this one bid shall be used; or 
  
 (4) if the Company or the Conversion Agent cannot reasonably obtain at least
one bid for $10,000,000 principal amount of the Securities from a nationally recognized securities dealer or 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 equal less than 98% of (i) the then-applicable Conversion Rate of the Securities multiplied by (ii) the Closing Price of the Company’s Common Stock on such determination date, appropriately adjusted.

  
 “Trustee” means the party named as the
“Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
subsequent successor or successors. 
  
 “Voting Stock”
of a person means Capital Stock of such person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of
such person (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). 
  
 Section 1.2 Other Definitions 
  

				
	 Term Section:

	  	Defined in:

	 
	 “Act”
	  	1.5	(a)
	 “Agent Members”
	  	2.12	(e)
	 “cash”
	  	3.7	(c)
	 “Cash Settlement Averaging Period”
	  	10.10	(a)
	 “Cash Settlement Notice Period”
	  	10.10	(a)
	 “Change in Control”
	  	3.8	(a)
	 “Change in Control Purchase Date”
	  	3.8	(a)

  

 6 









				
	 Term Section:

	  	Defined in:

	 
	 “Change in Control Purchase Notice”
	  	2.6	(a)
	 “Change in Control Purchase Price”
	  	3.8	(c)
	 “Company Notice”
	  	3.7	(d)
	 “Company Notice Date”
	  	3.7	(c)
	 “Contingent Payment Debt Regulations”
	  	4.7	 
	 “Continuing Directors”
	  	3.8	(a)
	 “Conversion Obligation”
	  	10.1	(b)
	 “Conversion Retraction Period”
	  	10.10	(a)
	 “Conversion Rate”
	  	10.1	(b)
	 “Conversion Settlement Distribution”
	  	10.10	(a)
	 “Current Market Price”
	  	10.3	(a)
	 “Depositary”
	  	2.1	(a)
	 “distributed assets”
	  	10.3	(d)
	 “DTC”
	  	2.1	(a)
	 “Event of Default”
	  	6.1	 
	 “ex” date
	  	10.3	(g)
	 “Excess Amount”
	  	10.3	 
	 “Excess Dividend”
	  	10.3	(e)
	 “Expiration Time”
	  	10.3	(f)
	 “Fair Market Value”
	  	10.3	(g)
	 “Final Notice Date”
	  	10.10	(a)
	 “Legal Holiday”
	  	11.8	 
	 “Legend”
	  	2.6	(f)
	 “Non-Electing Share”
	  	10.4	 
	 “Notice of Default”
	  	6.1	 
	 “Paying Agent”
	  	2.3	 
	 “Purchase Date”
	  	3.7	(a)
	 “Purchase Notice”
	  	3.7	(a)
	 “Purchase Price”
	  	3.7	(a)
	 “QIB”
	  	2.1	(a)
	 “Record Date”
	  	10.3	(g)
	 “Reference Period”
	  	10.3	(d)
	 “Registrar”
	  	2.3	 
	 “Rule 144A Information”
	  	4.6	 
	 “Spin-Off”
	  	10.3	(d)
	 “Trigger Event”
	  	10.3	(d)
	 “Trustee”
	  	2.12	(d)

  
 Section 1.3
Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings: 
  
 “Commission” means the SEC.

  
 “indenture securities” means the Securities.

  
 “indenture security holder” means a Securityholder.

  

 7 








 “indenture to be qualified” means this Indenture. 
  
 “indenture trustee” or “institutional trustee” means the
Trustee. 
  
 “obligor” on the indenture securities means
the Company. 
  
 All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions. 
  
 Section 1.4 Rules of Construction. 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 generally
accepted accounting principles as in effect from time to time; 
  
 (3) “or” is not exclusive; 
  
 (4) “including” means including, without limitation; and 
  
 (5) words in the singular include the plural, and words in the plural include the singular. 
  
 Section 1.5 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. 
  
 (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution
thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. 
  
 (c) The ownership of Securities shall be proved by the Register. 
  

 8 








 (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the same Security and the holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. 
  
 (e) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at
its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. 
  
 ARTICLE II 
  
 THE SECURITIES 
  
 Section 2.1 Form and Dating.
The Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibits A-1 and A-2, which are a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company). 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. 
  
 (a) 144A
Global Securities. Securities offered and sold within the United States to qualified institutional buyers as defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued, initially in the form of a 144A Global Security, which
shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary and registered in the name of The Depository Trust Company (“DTC”) or the nominee thereof (such depositary, or any successor thereto, and
any such nominee being hereinafter referred to as the “Depositary”), duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the 144A Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided. 
  
 (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 

  

 9 








 
that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions. 
  
 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. 
  
 (c) Book-Entry Provisions. This Section 2.1(c) shall apply only to Global Securities deposited with or on behalf of the Depositary. 
  
 The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c), authenticate and deliver initially
one or more Global Securities that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the
following effect: 
  
 “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE II OF THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.” 
  
 (d) Certificated Securities. Securities
not issued as interests in the Global Securities will be issued in certificated form substantially in the form of Exhibit A-2 attached hereto. 
  
 Section 2.2 Execution and Authentication. The Securities shall be executed on behalf of the Company by any Officer. The signature of the officer on
the Securities may be manual or facsimile. 
  
 Securities bearing
the manual or facsimile signatures of individuals who were at the time of the execution of the Securities the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of authentication of such Securities. 
  

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 No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 
  
 The Trustee shall authenticate and deliver Securities for original issue in an aggregate Principal Amount at Maturity of up to $265,212,000 upon one or
more Company Orders without any further action by the Company. The aggregate Principal Amount at Maturity of Securities outstanding at any time may not exceed the amount set forth in the foregoing sentence, except as provided in Section 2.7.

  
 The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 of Principal Amount at Maturity and any integral multiple thereof. 
  
 Section 2.3 Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for purchase or payment (“Paying Agent”) and an office or agency where Securities may be presented for conversion
(“Conversion Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-Registrars, one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 4.5. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 4.5. 
  
 The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, or co-Registrar (in each case, if such person is a person other than the Trustee). The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar. The Conversion Agent may not be an Affiliate of the Company or any Subsidiary thereof. 
  
 The Company initially appoints the Trustee as Registrar, Conversion Agent and
Paying Agent in connection with the Securities. The Trustee may resign from any or all of such appointments upon 30 days’ written notice to the Company. 
  
 Section 2.4 Paying Agent to Hold Money and Securities in Trust. Except as otherwise provided herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or Common Stock sufficient to make such payments when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and Common Stock held by the Paying Agent for the making of payments in respect of
the Securities and shall notify the Trustee of any default by the Company in making any such payment. At any time during the continuance of any such default, the Paying Agent 

  

 11 








 
shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and Common Stock so held in trust. If the Company, a Subsidiary or an
Affiliate of either of them acts as Paying Agent, it shall segregate the money and Common Stock held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money and Common Stock
held by it to the Trustee and to account for any funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or Common Stock. 
  
 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 Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on May 1 and November 1 a listing of Securityholders
dated within 15 days of the date on which the list is furnished 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 Section 2.12 hereof, (a) upon surrender for registration of transfer of any Security, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant to Section 2.3, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate Principal Amount at Maturity. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Securities from the Securityholder requesting such transfer or exchange.

  
 At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like aggregate Principal Amount at Maturity, upon surrender of the Securities to be exchanged, together with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder’s attorney duly authorized in writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive. 
  
 The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed in part, the portion
thereof not to be redeemed) or any Securities in respect of which a Purchase Notice or Change in Control Purchase Notice has been given and not withdrawn by the Holder thereof in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or any Securities for a period of 15 days before the mailing of a notice of redemption of Securities to be redeemed. 
  
 (b) Notwithstanding any provision to the contrary herein, so long as a Global
Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.12 and this 

  

 12 








 
Section 2.6(b). Transfers of a Global Security shall be limited to transfers of such Global Security in whole, or in part, to nominees of the Depositary or
to a successor of the Depositary or such successor’s nominee. 
  
 (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the register for the Securities. 
  
 (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. 
  
 (e) No Registrar shall be required to make registrations of transfer or exchange of Securities during any periods designated
in the text of the Securities or in this Indenture as periods during which such registration of transfers and exchanges need not be made. 
  
 (f) 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 form of Security attached hereto as Exhibits A-1 and A- 2 setting forth such restrictions (collectively, the “Legend”), or if a request is made to remove the Legend on a Security, the Securities so issued shall bear the
Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Legend. If the Legend is removed from the face of a Security
and the Security is subsequently held by an Affiliate of the Company, the Legend shall be reinstated. 
  
 (g) Upon any sale or transfer of a Security to an Institutional Accredited Investor (other than pursuant to a registration statement that has been
declared effective under the Securities Act), such Institutional Accredited Investor shall, prior to such sale or transfer, furnish to the Company and/or the Trustee a signed letter containing representations and agreements relating to restrictions
on transfer substantially in the form set forth in Exhibit B-2 to this Indenture. 
  
 Section 2.7 Replacement Securities. If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company 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 at Maturity, bearing a number not contemporaneously outstanding. 
  

 13 








 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 by the Company pursuant to Article III hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may be. 
  
 Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. 
  
 Every new 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 destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. 
  
 The provisions of this Section 2.7 are 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; Determinations of Holders’ Action. Securities outstanding at any time are all the Securities authenticated by the Trustee except for those cancelled by it, those paid pursuant to Section 2.7
delivered to it for cancellation and those described in this Section 2.8 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate thereof holds the Security; provided, however, that in determining whether
the Holders of the requisite Principal Amount at Maturity of Securities have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation, determinations pursuant to Articles VI and IX). 
  
 If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser. 
  
 If the Paying Agent
holds, in accordance with this Indenture, on a Redemption Date, or on the Business Day following the Purchase Date or a Change in Control Purchase Date, or on Stated Maturity, money or securities, if permitted hereunder, sufficient to pay Securities
payable on that date, then immediately after such Redemption Date, Purchase Date, Change in Control Purchase Date or Stated Maturity, as the case may be, such Securities shall cease to be outstanding and Issue Discount and interest, if any, on such
Securities shall cease to accrete; provided, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made. 
  

 14 








 If a Security is converted in accordance with Article X, then from and after the time of conversion on
the Conversion Date, such Security shall cease to be outstanding and Issue Discount and interest, if any, shall cease to accrete or accrue on such Security. 
  
 Section 2.9 Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. 
  
 If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 2.3, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount at Maturity of definitive Securities of authorized denominations. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.

  
 Section 2.10 Cancellation. All Securities surrendered
for payment, purchase by the Company pursuant to Article III, conversion, redemption or registration of transfer or exchange (other than Securities exchanged pursuant to Section 10.2) shall, if surrendered to any person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant
to Article X. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with the Trustee’s customary procedure. 
  
 Section 2.11 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose of receiving payment of principal of the Security or the payment of any Redemption Price, Purchase Price or Change in Control Purchase Price in respect thereof, and interest
thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

  
 Section 2.12 Global Securities. (a) Notwithstanding any
other provisions of this Indenture or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.6 and Section 2.12(a)(i), (B) transfers of a beneficial interest in a Global Security for
a Certificated Security shall comply with Section 2.6 and 

  

 15 








 
Section 2.12(a)(ii) below, and (C) transfers of a Certificated Security shall comply with Section 2.6 and Section 2.12(a)(iii) and (iv) below. 
  
 (i) Transfer of Global Security. 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 this clause (i) 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. Nothing in this Section 2.12(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Security effected in accordance with the other provisions of this Section 2.12(a).

  
 (ii) Restrictions on Transfer of a
Beneficial Interest in a Global Security for a Certificated Security. A beneficial interest in a Global Security may not be exchanged for a Certificated Security except upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a transfer of a beneficial interest in a Global Security in accordance with Applicable Procedures for a Certificated Security in the form satisfactory to the Trustee, together with: 
  
 (A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit B-1; 
  
 (B) written instructions to the Trustee from the Company to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect a decrease in the aggregate Principal Amount at
Maturity of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such decrease; and 
  
 (C) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth in the Legend, then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount at Maturity of Securities represented by the Global Security to be decreased by the aggregate Principal Amount at Maturity of the Certificated Security to be issued, shall issue such Certificated Security
and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Security equal to the Principal Amount at Maturity of the Certificated Security so issued. 
  
 (iii) Transfer and Exchange of Certificated
Securities. When Certificated Securities are presented by a Holder to the Registrar with a request: 
  
 (y) to register the transfer of such Certificated Securities; or 
  
 (z) to exchange such Certificated Securities for an equal Principal Amount at Maturity of Certificated
Securities of other authorized denominations, 
  

 16 








 the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Certificated Securities surrendered for transfer or exchange: 
  

	 	(1)	shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and 

  

	 	(2)	so long as such Securities are Restricted Securities, such Securities are being transferred or exchanged pursuant to an effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable: 

  
 (A) if such Certificated Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect; or 
  
 (B) if such Certificated Securities are being transferred to the Company, a certification to that effect; or 
  
 (C) if such Certificated Securities are being transferred pursuant to an exemption from registration (i) a certification to that effect
(in the form set forth in Exhibit B-1, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Legend.

  
 (iv) Restrictions on Transfer of a
Certificated Security for a Beneficial Interest in a Global Security. A Certificated Security may not be exchanged for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below. 
  
 Upon receipt by the Trustee of a Certificated Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with: 
  
 (I) so long as the Securities are Restricted Securities, certification, in the form set forth in Exhibit B-1, that such Certificated Security is being
transferred to a QIB in accordance with Rule 144A; and 
  
 (II)
written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect an increase in the aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with 

  

 17 








 
such increase, then the Trustee shall cancel such Certificated Security and cause, or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar, the aggregate Principal Amount at Maturity of Securities represented by the Global Security to be increased by the aggregate Principal Amount at Maturity of the
Certificated Security to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Security equal to the Principal Amount at Maturity of the Certificated
Security so cancelled. If no Global Securities are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new Global Security in the appropriate
Principal Amount at Maturity. 
  
 (b) Subject to the succeeding
paragraph, every Security shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted 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 B-1, 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.

  
 (c) 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 an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed
to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like tenor and aggregate Principal
Amount at Maturity, 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. 
  
 (d) As used in the preceding two paragraphs of this Section 2.12, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or
other disposition of any Security. 
  

 18 








 (e) The provisions of clauses (1), (2), (3), (4) and (5) below shall apply only to Global Securities:

  

	 	(1)	Notwithstanding any other provisions of this Indenture or the Securities, except as provided in Section 2.12(a)(ii), 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 (i) 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 or (ii) an Event of Default has occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant to clause (i) above shall be so exchanged in whole
and not in part, and any Global Security exchanged pursuant to clause (ii) 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 at Maturity 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 at Maturity 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) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined
below) and persons that may hold 



  

 19 









	 	 
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) 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 any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a holder of any Security. 

  
 Section 2.13 CUSIP Numbers. The Company may issue the Securities with one or more “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption 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 and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption 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. 
  
 Section 2.14 Ranking. The indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued
under this Indenture from time to time constitutes and will constitute a senior unsecured general obligation of the Company, ranking equally with other existing and future senior unsecured Indebtedness of the Company and ranking senior in right of
payment to any future Indebtedness of the Company that is expressly made subordinate to the Securities by the terms of such Indebtedness. 
  
 ARTICLE III 
  
 REDEMPTION AND PURCHASES 
  
 Section 3.1 Right to Redeem; Notices to Trustee. The Company, at its option, may redeem the Securities in accordance with the provisions of paragraph 5 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify 

  

 20 








 
the Trustee in writing of the Redemption Date, the Principal Amount at Maturity of Securities to be redeemed and the Redemption Price. 
  
 The Company shall give the notice to the Trustee provided for in this Section
3.1 by a Company Order, at least 45 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee). 
  
 Section 3.2 Selection of Securities to Be Redeemed. If less than all the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise (in which case the Securities shall be redeemed by lot), the Trustee shall select the Securities to be redeemed on a pro rata basis (so long as such method is not prohibited by the rules of any stock exchange on which the
Securities are then listed). The Trustee shall make the selection at least 15 days but not more than 60 days before the Redemption Date from outstanding Securities not previously called for redemption. The Trustee may select for redemption portions
of the Principal Amount at Maturity of Securities that have denominations larger than $1,000. 
  
 Securities and portions of them the Trustee selects shall be in Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of Securities to be redeemed. 
  
 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 (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed may
be treated by the Trustee as outstanding for the purpose of such selection. 
  
 Section 3.3 Notice of Redemption. At least 20 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first-class mail, postage prepaid, to each Holder of
Securities to be redeemed. 
  
 The notice shall identify the
Securities to be redeemed (including the CUSIP number(s)) and shall state: 
  

	 	(1)	the Redemption Date; 

  

	 	(2)	the Redemption Price; 

  

	 	(3)	the Conversion Rate; 

  

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

  

	 	(5)	that Securities called for redemption may be converted at any time before the close of business on the date that is two Business Days prior to the Redemption Date;


  

	 	(6)	that Holders who want to convert Securities must satisfy the requirements set forth in paragraph 8 of the Securities; 

  

 21 









	 	(7)	whether the Company will deliver cash or Common Stock in the event a Holder converts Securities called for redemption and, in the event that the company elects to deliver cash, the
date on which the Cash Settlement Averaging Period shall commence; 

  

	 	(8)	that Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price; 

  

	 	(9)	if fewer than all the outstanding Securities are to be redeemed, the certificate numbers, if any, and Principal Amounts at Maturity of the particular Securities to be redeemed;


  

	 	(10)	that, unless the Company defaults in making payment of such Redemption Price, Issue Discount on Securities called for redemption will cease to accrete on and after the Redemption
Date; and 

  

	 	(11)	the CUSIP number of the Securities. 

  
 At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense, provided that
the Company makes such request at least three Business Days prior to the date by which such notice of redemption must be given to Holders in accordance with this Section 3.3. 
  
 Section 3.4 Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price stated in the notice except for Securities which are converted in accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price stated in the notice. 
  
 Section 3.5
Deposit of Redemption Price. Prior to 10:00 a.m. (New York City Time), on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which on or prior thereto 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 conversion of Securities pursuant to Article X. If such money
is then held by the Company in trust and is not required for such purpose it shall be discharged from such trust. 
  
 Section 3.6 Securities Redeemed in Part. Upon 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 in an authorized denomination equal in Principal Amount at Maturity to the unredeemed portion of the Security surrendered. 
  

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 Section 3.7 Purchase of Securities at Option of the Holder. (a) General. Securities shall be
purchased by the Company pursuant to paragraph 6 of the Securities at the option of the Holder as of March 23, 2006, March 23, 2009, March 23, 2014 and March 23, 2019 (each, a “Purchase Date”), at the purchase price set forth below (each,
a “Purchase Price”, as applicable): 
  

				
	 Purchase Date

	  	Purchase Price
per $1,000
Principal Amount
at Maturity


	 March 23, 2006
	  	$	914.03
	 March 23, 2009
	  	$	927.83
	 March 23, 2014
	  	$	951.29
	 March 23, 2019
	  	$	975.34

  
 The foregoing Purchase Prices are
equal to the Issue Price plus accreted Issue Discount to the applicable Purchase Date. If, prior to a Purchase Date, the Securities have been converted to semiannual coupon Securities following the occurrence of a Tax Event pursuant to paragraph 1
of the Securities, the Purchase Price will be equal to the restated principal amount plus accrued and unpaid interest from the date of conversion to semiannual coupon Securities to the Purchase Date. Purchases of Securities hereunder shall be made,
at the option of the Holder thereof, upon: 
  

	 	(1)	delivery to the Paying Agent by the Holder of a written notice of purchase (a “Purchase Notice”) at any time from the opening of business on the date that is 20 Business
Days prior to a Purchase Date until the close of business on the third Business Day prior to such Purchase Date stating: 

  
 (A) the certificate number of the Security which the Holder will deliver to be purchased; 
  
 (B) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which portion must be in principal amounts of maturity of $1,000 or an integral multiple thereof; 
  
 (C) that such Security shall be purchased as of the Purchase Date pursuant to the terms and conditions specified in paragraph 6 of the
Securities and in this Indenture; and 
  
 (D)
delivery of such Security to the Paying Agent prior to, on or after the Purchase Date (together with all necessary endorsements) at the offices of the Paying Agent, such delivery being a condition to receipt by the Holder of the Purchase Price
therefor; provided, however, that such Purchase Price shall be so paid pursuant to this Section 3.7 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Purchase Notice, as
determined by the Company. 
  
 The Company shall purchase from the
Holder thereof, pursuant to this Section 3.7, a portion of a Security, if the Principal Amount at Maturity 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. 
  

 23 








 Any purchase by the Company contemplated pursuant to the provisions of this Section 3.7 shall be
consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Purchase Date and the time of delivery of the Security. 
  
 Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Purchase Notice contemplated
by this Section 3.7(a) shall have the right to withdraw such Purchase Notice at any time prior to the close of business on the Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9.

  
 The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal thereof. 
  
 (b) Certificate to Trustee. At least three Business Days before each Company Notice Date, the Company shall deliver an Officers’ Certificate to the Trustee specifying: 
  
 (i) the information required by Section 3.7(d); and

  
 (ii) whether the Company desires the Trustee
to give the Company Purchase Notice required by Section 3.7(d). 
  
 (c) Purchase Price. The Purchase Price of Securities in respect of which a Purchase Notice has been given shall be paid by the Company in U.S. legal tender (“cash”) equal to the aggregate Purchase Price of such Securities.
The Company Notice, as provided in Section 3.7(d), shall be sent to Holders (and to beneficial owners as required by applicable law) not less than 20 Business Days prior to such Purchase Date (the “Company Notice Date”). 
  
 (d) Company Notice. In connection with any purchase of Securities
pursuant to paragraph 6 of the Securities, the Company shall give notice to Holders setting forth information specified in this Section 3.7(d) (the “Company Notice”). 
  
 Each Company Notice shall include a form of Purchase Notice to be completed by a Securityholder and shall state: 

 
 (i) the Purchase Price and the Conversion Rate;

  
 (ii) the name and address of the Paying Agent
and the Conversion Agent; 
  
 (iii) that
Securities as to which a Purchase Notice has been given may be converted if they are otherwise convertible only in accordance with Article X hereof and paragraph 8 of the Securities if the applicable Purchase Notice has been withdrawn in accordance
with the terms of this Indenture; 
  
 (iv) that
Securities must be surrendered to the Paying Agent to collect payment; 
  
 (v) that the Purchase Price for any security as to which a Purchase Notice has been given and not withdrawn will be paid promptly following the later of the Purchase Date and the time of surrender of such Security as
described in (iv); 
  

 24 








 (vi) the procedures the Holder must follow to exercise rights under Section 3.7 and a
brief description of those rights; 
  
 (vii)
briefly, the conversion rights of the Securities; 
  
 (viii) the procedures for withdrawing a Purchase Notice; 
  
 (ix) that, unless the Company defaults in making payment on Securities for which a Purchase Notice has been submitted, Issue Discount on such Securities will cease to accrue on the Purchase Date; and 
  
 (x) the CUSIP number of the Securities. 
  
 At the Company’s request, the Trustee shall give such Company Notice in
the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by the Company. 
  
 (e) Procedure upon Purchase. The Company shall deposit cash, at the time and in the manner as provided in Section
3.10, sufficient to pay the aggregate Purchase Price of all Securities to be purchased pursuant to this Section 3.7. 
  
 Section 3.8 Purchase of Securities at Option of the Holder upon Change in Control. (a) If there shall have occurred a Change in Control, Securities
shall be purchased by the Company, at the option of the Holder thereof, at a purchase price specified in paragraph 6 of the Securities (the “Change in Control Purchase Price”), as of the date that is no later than 35 Business Days after
the occurrence of the Change in Control (the “Change in Control Purchase Date”), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.8(c). 
  
 A “Change in Control” shall be deemed to have occurred at such time
as either of the following events shall occur: 
  
 (1) the acquisition by any “person”, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, as amended, of beneficial ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of purchase, merger or other acquisition transactions of shares of the Company’s Capital Stock entitling such person to exercise 50% or more of the total voting power of all shares of the
Company’s Capital Stock entitled to vote generally in elections of directors, other than any acquisition by the Company, any of its Subsidiaries or any of its employee benefit plans (except that such person shall be deemed to have beneficial
ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); 
  
 (2) the first day on which a majority of the members of the Board of Directors of the Company does not
consist of Continuing Directors; or 
  
 (3) any
consolidation or merger of the Company with or into any other person (which for purposes of this definition has the meaning set forth in Section 13(d)(3) of the Exchange Act), any merger of another person into the Company, or any conveyance, 

  

 25 








 
transfer, sale, lease or other disposition of all or substantially all of the properties and assets of the Company to another person, other than in each case
(x) any transaction pursuant to which holders of 50% or more of the total voting power of all shares of Capital Stock of the Company entitled to vote generally in the election of directors immediately prior to such transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock of the person that is the continuing or surviving person or the parent corporation thereof entitled to vote generally in the election of
directors immediately after such transaction or (y) any such merger solely for the purpose of changing the jurisdiction of incorporation of the Company and resulting in a reclassification, conversion or exchange of outstanding Common Stock solely
into shares of the common stock of the surviving entity; 
  
 provided,
however, that a Change in Control shall not be deemed to have occurred if (x) the Closing Price per share of Common Stock for any five Trading Days within the period of 10 consecutive Trading Days ending 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 under clause (1) or (2) above, or the period of 10 consecutive Trading Days ending immediately before the Change in Control, in the case of a Change
in Control under clause (3) above, shall equal or exceed 110% of the Accreted Conversion Price of the Securities in effect on each such trading day or (y) all of the consideration in the transaction or transactions constituting a Change in Control
(other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) payable with respect to the Common Stock consists of shares of Common Stock traded or to be traded immediately following such
Change in Control on a national securities exchange or the Nasdaq National Market and, as a result of the transaction or transactions, the Securities become convertible solely into such Common Stock (and any rights attached thereto). 
  
 “Continuing Directors” shall mean, as of any date of determination,
any member of the Board of Directors who (i) was a member of the Board of Directors on March 23, 2004 or (ii) was nominated for election or elected to the Board of Directors with the approval of two-thirds of the Continuing Directors who were
members of the Board of Directors at the time of a new director’s nomination or election. 
  
 (b) No later than 15 Business Days after the occurrence of a Change in Control, the Company shall mail a written notice of the Change in Control by first-class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The notice shall include a form of Change in Control Purchase Notice to be completed by the Securityholder and shall state: 
  
 (1) briefly, the events causing a Change in Control and the date of such Change in Control; 
  
 (2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.8 must be given; 
  
 (3) the Change in Control Purchase Date; 
  
 (4) the Change in Control Purchase Price; 
  

 26 








 (5) the name and address of the Paying Agent and the Conversion Agent; 
  
 (6) the Conversion Rate and any adjustments thereto;

  
 (7) that Securities as to which a Change in
Control Purchase Notice has been given may be converted if they are otherwise convertible pursuant to Article X hereof only if the Change in Control Purchase Notice has been withdrawn in accordance with the terms of this Indenture; 
  
 (8) that Securities must be surrendered to the Paying Agent
to collect payment; 
  
 (9) that the Change in
Control Purchase Price for any Security as to which a Change in Control Purchase Notice has been duly given and not withdrawn will be paid promptly following the later of the Change in Control Purchase Date and the time of surrender of such Security
as described in (8); 
  
 (10) briefly, the
procedures the Holder must follow to exercise rights under this Section 3.8; 
  
 (11) briefly, the conversion rights, if any, of the Securities; 
  
 (12) the procedures for withdrawing a Change in Control Purchase Notice; 
  
 (13) that, unless the Company defaults in making payment of such Change in Control Purchase Price, Issue
Discount on Securities surrendered for purchase by the Company will cease to accrete on and after the Change in Control Purchase Date; and 
  
 (14) the CUSIP number of the Securities. 
  
 (c) A Holder may exercise its rights specified in Section 3.8(a) upon delivery of a written notice of purchase (a “Change in Control Purchase
Notice”) to the Paying Agent at any time prior to the close of business on the third business day prior to the Change in Control Purchase Date, stating: 
  

(1) the certificate number of the Security which the Holder will deliver to be purchased; 
  
 (2) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which portion must be $1,000 or an integral multiple thereof; and 
  
 (3) that such Security shall be purchased pursuant to the terms and conditions specified in paragraph 6 of the Securities. 
  
 The delivery of such Security to the Paying Agent prior to, on or after the
Change in Control Purchase Date (together with all necessary endorsements) at the offices of the Paying 

  

 27 








 
Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided, however, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 3.8 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Change in Control Purchase Notice. 
  
 The Company shall purchase from the Holder thereof, pursuant to this Section
3.8, a portion of a Security if the Principal Amount at Maturity 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. 
  
 Any purchase by the Company contemplated
pursuant to the provisions of this Section 3.8 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent in accordance with this Section 3.8. 
  
 Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Change in Control Purchase Notice contemplated by this Section 3.8(c) shall have the right to withdraw such Change in Control Purchase Notice at
any time prior to the close of business on the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9. 
  
 The Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof. 
  
 Section 3.9 Effect of Purchase Notice
or Change in Control Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or Change in Control Purchase Notice specified in Section 3.7(a) or Section 3.8(c), as applicable, the Holder of the Security in respect of which such
Purchase Notice or Change in Control Purchase Notice, as the case may be, was given shall (unless such Purchase Notice or Change in Control Purchase Notice is withdrawn as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may be, with respect to such Security. Such Purchase Price or Change in Control Purchase Price shall be paid to such Holder, subject to receipts of funds and/or securities by
the Paying Agent, promptly following the later of (x) the Purchase Date or the Change in Control Purchase Date, as the case may be, with respect to such Security (provided the conditions in Section 3.7(a) or Section 3.8(c), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.7(a) or Section 3.8(c), as applicable. Securities in respect of which a Purchase Notice or Change in Control
Purchase Notice, as the case may be, has been given by the Holder thereof may not be converted pursuant to Article X hereof on or after the date of the delivery of such Purchase Notice or Change in Control Purchase Notice, as the case may be, unless
such Purchase Notice or Change in Control Purchase Notice, as the case may be, has first been validly withdrawn as specified in the following two paragraphs. 
  
 A Purchase Notice or Change in Control Purchase Notice, as the case may be, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice or Change in Control Purchase Notice, as the case may be, at any time prior to the close of business on the Purchase Date or the Change in Control Purchase Date, as the case may be,
specifying: 
  

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

  

 28 









	 	(2)	the Principal Amount at Maturity of the Security with respect to which such notice of withdrawal is being submitted, and 

  

	 	(3)	the Principal Amount at Maturity, if any, of such Security which remains subject to the original Purchase Notice or Change in Control Purchase Notice, as the case may be, and which
has been or will be delivered for purchase by the Company. 

  
 There shall be no purchase of any Securities pursuant to Section 3.7 or 3.8 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Purchase
Notice or Change in Control Purchase Notice, as the case may be) and is continuing an Event of Default (other than a default in the payment of the Purchase Price or Change in Control Purchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Purchase Notice or Change in Control Purchase Notice, as the case may be, has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Purchase Price or Change in Control Purchase Price, as the case may be, with respect to such Securities) in which case, upon such
return, the Purchase Notice or Change in Control Purchase Notice with respect thereto shall be deemed to have been withdrawn. 
  
 Section 3.10 Deposit of Purchase Price or Change in Control Purchase Price. Prior to 10:00 a.m. (local time in the City of New York) on the
Business Day following the Purchase Date or the Change in Control Purchase Date, as the case may be, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting
as the Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount of cash (in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate Purchase Price or Change in Control Purchase
Price, as the case may be, of all the Securities or portions thereof which are to be purchased as of the Purchase Date or Change in Control Purchase Date, as the case may be. 
  
 Section 3.11 Securities Purchased in Part. Any Certificated Security which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing) and 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 any authorized denomination as
requested by such Holder in aggregate Principal Amount at Maturity equal to, and in exchange for, the portion of the Principal Amount at Maturity of the Security so surrendered which is not purchased. 
  
 Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of
Securities. When complying with the provisions of Section 3.7 or 3.8 hereof (provided that such offer or purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or purchase), the Company shall (i) comply with Rule 13e- 4 and Rule 14e-1 under the 

  

 29 








 
Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with all
Federal and state securities laws so as to permit the rights and obligations under Sections 3.7 and 3.8 to be exercised in the time and in the manner specified in Sections 3.7 and 3.8. 
  
 Section 3.13 Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed as provided in paragraph 13 of the Securities, together with interest thereon (subject to the provisions of Section 7.1(f)), held by them for the payment of the Purchase Price or Change in Control Purchase Price, as the case may
be; provided, however, that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase Price or Change in Control Purchase Price, as the case may be, of the Securities or portions
thereof which the Company is obligated to purchase as of the Purchase Date or Change in Control Purchase Date, as the case may be, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Purchase Date
or Change in Control Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to the provisions of Section 7.1(f)). 
  
 ARTICLE IV 
  
 COVENANTS 
  
 Section 4.1 Payment of Securities. The Company shall promptly make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be given to the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by 10:00 a.m. New York City time by the Company. Principal Amount at Maturity,
Issue Price plus accreted Issue Discount, Redemption Price, Purchase Price, Change in Control Purchase Price and interest, if any, shall be considered paid on the applicable date due if on such date (or, in the case of a Purchase Price or Change in
Control Purchase Price, on the Business Day following the applicable Purchase Date or Change in Control Purchase Date, as the case may be) the Trustee or the Paying Agent holds, in accordance with this Indenture, money or securities, if permitted
hereunder, sufficient to pay all such amounts then due. 
  
 The
Company shall, to the extent permitted by law, pay interest on overdue amounts at the rate per annum set forth in paragraph 1 of the Securities, compounded semiannually, which interest shall accrue from the date such overdue amount was originally
due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on demand. The accrual of such interest on overdue amounts shall be in addition to the continued accretion of
Issue Discount. 
  
 Section 4.2 SEC and Other Reports. The
Company shall file with the Trustee, within 15 days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time no longer
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to provide the Trustee with reports containing substantially the same information as would have been 

  

 30 








 
required to be filed with the SEC had the Company continued to have been subject to such reporting requirements. In such event, such reports shall be
provided at the times the Company would have been required to provide reports had it continued to have been subject to such reporting requirements. The Company also shall comply with the other provisions of TIA Section 314(a). 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 conclusively on Officers’ Certificates). 
  
 Section 4.3 Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on December 31, 2004) an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and if the Company shall be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge. 
  
 Section 4.4 Further
Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

  
 Section 4.5 Maintenance of Office or Agency. The
Company will maintain in the Borough of Manhattan, the City of New York, an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The office of the Trustee c/o Computershare
Trust Company of New York, Attention: Mary Ann Louisi, 88 Pine Street, New York, New York 10005, shall initially be such office or agency for all of the aforesaid purposes. The Company shall give prompt written notice to the Trustee of the location,
and of any change in the location, of any such office or agency (other than a change in the location of the office of the Trustee). If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 11.2. 
  
 The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented
or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, the City of New York, for such purposes. 
  
 Section 4.6 Delivery of Certain Information. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of Securities or holder or beneficial owner of
shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder or any beneficial owner of Securities or holder or beneficial owner of shares
of Common Stock, or to a prospective purchaser of any such security designated by any such holder, as the case may be, to the extent required to permit compliance 

  

 31 








 
by any such holder with Rule 144A under the Securities Act in connection with the resale of any such security. “Rule 144A Information” shall be
such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner shall be determined by the Company to the Company’s reasonable satisfaction. 
  
 Section 4.7 Tax Treatment of Securities. The Company agrees, and by
acceptance of a beneficial ownership interest in the Securities each Holder of Securities will be deemed to have agreed, for United States federal income tax purposes, (i) to treat the Securities as indebtedness that is subject to United States
Treasury regulation section 1.1275-4 (the “Contingent Payment Debt Regulations”) and, for purposes of the Contingent Payment Debt Regulations, to treat the Fair Market Value of any stock beneficially received by a Holder upon any
conversion of the Securities as a contingent payment and (ii) to be bound by the Company’s determination of the comparable yield and projected payment schedule, within the meaning of the Contingent Payment Debt Regulations, with respect to the
Securities. A Holder of Securities may obtain the Issue Price, Issue Date, amount of original issue discount, yield to maturity, comparable yield and projected payment schedule by submitting a written request to the Company at the following address:
Greater Bay Bancorp, 2860 West Bayshore Road, Palo Alto, CA 94303, Attention: Shawn E. Saunders. 
  
 ARTICLE V 
  
 SUCCESSOR CORPORATION 
  
 Section 5.1 When Company May
Merge or Transfer Assets. The Company shall not consolidate with or merge with or into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, unless: 
  
 (a) either (1) the Company shall be the continuing corporation or (2) the
person (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety (i) shall be
organized and validly existing under the laws of the United States or any State thereof or the District of Columbia and (ii) shall expressly assume, by a supplemental indenture hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all of the obligations of the Company under the Securities and this Indenture; 
  
 (b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and 
  
 (c) the Company shall have 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 shall comply with this Article V and that all conditions precedent herein provided for relating to such
transaction have been satisfied. The Trustee shall be entitled to rely on such Officers’ Certificate and Opinion of Counsel as conclusive evidence that such transaction complies with this Article V. 
  
 For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than to the Company or 

  

 32 








 
another Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially all of the properties and assets of the Company,
shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. 
  
 The successor person formed by such consolidation or into which the Company is merged or the successor person 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 had been named as the Company herein; and thereafter, except in the case of a
lease and obligations the Company may have under a supplemental indenture pursuant to Section 10.4, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.6, the Company, the
Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of the Company. 
  
 ARTICLE VI 
  
 DEFAULTS AND REMEDIES 
  
 Section 6.1 Events of Default. An “Event of Default” occurs if: 
  
 (1) the Company defaults in the payment of the Issue Price plus accreted Issue Discount, Redemption Price,
Purchase Price or Change in Control Purchase Price on any Security when the same becomes due and payable at its Stated Maturity, upon redemption, upon declaration, when due for purchase by the Company or otherwise; 
  
 (2) default in the payment of any contingent interest,
additional amounts or, if the Securities have been converted to semiannual coupon notes as provided in paragraph 1 of the Securities, accrued and unpaid interest, in each case, when due and payable, and continuance of such default for a period of 30
days; 
  
 (3) the Company fails to comply with
any of its agreements in the Securities or this Indenture (other than those referred to in clause (1) or (2) above) and such failure continues for 60 days after receipt by the Company of a Notice of Default; 
  
 (4) the Company defaults under any indebtedness for money
borrowed by the Company or any of its Subsidiaries that is an insured bank Subsidiary or any Subsidiary with assets that exceed 10% of the Company’s consolidated assets, the aggregate outstanding principal amount of which is in an amount in
excess of $25.0 million, for a period of 30 days after the receipt by the Company of a Notice of Default, which default (i) is caused by the Company’s failure to pay when due principal or interest on such indebtedness by the end of the
applicable grace period, if any, unless such indebtedness is discharged or (ii) results in the acceleration of such indebtedness because of a default with respect to such indebtedness without such indebtedness having been discharged or such
non-payment or acceleration having been cured, waived, rescinded or annulled; 
  
 (5) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the 

  

 33 








 
Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or 
  
 (6) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any substantial part of its property or make any general assignment for the
benefit of creditors. 
  
 A Default under clause (3) or (4) above
is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate Principal Amount at Maturity of the Securities at the time outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time specified in clause (3) or (4) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is
a “Notice of Default.” 
  
 The Company shall deliver to
the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice of any event which with the giving of notice or the lapse of time, or both, would become an Event of Default under clauses (3) or (4) above, its status and
what action the Company is taking or proposes to take with respect thereto. The Trustee shall not be deemed to have notice of any such Event of Default until it has received the aforementioned notice from the Company. 
  
 Section 6.2 Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.1(5) or (6)) occurs and is continuing, the Trustee by Notice to the Company, or the Holders of at least 25% in aggregate Principal Amount at Maturity of the Securities at the time outstanding by notice to the
Company and the Trustee, may declare the Issue Price plus accreted Issue Discount through the date of declaration plus accrued and unpaid interest, if any (including contingent interest and additional amounts) on all the Securities to be immediately
due and payable. Upon such a declaration, such Issue Price plus accreted Issue Discount and accrued and unpaid interest, if any, (including contingent interest and additional amounts) shall be due and payable immediately. If an Event of Default
specified in Section 6.1(5) or (6) occurs and is continuing, the Issue Price plus accreted Issue Discount and accrued and unpaid interest, if any, (including contingent interest and additional amounts) on all the Securities shall become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholders. The Holders of a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Securityholder) may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except
nonpayment of the Issue Price plus accreted Issue Discount that have become due solely as a result of acceleration and if all amounts due to the Trustee under Section 7.7 have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto. 
  
 If the Securities have,
at the Company’s option, been converted to semiannual coupon Securities as provided in paragraph 1 of the Securities, the amount due upon any 

  

 34 








 
acceleration will be the restated principal amount thereof together with accrued and unpaid interest thereon. 
  
 Section 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment of the Issue Price plus accreted Issue Discount on the Securities or to enforce the performance of any provision of the Securities or this Indenture. 
  
 The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. 
  
 Section 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding,
by notice to the Trustee (and without notice to any other Securityholder), may waive an existing Default and its consequences except (1) an Event of Default described in Section 6.1(1), (2) a Default in respect of a provision that under Section 9.2
cannot be amended without the consent of each Securityholder affected or (3) a Default which constitutes a failure to convert any Security in accordance with the terms of Article X. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right. This Section 6.4 shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded from this Indenture, as permitted by the TIA.

  
 Section 6.5 Control by Majority. The Holders of a
majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines in good faith is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity satisfactory to it. This Section 6.5 shall be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded from this Indenture, as permitted by the TIA.

  
 Section 6.6 Limitation on Suits. A Securityholder may
not pursue any remedy with respect to this Indenture or the Securities unless: 
  
 (1) the Holder gives to the Trustee written notice stating that an Event of Default is continuing; 
  
 (2) the Holders of at least 25% in aggregate Principal
Amount at Maturity of the Securities at the time outstanding make a written request to the Trustee to pursue the remedy; 
  
 (3) such Holder or Holders offer to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;

  

 35 








 (4) the Trustee does not comply with the request within 60 days after receipt of such
notice, request and offer of security or indemnity; and 
  
 (5) the Holders of a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding do not give the Trustee a direction inconsistent with the request during such 60-day period.

  
 A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over any other Securityholder. 
  
 Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment
of the Principal Amount at Maturity, Issue Price plus accreted Issue Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or interest, if any, in respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date, and to convert the Securities in accordance with Article X, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be
impaired or affected adversely without the consent of such Holder. 
  
 Section 6.8 Collection Suit by Trustee. If an Event of Default described in Section 6.1(1) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the
whole amount owing with respect to the Securities and the amounts provided for in Section 7.7. 
  
 Section 6.9 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the Principal Amount at Maturity, Issue Price plus accreted Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or interest, if any, in respect of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered (but shall have no duty), by intervention in such proceeding or otherwise, 
  
 (a) to file and prove a claim for the whole amount of the Principal Amount at Maturity, Issue Price plus accreted Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price, or interest, if any, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel or any other amounts due the Trustee under Section 7.7) and of the Holders allowed in such judicial proceeding, and 
  
 (b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official 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 the Trustee any amount due 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 7.7. 
  

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 Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder 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 6.10 Priorities. If the Trustee
collects any money pursuant to this Article VI, it shall pay out the money in the following order: 
  
 FIRST: to the Trustee for amounts due under Section 7.7; 
  
 SECOND: to Securityholders for amounts due and unpaid on the Securities for the Principal Amount at Maturity, Issue Price plus accreted Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest, if any, as the case may be, ratably, without preference or priority of any kind, according to such amounts due and payable on the Securities; and 
  
 THIRD: the balance, if any, to the Company. 
  
 The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each Securityholder and the Company a notice that states the record date, the payment date and the amount to be paid. 
  
 Section 6.11 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 (other than the Trustee) 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 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in aggregate Principal Amount at Maturity of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA. 
  
 Section 6.12 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now
or at any time hereafter in force, which would prohibit or forgive the Company from paying all or any portion of the Principal Amount at Maturity, Issue Price plus accreted Issue Discount, Redemption Price, Purchase Price or Change in Control
Purchase Price in respect of Securities, or any interest on such amounts, as contemplated herein, or which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had
been enacted. 
  

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 ARTICLE VII 
  
 TRUSTEE 
  
 Section 7.1 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise 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 such person’s own affairs. 
  
 (b) Except during the continuance of an Event of Default: 
  

	 	(1)	the Trustee need perform only those duties that 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, but in case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not on their face they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein. This Section 7.1(b) shall be in lieu of Section 3.15(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA. 

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

	 	(1)	this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.1; 

  

	 	(2)	the Trustee shall not be liable for any error of judgment made in good faith by a Responsible 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 6.5.


  
 Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the TIA. 
  
 (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e)
of this Section 7.1. 
  

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 (e) The Trustee may refuse to perform any duty or exercise any right or power or extend or risk its own
funds or otherwise incur any financial liability unless it receives indemnity satisfactory to it against any loss, liability or expense. 
  
 (f) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee (acting in any
capacity hereunder) shall be under no liability for interest on any money received by it hereunder unless otherwise agreed in writing with the Company. 
  
 Section 7.2 Rights of Trustee. Subject to its duties and responsibilities under Section 7.1 and the TIA, 
  
 (a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties; 
  
 (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate; 
  
 (c) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; 
  
 (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture; 
  
 (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel; 
  
 (f) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; 
  
 (g) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of
the Board of Directors may be sufficiently evidenced by a Board Resolution; 
  
 (h) 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 

  

 39 








 
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; 
  
 (i) the Trustee shall not be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; 
  

(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; 
  
 (k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded; and 
  
 (l) the Trustee may consult with accountants, financial advisers or other advisors reasonably selected by it to assist it with administering its duties as Conversion Agent hereunder, and shall be fully protected in
respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with the advice provided by such accountants, financial advisors or other advisors. 
  
 Section 7.3 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 its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11. 
  
 Section 7.4
Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use or application of the proceeds from the Securities, it
shall not be responsible for any statement in the registration statement for the Securities under the Securities Act or in any offering document for the Securities, the Indenture or the Securities (other than its certificate of authentication), or
the determination as to which beneficial owners are entitled to receive any notices hereunder. 
  
 Section 7.5 Notice of Defaults. If a Default occurs and if it is known to the Trustee, the Trustee shall give to each Securityholder notice of the Default within 90 days after it occurs or, if later, within 15
days after it is known to the Trustee, unless such Default shall have been cured or waived before the giving of such notice. Notwithstanding the preceding sentence, except in the case of a Default described in Section 6.1(1), the Trustee may
withhold, and shall be protected in withholding, the notice if and so long as a committee of its Responsible Officers 

  

 40 








 
in good faith determines that withholding the notice is in the interests of Securityholders. The second sentence of this Section 7.5 shall be in lieu of the
proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default. 
  
 Section 7.6 Reports by
Trustee to Holders. Within 60 days after each May 15 beginning with the May 15 following the date of this Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such May 15 that complies with TIA Section 313(a), if
required by such Section 313(a). The Trustee also shall comply with TIA Section 313(b). 
  
 A copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to notify the Trustee
promptly whenever the Securities become listed on any securities exchange and of any delisting thereof. 
  
 Section 7.7 Compensation and Indemnity. The Company agrees: 
  
 (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation shall not be limited (to the extent permitted by law) by any provision of law in regard to the compensation of a trustee of an express trust); 
  
 (b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses, advances and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith; and 
  
 (c) to indemnify the Trustee or any predecessor, Trustee and their agents for, and to hold them harmless against, any loss, damage, claim, liability, cost or expense (including attorney’s fees and expenses, and
taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder. 
  
 To secure the Company’s payment obligations in this Section 7.7, the
Company and the Holders agree that the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee. 
  
 The Company’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.1(4), the expenses including the reasonable charges and expenses of its counsel, are intended to constitute expenses of administration under any Bankruptcy
Law. 
  
 Section 7.8 Replacement of Trustee. The Trustee
may resign by so notifying the Company; provided, however, no such resignation shall be effective until a successor Trustee has 

  

 41 








 
accepted its appointment pursuant to this Section 7.8. The Holders of a majority in aggregate Principal Amount at Maturity of the Securities at the time
outstanding may remove the Trustee by so notifying the Trustee and the Company. The Company shall remove the Trustee if: 
  

	 	(1)	the Trustee fails to comply with Section 7.10; 

  

	 	(2)	the Trustee is adjudged bankrupt or insolvent; 

  

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

  

	 	(4)	the Trustee otherwise becomes incapable of acting. 

  
 If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint, by resolution of
its Board of Directors, a successor Trustee. 
  
 A successor
Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7. 
  
 If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee. 
  
 If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. 
  
 Section 7.9 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee. 
  
 Section 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA Sections
310(a)(1) and 310(b). The Trustee (or its parent holding company) shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. Nothing herein contained shall prevent the
Trustee from filing with the Commission the application referred to in the penultimate paragraph of TIA Section 310(b). 
  
 Section 7.11 Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. 
  

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 ARTICLE VIII 
  
 DISCHARGE OF INDENTURE 
  
 Section 8.1 Discharge of Liability on Securities. When (i) the Company delivers to the Trustee all outstanding Securities (other than Securities
replaced pursuant to Section 2.7) for cancellation or (ii) all outstanding Securities have become due and payable and the Company deposits with the Trustee cash sufficient to pay all amounts due and owing on all outstanding Securities (other than
Securities replaced pursuant to Section 2.7), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 7.7, cease to be of further effect. The Trustee shall join in the
execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and Opinion of Counsel and at the cost and expense of the Company.

  
 Section 8.2 Repayment to the Company. The Trustee and
the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and the Trustee and the Paying Agent shall have
no further liability to the Securityholders with respect to such money or securities for that period commencing after the return thereof. 
  
 ARTICLE IX 
  
 AMENDMENTS 
  
 Section 9.1 Without Consent of Holders. The Company and the Trustee may amend this Indenture or the Securities without the consent of any Securityholder, so long as such changes, other than those in clause (2), do not materially and
adversely affect the interests of any Securityholder: 
  
 (1) to cure any ambiguity, omission, defect or inconsistency provided that such modification or amendment does not, in the good faith opinion of the Company’s Board of Directors and the Trustee, adversely affect the interests of the
holders of the Securities in any material respect; 
  
 (2) to comply with Article V; 
  
 (3) to
secure the Company’s obligations under the Securities and this Indenture; 
  
 (4) to add to the Company’s covenants for the benefit of the Securityholders or to surrender any right or power conferred upon the
Company; or 
  
 (5) to make any change necessary
for the registration of the Securities under the Securities Act or to comply with the TIA, or any amendment thereto, or to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA provided that such
modification or amendment does not, in the good faith 

  

 43 








 
opinion of the Company’s Board of Directors and the Trustee, adversely affect the interests of the holders of the Securities in any material respect.

  
 Section 9.2 With Consent of Holders. With the written
consent of the Holders of at least a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding, the Company and the Trustee may amend this Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment to this Indenture or the Securities may not: 
  
 (1) make any change in the manner or rate of accretion in connection with Issue Discount, reduce the rate of interest (including
contingent interest) referred to in paragraph 1 of the Securities, or extend the time for payment of Issue Discount on any Security; 
  
 (2) reduce the Principal Amount at Maturity or the Issue Price of or extend the Stated Maturity of any Security; 
  
 (3) reduce the Redemption Price, Purchase Price or Change in
Control Purchase Price of any Security; 
  
 (4)
make any Security or interest thereon payable in money or securities other than that stated in the Security; 
  
 (5) make any change in Section 6.4, Section 6.7 or this Section 9.2, except to increase any percentage set forth therein; 
  
 (6) make any change that adversely affects the right to
convert any Security; or 
  
 (7) make any change
that adversely affects the right to require the Company to purchase the Securities in accordance with the terms thereof and this Indenture. 
  
 It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof. 
  
 After an amendment under this Section 9.2 becomes effective, the Company shall mail to each Holder a notice briefly describing the amendment. 
  
 Section 9.3 Compliance with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall comply with the TIA.

  
 Section 9.4 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same obligation as the consenting Holder’s Security, even if notation of the consent, waiver or action is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent, waiver or action as to
such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation 

  

 44 








 
before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every
Securityholder. 
  
 Section 9.5 Notation on or Exchange of
Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Company, bear a notation in form approved by the Company as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for outstanding Securities. 
  
 Section 9.6 Trustee to Sign Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this Article IX if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign such supplemental indenture. In signing any supplemental indenture the Trustee shall receive, and (subject to the provisions of Section 7.1)
shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture. 
  
 Section 9.7 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article
IX, 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 X 
  
 CONVERSIONS 
  
 Section 10.1 Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article X, at the
option of the Holder, any Securities or any portion of the Principal Amount at Maturity thereof which is an integral multiple of $1,000 may be converted at the Principal Amount at Maturity thereof, or of such portion thereof, into duly authorized,
fully paid and nonassessable shares of Common Stock, at the Conversion Rate in effect at the time of conversion: 
  
 (1) during any fiscal quarter, if the Closing Price of the Common Stock for a period of at least 20 Trading Days in the period of 30
consecutive Trading Days ending on the last day of the preceding fiscal quarter is more than 120% of the Accreted Conversion Price on that 30th Trading Day; 
  
 (2) during the five Business Day period following any 10 consecutive Trading Day period in which the average of the Trading Prices for the Securities for that 10 Trading-Day period was less than 98% of the Average
Conversion Value of the Securities during that period; provided, however, that after March 23, 2019, if on the date of any conversion pursuant to this Section 10.1(a)(2) and the Securities are not otherwise convertible, the Closing Price of
the Common Stock is between the Accreted Conversion Price and 120% of the Accreted Conversion Price, then the Company may satisfy its Conversion Obligation, at its option, in cash or in shares of Common Stock with a value 

  

 45 








 
equal to the Issue Price plus accreted Issue Discount to such date (any Common Stock so utilized to satisfy such conversion pursuant to this proviso shall be
valued at 100% of the average of the Closing Prices of the Common Stock for the 10 Trading Days beginning on the third Trading Day following the Conversion Date); 
  
 (3) during any period commencing after the 30th day following the original issuance of the Securities in which (i) the credit rating assigned to the Securities by either Moody’s or Standard &
Poor’s is lower than Ba3 or BB-, respectively, (ii) the credit rating assigned to the Securities is suspended or withdrawn by either such rating agency or (iii) neither such rating agency continues to rate the Securities or provide ratings
services coverage to the Company; 
  
 (4) if the
Company has called the Securities for redemption; or 
  
 (5) upon the occurrence of the corporate transactions specified in clause (b) of this Section 10.1. 
  
 The Conversion Agent shall, on behalf of the Company, determine on a daily basis whether the Securities shall be convertible as a result of the occurrence
of an event specified in clause (1) above and, if the Securities shall be so convertible, the Company shall promptly deliver to the Trustee written notice thereof. Whenever the Securities shall become convertible pursuant to Section 10.1, the
Company or, at the Company’s written request, the Trustee in the name and at the expense of the Company, shall notify the Trustee and the Holders of the event triggering such convertibility in the manner provided in Section 11.2, and the
Company shall also publicly announce such information and publish it on the Company’s web site. 
  
 Notwithstanding the foregoing, pursuant to an event specified in clause (2) above, the Conversion Agent shall have no obligation to determine the trading
price of the Securities unless the Company has requested that it make such determination and the Company has no obligation to make such request unless so requested by a Holder. At such time as a written request is made by a Holder, the Company shall
instruct the Conversion Agent to determine the Trading Price per Security beginning on the next Trading Day and on each successive Trading Day until the Trading Price per Security is greater than or equal to 98% of the Average Conversion Value for
10 consecutive Trading Days. 
  
 Any notice so given shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice. Except as expressly set forth in this paragraph, the Trustee (in any of its capacities hereunder) shall have no duty to determine the convertibility of
any of the Securities. 
  
 (b) In addition, in the event that:

  
 (1) (A) the Company makes a distribution
described in Section 10.3(c), (B) the Company makes a distribution described in Section 10.3(d) and the Fair Market Value per share of such distribution exceeds 5% of the Closing Price of a share of Common Stock on the Business Day immediately
preceding the date of declaration of such distribution, or (C) a Change in Control occurs but Holders of Securities do not have the right to require the Company to purchase their Securities as a result of such Change in Control because either (i)
the Closing Price of the Common Stock for specified periods 

  

 46 








 
(as described in the definition of Change in Control) exceeds specified levels (as described in the definition of Change in Control) or (ii) the
consideration received in such Change in Control consists of Capital Stock that is freely tradeable and the Securities become convertible into that Capital Stock as specified in the definition of Change in Control, then, in each case, the Securities
may be surrendered for conversion at any time on and after the date that the Company gives notice to the Holders of such right, which shall be not less than 20 days prior to the Ex-Dividend Time for such distribution, in the case of (A) or (B), or
within 15 Business Days after the occurrence of the Change in Control, in the case of (C), until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Time or the date the Company announces that such
distribution will not take place, in the case of (A) or (B), or the earlier of 35 Business Days after the Company’s delivery of the notice of the Change in Control or the date the Company announces that the Change of Control will not take
place, in the case of (C), or 
  
 (2) the Company
consolidates with or merges into another corporation, or is a party to a binding share exchange pursuant to which the shares of Common Stock would be converted into cash, securities or other property as set forth in Section 10.4 hereof, then the
Securities may be surrendered for conversion at any time from and after the date which is 15 days prior to the date announced by the Company as the anticipated effective time of such transaction until 15 days after the actual date of such
transaction. 
  
 The “Conversion Rate” means the number
of shares of Common Stock issuable upon conversion of a Security per $1,000 of Principal Amount at Maturity thereof, which shall be as set forth initially in paragraph 8 of the Securities, subject to adjustment as herein set forth. The Company shall
provide the Trustee and the Conversion Agent with the initial Conversion Rate and shall notify each of them of any change in the Conversion Rate, in writing, on or before the date such new Conversion Rate becomes effective. 
  
 Notwithstanding any other provision of the Securities or this Indenture, all
Holders’ rights with respect to conversion of the Securities and the Company’s obligation to deliver shares of Common Stock upon such conversion (the “Conversion Obligation”), are subject, in their entirety, to the Company’s
right, in its sole and absolute discretion, to elect to satisfy such Conversion Obligation in any manner permitted pursuant to Section 10.10. 
  
 Section 10.2 Conversion Procedure; Conversion Rate; Fractional Shares. (a) Each Security shall be convertible at the office of the Conversion Agent
into fully paid and nonassessable shares (calculated to the nearest 1/100th of a share) of Common Stock. The number of shares of Common Stock issuable upon conversion of a Security per $1,000 Principal Amount at Maturity thereof shall be equal to
the Conversion Rate. No payment or adjustment shall be made in respect of dividends on the Common Stock or accreted Issue Discount on a converted Security, except as described in Section 10.9 hereof. The Company shall not issue any fraction of a
share of Common Stock in connection with any conversion of Securities, but instead shall, subject to Section 10.3(h) hereof, make a cash payment (calculated to the nearest cent) equal to such fraction multiplied by the Closing Price of the Common
Stock on the last Trading Day prior to the date of conversion. Notwithstanding the foregoing, a Security in respect of which a Holder has delivered a Purchase Notice or a Change in Control Purchase Notice exercising such Holder’s option to
require the Company to repurchase such Securities may be converted only if such notice of exercise is withdrawn in accordance with Section 3.9 hereof. 
  

 47 








 (b) Before any Holder of a Securities shall be entitled to convert the same into Common Stock, such
Holder shall, in the case of Global Securities, comply with the procedures of the Depositary in effect at that time, and in the case of Certificated Securities, surrender such Securities, duly endorsed to the Company or in blank, at the office of
the Conversion Agent, and shall give written notice to the Company at said office or place that such Holder elects to convert the same and shall state in writing therein the principal amount of Securities to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for Common Stock to be issued. 
  
 Before any such conversion, a Holder also shall pay all funds required, if any, relating to interest on the Securities, as provided in Section 10.9, and
all taxes or duties, if any, as provided in Section 10.8. 
  
 If
more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be deliverable upon conversion shall be computed on the basis of the total Principal Amount at Maturity
of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered. Subject to the next succeeding sentence, the Company will, as soon as practicable thereafter, issue and deliver at said office or place to such Holder
of a Securities, or to such Holder’s nominee or nominees, certificates for the number of full shares of Common Stock to which such Holder shall be entitled as aforesaid, together with cash in lieu of any fraction of a share to which such Holder
would otherwise be entitled. The Company shall not be required to deliver certificates for shares of Common Stock while the stock transfer books for such stock or the security register are duly closed for any purpose, but certificates for shares of
Common Stock shall be issued and delivered as soon as practicable after the opening of such books or security register. 
  
 (c) A Security shall be deemed to have been converted as of the close of business on the date of the surrender of such Securities for conversion as
provided above, and the person or persons entitled to receive the Common Stock issuable upon such conversion shall be treated for all purposes as the record Holder or Holders of such Common Stock as of the close of business on such date. 

 
 (d) In case any Securities shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Securities so surrendered, without charge to such Holder (subject to the provisions of Section 10.8 hereof), new Securities in
authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities. 
  
 Section 10.3 Adjustments of Conversion Rate for Common Stock. The Conversion Rate shall be subject to adjustment from time to time as follows:

  
 (a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of its outstanding Common Stock in shares of Common Stock, the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such
dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction: 
  
 (1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as
defined in Section 10.3(g)) 

  

 48 








 
fixed for such determination plus the total number of shares of Common Stock constituting such dividend or other distribution; and 
  
 (2) the denominator of which shall be the number of shares
of Common Stock outstanding at the close of business on such Record Date. 
  
 Such
adjustment shall become effective immediately after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this Section 10.3(a) is declared but not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. 
  
 (b) In case the outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening
of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case the outstanding Common Stock shall be combined into a smaller number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision or combination becomes effective. 
  
 (c) In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 10.3(d)) to all holders of its
outstanding Common Stock entitling them to subscribe for or purchase Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price (as defined in Section
10.3(g)) on the Record Date fixed for the determination of shareholders entitled to receive such rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect
at the opening of business on the date after such Record Date by a fraction: 
  
 (1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date, plus the total number of additional shares of Common Stock so offered for subscription
or purchase (or into which the convertible securities so offered are convertible); and 
  
 (2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date, plus
the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase
at such Current Market Price. 
  
 Such adjustment shall become effective
immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into shares of
Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of shares of Common Stock (or securities convertible into shares of Common Stock) actually delivered. In 

  

 49 








 
the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect
if such date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less
than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration if other than
cash, to be determined by the Board of Directors. 
  
 (d) In case
the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock any class of capital stock of the Company (other than any dividends or distributions to which Section 10.3(a) applies) or evidences of its indebtedness, cash
or other assets, including securities, but excluding (1) any rights or warrants referred to in Section 10.3(c), (2) dividends or distributions of Common Stock, securities or other property or assets (including cash) in connection with a
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.4 applies and (3) dividends and distributions paid exclusively in cash (such capital stock, evidence of its indebtedness,
cash, other assets or securities being distributed hereinafter in this Section 10.3(d) called the “distributed assets”), then, in each such case, subject to the second succeeding paragraph of this Section 10.3(d), the Conversion Rate shall
be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Record Date (as defined in Section 10.3(g)) with respect to such distribution by a
fraction: 
  
 (1) the numerator of which shall be
the Current Market Price (determined as provided in Section 10.3(g)) on such date; and 
  
 (2) the denominator of which shall be such Current Market Price, less the Fair Market Value on such date of the portion of the distributed
assets so distributed 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 become effective immediately prior to the opening of business on the day following the Record Date. However, in the event that
(i) the then Fair Market Value of the portion of the distributed assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date or (ii) the Current Market Price exceeds the Fair
Market Value of the distributed assets by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the
amount of distributed assets such Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion
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 10.3(d) by reference to the actual or
when-issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the 

  

 50 








 
Current Market Price pursuant to Section 10.3(g) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that
determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders. 
  
 In the event any such dividend or distribution consists of shares of capital stock of, or similar equity interests in, one or more of the Company’s
Subsidiaries (a “Spin-Off”), the Fair Market Value of the securities to be distributed shall equal the average of the closing sale prices of such securities on the principal securities market on which such securities are traded for the 10
consecutive Trading Days commencing on and including the fifth day of trading of those securities after “ex dividend” trading commences for such dividend or distribution, and the Current Market Price shall be measured for the same period.

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

	 	(1)	are deemed to be transferred with such Common Stock; 

  

	 	(2)	are not exercisable; and 

  

	 	(3)	are also issued in respect of future issuances of Common Stock; 

  
 shall be deemed not to have been distributed for purposes of this Section 10.3(d) (and no adjustment to the Conversion Rate under this Section 10.3(d) will be required)
until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different distributed assets, evidences of
indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). 
  
 In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment to the Conversion Rate under this Section 10.3(d): 
  

(1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such rights or 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, the Conversion Rate shall be readjusted as if such rights and warrants had never been issued. 
  

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 For purposes of this Section 10.3(d) and Sections 10.3(a), 10.3(b) and 10.3(c), any dividend or
distribution to which this Section 10.3(d) is applicable that also includes Common Stock, a subdivision or combination of Common Stock to which Section 10.3(b) applies, or rights or warrants to subscribe for or purchase Common Stock to which Section
10.3(c) applies (or any combination thereof), shall be deemed instead to be: 
  
 (3) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants, other than such Common Stock, such subdivision or combination or such rights or warrants to which
Sections 10.3(a), 10.3(b) and 10.3(c) apply, respectively (and any Conversion Rate increase required by this Section 10.3(d) with respect to such dividend or distribution shall then be made), immediately followed by 
  
 (4) a dividend or distribution of such Common Stock, such
subdivision or combination or such rights or warrants (and any further Conversion Rate increase required by Sections 10.3(a), 10.3(b) and 10.3(c) with respect to such dividend or distribution shall then be made), except: 
  
 (A) the Record Date of such dividend or distribution shall
be substituted as (x) “the date fixed for the determination of shareholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of
Section 10.3(a); (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 10.3(b); and (z) as “the date fixed for the determination
of shareholders entitled to receive such rights or warrants”, “the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section
10.3(c); and 
  
 (B) any Common Stock included in
such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of Section 10.3(a) and any reduction or increase in the number of shares of Common Stock
resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution. 
  
 (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.4 applies or as part of a distribution referred to in Section 10.3(d)), in an aggregate amount per share of Common Stock
outstanding on the Record Date for such dividend or distribution that, combined together with the aggregate amount per share of any other such distributions to all holders of Common Stock made exclusively in cash in the same fiscal quarter of the
Company as the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 10.3(e) has been made, exceeds the greater of (a) the preceding quarterly cash dividend, as adjusted to reflect subdivisions or
combinations of Common Stock effected after payment of such preceding quarterly dividend, paid by the Company on the Common Stock to the extent such quarterly dividend did not exceed the greater of any amount under this clause (a) or the succeeding
clause (b) calculated at the time of 

  

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payment of such preceding cash dividend; (b) 0.49% of the Current Market Price of the Common Stock immediately prior to the declaration of the dividend; or
(c) $0.135 per share of Common Stock, as adjusted to reflect subdivisions or combinations of Common Stock effected after the date of this Indenture (the amount of such excess applicable to one share of Common Stock outstanding on the Record Date,
the “Excess Dividend”), then and in each such case, immediately after the close of business on the Record Date for such dividend or distribution, the Conversion Rate shall be increased so that the same shall equal the price determined by
multiplying the Conversion Rate in effect immediately prior to the close of business on such Record Date by a fraction: 
  
 (1) the numerator of which shall be equal to the Current Market Price on the Record Date, and 
  
 (2) the denominator of which shall be equal to the Current
Market Price on such date, less an amount equal to the Excess Dividend. 
  
 However, in the event that the then Fair Market Value of the portion of cash and other securities, if any, so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in
lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of cash equal to the Excess Dividend such Holder would have
received had such Holder converted such Security (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared. 
  
 (f) In case a tender offer made by the Company or any of its Subsidiaries for all or any portion of the shares of Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require
the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of shares tendered) of an aggregate consideration having a Fair Market Value that combined together with: 
  
 (1) the aggregate of the cash plus the Fair Market Value, as
of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its Subsidiaries for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to this Section 10.3(f) has been made; and 
  
 (2) the aggregate amount of any distributions to all holders of shares of Common Stock made exclusively in cash within 12 months preceding
the expiration of such tender offer and in respect of which no adjustment pursuant to Section 10.3(e) has been made; 
  
 exceeds 10% of the product of the Current Market Price of the Common Stock (determined as provided in Section 10.3(g)) as of the last time (the “Expiration
Time”) tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding on the Expiration Time (such excess, the “Excess Amount”), then, and in each such case,
immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the 

  

 53 








 
number determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction:

  
 (3) the numerator of which shall be the
product of the number of shares of Common Stock outstanding (including any tendered shares of Common Stock) at the Expiration Time and the Current Market Price of the Common Stock at the Expiration Time; and 
  
 (4) the denominator shall be (x) the product of (1) the
number of shares of Common Stock outstanding (including any tendered shares of Common Stock) at the Expiration Time and (2) the Current Market Price of the Common Stock at the Expiration Time less (y) the Excess Amount. 
  
 Such increase (if any) shall become effective immediately prior to the opening of business on
the day following the Expiration Time. In the event that the Company is obligated to purchase Common Stock pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all or a
portion of such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such (or such portion of the) tender offer had not been made. If the application of this Section 10.3(f)
to any tender offer would result in a reduction in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 10.3(f). 
  
 (g) For purposes of this Section 10.3, the following terms shall have the meanings indicated: 
  
 “Current Market Price” of a share of Common Stock
shall mean the average of the daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided, however, that if: 
  
 (1) the “ex” date (as hereinafter defined) for any
event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 10.3(a), (b), (c), (d), (e) or (f) occurs during such 10 consecutive Trading Days, the Closing Price
for each Trading Day prior to the “ex” date for such other event shall be adjusted by dividing such Closing Price by the same fraction by which the Conversion Rate is so required to be adjusted as a result of such other event; 

 
 (2) the “ex” date for any event (other than the
issuance or distribution requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 10.3(a), (b), (c), (d), (e) or (f) occurs on or after the “ex” date for the issuance or distribution requiring such
computation and prior to the day in question, the Closing Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by dividing such Closing Price by the reciprocal of the fraction by which the Conversion
Rate is so required to be adjusted as a result of such other event; and 
  
 (3) the “ex” date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required pursuant to clause (1) or (2) of this proviso,
the Closing Price for each Trading Day on or after such “ex” date shall be adjusted by adding thereto the amount of any cash and the Fair Market Value (as determined in a manner consistent with any determination of such value for purposes
of Section 10.3(d) or (f)) of the evidences of indebtedness, cash or assets 

  

 54 








 
applicable to one share of Common Stock as of the close of business on the day before such “ex” date. 
  
 For purposes of any computation under Section 10.3(f), if the “ex” date for any
event (other than the tender offer requiring such computation) that requires an adjustment to the Conversion Rate pursuant to Section 10.3(a), (b), (c), (d), (e) or (f) occurs on or after the Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by dividing such Closing Price by the reciprocal of the fraction by which
the Conversion Rate is so required to be adjusted as a result of such other event. For purposes of this paragraph, the term “ex” date, when used: 
  
 (4) with respect to any issuance or distribution, means the first date on which the shares of Common Stock trade regular way on the
relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution; 
  
 (5) with respect to any subdivision or combination of shares of Common Stock, means the first date on which the shares of Common Stock
trade regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective; and 
  
 (6) with respect to any tender or exchange offer, means the first date on which the shares of Common Stock trade regular way on such
exchange or in such market after the Expiration Time of such offer. 
  
 Notwithstanding the foregoing, whenever successive adjustments to the Conversion Rate are called for pursuant to this Section 10.3, such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate
the intent of this Section 10.3 and to avoid unjust or inequitable results as determined in good faith by the Board of Directors. 
  
 (7) “Fair Market Value” shall mean the amount which a willing buyer would pay a willing seller in an arm’s length
transaction, as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution. 
  
 (8) “Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). 
  
 (h) The Company shall be entitled to make such additional increases in the Conversion Rate, in addition to those required by
Sections 10.3(a), (b), (c), (d), (e) and (f), as shall be necessary in order that any dividend or distribution of Common Stock, any subdivision, reclassification or combination of shares of Common Stock or any issuance of rights or warrants referred
to above shall not be taxable to the holders of Common Stock for United States federal income tax purposes. 
  

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 (i) To the extent permitted by applicable law, 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 the reduction is irrevocable during the period and the Board of Directors determines in good faith that such reduction would be in the best interests of Holders, which
determination shall be conclusive and set forth in a Board Resolution. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the Trustee and each Holder at the address of such Holder as it appears in
the register of the Securities maintained by the Registrar at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

  
 (j) 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; provided, however, that any adjustments which by reason of this Section 10.3(j) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment and provided, further, that all adjustments carried forward shall be made no later than the earlier of (x) the one year anniversary of the date of the first such adjustment carried forward and (y) the date, if
any, on which the Company has delivered a notice to Holders pursuant to Section 3.3 of this Indenture, regardless of whether the aggregate amount is less than 1%. 
  
 (k) In any case in which this Section 10.3 shall require that any adjustment be made effective as of or retroactively
immediately following a Record Date, the Company may elect to defer (but only for five Trading Days following the filing of the statement referred to in Section 10.5) issuing to the Holder of any Securities converted after such Record Date the
shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Rate prior to adjustment; provided, however, that the Company shall deliver to
such Holder a due bill or other appropriate instrument evidencing such Holder’s right to receive such additional shares upon the occurrence of the event requiring such adjustment. 
  
 (l) For purposes of this Section 10.3, the number of shares of Common Stock at any time outstanding shall not include Stock
held in the treasury of the Company but shall include Common Stock issuable in respect of certificates issued in lieu of fractions of Common Stock. All calculations under this Section 10.3 shall be made to the nearest cent or one-hundredth of a
share, with one-half cent and 0.005 of a share, respectively, being rounded upward. 
  
 (m) If a distribution date for the rights provided in the Company’s shareholders rights agreement occurs prior to the date a Security is converted and the Holders of Securities that convert such Securities after
the distribution date are not entitled to receive the rights that would otherwise be attached (but for the date of conversion) to the Common Stock received upon such conversion, then an adjustment shall be made to the Conversion Rate pursuant to
clause 10.3(c) as if the rights were being distributed to the holders of the Common Stock immediately prior to such conversion. If such an adjustment is made and the rights are later redeemed, invalidated or terminated, then a corresponding
reversing adjustment shall be made to the Conversion Rate, on an equitable basis, to take account of such event. 
  
 (n) In no event will the Company take any action that would require adjustment to the Conversion Rate, nor will the Company adjust the Conversion Rate, if
such 

  

 56 








 
Conversion Rate adjustment would require the Company to issue, upon conversion of the Securities, a number of shares of Common Stock that would require the
Company to obtain prior shareholder approval under the rules and regulations of the Nasdaq National Market, and, if applicable, the rules of the exchange or quotation system on which the Company’s Common Stock is then traded, without obtaining
such prior shareholder approval. 
  
 Section 10.4 Consolidation
or Merger of the Company. If any of the following events occurs, namely: 
  
 (1) any reclassification or change of the outstanding Common Stock (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); 
  
 (2) any merger, consolidation,
statutory share exchange or combination of the Company with another corporation as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange
for such Common Stock; or 
  
 (3) any sale or
conveyance of the properties and assets of the Company as, or substantially as, an entirety to any other corporation as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock; 
  
 the Company or the
successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture, if such supplemental indenture is
then required to so comply) providing that such Securities shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance had such Securities been converted into Common Stock immediately prior to such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance assuming such holder of Common Stock did not exercise its rights of election, if any, as to the kind or amount of securities, cash or other property receivable upon such merger, consolidation,
statutory share exchange, sale or conveyance (provided, that if the kind or amount of securities, cash or other property receivable upon such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which such rights of election shall not have been exercised (“Non-Electing Share”), then for the purposes of this Section 10.4, the kind and amount of securities, cash
or other property receivable upon such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance for each Non-Electing Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares). Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article X. If, in the case of any such
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of Common Stock includes shares of stock or other securities and
assets of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, then such supplemental indenture
shall also be 

  

 57 








 
executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the repurchase rights set forth in Article X hereof. 
  
 The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it appears on the register of the Securities maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture. 
  
 The above provisions
of this Section 10.4 shall similarly apply to successive reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales and conveyances. 
  
 If this Section 10.4 applies to any event or occurrence, Section 10.3 shall not apply. 
  
 Section 10.5 Notice of Adjustment. Whenever an adjustment in the
Conversion Rate with respect to the Securities is required: 
  
 (1) the Company shall forthwith place on file with the Trustee and any Conversion Agent for such securities a certificate of the Treasurer of the Company, stating the adjusted Conversion Rate determined as provided
herein and setting forth in reasonable detail such facts as shall be necessary to show the reason for and the manner of computing such adjustment; and 
  
 (2) a notice stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate shall forthwith be given by
the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company, to each Holder in the manner provided in Section 11.2. Any notice so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. 
  
 Section 10.6
Notice in Certain Events. In case: 
  
 (1)
of a consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or conveyance to another Person or entity or group of Persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of all or substantially all of the property and assets of the Company; or 
  
 (2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or 
  
 (3) of any
action triggering an adjustment of the Conversion Rate referred to in clauses (x) or (y) below; 
  
 then, in each case, the Company shall cause to be filed with the Trustee and the Conversion Agent, and shall cause to be given, to the Holders of the Securities in the manner provided in 

  

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Section 11.2, at least 15 days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of any distribution or grant of rights or warrants triggering an adjustment to the Conversion Rate pursuant to this Article X, or, if a record is not to be taken, the date as of which the holders of record of Common Stock entitled to such
distribution, rights or warrants are to be determined, or (y) the date on which any reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up triggering an adjustment to the Conversion Rate pursuant to this
Article X is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger sale, conveyance, dissolution, liquidation or winding up. 
  
 Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in clause (1), (2) or (3) of this Section 10.6. 
  
 Section 10.7 Company to Reserve Stock; Registration; Listing. (a) The
Company shall, in accordance with the laws of the State of California, at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued shares of Common Stock, for the purpose of effecting the conversion of
the Securities, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all Securities then Outstanding into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would be held by a single Holder); provided, however, that nothing contained herein shall preclude the Company from satisfying its obligations in respect of the conversion of
the Securities by delivery of purchased shares of Common Stock which have been repurchased by the Company. The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities will upon issue be fully paid and
nonassessable and free from all liens and charges and, except as provided in Section 10.8, taxes with respect to the issue thereof. 
  
 (b) If any shares of Common Stock which would be issuable upon conversion of Securities hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such conversion, the Company will in good faith and as expeditiously as possible endeavor to cause such shares or securities to be duly registered or approved, as the case
may be. The Company further covenants that so long as the Common Stock shall be listed on the Nasdaq National Market, the Company will, if permitted by the rules of the National Association of Securities Dealers, Inc., list and keep listed all
Common Stock issuable upon conversion of the Securities, and the Company will endeavor to list the shares of Common Stock required to be delivered upon conversion of the Securities prior to such delivery upon any other primary national securities
exchange upon which the outstanding Common Stock is listed at the time of such delivery. 
  
 Section 10.8 Taxes on Conversion. The issue of stock certificates on conversion of Securities shall be made without charge to the converting Holder for any documentary, stamp or similar issue or transfer taxes
in respect of the issue thereof, and the Company shall pay any and all documentary, stamp or similar issue or transfer taxes that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock or the portion, if any, of the Securities which are not so converted
in a name other than that in which the Securities so converted were registered, and no such issue or delivery shall be made unless 

  

 59 








 
and until the Person requesting such issue has paid to the Company the amount of such tax or has established to the satisfaction of the Company that such tax
has been paid. 
  
 Section 10.9 Conversion After Record
Date. Except as provided below, if any Securities are surrendered for conversion on any day other than an interest payment date, the Holder of such Securities shall not be entitled to receive any interest (including contingent interest) that has
accrued on such Securities since the prior interest payment date. By delivery to the Holder of the number of shares of Common Stock or other consideration issuable upon conversion in accordance with this Article X, any accrued and unpaid interest
(including contingent interest) on such Securities will be deemed to have been paid in full. 
  
 If any Securities are surrendered for conversion subsequent to the Record Date preceding an interest payment date but on or prior to such interest payment date, the Holder of such Securities at the close of business
on such Record Date shall receive any interest (including contingent interest) payable on such Securities on such interest payment date notwithstanding the conversion thereof. Securities surrendered for conversion during the period from the close of
business on any Record Date preceding any interest payment date to the opening of business on such interest payment date shall (except in the case of Securities which have been called for redemption on a Redemption Date within such period) be
accompanied by payment by Holders, for the account of the Company, in New York Clearing House funds or other funds of an amount equal to the interest (including contingent interest) payable on such interest payment date on the Securities being
surrendered for conversion. Except as provided in this Section 10.9, no adjustments in respect of payments of interest (including contingent interest) on Securities surrendered for conversion or any dividends or distributions or interest on the
Common Stock issued upon conversion shall be made upon the conversion of any Securities. 
  
 Section 10.10 Cash Conversion Option. (a) If a Holder elects to convert all or any portion of a Security into shares of Common Stock as set forth in Section 10.1 and the Company receives such Holder’s
Notice of Conversion on or prior to the day that is 20 days prior to the date of Stated Maturity of the Securities (the “Final Notice Date”), the Company may choose to satisfy all (but not less than all) of its Conversion Obligation to
such Holder in cash. Upon such election, the Company will notify such Holder through the Trustee at any time on or before the date that is two Business Days following the Company’s receipt of such Holder’s Notice of Conversion as specified
in Section 10.2 (such period, the “Cash Settlement Notice Period”). If the Company elects to pay cash for the shares otherwise issuable to the Holder, the Holder may retract such Holder’s Notice of Conversion at any time during the
two Business Day period beginning on the day after the final day of the Cash Settlement Notice Period (the “Conversion Retraction Period”); no such retraction can be made (and a Notice of Conversion shall be irrevocable) if the Company
does not elect to deliver cash in lieu of shares of Common Stock (other than cash in lieu of fractional shares). With respect to any Notice of Conversion received by the Company prior to the Final Notice Date, the “Conversion Settlement
Distribution” for any Security subject to such Notice of Conversion shall consist of cash or Common Stock, as selected by the Company as set forth below: 
  

(1) if the Company elects to satisfy the Conversion Obligation in shares of Common Stock, the Conversion Settlement Distribution shall
be a number of shares equal to (1) the aggregate Principal Amount at Maturity of the Securities to be converted divided by 1,000, multiplied by (2) the Conversion Rate; 
  

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 (2) if the Company elects to satisfy the Conversion Obligation in cash, the Conversion
Settlement Distribution shall be cash in an amount equal to the product of: 
  
 (i) a number equal to the product of (x) the Aggregate Principal Amount at Maturity of Securities to be converted divided by 1,000 multiplied by (y) the Conversion Rate, and 
  
 (ii) the average Closing Price of the Common Stock during
the 10 Trading-Day period beginning on the Trading Day immediately following the final day of the Conversion Retraction Period (the “Cash Settlement Averaging Period”). 
  
 (b) At any time on or before the Final Notice Date, the Company will notify the Trustee whether it intends to satisfy the
Conversion Obligation with respect to conversions of Securities for which the Company receives a Notice of Conversion after such Final Notice Date in cash or in shares of Common Stock. In such case, the applicable Conversion Settlement Distribution
will be computed in the same manner as set forth in clause (a) above except that the Cash Settlement Averaging Period shall be the ten (10) Trading Days beginning on the first Trading Day following the Company’s receipt of the Notice of
Conversion. Holders shall not be permitted to retract any Notice of Conversion that is delivered after the Final Notice Date. 
  
 Section 10.11 Company Determination Final. Any determination that the Company or the Board of Directors must make pursuant to this Article X shall
be conclusive if made in good faith and in accordance with the provisions of this Article X, absent manifest error, and set forth in a resolution of the Board of Directors. 
  
 Section 10.12 Responsibility of Trustee for Conversion Provisions. The Trustee has no duty to determine when an
adjustment under this Article X should be made, how it should be made or what it should be, or whether any Securities have become convertible pursuant to this Article X. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities. The Trustee shall not be responsible for any failure of the Company to comply with this Article X. Each Conversion Agent other than the Company shall have the same protection under this
Section 10.12 as the Trustee. 
  
 The rights, privileges,
protections, immunities and benefits given to the Trustee under this Indenture including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each
Paying Agent or Conversion Agent acting hereunder. 
  
 Section
10.13 Unconditional Right of Holders to Convert. Notwithstanding any other provision in this Indenture, the Holder of any Securities shall have the right, which is absolute and unconditional, to convert its Securities in accordance with this
Article X and to bring an action for the enforcement of any such right to convert, and such rights shall not be impaired or affected without the consent of such Holder. 
  

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 ARTICLE XI 
  
 MISCELLANEOUS 
  
 Section 11.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision shall control. 
  
 Section 11.2 Notices. Any request, demand, authorization, notice, waiver, consent or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission (confirmed by guaranteed overnight courier) to the following facsimile numbers: 
  
 if to the Company: 
  
 Greater Bay Bancorp. 
 2860 West Bayshore Road

 Palo Alto, California 94303 
  
 Telephone No. 650-813-8200 
 Facsimile No.
650-494-9220 
  
 Attention: Shawn E. Saunders 
  
 if to the Trustee: 
  
 Wilmington Trust Company 
 Rodney Square North 
 1100 North Market Street

 Wilmington, Delaware 19890-0001 
  
 Telephone No. 302-651-1000 
 Facsimile No.
302-636-4140 
 Attention: Corporate Trust Administration 
  
 The Company or the Trustee by notice given to the other in the manner provided above may designate additional or different
addresses for subsequent notices or communications. 
  
 Any notice
or communication given to a Securityholder shall be mailed to the Securityholder, by first-class mail, postage prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed. 
  
 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 is mailed in the manner provided above, it is duly given, whether or not received by the
addressee. 
  

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 If the Company mails a notice or communication to the Securityholders, it shall mail a copy to the
Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar. 
  
 Section 11.3 Communication 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, the Paying Agent, the Conversion Agent and anyone else shall have the protection of TIA Section 312(c). 
  
 Section 11.4 Certificate and Opinion as to Conditions Precedent. 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: 
  
 (1) an Officers’ Certificate stating that, in the opinion of the signers, all conditions 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 have been complied with. 
  
 Section 11.5 Statements Required in Certificate or Opinion. Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture shall include: 
  
 (1) a statement that each person making such Officers’
Certificate or Opinion of Counsel 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 Officers’ Certificate or Opinion of Counsel are based; 
  
 (3) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and 
  
 (4) a statement that, in the opinion of such person, such
covenant or condition has been complied with. 
  
 Section 11.6
Separability Clause. In case any provision 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 11.7 Rules by Trustee, Paying Agent,
Conversion Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the Conversion Agent and the Paying Agent may make reasonable rules for their functions. 
  
 Section 11.8 Legal Holidays. A “Legal Holiday” is any day
other than a Business Day. If any specified date (including a date for giving notice) is a Legal Holiday, the 

  

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action shall be taken on the next succeeding day that is not a Legal Holiday, and, if the action to be taken on such date is a payment in respect of the
Securities, no Issue Discount or interest, if any, shall accrete or accrue for the intervening period. 
  
 Section 11.9 Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 

 
 Section 11.10 No Recourse Against Others. A director, officer,
employee or shareholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities. 
  
 Section 11.11 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 11.12 Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is
enough to prove this Indenture. 
  

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 IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective
parties hereto as of the date first above written. 
  

					
	 GREATER BAY BANCORP

		
	By:	 	 /s/ Shawn E. Saunders

	 	 	

	 	 	 Name:
	 	 Shawn E. Saunders

	 	 	 Title:
	 	 Executive Vice President, Finance and
 Accounting

	
	 WILMINGTON TRUST COMPANY,
 as Trustee

		
	By:	 	 /s/ Janel R. Havrilla

	 	 	

	 	 	 Name:
	 	 Janel R. Havrilla

	 	 	 Title:
	 	 Financial Services Officer



  

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 EXHIBIT A-1 
  
 [FORM OF FACE OF GLOBAL SECURITY] 
  
 THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER TREASURY REGULATIONS
SECTION 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY, THE “COMPARABLE YIELD” AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU SHOULD CONTACT: GREATER
BAY BANCORP, 2860 WEST BAYSHORE ROAD, PALO ALTO, CA 94303, ATTENTION: SHAWN E. SAUNDERS. 
  
 UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 
  
 TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES
OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF. 
  
 THE SECURITY
EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ACQUISITION HEREOF, THE HOLDER: 
  

	 	(1)	REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933; 

  

	 	(2)	 AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (D) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF 



  










	 	 
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IF AVAILABLE OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND 


  

	 	(3)	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. 

  
 THE FOREGOING LEGEND MAY
BE REMOVED FROM THIS SECURITY ON SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE. 
  
 GREATER BAY BANCORP 
  
 Zero Coupon
Senior Convertible Contingent Debt Securities due 2024 
  

			
	No.	 	CUSIP: 391648 AN 2
		
	Issue Date: March 23, 2004	 	Issue Discount: $95.05 (for each $1,000 Principal Amount at Maturity)
		
	 Issue Price: $904.95
 (for each $1,000 Principal Amount
at Maturity)
	 	 

  
 GREATER BAY BANCORP, a
California corporation, promises to pay to Cede & Co. or registered assigns, the Principal Amount at Maturity of 265 million 212 thousand dollars ($265,212,000) on March 23, 2024. 
  
 This Security shall not bear interest except as specified on the other side of this Security. Issue Discount will accrete as
specified on the other side of this Security. This Security is convertible as specified on the other side of this Security. 
  
 Additional provisions of this Security are set forth on the other side of this Security. 
  

									
	 Dated:
	 	 	 	 GREATER BAY BANCORP

					
	 	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 Title:
	 	 
	 	 	 	 	 	 	 	 	


  

 2 








 TRUSTEE’S CERTIFICATE OF AUTHENTICATION 
  
 WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee, certifies that this is one of the Securities referred to in
the within-mentioned Indenture. 
  

			
		
	By	 	 
	 	 	

	 	 	Authorized Signatory

  
 Dated: 
  









 [FORM OF REVERSE SIDE OF SECURITY] 
  
 Zero Coupon Senior Convertible 
 Contingent Debt Securities due 2024 
  

	1.	Interest. 

  
 Except as provided below, this Security shall not bear interest. Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during which a Security
remains outstanding, shall accrete at 0.50% per annum, on a semiannual bond equivalent basis using a 360-day year comprised of twelve 30-day months, from the Issue Date of this Security. 
  
 Contingent Interest. Interest will accrue on this Security during any six-month period from March 23 to September 22
and from September 23 to March 22, commencing March 23, 2009, if the average Trading Price of the Security for the five trading day period ending on (if the second Business Day is not a trading day, then on the last trading day prior to) the second
Business Day immediately prior to the first day of the applicable six-month period equals 120% or more of the sum of the Issue Price and accreted Issue Discount for such Security to the day immediately preceding the relevant six-month period.

  
 The “Trading Price” of the Securities means: (i) the
average of the secondary market bid quotations per Securities obtained by the Company or the Conversion Agent for $10,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers selected by the Company; (ii) if at least three such bids cannot reasonably be obtained by the Company or the Conversion Agent, but two such bids are obtained, then the average of the two bids
shall be used; (iii) if only one such bid can reasonably be obtained by the Company or the Conversion Agent, this one bid shall be used; or (iv) if the Company or the Conversion Agent cannot reasonably obtain at least one bid for $10,000,000
principal amount of the Securities from a nationally recognized securities dealer or 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 equal less than 98% of (x) the then-applicable Conversion Rate of the Securities multiplied by (y) the Closing Price of the Company’s Common Stock on such determination date, appropriately adjusted. 
  
 The Conversion Agent will initially be the Trustee. The Company may change
the Conversion Agent, but the Conversion Agent will not be an Affiliate of the Company. The Conversion Agent will solicit bids from securities dealers that are believed by the Company to be willing to bid for the Securities. 
  
 The rate of Contingent Interest payable in respect of any six-month period
will equal 0.30% of the average Trading Price of the Security over the measuring period triggering the Contingent Interest payment. 
  









 Contingent interest, if any, will be payable to the Holders of this Security as of the fifteenth day
preceding the last day of the relevant six-month period. Such payments will be paid on the last day of the relevant six-month period. 
  
 Issue Discount will continue to accrete at the yield to maturity whether or not contingent interest is paid. 
  
 Upon determination that the Holder of this Security is entitled to receive
contingent interest which may become payable during a relevant six-month period, on or prior to the start of such six-month period, the Company will publicly announce such determination and publish it on the Company’s web site. 
  
 The Company will not pay contingent interest accrued and unpaid on this
Security upon conversion into Common Stock, except under certain limited circumstances described below. 
  
 Semiannual Interest Payments at the Company’s Option. From and after the date of the occurrence of a Tax Event, the Company will have the
option to elect to have interest in lieu of future Issue Discount accrue at 0.50% per year on a restated principal amount per Security and to pay such interest in cash. The “restated principal amount” of a Security will be equal to the
Issue Price plus Issue Discount accreted to the date of the Tax Event or the date on which the Company exercises the option described herein, whichever is later (the “Option Exercise Date”). 
  
 Such interest shall accrue from the Option Exercise Date and will be payable
semiannually on interest payment dates of March 23 and September 23 of each year to Holders of record at the close of business on March 8 or September 8 immediately preceding the interest payment date. Interest will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the Option Exercise Date. In the event that the Company exercises its option to pay interest, the Redemption Price, Purchase Price and Change in Control Purchase Price will be
adjusted to reflect the restated principal amount. 
  
 A “Tax
Event” means that the Company shall have received an opinion from independent tax counsel experienced in such matters to the effect that, on or after March 18, 2004, as a result of: 
  
 (i) any amendment to, or change (including any announced proposed change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or therein, or 
  
 (ii) any amendment to, or change in, an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or regulatory authority, 
  
 in each case which amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced, on or after March 18, 2004 there is more than an insubstantial risk that interest (including issue discount and contingent interest) payable on this Security either: 
  
 (i) would not be deductible on a current accrual basis, or 
  

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 (ii) would not be deductible under any other method, 
  
 in either case in whole or in part, by the Company (by reason of deferral, disallowance, or
otherwise) for United States federal income tax purposes. 
  
 General. If this Security is redeemed on a date that is after the record date and prior to the corresponding interest payment date, interest, if any, accrued and unpaid hereon to but not including the applicable Redemption Date will
be paid to the Holder on the relevant Record Date. 
  
 Except as
provided below, interest will be paid (i) on the Global Securities to DTC in immediately available funds, (ii) on the Certificated Securities having an aggregate Principal Amount at Maturity of $5,000,000 or less, by check mailed to the Holders of
such Securities; and (iii) on the Certificated Securities having an aggregate Principal Amount at Maturity of more than $5,000,000, by wire transfer in immediately available funds at the election of the Holders of these Securities. 
  
 Contingent interest and interest payable upon a conversion of a Security to
semiannual coupon Securities will be computed on the basis of a 360-day year comprised of twelve 30-day months. 
  
 If the Principal Amount at Maturity hereof or any portion of such Principal Amount at Maturity is not paid when due (whether upon acceleration pursuant to
Section 6.2 of the Indenture, upon the date set for payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment of the Purchase Price or Change in Control Purchase Price pursuant to paragraph 6 hereof or upon the
Stated Maturity of this Security), then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the rate of 0.50% per annum, compounded semiannually, which interest shall accrue from the date such overdue amount
was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable on demand. 
  
 In the event that interest (including Contingent Interest and/or additional interest) becomes payable on the Securities, a
Holder of any Security at the close of business on a Record Date shall be entitled to receive such interest on the corresponding interest payment date. A Holder of any Security which is converted after the close of business on a Record Date and
prior to the corresponding interest payment date shall be entitled to receive interest on such Security, notwithstanding the conversion of such Security prior to such interest payment date. However, any such Holder that surrenders any such Security
for conversion during the period between the close of business on such Record Date and ending with the opening of business on the corresponding interest payment date shall be required to pay the Company an amount equal to the interest on such
Security so converted, that is payable by the Company to such Holder on such interest payment date, at the time such Holder surrenders such Security for conversion. Notwithstanding the foregoing, any such Holder that surrenders for conversion any
Security after a Record Date for an interest payment but prior to the interest payment date, that has been called for redemption by the Company pursuant to Article III of the Indenture and Section 5 of this Security prior to such conversion, where
such redemption date is on or prior to the third business day after such interest payment date, shall be entitled to receive (and retain) such interest to the 

  

 75 








 
Redemption Date and need not pay the Company an amount equal to the interest on such Security so converted at the time such Holder surrenders such Security
for conversion. 
  

	2.	Method of Payment. 

  
 Subject to the terms and conditions of the Indenture, the Company will make payments in respect of Redemption Prices, Purchase Prices, Change in Control
Purchase Prices and at Stated Maturity to Holders who surrender Securities to a Paying Agent to collect such payments in respect of the Securities. The Company will pay cash amounts in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money. 
  

	3.	Paying Agent, Conversion Agent and Registrar. 

  
 Initially, the Trustee will act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent or
Registrar without notice, other than notice to the Trustee; provided that the Company will maintain at least one Paying Agent in the State of New York, City of New York, Borough of Manhattan, which shall initially be an office or agency of the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent or Registrar. 
  

	4.	Indenture. 

  
 The Company issued the Securities under an Indenture dated as of March 23, 2004 (the “Indenture”), between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939, as in effect from time to time (the “TIA”). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to the Indenture and the TIA for a statement of those terms. 
  
 The Securities are general unsecured obligations of the Company limited to $265,212,000 aggregate Principal Amount at Maturity (subject to Section 2.7 of
the Indenture). The Indenture does not limit other indebtedness of the Company, secured or unsecured. 
  

	5.	Redemption at the Option of the Company. 

  
 No sinking fund is provided for the Securities. The Securities are redeemable as a whole, or from time to time in part, at any time at the option of the
Company at the Redemption Prices set forth below plus contingent interest and additional amounts, if any, accrued and unpaid to the Redemption Date, provided that the Securities are not redeemable prior to March 23, 2009. 
  

 76 








 The table below shows the Redemption Prices of $1,000 Principal Amount at Maturity of a Security on the
dates shown below and at Stated Maturity, which prices reflect accreted Issue Discount calculated to each such date. The Redemption Price of a Security redeemed between such dates shall include an additional amount reflecting the accreted Issue
Discount accrued since the next preceding date in the table. 
  

										
	 Redemption Date

	  	Issue Price

	  	 Accreted
 Issue
Discount

	  	Redemption
Price


	 March 23:
	  	 	 	  	 	 	  	 	 
	 2009
	  	$	904.95	  	$	22.88	  	$	927.83
	 2010
	  	$	904.95	  	$	27.53	  	$	932.48
	 2011
	  	$	904.95	  	$	32.19	  	$	937.14
	 2012
	  	$	904.95	  	$	36.89	  	$	941.84
	 2013
	  	$	904.95	  	$	41.60	  	$	946.55
	 2014
	  	$	904.95	  	$	46.34	  	$	951.29
	 2015
	  	$	904.95	  	$	51.10	  	$	956.05
	 2016
	  	$	904.95	  	$	55.89	  	$	960.84
	 2017
	  	$	904.95	  	$	60.70	  	$	965.65
	 2018
	  	$	904.95	  	$	65.53	  	$	970.48
	 2019
	  	$	904.95	  	$	70.39	  	$	975.34
	 2020
	  	$	904.95	  	$	75.27	  	$	980.22
	 2021
	  	$	904.95	  	$	80.18	  	$	985.13
	 2022
	  	$	904.95	  	$	85.11	  	$	990.06
	 2023
	  	$	904.95	  	$	90.07	  	$	995.02
	 At stated maturity
	  	$	904.95	  	$	95.05	  	$	1000.00

  
 If converted to
semiannual coupon notes following the occurrence of a Tax Event, the Security will be redeemable at the restated principal amount plus accrued and unpaid interest from the date of conversion through the stated maturity date. 
  

	6.	Purchase By the Company at the Option of the Holder. 

  
 Subject to the terms and conditions of the Indenture, the Company shall become obligated to purchase, at the option of the Holder, all or any portion of
the Securities held by such Holder in integral multiples of $1,000 Principal Amount at Maturity on the following Purchase Dates and at the following Purchase Prices per $1,000 Principal Amount at Maturity, plus, in each case, accrued and unpaid
contingent interest and additional amounts, if any, to the Purchase Date upon delivery of a Purchase Notice containing the information set forth in the Indenture, at any time from the opening of business on the date that is 20 Business Days prior to
such Purchase Date until the close of business on the third Business Day prior to such Purchase Date, and upon delivery of the Securities to the Paying Agent by the Holder as set forth in the Indenture. 
  

				
	 Purchase Price

	  	Purchase Price


	 March 23, 2006
	  	$	914.03
	 March 23, 2009
	  	$	927.83
	 March 23, 2014
	  	$	951.29
	 March 23, 2019
	  	$	975.34

  
 The purchase prices
shown above are equal to the issue price plus accreted issue discount to the purchase date. If prior to a purchase date the Securities have been converted to semiannual coupon Securities following the occurrence of a Tax Event, the Purchase Price
will be equal to the restated principal amount plus accrued and unpaid interest from the Option Exercise Date to the Purchase Date. 
  

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 The Purchase Price shall be paid by the Company in cash. 
  
 At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase the Securities held by such Holder no later than 35 Business Days after the occurrence of a Change in Control of the Company (as required by Section 3.8(b) of the Indenture) for a Change in
Control Purchase Price equal to the Issue Price plus accreted Issue Discount plus accrued and unpaid contingent interest and additional amounts, if any, to the Change in Control Purchase Date, which Change in Control Purchase Price shall be paid in
cash; provided, that if prior to a Change in Control Purchase Date the Securities have been converted to semiannual coupon Securities following the occurrence of a Tax Event, the Company will be required to purchase the Securities at a cash price
equal to the restated principal amount plus accrued and unpaid interest (including contingent interest and additional amounts, if any) from the Option Exercise Date to the Change in Control Purchase Date. 
  
 Holders have the right to withdraw any Purchase Notice or Change in Control
Purchase Notice, as the case may be, by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture. 
  
 If cash sufficient to pay the Purchase Price or Change in Control Purchase Price, as the case may be, of all Securities or portions thereof to be
purchased as of the Purchase Date or the Change in Control Purchase Date, as the case may be, is deposited with the Paying Agent on the Business Day following the Purchase Date or the Change in Control Purchase Date, Issue Discount and other
interest ceases to accrete or accrue on such Securities (or portions thereof) immediately after such Purchase Date or Change in Control Purchase Date, and the Holder thereof shall have no other rights as such other than the right to receive the
Purchase Price or Change in Control Purchase Price upon surrender of such Security. 
  

	7.	Notice of Redemption. 

  
 Notice of redemption pursuant to paragraph 5 of this Security will be mailed at least 20 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at the Holder’s registered address. If money sufficient to pay the Redemption Price of all Securities (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or
on the Redemption Date, immediately after such Redemption Date Issue Discount ceases to accrete on such Securities or portions thereof. Securities in denominations larger than $1,000 of Principal Amount at Maturity may be redeemed in part but only
in integral multiples of $1,000 of Principal Amount at Maturity. 
  

	8.	Conversion. 

  
 Subject to and in compliance with the provisions of the Indenture (including, without limitation, the conditions to conversion of this Security set forth in Section 10.1 thereof), a Holder is entitled, at such
Holder’s option, to convert the Holder’s Security (or any portion of the Principal Amount at Maturity thereof that is $1,000 or an integral multiple $1,000), into a number of fully paid and nonassessable shares of Common Stock equal to the
Conversion Rate in effect at the time of conversion. 
  

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 The Company will notify Holders of any event triggering the right to convert the Securities as specified
above in accordance with the Indenture. 
  
 A Security in respect
of which a Holder has delivered a Purchase Notice or Change in Control Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be converted only if such notice of exercise is withdrawn in accordance
with the terms of the Indenture. 
  
 The initial Conversion Rate
is 23.7582 shares of Common Stock per $1,000 Principal Amount at Maturity, subject to adjustment in certain events described in the Indenture. 
  
 To surrender a Security for conversion, a Holder must (1) complete and manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents and (4) pay any transfer or similar tax, if required.

  
 A Holder may convert a portion of a Security if the Principal
Amount at Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the shares of Common Stock except as provided in the Indenture. On conversion of a Security, that portion of
accreted Issue Discount attributable to the period from the Issue Date through the Conversion Date with respect to the converted Security shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder
thereof through the delivery of the Common Stock (together with the cash payment, if any, in lieu of fractional shares) in exchange for the Security being converted pursuant to the terms hereof; and the Fair Market Value of such shares of Common
Stock (together with any such cash payment in lieu of fractional shares) shall be treated as issued, to the extent thereof, first in exchange for Issue Discount accreted through the Conversion Date, and the balance, if any, of such Fair Market Value
of such Common Stock (and any such cash payment) shall be treated as issued in exchange for the Issue Price of the Security being converted pursuant to the provisions hereof. 
  
 No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead of any fractional share of
Common Stock that would otherwise be issued upon conversion of such Security, the Company shall pay a cash adjustment as provided in the Indenture. 
  
 The Conversion Rate may be adjusted from time to time as set forth in the Indenture. 
  
 The Company from time to time may voluntarily increase the Conversion Rate as set forth in the Indenture. 
  
 If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon certain distributions described in the Indenture, the right to convert a Security into shares of Common Stock may be changed into a right to convert it into securities, cash
or other assets of the Company or another person. 
  

 79 









	9.	Conversion Arrangement on Call for Redemption. 

  
 Any Securities called for redemption, unless surrendered for conversion before the close of business on the day that is two Business Days prior to the
Redemption Date, may be deemed to be purchased from the Holders of such Securities at an amount not less than the Redemption Price, by one or more investment bankers or other purchasers who may agree with the Company to purchase such Securities from
the Holders, to convert them into shares of Common Stock and to make payment for such Securities to the Trustee in trust for such Holders. 
  

	10.	Tax Treatment. 

  
 The Company agrees, and by acceptance of a beneficial ownership interest in the Securities each Holder of Securities will be deemed to have agreed, for
United States federal income tax purposes, (i) to treat the Securities as indebtedness that is subject to United States Treasury regulation section 1.1275-4 (the “Contingent Payment Debt Regulations”) and, for purposes of the Contingent
Payment Debt Regulations, to treat the Fair Market Value of any stock beneficially received by a Holder upon any conversion of the Securities as a contingent payment and (ii) to be bound by the Company’s determination of the comparable yield
and projected payment schedule, within the meaning of the Contingent Payment Debt Regulations, with respect to the Securities. A Holder of Securities may obtain the issue price, issue date, amount of original issue discount, yield to maturity,
comparable yield and projected payment schedule by submitting a written request to the Company at the following address: Greater Bay Bancorp, 2860 West Bayshore Road, Palo Alto, CA 94303, Attention: Shawn E. Saunders. 
  

	11.	Denominations; Transfer; Exchange. 

  
 The Securities are in fully registered form, without coupons, in denominations of $1,000 of Principal Amount at Maturity and integral multiples of $1,000.
A Holder may transfer 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 and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) or any Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given and not withdrawn (except, in the case of a Security to be purchased in part, the portion of the Security not to be purchased) or any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be redeemed. 
  

	12.	Persons Deemed Owners. 

  
 The registered Holder of this Security may be treated as the owner of this Security for all purposes. 
  

	13.	Unclaimed Money or Securities. 

  
 The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law. After return 

  

 80 








 
to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another person. 
  

	14.	Amendment; Waiver. 

  
 Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate Principal Amount at Maturity of the Securities at the time outstanding and (ii) certain Defaults may be waived with the written consent of the Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company and the Trustee may amend the Indenture or the Securities so long as such changes, other that those
in clause (ii), do not materially and adversely affect the interest of Securityholders (i) to cure any ambiguity, omission, defect or inconsistency, (ii) to comply with Article V of the Indenture, (iii) to add to the covenants of the Company for the
benefit of Securityholders or to secure the Company’s obligations under the Securities and this Indenture, or (iv) to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA. 
  

	15.	Defaults and Remedies. 

  
 If any Event of Default with respect to Securities shall occur and be continuing, the principal of all the Securities may be declared due and payable in
the manner and with the effect provided in the Indenture. 
  

	16.	Trustee Dealings with the Company. 

  
 Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. 
  

	17.	Calculations in Respect of Securities. 

  
 The Company or its agents will be responsible for making all calculations called for under the Securities including, but not limited to, determination of
the Trading Prices for the Securities and the Closing Prices of the Common Stock and the amounts of contingent interest payments, if any. Any calculations made in good faith and without manifest error will be final and binding on Holders of the
Securities. The Company will be required to deliver to the Trustee a schedule of its calculations and the Trustee will be entitled to rely upon the accuracy of such calculations without independent verification. 
  

	18.	No Recourse Against Others. 

  
 A director, officer, employee or shareholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a 

  

 81 








 
Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

  

	19.	Authentication. 

  
 This Security shall not be valid until an authorized signatory of the Trustee manually signs the Trustee’s Certificate of Authentication on the other
side of this Security. 
  

	20.	Abbreviations. 

  
 Customary abbreviations may be used in the name of a Securityholder 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 U/G/M/A (=Uniform Gift to Minors Act). 
  

	21.	Governing Law. 

  
 THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY. 
  
 The Company will furnish to any Securityholder upon written request and without charge a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to: 
  
 Greater Bay Bancorp 
 2860 West Bayshore Road 
 Palo Alto, CA 94303 
 Attn: Investor Relations Department 
  

 82 









			
	ASSIGNMENT FORM	  	CONVERSION NOTICE
		
	To assign this Security, fill in the form below:	  	To convert this Security into Common Stock of the Company, check the box  ̈
		
	 I or we assign and transfer this Security to
  
 _________________________
  
 _________________________
 (Insert assignee’s soc. sec. or tax ID 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.
	  	 To convert only part of this Security, state the Principal Amount at Maturity to be converted (which must be $1,000 or an integral multiple of
$1,000):
  
 If you want the stock certificate made out in another person’s
name fill in the form below:
 _________________________
 _________________________
 (Insert the other person’s soc. sec. tax ID no.)
  
 __________________________
  
 __________________________
  
 __________________________
  
 __________________________
  
 __________________________
 (Print or type other person’s name, address and zip code)


  

							
	 Date:
	 	 	 	 Your Signature:
	 	 
	 	 	
	 	 	 	

				
	 	 	 	 	 	 	 
	


 (Sign exactly as your name appears on the other side of this Security) 
  

	
	 Signature Guaranteed

	
	  
	

	 Participant in a Recognized Signature
 Guarantee
Medallion Program


  

			
		
	 By:
	 	 
	 	 	

	 	 	Authorized Signatory

  

 83 








 EXHIBIT A-2 
  
 [Form of Certificated Security] 
  
 THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER TREASURY REGULATIONS
SECTION 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY, THE “COMPARABLE YIELD” AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU SHOULD CONTACT: GREATER
BAY BANCORP, 2860 WEST BAYSHORE ROAD, PALO ALTO, CA 94303, ATTENTION: SHAWN E. SAUNDERS. 
  
 THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER: 
  

	 	(1)	REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933; 

  

	 	(2)	AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (D) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, IF AVAILABLE OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND


  

	 	(3)	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. 

  
 [THE FOREGOING LEGEND MAY
BE REMOVED FROM THIS SECURITY ON SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.] 
  









 GREATER BAY BANCORP 
  
 Zero Coupon Senior Convertible Contingent Debt Securities due 2024 
  

			
	 No.
 Issue Date: March 23, 2004
 Issue Price: $ [            ]
 (for each $1,000 Principal Amount at Maturity)
	  	 CUSIP:
 Issue Discount: $
[            ] (for each $1,000 Principal Amount at Maturity)


  
 GREATER BAY BANCORP, a
Delaware corporation, promises to pay to                      or registered assigns, the Principal Amount at Maturity of
[                    
($                    )] on
                         , 2024. 
  
 This Security shall not bear interest except as specified on the other side of this Security. Issue Discount will accrete as
specified on the other side of this Security. This Security is convertible as specified on the other side of this Security. 
  
 Additional provisions of this Security are set forth on the other side of this Security. 
  

 2 









									
	 Dated:
	 	 	 	 GREATER BAY BANCORP

					
	 	 	 	 	 	 	 By:
	 	 
	 	 	 	 	 	 	 	 	

	 	 	 	 	 	 	 	 	 Title:


  
 TRUSTEE’S CERTIFICATE OF AUTHENTICATION 
  

			
	WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee, certifies that this is one of the Securities referred to in the within-mentioned
Indenture.
		
	 By
	 	 
	 	 	

	 	 	Authorized Signatory

  
 Dated: 
  

 3 








 [FORM OF REVERSE SIDE IS IDENTICAL TO A-1] 
  









 EXHIBIT B-1 
  
 Transfer Certificate 
  
 In connection with any transfer of any of the Securities within the period prior to the expiration of the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Security hereby certifies with respect to
$                     Principal Amount at Maturity of the above-captioned Securities presented or surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for exchange or conversion where the securities issuable upon such exchange or conversion are to be registered in a name other than that of the undersigned registered owner (each
such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Securities for the reason checked below: 
  

	 	 ̈	A transfer of the Surrendered Securities is made to the Company or any subsidiaries; or 

  

	 	 ̈	The transfer of the Surrendered Securities complies with Rule 144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”); or 


 

	 	 ̈	The transfer of the Surrendered Securities complies with Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act; or 

  

	 	 ̈	The transfer of the Surrendered Securities is pursuant to an effective registration statement under the Securities Act, or 

  

	 	 ̈	The transfer of the Surrendered Securities is pursuant to another available exemption from the registration requirement of the Securities Act. 

  
 and unless the box below is checked, the undersigned confirms that, to the
undersigned’s knowledge, such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”). 
  

	 	 ̈	The transferee is an Affiliate of the Company. 

  

									
					
	DATE:	 	 	 	 	 	 	 	 
	 	 	
	 	 	 	 	 	 
	 	 	Signature(s)	 	 	 	 	 	 

  









 (If the registered owner is a corporation, partnership or fiduciary, the title of the Person signing on
behalf of such registered owner must be stated.) 
  
 Signature Guaranteed

  

			
	

	 Participant in a Recognized Signature

	
	 Guarantee Medallion Program

		
	 By:
	 	 
	 	 	

	 	 	Authorized Signatory

  

 2 








 EXHIBIT B-2 
  
 [FORM OF INSTITUTIONAL ACCREDITED INVESTOR LETTER] 
  
 [Company] 
  
 [Address] 
  
 Ladies and Gentlemen: 
  
 We are delivering this letter in connection with a transfer of Zero Coupon
Senior Convertible Contingent Debt Securities due 2024 (the “Securities”) which are convertible into shares of Common Stock (the “Common Stock”), of Greater Bay Bancorp (the “Company”). 
  
 We hereby confirm that: 
  
 1. we are an “accredited investor” within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the “Securities Act”) or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(1), (2) or (3) under the Securities Act (an
“Institutional Accredited Investor”): 
  
 2. (A) any
purchase of Securities by us will be for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the
meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan
association” or other institution described in Section 3(l)(5)(a) of the Securities Act that is acquiring Securities as fiduciary for the account of one or more institutions for which we exercise sole investment discretion; 
  
 3. in the event that we purchase any Securities, we will acquire Securities
having a minimum principal amount of not less than $250,000 for our own account or for any separate account for which we are acting; 
  
 4. any Securities held by us will be certificated Securities in the form of Exhibit A-2 to the Indenture relating to the Securities; 
  
 5. we have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of purchasing the Securities; and 
  
 6. we are not acquiring Securities with a view to distribution thereof or with any present intention of offering or selling Securities or the Common Stock issuable upon conversion thereof, except as permitted below;
provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control. 
  
 We understand that the Securities are being transferred in a transaction not involving any public offering within the United States within the meaning of
the Securities Act 

  









 
and that the Securities and the shares of Common Stock issuable upon conversion thereof have not been registered under the Securities Act, and we agree, on
our own behalf and on behalf of each account for which we acquire any Securities, that if in the future we decide to resell or otherwise transfer such Securities or the Common Stock issuable upon conversion thereof, such Securities or Common Stock
may be resold or otherwise transferred only (i) to the Company or any subsidiary thereof, or (ii) to a person who is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, or (iii) to an Institutional Accredited Investor that, prior to such transfer, furnishes to the Trustee or transfer agent for such securities a signed letter containing certain representations and agreements relating to
the restrictions on transfer of such securities (the form of which letter can be obtained from such Trustee or transfer agent), or (iv) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if applicable), or (v)
pursuant to a registration statement which has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer), and in each case, in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction and in accordance with the legends set forth on the Securities or the Common Stock issuable upon conversion thereof, as the case may be. We further agree to provide any person purchasing any of
the Securities or the Common Stock issuable upon conversion thereof other than pursuant to clause (v) above from us a notice advising such purchaser that resales of such securities are restricted as stated herein. We understand that the Trustee or
transfer agent for the Securities and the Common Stock will not be required to accept for registration of transfer any Securities or any shares of Common Stock issued upon conversion of the Securities except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on transfer have been complied with. We further understand that any Securities and any certificates representing Common Stock will be in the form of definitive physical certificates in the
form of Exhibit A-2 to the Indenture relating to the Securities and that such certificates will bear a legend reflecting the substance of this paragraph other than certificates representing Securities or Common Stock transferred pursuant to clause
(v) above. 
  
 We acknowledge that the Company, others and you
will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete. 
  
 THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 
  

			
	

	 (Name of Purchaser)

		
	 By:
	 	 
	 	 	

	 Name:
	 	 
	 	 	

	 Title:
	 	 
	 	 	

	 Address:
	 	 
	 	 	



  

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