Exhibit 10.6


 




 





SHUFFLE MASTER, INC.,


as Issuer


 


 


1.25% Contingent Convertible Senior Notes Due
2024


 


 












 


INDENTURE


 












 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Trustee


 


 


Dated as of April 21, 2004


 




 





 

















 


CROSS-REFERENCE TABLE*


 




	
  Trust
  Indenture Act Section

  	
   

  	
  Indenture
  Section

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
                         7.10

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (a)(3)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (a)(4)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (a)(5)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         7.10

  	
   

  
	
   

  	
  (c)

  	
   

  	
                         N.A.

  	
   

  
	
  311

  	
  (a)

  	
   

  	
                         7.11

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         7.11

  	
   

  
	
   

  	
  (c)

  	
   

  	
                         N.A.

  	
   

  
	
  312

  	
  (a)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         11.03

  	
   

  
	
   

  	
  (c)

  	
   

  	
                         11.03

  	
   

  
	
  313

  	
  (a)

  	
   

  	
                         7.06

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         7.06

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         7.06

  	
   

  
	
  314

  	
  (c)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (a)

  	
   

  	
                         4.02, 4.03

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (c)(1)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (c)(2)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (c)(3)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (e)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (f)

  	
   

  	
                         N.A.

  	
   

  
	
  315

  	
  (a)

  	
   

  	
                         7.01(b)

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         7.05

  	
   

  
	
   

  	
  (c)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (d)

  	
   

  	
                         7.01(c)

  	
   

  
	
   

  	
  (e)

  	
   

  	
                         6.11

  	
   

  
	
  316

  	
  (a)(1)(A)

  	
   

  	
                         6.05

  	
   

  
	
   

  	
  (a)(1)(B)

  	
   

  	
                         6.04

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (c)

  	
   

  	
                         N.A.

  	
   

  
	
  317

  	
  (a)(1)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (a)(2)

  	
   

  	
                         N.A.

  	
   

  
	
   

  	
  (b)

  	
   

  	
                         N.A.

  	
   

  
	
  318

  	
  (a)

  	
   

  	
                         N.A.

  	
   

  






 












N.A. means not
applicable.


 


* This
Cross-Reference Table is not part of the Indenture.


 


i

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section
  1.01.  Definitions.

  	
   

  
	
  Section
  1.02.  Other Definitions.

  	
   

  
	
  Section
  1.03.  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
  Section
  1.04.  Rules of Construction

  	
   

  
	
  Section
  1.05.  Acts of Holders.

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section
  2.01.  Form and Dating.

  	
   

  
	
  Section
  2.02.  Execution and Authentication

  	
   

  
	
  Section
  2.03.  Registrar, Paying Agent and
  Conversion Agent

  	
   

  
	
  Section
  2.04.  Paying Agent to Hold Money in Trust

  	
   

  
	
  Section
  2.05.  Holder Lists

  	
   

  
	
  Section
  2.06.  Transfer and Exchange.

  	
   

  
	
  Section
  2.07.  Replacement Securities

  	
   

  
	
  Section
  2.08.  Outstanding Securities;
  Determinations of Holders’ Action

  	
   

  
	
  Section
  2.09.  Temporary Securities

  	
   

  
	
  Section
  2.10.  Cancellation

  	
   

  
	
  Section
  2.11.  Persons Deemed Owners

  	
   

  
	
  Section
  2.12.  Global Securities.

  	
   

  
	
  Section
  2.13.  CUSIP Numbers

  	
   

  
	
  Section
  2.14.  Designation

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  REDEMPTION AND REPURCHASES

  	
   

  
	
   

  	
   

  
	
  Section
  3.01.  Right to Redeem; Notices to Trustee.

  	
   

  
	
  Section
  3.02.  Selection of Securities to Be
  Redeemed

  	
   

  
	
  Section
  3.03.  Notice of Redemption

  	
   

  
	
  Section
  3.04.  Effect of Notice of Redemption

  	
   

  
	
  Section
  3.05.  Deposit of Redemption Price

  	
   

  
	
  Section
  3.06.  Securities Redeemed in Part

  	
   

  
	
  Section
  3.07.  Sinking Fund

  	
   

  
	
  Section
  3.08.  Repurchase of Securities at Option of
  the Holder on Specified Dates.

  	
   

  
	
  Section
  3.09.  Repurchase of Securities at Option of
  the Holder Upon Change in Control.

  	
   

  



 


ii

















 


	
  Section
  3.10.  Effect of Repurchase Notice or Change
  in Control Repurchase Notice

  	
   

  
	
  Section
  3.11.  Deposit of Repurchase Price or Change
  in Control Repurchase Price

  	
   

  
	
  Section
  3.12.  Securities Repurchased in Part

  	
   

  
	
  Section
  3.13.  Covenant to Comply with Securities
  Laws upon Repurchase of Securities

  	
   

  
	
  Section
  3.14.  Repayment to the Company

  	
   

  
	
  Section
  3.15.  Mandatory Disposition Pursuant to
  Gaming Laws.

  	
   

  
	
   

  	
   

  
	
  Article 4
COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  4.01.  Payment of Securities

  	
   

  
	
  Section
  4.02.  SEC and Other Reports

  	
   

  
	
  Section
  4.03.  Compliance Certificate; Notice of
  Default.

  	
   

  
	
  Section
  4.04.  Further Instruments and Acts

  	
   

  
	
  Section
  4.05.  Maintenance of Office or Agency

  	
   

  
	
  Section
  4.06.  Delivery of Certain Information

  	
   

  
	
  Section
  4.07.  Liquidated Damages

  	
   

  
	
   

  	
   

  
	
  Article 5
SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  
	
  Section
  5.01.  When the Company May Consolidate,
  Merge or Transfer Assets

  	
   

  
	
   

  	
   

  
	
  Article 6
DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section
  6.01.  Events of Default

  	
   

  
	
  Section
  6.02.  Acceleration.

  	
   

  
	
  Section
  6.03.  Other Remedies

  	
   

  
	
  Section
  6.04.  Waiver of Past Defaults

  	
   

  
	
  Section
  6.05.  Control by Majority

  	
   

  
	
  Section
  6.06.  Limitation on Suits

  	
   

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

  	
   

  
	
  Section
  6.08.  Collection Suit by Trustee

  	
   

  
	
  Section
  6.09.  Trustee May File Proofs of Claim

  	
   

  
	
  Section
  6.10.  Priorities

  	
   

  
	
  Section
  6.11.  Suits

  	
   

  
	
  Section
  6.12.  Waiver of Stay, Extension or Usury
  Laws

  	
   

  
	
  Section
  6.13.  Disqualified Holders

  	
   

  



 


iii

















 


	
  Article 7
TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section
  7.01.  Duties of Trustee.

  	
   

  
	
  Section
  7.02.  Rights of Trustee

  	
   

  
	
  Section 7.03.  Individual
  Rights of Trustee

  	
   

  
	
  Section 7.04.  Trustee’s
  Disclaimer

  	
   

  
	
  Section 7.05.  Notice of
  Defaults

  	
   

  
	
  Section 7.06.  Reports by
  Trustee to Holders

  	
   

  
	
  Section 7.07.  Compensation
  and Indemnity

  	
   

  
	
  Section 7.08.  Replacement
  of Trustee

  	
   

  
	
  Section 7.09.  Successor
  Trustee by Merger Etc

  	
   

  
	
  Section 7.10.  Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11.  Preferential Collection of Claims Against Company

  	
   

  
	
  Section
  7.12.  Force Majeure

  	
   

  
	
  Section 7.13.  Gaming
  License Requirements

  	
   

  
	
   

  	
   

  
	
  Article 8
DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  
	
  Section 8.01.  Discharge of Liability on Securities

  	
   

  
	
  Section 8.02.  Repayment
  to the Company

  	
   

  
	
   

  	
   

  
	
  Article 9
AMENDMENTS

  	
   

  
	
   

  	
   

  
	
  Section 9.01.  Without
  Consent of Holders

  	
   

  
	
  Section 9.02.  With
  Consent of Holders.

  	
   

  
	
  Section 9.03.  Compliance with Trust Indenture Act

  	
   

  
	
  Section 9.04.  Revocation and Effect of Consents

  	
   

  
	
  Section 9.05.  Notation on or Exchange of Securities

  	
   

  
	
  Section 9.06.  Trustee to Sign Supplemental Indentures

  	
   

  
	
  Section 9.07.  Effect of Supplemental Indentures

  	
   

  
	
   

  	
   

  
	
  Article 10
CONVERSION OF THE SECURITIES

  	
   

  
	
   

  	
   

  
	
  Section 10.01.  Conversion
  Privilege.

  	
   

  
	
  Section 10.02.  Conversion
  Procedure.

  	
   

  
	
  Section 10.03.  Taxes on
  Conversion

  	
   

  
	
  Section 10.04.  Company to
  Provide Stock

  	
   

  
	
  Section 10.05.  Adjustment
  of Conversion Price

  	
   

  
	
  Section
  10.06.  No Adjustment

  	
   

  
	
  Section 10.07.  Equivalent
  Adjustments

  	
   

  
	
  Section 10.08.  Adjustment
  for Tax Purposes

  	
   

  



 


iv

















 


	
  Section 10.09.  Notice of
  Adjustment

  	
   

  
	
  Section 10.10.  Notice of
  Certain Transactions

  	
   

  
	
  Section 10.11.  Effect of
  Reclassification, Consolidation, Merger, Share Exchange or Sale on Conversion
  Privilege

  	
   

  
	
  Section
  10.12.  Trustee’s Disclaimer

  	
   

  
	
  Section 10.13.  Voluntary
  Reduction

  	
   

  
	
  Section 10.14.  Conversion Value of Securities Tendered.

  	
   

  
	
  Section 10.15.  Simultaneous
  Adjustments

  	
   

  
	
   

  	
   

  
	
  Article 11
MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section
  11.01.  Trust Indenture Act Controls

  	
   

  
	
  Section
  11.02.  Notices

  	
   

  
	
  Section
  11.03.  Communication by Holders with Other
  Holders

  	
   

  
	
  Section
  11.04.  Certificate and Opinion as to
  Conditions Precedent

  	
   

  
	
  Section
  11.05.  Statements Required in Certificate or
  Opinion

  	
   

  
	
  Section
  11.06.  Separability Clause

  	
   

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

  	
   

  
	
  Section
  11.08.  Legal Holidays

  	
   

  
	
  Section
  11.09.  Governing Law

  	
   

  
	
  Section
  11.10.  No Recourse Against Others

  	
   

  
	
  Section
  11.11.  Successors

  	
   

  
	
  Section
  11.12.  Multiple Originals

  	
   

  
	
  Section
  11.13.  Table of Contents and Headings

  	
   

  



 


	
  Exhibit A

  	
  –

  	
  Form of Global Security

  
	
  Exhibit B

  	
  –

  	
  Transfer Certificate

  



 


v

















 


INDENTURE
dated as of April 21, 2004 between SHUFFLE MASTER, INC., a Minnesota
corporation (the “Company”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States of America (the “Trustee”).


 


Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders (as defined below) of the Company’s 1.25%
Contingent Convertible Senior Notes Due 2024 (the “Securities”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.


 


“Additional
Securities” means an unlimited principal amount of Securities (other
than the Initial Securities) issued from time to time with the same terms and
the same CUSIP number as the Initial Securities under this Indenture in
accordance with Section 2.02 hereof.


 


“Affiliate”
has the meaning provided in Rule 405 under the Securities Act.


 


“Agent”
means any Registrar, Paying Agent, Conversion Agent or co-registrar.


 


“Applicable
Procedures” means, with respect to any transfer or transaction
involving a Global Security or beneficial interests therein, the rules and
procedures of the Depositary for such Global Security, in each case to the
extent applicable to such transaction and as in effect from time to time.


 


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


 


“Beneficial
Owner” shall be determined in accordance with Rule 13d-3 and Rule
13d-5 promulgated by the SEC under the Exchange Act or any successor provision,
except that, (i) a person shall be deemed to have “Beneficial Ownership” of all
shares of Common Stock that the Person has the right to acquire, whether
exercisable immediately or only after the passage of time and (ii) any
percentage of “Beneficial Ownership” shall be determined using the definition
in clause (i) in both the numerator and the denominator.


 


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


 

















 


“Board
Resolution” means a copy of one or more resolutions, certified by an
Officer of the Company 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 any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which commercial banks are authorized or required by law,
regulation or executive order to close in The City of New York.


 


“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, but
excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.


 


“Change in
Control” means the occurrence of one or more of the following
events:


 


(a)           any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the properties and assets of the
Company, to any Person or group of related Persons, as defined in Section 13(d)
of the Exchange Act (a “Group”);


 


(b)           the approval by the
holders of the Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company, whether or not otherwise in
compliance with this Indenture;


 


(c)           any Person or Group,
other than the Company, any Subsidiary of the Company or any employee benefit
plan of the Company or any such Subsidiary, becomes the Beneficial Owner,
directly or indirectly, of shares of Capital Stock of the Company entitling
such Person or Group to exercise in excess of 50% of the aggregate ordinary
voting power of all shares of Voting Stock of the Company; or


 


(d)           the first day on which
a majority of the members of the Board of Directors are not Continuing
Directors.


 


“Common Stock”
shall mean shares of the Company’s Common Stock, $.01 par value per share, as
they exist on the date of this Indenture or any other shares of Capital Stock
of the Company into which the Common Stock shall be reclassified or changed.


 


“Common Stock
Price” on any date means the closing sale price per share (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 the average


 


2

















 


ask prices) on such date for
the Common Stock as reported in composite transactions on the principal United
States securities exchange on which the Common Stock is traded or, if the
Common Stock is not listed on a United States national or regional securities
exchange, as reported by The NASDAQ System.


 


“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
successor or successors.


 


“Company
Order” means a written request or order signed in the name of the
Company by any two Officers.


 


“Continuing
Directors” means, as of any date of determination, any member of the
Board of Directors who (a) was a member of the Board of Directors as of the
date hereof or (b) was nominated for election or elected to the Board of
Directors with the approval of a majority of the Continuing Directors who were
members of the Board of Directors at the time of such nomination or election.


 


“Conversion
Price” means $42.11 per share of Common Stock as of the date of this
Indenture, subject to the adjustments described in Section 10.05 hereof.


 


“Conversion
Rate” means the number of shares of Common Stock equal to $1,000
divided by the Conversion Price, which shall be approximately 23.7473 as of the
date of this Indenture.


 


“Corporate
Trust Office” means the office of the Trustee at which at any time
the trust created by this Indenture shall be administered, which office at the
date hereof is located at Wells Fargo Bank, National Association, Sixth Street
& Marquette Avenue, N9303-120, Minneapolis, MN 55479, Attention: Shuffle
Master, Inc. Administrator, or such other 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.


 


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


 


3

















 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect from time to time.


 


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


 


“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 Purchasers”
shall mean Deutsche Bank Securities Inc. and Goldman, Sachs & Co.


 


“Initial
Securities” means Securities in an aggregate principal amount of up
to $125,000,000 (which amount shall be increased by up to $25,000,000 in
principal amount of additional Initial Securities purchased pursuant to the
Initial Purchasers’ option to purchase additional Securities) issued under this
Indenture.


 


 “Liquidated Damages” has the meaning set
forth in the Registration Rights Agreement dated as of April 21, 2004 between
the Company and the Initial Purchasers.


 


“Market Price”
means the average of the Common Stock Prices for 20 consecutive Trading Days
commencing 30 Trading Days before the record date with respect to any
distribution, issuance or other event requiring such computation, appropriately
adjusted (as determined in good faith by the Board of Directors, whose
determination shall be conclusive) to take into account the occurrence, during
the period commencing on the first of such 20 consecutive Trading Days and ending
on such record date, of any event requiring adjustment of the Conversion Price
under this Indenture.


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation under which any indebtedness is created, evidenced or
secured, including in the case of the Securities, Liquidated Damages, if any.


 


“Offering
Memorandum” means the offering memorandum of the Company dated April
15, 2004 relating to the offering of the Securities.


 


4

















 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President (whether or not such title
is preceded by any modifier such as “Executive, “Senior” or the like), the
Chief Financial Officer, the Treasurer, the Controller or the Secretary of such
Person or any other officer designated by the board of directors of such Person
serving in a similar capacity; provided that the designation of any such
Officer of the Company by the Board of Directors shall be evidenced in a Board
Resolution.


 


“Officers’
Certificate” means a written certificate containing the information
specified in Sections 11.04 and 11.05, signed in the name of the Company by any
two Officers, and delivered to the Trustee. 
An Officers’ Certificate given pursuant to Section 4.03 shall be signed
by the principal executive officer, principal financial officer or the
principal accounting officer of the Company but need not contain the
information specified in Sections 11.04 and 11.05.


 


“Opinion of
Counsel” means a written opinion containing the information
specified in Sections 11.04 and 11.05, from legal counsel who is acceptable to
the Trustee in its reasonable discretion. 
The counsel may be an employee of, or counsel to, the Company or the
Trustee.


 


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


 


“Redemption
Date” shall mean a date specified for redemption of the Securities
in accordance with the terms of this Indenture.


 


“Responsible
Officer” shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration 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
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.


 


5

















 


“Security”
or “Securities”
means any of the Company’s 1.25% Contingent Convertible Senior Notes Due 2024
issued under this Indenture.  The
Initial Securities and any Additional Securities shall be treated as a single
series which means that, in circumstances where the Indenture provides for the
Holders to vote or take any action, the Holders of Initial Securities and the
Holders of Additional Securities will vote or take that action as a single
class.


 


“Significant
Subsidiary” has the meaning ascribed to such term in Regulation S-X
(17 CFR Part 210).


 


“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 of such Security is due and payable.


 


“Subsidiary”
means, with respect to any Person, (i) any corporation of which the outstanding
Capital Stock having at least a majority of the votes entitled to be cast in
the election of directors under ordinary circumstances (determined without
regard to any classification of directors) shall at the time be owned, directly
or indirectly, by such Person, (ii) any other Person (other than a partnership)
of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person or
(iii) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof).


 


“TIA”
means the Trust Indenture Act of 1939 as in effect on the date of this
Indenture, provided
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.


 


“Trading Day”
means any regular or abbreviated trading day of the Nasdaq National Market.


 


“Trading
Price of the Securities” on any date of determination means the
average of the secondary market bid quotations per $1,000 in principal amount
of Securities obtained by the Trustee for $5,000,000 in 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 the Company selects, which may include the Initial Purchasers; provided
that if at least three such bids cannot reasonably be obtained by the Trustee,
but two such bids are obtained, then the average of the two bids shall be used,
and if only one such bid can reasonably be obtained by the Trustee, this one
bid shall be used.  If the Trustee
cannot reasonably obtain at least one such bid 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


 


6

















 


will be determined in good
faith by the Trustee, taking into account in such determination such factors as
it, in its sole discretion after consultation with the Company, deems
appropriate.  The Trustee shall not be
required to determine the Trading Price of the Securities unless requested in
writing by the Company.


 


“Transfer
Restricted Securities Legend” means the legend labeled as such and
that is set forth in Exhibit A hereto.


 


“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 such 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 (determined without regard to any classification of directors) 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 1.02.  Other Definitions


 


	
  Term

  	
   

  	
  Defined in
  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Acceleration Notice

  	
   

  	
  6.02(a)

  	
   

  
	
  Act

  	
   

  	
  1.05(a)

  	
   

  
	
  Agent Members

  	
   

  	
  2.12(e)

  	
   

  
	
  Authenticating Agent

  	
   

  	
  2.02

  	
   

  
	
  Change in Control Repurchase Date

  	
   

  	
  3.09(a)

  	
   

  
	
  Change in Control Repurchase Notice

  	
   

  	
  3.09(c)

  	
   

  
	
  Change in Control Repurchase Price

  	
   

  	
  3.09(a)

  	
   

  
	
  Company Change in Control Repurchase Notice

  	
   

  	
  3.09(b)

  	
   

  
	
  Company Repurchase Notice

  	
   

  	
  3.08(b)

  	
   

  
	
  Conversion Agent

  	
   

  	
  2.03

  	
   

  
	
  Conversion Date

  	
   

  	
  10.02(a)

  	
   

  
	
  Conversion Value

  	
   

  	
  10.14(a)

  	
   

  
	
  Depositary

  	
   

  	
  2.01(b)

  	
   

  
	
  Determination Date

  	
   

  	
  10.14(b)

  	
   

  
	
  Disqualified Holder

  	
   

  	
  3.15(a)

  	
   

  
	
  Dividend Adjustment Amount

  	
   

  	
  10.05(e)

  	
   

  
	
  DTC

  	
   

  	
  2.01(b)

  	
   

  
	
  Event of Default

  	
   

  	
  6.01

  	
   

  
	
  Ex-Dividend Date

  	
   

  	
  10.01(c)

  	
   

  
	
  Expiration Time

  	
   

  	
  10.05(d)

  	
   

  



 


7

















 


	
  Term

  	
   

  	
  Defined in
  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Global Security

  	
   

  	
  2.01(b)

  	
   

  
	
  Legal Holiday

  	
   

  	
  11.08

  	
   

  
	
  Net Share Amount

  	
   

  	
  10.14(b)

  	
   

  
	
  Net Shares

  	
   

  	
  10.14(b)

  	
   

  
	
  Paying Agent

  	
   

  	
  2.03

  	
   

  
	
  Pre-Dividend Sale Price

  	
   

  	
  10.05(e)

  	
   

  
	
  Principal Return

  	
   

  	
  10.14(b)

  	
   

  
	
  Principal Value Conversion

  	
   

  	
  10.01(a)

  	
   

  
	
  Purchased Shares

  	
   

  	
  10.05(d)

  	
   

  
	
  QIBs

  	
   

  	
  2.06(e)

  	
   

  
	
  Quarter

  	
   

  	
  10.01(a)

  	
   

  
	
  Redemption Price

  	
   

  	
  3.01(a)

  	
   

  
	
  Registrar

  	
   

  	
  2.03

  	
   

  
	
  Repurchase Date

  	
   

  	
  3.08(a)

  	
   

  
	
  Repurchase Notice

  	
   

  	
  3.08(a)

  	
   

  
	
  Repurchase Price

  	
   

  	
  3.08(a)

  	
   

  
	
  Rule 144A Information

  	
   

  	
  4.06

  	
   

  
	
  Shareholder Rights Plan

  	
   

  	
  10.05(f)

  	
   

  
	
  Ten Day Average Closing Stock Price

  	
   

  	
  10.14(a)

  	
   

  
	
  Transfer Restricted Securities

  	
   

  	
  2.06(e)

  	
   

  



 


Section 1.03.  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 incorporated by reference in this
Indenture have the following meanings:


 


“Commission”
means the SEC.


 


“Indenture
Securities” means the Securities.


 


“Indenture
Security Holder” means a Holder.


 


“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 incorporated by reference in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule have
the meanings assigned to them by such definitions.


 


8

















 


Section 1.04.  Rules of Construction.  Unless the context otherwise
requires:


 


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


 


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


 


(c)        “or”
is not exclusive;


 


(d)        “including”
means including, without limitation; and


 


(e)        words
in the singular include the plural, and words in the plural include the
singular.


 


Section 1.05.  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 maintained by the
Registrar.


 


9

















 


(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 2

THE SECURITIES


 


Section 2.01.  Form and Dating.


 


(a)        Forms.  The Securities and the Trustee’s certificate
of authentication shall be substantially in the forms set forth on Exhibit A,
which are a part of this Indenture and incorporated by reference herein.  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.


 


(b)        Global
Securities.  Unless otherwise
required by law or otherwise contemplated by Section 2.12(a), all of the
Securities will be represented by one or more Securities in global form (a “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


 


10

















 


being
hereinafter referred to as the “Depositary”), duly executed by the Company
and authenticated by the Trustee as hereinafter provided.


 


Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect 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 as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.


 


Section 2.02.  Execution and Authentication.  The Securities shall be executed
on behalf of the Company by the manual or facsimile signature of any Officer.


 


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.


 


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 signatory, 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
may appoint an authenticating agent (the “Authenticating Agent”) reasonably
acceptable to the Company to authenticate Securities.  Unless otherwise provided in the appointment, the Authenticating
Agent may authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to authentication
by the Trustee includes authentication by the Authenticating Agent.  The Authenticating Agent has the same rights
as an Agent to deal with the Company or with any Affiliate of the Company.


 


The Trustee
shall authenticate and deliver Initial Securities for original issue in an
aggregate principal amount of up to $125,000,000 (which amount shall be
increased by up to $25,000,000 in principal amount of additional Initial
Securities purchased pursuant to the Initial Purchasers’ option to purchase


 


11

















 


additional Securities) upon a
Company Order without any further action by the Company.  In addition, the Trustee shall authenticate
and deliver Additional Securities in aggregate principal amounts specified by
the Company, if such Additional Securities would be part of the “same issue” as
the Initial Securities for U.S. federal income tax purposes.


 


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


 


Section 2.03.  Registrar, Paying Agent and Conversion
Agent.  The Company shall
maintain an office or agency with the Trustee where Securities may be presented
for registration of transfer or for exchange (the “Registrar”), an office or
agency where Securities may be presented for repurchase or payment (the “Paying Agent”)
and an office or agency where Securities may be presented for conversion (the “Conversion
Agent”).  The Registrar shall
keep a register of the Securities and of their transfer and exchange.  The Company, upon prior written notice to
the Trustee, may have one or more co-registrars, one or more additional paying
agents reasonably acceptable to the Trustee and one or more additional conversion
agents.  The term “Paying Agent”
includes any additional paying agent, including any named pursuant to Section
4.05.  The term “Conversion Agent”
includes any additional conversion agent, including any named pursuant to
Section 4.05.


 


The Company
shall enter into an appropriate agency agreement with any Registrar, Paying
Agent, Conversion Agent or co-registrar (if other than the Trustee).  Such agreement shall implement the
provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee, in
advance, 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 7.07.  The Company or any of its Subsidiaries or an
Affiliate of the Company or any of its Subsidiaries may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.


 


The Company
initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent
in connection with the Securities.


 


Section 2.04.  Paying Agent to Hold Money in Trust.  Except as otherwise provided
herein, not later than 11:00 a.m. (New York City time) on the Business Day
prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money sufficient to make such
payments when they become due.  The
Company shall require each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying


 


12

















 


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, such Paying Agent shall, upon the written request of the Trustee,
forthwith pay to the Trustee all moneys held in trust.  If the Company, a Subsidiary of the Company
or an Affiliate of the Company or any of its Subsidiaries acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund.  The Company at any
time may require each Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by it. 
Upon doing so, such Paying Agent shall have no further liability for
such money or shares of Common Stock, as the case may be.


 


Section 2.05.  Holder Lists.  The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders.  If the Trustee is
not the Registrar, the Company shall cause to be furnished to the Trustee on
each April 15 and October 15 and at such other times as the Trustee may request
in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee and dated not more than 15 days prior
to the time such information is furnished; provided that the list of Holders provided
on April 15 and October 15 shall contain the list of Holders as of the
immediately preceding April 1 and October 1, respectively.


 


Section 2.06.  Transfer and Exchange.


 


(a)        Subject
to Section 2.12 hereof, upon surrender for registration of transfer of any
Securities to the Registrar, together with a written instrument of transfer
satisfactory to the Registrar, substantially in the form affixed to the form of
Security attached as Exhibit A hereto, duly executed by the Holder thereof or
such Holder’s attorney duly authorized in writing, at the office or agency of
the Registrar or co-registrar, 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 the option
of the Holder thereof, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount,
upon surrender of the Securities to be exchanged, together with a written
instrument of transfer satisfactory to the Registrar duly executed by such
Holder or such Holder’s attorney duly authorized in writing, at the office or
agency of the Registrar or co-registrar. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.  The Company shall not charge a service
charge for any registration of transfer or exchange, but the Company may
require payment of a


 


13

















 


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 Holder
requesting such transfer or exchange.


 


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 Repurchase Notice or Change in Control Repurchase
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
repurchased in part, the portion thereof not to be repurchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
to each Holder of Securities to be redeemed, as provided in Section 3.03.


 


(b)        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.


 


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


 


(d)        The
Registrar shall not be required to make registrations of transfer or exchange
of Securities during any periods designated in the Securities or in this
Indenture as periods during which such registration of transfers and exchanges
need not be made.


 


(e)        Notwithstanding
any other provision of this Indenture or the Securities, until the expiration
of the applicable holding period set forth in Rule 144(k) of the Securities Act
(or any successor provision), the Securities may not be transferred or
exchanged in whole or in part other than (i) to the Company or any of its
Subsidiaries, (ii) to a person whom the seller reasonably believes is a
qualified institutional buyer, as such term is defined in Rule 144A (a “QIB”),
in reliance on Rule 144A, (iii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available) or (iv)
pursuant to an effective registration statement under the Securities Act, in
each of cases (i) through (iv) in accordance with any applicable securities
laws of any state of the United States. 
Whenever any Security is presented or surrendered for registration of
transfer or exchange for a Security registered in a name other than that of the
Holder thereof, such Security must be accompanied by a certificate in
substantially the form set forth in Exhibit B, 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.


 


14

















 


Any certificate evidencing a Security (and all securities issued in exchange
therefor or substitution thereof) shall bear the Transfer Restricted Securities
Legend, unless (1) such Security has been sold pursuant to a registration
statement that has been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer) or pursuant to Rule 144
under the Securities Act or any similar provision then in force, (2) such
Security is eligible for resale pursuant to Rule 144(k) under the Securities
Act (or any successor provision) or (3) otherwise agreed by the Company in
writing, with written notice thereof to the Trustee.


 


Every Security that bears or is required under this Section 2.06(e) to
bear the Transfer Restricted Securities Legend (the “Transfer Restricted Securities”)
shall be subject to the restrictions on transfer set forth in this Section
2.06(e) (including those set forth in the Transfer Restricted Securities
Legend) unless such restrictions on transfer shall be waived by written consent
of the Company, and the Holder of each such Transfer Restricted Security, by
such Security Holder’s acceptance thereof, agrees to be bound by all such
restrictions on transfer.  As used in
this Section 2.06(e), the term “transfer” encompasses any sale, pledge,
loan, transfer or other disposition whatsoever of any Transfer Restricted
Security or any interest therein.


 


Any Security
(or Security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or
as to conditions for removal of the Transfer Restricted Securities Legend have
been satisfied may, upon surrender of such Security for exchange to the
Registrar in accordance with the provisions of this Section 2.06, be exchanged
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the Transfer Restricted Securities Legend.  If the Transfer Restricted Security
surrendered for exchange is represented by a Global Security bearing a Transfer
Restricted Securities Legend, the principal amount of the Global Security so
legended shall be reduced by the appropriate principal amount and the principal
amount of a Global Security without the Transfer Restricted Securities Legend
shall be increased by an equal principal amount.  If a Global Security without the Transfer Restricted Securities
Legend is not then outstanding, the Company shall execute and the Trustee shall
authenticate and deliver a Global Security without the Transfer Restricted
Securities Legend to the Depositary.


 


Section 2.07.  Replacement Securities.  If any mutilated Security is
surrendered to the Trustee, or 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
protected purchaser (within the meaning of Section 8-303 of the Uniform
Commercial Code


 


15

















 


as adopted in
the State of New York), the Company shall execute, and upon the Company’s
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 and bearing a
number not contemporaneously outstanding.


 


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 redeemed or repurchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay, redeem or repurchase 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 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 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 2.08.  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 delivered to it for cancellation
pursuant to Section 2.10 and those described in this Section 2.08 as not
outstanding.  A Security does not cease
to be outstanding because the Company or any Affiliate of the Company holds the
Security; provided
that in determining whether the Holders of the requisite principal amount 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; and provided  further
that Securities that the Company or an Affiliate offers to purchase or acquires
pursuant to an offer, exchange offer, tender offer or otherwise shall not be
deemed to be owned by the Company or an Affiliate until


 


16

















 


legal title to
such Securities passes to the Company or such Affiliate, as the case may
be.  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 6 and 9).


 


If a Security
is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a protected purchaser.


 


If the Paying
Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day following a Repurchase Date or a Change in Control Repurchase
Date, or on Stated Maturity, money sufficient to pay amounts owed with respect
to Securities payable on that date, then immediately after such Redemption
Date, Repurchase Date, Change in Control Repurchase Date or Stated Maturity, as
the case may be, such Securities shall cease to be outstanding and interest
(including Liquidated Damages, if any) on such Securities shall cease to accrue
whether or not the Securities are delivered to the Paying Agent; 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.  Thereafter, all
other rights of the Holder of such Securities shall terminate, other than the
rights to receive the Redemption Price, the Repurchase Price, the Change in
Control Repurchase Price or the principal amount of such Securities due and
payable on Stated Maturity, as the case may be, upon delivery of the
Securities.


 


If a Security
is converted in accordance with Article 10, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be outstanding
and interest shall cease to accrue on such Security.


 


Section 2.09.  Temporary Securities.  Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities that 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 2.03, without charge to the Holder.  Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute and the Trustee shall


 


17

















 


authenticate and deliver in
exchange therefor a like principal amount 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, redemption,
repurchase, conversion, exchange or registration of transfer shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it, or, if surrendered to the Trustee, 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 that 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
10.  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
procedures.


 


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 the principal amount of the Security or the payment of any
Redemption Price, Repurchase Price or Change in Control Repurchase Price in
respect thereof, and accrued but unpaid interest (including Liquidated Damages,
if any) 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 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, any successor Depositary or one
or more nominees thereof; provided that a Global Security may be
exchanged for Securities registered in the name of any Person designated by the
Depositary if  (1) 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 (2) an Event of Default has
occurred and is continuing with respect to the Securities, and the Depositary
notifies the Trustee that it elects to cause the issuance of Securities in
definitive form.  Any Global Security


 


18

















 


exchanged
pursuant to clause (1) above shall be so exchanged in whole and not in part,
and any Global Security exchanged pursuant to clause (2) 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.


 


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


 


(c)        Subject
to the provisions of Section 2.12(e), the registered Holder may grant proxies
and otherwise authorize any Person, including Agent Members (as defined below)
and Persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Securities.


 


(d)        If
any of the events specified in Section 2.12(a) occurs, the Company will
promptly make available to the Trustee a reasonable supply of Securities in
definitive form.


 


(e)        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


 


19

















 


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.


 


(f)         With
respect to any Global Security, the Company, the Registrar and the Trustee
shall be entitled to treat the Person in whose name such Global Security is
registered as the absolute owner of such Security for all purposes of this
Indenture, and neither the Company, the Registrar nor the Trustee shall have
any responsibility or obligation to any Agent Members or other beneficial
owners of the Securities represented by such Global Security.  Without limiting the immediately preceding
sentence, neither the Company, the Registrar nor the Trustee shall have any
responsibility or obligation with respect to (1) the accuracy of the records of
the Depositary or any other Person with respect to any ownership interest in
any Global Security, (2) the delivery to any Person, other than a Holder, of
any notice with respect to the Securities represented by a Global Security,
including any notice of redemption or repurchase, (3) the selection of the
particular Securities or portions thereof to be redeemed or repurchased in the
event of a partial redemption or repurchase of part of the Securities
outstanding or (4) the payment to any Person, other than a Holder, of any
amount with respect to the principal of or Redemption Price, Repurchase Price,
Change in Control Repurchase Price or accrued but unpaid interest (including
Liquidated Damages, if any) with respect to any Global 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 the Company so elects, 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
in writing of any change in the CUSIP numbers.


 


Section 2.14.  Designation.  The indebtedness evidenced by the Securities is hereby
irrevocably designated as “senior indebtedness” or such other term denoting
seniority for the purposes of any other existing or future indebtedness of the
Company which the Company makes subordinate in right of payment to any senior
(or such other term denoting seniority) indebtedness of the Company.


 


20

















 


ARTICLE 3

REDEMPTION AND REPURCHASES


 


Section 3.01.  Right to Redeem; Notices to Trustee.


 


(a)        Optional
Redemption.  On or after
April 21, 2009, the Company, at its option, may redeem the Securities, in whole
at any time, or in part from time to time, for cash at a price equal to 100% of
the principal amount of the Securities to be redeemed (the “Redemption
Price”), together with accrued but unpaid interest (including
Liquidated Damages, if any) thereon, up to but not including the Redemption
Date; provided
that if the Redemption Date is between the close of business on an interest
record date and the opening of business on the related interest payment date,
accrued but unpaid interest (including Liquidated Damages, if any) will be
payable to the Holders in whose names the Securities are registered at the
close of business on the relevant interest record date.


 


(b)        Notice to
Trustee.  If the Company
elects to redeem Securities pursuant to this Section 3.01, it shall notify the
Trustee in writing of the Redemption Date, the principal amount of Securities
to be redeemed and the Redemption Price. 
The Company shall give the notice to the Trustee provided for in this
Section 3.01(b) by a Company Order at least ten days before the date notice of
redemption is to be given to Holders pursuant to Section 3.03 (unless a shorter
notice shall be satisfactory to the Trustee).


 


Section 3.02.  Selection of Securities to Be Redeemed.  If less than all the Securities
are to be redeemed, subject to the Applicable Procedures in the case of Global
Securities to be so redeemed, the Trustee shall select the Securities to be
redeemed by any method that the Trustee deems fair and appropriate.  In the event of a partial redemption, the
Trustee may select for redemption portions of the principal amount of
Securities in principal amounts of $1,000 and integral multiples thereof.


 


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
possible) to be the portion selected for redemption.  Securities that 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 3.03.  Notice of Redemption.  At least 30 days but not more
than 60 days before any Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities
to be redeemed at such Holder’s registered address.


 


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The notice of
redemption shall identify the Securities to be redeemed and shall state:


 


(a)        the
Redemption Date;


 


(b)        the
Redemption Price and, to the extent known at the time of such notice the amount
of accrued but unpaid interest (including Liquidated Damages, if any) payable
on the Redemption Date;


 


(c)        the
current Conversion Price;


 


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


 


(e)        that
Securities called for redemption may be converted at any time before the close
of business on the second Business Day immediately preceding the Redemption
Date;


 


(f)         that
Holders who want to convert Securities must satisfy the requirements set forth
in the Securities and Article 10 of this Indenture;


 


(g)        that
Securities called for redemption must be surrendered to the Paying Agent in
order to collect the Redemption Price therefor, together with accrued but
unpaid interest (including Liquidated Damages, if any) thereon;


 


(h)        if
fewer than all the outstanding Securities are to be redeemed, the certificate
numbers, if any, and principal amounts of the particular Securities to be
redeemed;


 


(i)         that,
unless the Company defaults in paying the Redemption Price, interest (including
Liquidated Damages, if any) on Securities called for redemption will cease to
accrue on and after the Redemption Date and the Securities called for
redemption will cease to be outstanding; and


 


(j)         the
CUSIP number of the Securities called for redemption.


 


At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at the Company’s
expense, so long as the Company makes such request at least five Business Days
prior to the date by which such notice of redemption is to be given to Holders
in accordance with this Section 3.03 and the Company provides the Trustee with
all information required for such notice of redemption.


 


If any of the
Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the redemption of Global Securities.


 


22

















 


Section 3.04.  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 of redemption, together
with accrued but unpaid interest (including Liquidated Damages, if any)
thereon, 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 of redemption, together with accrued but unpaid interest
(including Liquidated Damages, if any) thereon, up to but not including the
Redemption Date.


 


Section 3.05.  Deposit of Redemption Price.  Prior to 11:00 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 thereof or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient
to pay the aggregate Redemption Price of all Securities to be redeemed on the
Redemption Date, together with accrued but unpaid interest (including
Liquidated Damages, if any) thereon, up to but not including the Redemption
Date, other than Securities or portions of Securities called for redemption
that on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted pursuant to Article 10.  The Paying Agent shall as promptly as
practicable return to the Company any money not required for making payments on
the Redemption Date because of conversion of Securities pursuant to Article
10.  If such money is then held by the
Company in trust and is not required for making payments on the Redemption
Date, it shall be discharged from such trust.


 


Section 3.06.  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 thereof, without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal amount of the Security surrendered.


 


Section 3.07.  Sinking Fund.  There shall be no sinking fund provided for the
Securities.


 


Section 3.08.  Repurchase of Securities at Option of the
Holder on Specified Dates.


 


(a)        At
the option of the Holder, the Company shall repurchase all or a portion of the
Securities tendered pursuant to this Section 3.08 on April 15, 2009, April 15,
2014 and April 15, 2019 (each, a “Repurchase Date”) for cash at a price per
Security equal to 100% of the aggregate principal amount of the Security (the “Repurchase
Price”), together with accrued but unpaid interest (including
Liquidated Damages, if any) thereon, up to but not including the Repurchase
Date.


 


23

















 


Securities
shall be repurchased pursuant to this Section 3.08 at the option of the Holder
thereof upon:


 


(i)            delivery to the
Company and the Paying Agent by the Holder of a written notice (a “Repurchase
Notice”) at any time from the opening of business on the date that
is 30 Business Days prior to the Repurchase Date until the close of business on
the Business Day prior to such Repurchase Date stating:


 


(A)             if the Security which
the Holder will deliver to be repurchased is a Security in definitive form, the
certificate number of such Security, or if such Security is a Global Security,
the notice must comply with the Applicable Procedures;


 


(B)              the portion of the
principal amount of the Security which the Holder will deliver to be
repurchased, which portion must be in a principal amount of $1,000 or any
integral multiple thereof; and


 


(C)              that such Security
shall be repurchased as of the Repurchase Date pursuant to the terms and
conditions specified in this Indenture; and


 


(ii)           delivery or book-entry
transfer of such Security to the Paying Agent prior to, on or after the
Repurchase 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 Repurchase Price therefor, together with accrued but unpaid interest
(including Liquidated Damages, if any); provided that the Repurchase Price,
together with accrued but unpaid interest (including Liquidated Damages, if
any) thereon, shall be so paid pursuant to this Section 3.08 only if the
Security so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Repurchase Notice.


 


The Company shall repurchase from the Holder
thereof, pursuant to this Section 3.08, a portion of a Security if the
principal amount of such portion is $1,000 or an integral multiple of
$1,000.  Provisions of this Indenture
that apply to the repurchase of all of a Security also apply to the repurchase
of a portion of a Security.


 


Any repurchase by the Company contemplated
pursuant to the provisions of this Section 3.08 shall be consummated by the
delivery to the Paying Agent of the Repurchase Price, together with accrued but
unpaid interest (including Liquidated Damages, if any) thereon, to be received
by the Holder promptly


 


24

















 


following the later of the
Repurchase Date and the time of delivery or book-entry transfer of the Security
to the Paying Agent in accordance with this Section 3.08.


 


Notwithstanding anything herein to the
contrary, any Holder delivering to the Paying Agent the Repurchase Notice
contemplated by this Section 3.08(a) shall have the right to withdraw such
Repurchase Notice at any time prior to the close of business on the Repurchase
Date by delivery of a written notice of withdrawal to the Paying Agent at the
principal office of the Paying Agent in accordance with Section 3.10.


 


The Paying Agent shall promptly notify the
Company of the receipt by it of any Repurchase Notice or written notice of
withdrawal thereof.


 


(b)        Company Repurchase Notice.  In connection with any repurchase of
Securities pursuant to this Section 3.08, the Company shall give written notice
of each Repurchase Date to the Trustee and the Holders (the “Company
Repurchase Notice”).  The
Company Repurchase Notice shall be sent by first-class mail to the Trustee and
to each Holder not less than 30 Business Days prior to each Repurchase Date,
and to Beneficial Owners as required by applicable law.  Each Company Repurchase Notice shall include
a form of Repurchase Notice to be completed by a Holder and shall state:


 


(i)            the Repurchase Price,
the Conversion Price and, to the extent known at the time of such notice, the
amount of accrued but unpaid interest (including Liquidated Damages, if any)
that will be payable with respect to the Securities on the Repurchase Date;


 


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


 


(iii)          that Securities as to
which a Repurchase Notice has been given may be converted only if the
applicable Repurchase 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 of the Repurchase Price and
accrued but unpaid interest (including Liquidated Damages, if any);


 


(v)           that the Repurchase
Price for any Securities as to which a Repurchase Notice has been given and not
withdrawn, together with accrued but unpaid interest (including Liquidated
Damages, if any) payable with respect thereto, shall be paid promptly following
the later of the Repurchase Date and the time of surrender of such Securities
as described in clause (iv);


 


25

















 


(vi)          the procedures the
Holder must follow under this Section 3.08;


 


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


 


(viii)        that, unless the Company
defaults in making payment of such Repurchase Price, interest (including
Liquidated Damages, if any) on Securities covered by any Repurchase Notice will
cease to accrue on and after the Repurchase Date;


 


(ix)           the CUSIP number of the
Securities; and


 


(x)            the procedures for
withdrawing a Repurchase Notice (as specified in Section 3.10).


 


At the Company’s request, which shall be made
at least five Business Days prior to the date by which a Company Repurchase
Notice is to be given to the Holders in accordance with this Section 3.08, and
at the Company’s expense, the Trustee shall give such Company Repurchase Notice
in the Company’s name; provided that, in all cases, the text of
such Company Repurchase Notice shall be prepared by the Company.


 


If any of the Securities is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the Applicable Procedures that apply to the repurchase
of Global Securities.


 


Section 3.09. 
Repurchase of Securities at Option of the Holder Upon Change in Control.


 


(a)        If at any time that
Securities remain outstanding there shall have occurred a Change in Control,
Securities shall be repurchased by the Company, at the option of the Holder
thereof, at a price in cash (the “Change in Control Repurchase Price”) equal
to 100% of the aggregate principal amount of such Securities plus accrued but
unpaid interest (including Liquidated Damages, if any) thereon, up to but not
including the date (the “Change in Control Repurchase Date”) fixed
by the Company that is not less than 30 days nor more than 45 days after the
date the Company Change in Control Repurchase Notice (as defined below) is
given, subject to satisfaction by or on behalf of the Holder of the requirements
set forth in Section 3.09(c); provided that if the Change in Control
Repurchase Date is between the close of business on an interest record date and
the opening of business on the related interest payment date, accrued but
unpaid interest (including Liquidated Damages, if any) will be payable to the
Holders in whose names the Securities are registered at the close of business
on the relevant interest record date.


 


26

















 


(b)        Company Change in Control Repurchase
Notice.  In connection with
any repurchase of Securities pursuant to this Section 3.09, the Company shall
give written notice of the occurrence of a Change in Control, the repurchase
right arising as a result thereof and the Change in Control Repurchase Date to
the Trustee and the Holders (the “Company Change in Control Repurchase Notice”).  The Company Change in Control Repurchase
Notice shall be sent by first-class mail to the Trustee and to each Holder on
or before the 30th day after the occurrence of a Change in
Control.  Each Company Change in Control
Repurchase Notice shall include a form of Change in Control Repurchase Notice
to be completed by a Holder and shall state:


 


(i)            the Change in Control
Repurchase Price, the Conversion Price and, to the extent known at the time of
such notice, the amount of accrued but unpaid interest (including Liquidated
Damages, if any) that will be payable with respect to the Securities on the
Change in Control Repurchase Date;


 


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


 


(iii)          that Securities as to
which a Change in Control Repurchase Notice has been given may be converted
only if such Change in Control Repurchase 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 of the Change in Control
Repurchase Price and accrued but unpaid interest (including Liquidated Damages,
if any);


 


(v)           that the Change in
Control Repurchase Price for any Securities as to which a Change in Control
Repurchase Notice has been given and not withdrawn, together with any accrued
but unpaid interest (including Liquidated Damages, if any) payable with respect
thereto, shall be paid promptly following the later of the Change in Control
Repurchase Date and the time of surrender of such Securities as described in
clause (iv);


 


(vi)          the procedures the
Holder must follow under this Section 3.09;


 


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


 


(viii)        that, unless the Company
defaults in making payment of such Change in Control Repurchase Price, interest
(including Liquidated Damages, if any) on Securities covered by any Change in
Control


 


27

















 


Repurchase
Notice will cease to accrue on and after the Change in Control Repurchase Date;


 


(ix)           the CUSIP number of the
Securities; and


 


(x)            the procedures for
withdrawing a Change in Control Repurchase Notice (as specified in Section
3.10).


 


At the Company’s request, which shall be made
at least five Business Days prior to the date by which a Company Change in
Control Repurchase Notice is to be given to the Holders in accordance with this
Section 3.09 and at the Company’s expense, the Trustee shall give such Company
Change in Control Repurchase Notice in the Company’s name; provided that, in all cases,
the text of such Company Change in Control Repurchase Notice shall be prepared
by the Company.  If any of the
Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the repurchase of Global Securities.


 


(c)        For a Security to be so
repurchased at the option of the Holder upon a Change in Control, the Paying
Agent must receive such Security with the form entitled “Option to Elect
Repurchase Upon a Change in Control” (a “Change in Control Repurchase Notice”) on
the reverse thereof duly completed, together with such Security duly endorsed
for transfer, on or before the close of business on the Business Day prior to
the Change in Control Repurchase Date. 
All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Security for repurchase shall be determined by
the Company, whose determination shall be final and binding.


 


The Company shall repurchase from the Holder
thereof, pursuant to this Section 3.09, a portion of a Security if the
principal amount of such portion is $1,000 or an integral multiple of
$1,000.  Provisions of this Indenture that
apply to the repurchase of all of a Security also apply to the repurchase of a
portion of a Security.


 


Any repurchase by the Company contemplated
pursuant to the provisions of this Section 3.09 shall be consummated by the
delivery to the Paying Agent of the Change in Control Repurchase Price,
together with accrued but unpaid interest (including Liquidated Damages, if
any) thereon, to be received by the Holder promptly following the later of the
Change in Control Repurchase Date and the time of delivery or book-entry
transfer of the Security to the Paying Agent in accordance with this Section
3.09.


 


Notwithstanding anything herein to the
contrary, any Holder delivering to the Paying Agent the Change in Control
Repurchase Notice contemplated by this Section 3.09(c) shall have the right to
withdraw such Change in Control


 


28

















 


Repurchase Notice at any time
prior to the close of business on the Change in Control Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent at the principal
office of the Paying Agent in accordance with Section 3.10.


 


The Paying Agent shall promptly notify the
Company of the receipt by it of any Change in Control Repurchase Notice or
written withdrawal thereof.


 


Notwithstanding anything herein to the
contrary, the Company’s obligations pursuant to this Section 3.09 shall be
satisfied if a third party makes an offer to repurchase outstanding Securities
after a Change in Control in the manner and at the times and otherwise in
compliance in all material respects with the requirements of this Section 3.09
and such third party purchases all Securities properly tendered and not
withdrawn pursuant to the requirements of this Section 3.09.


 


(d)        The Company shall use its
commercially reasonable efforts to, within 30 days following any Change in
Control, either (i) obtain the consents under all indebtedness required to
permit the repurchase of the Securities pursuant to any Company Change in
Control Repurchase Notice or (ii) repay in full all indebtedness and terminate
all commitments under all indebtedness, the terms of which would prohibit the
repurchase of the Securities pursuant to any Company Change in Control
Repurchase Notice.


 


Section 3.10. 
Effect of Repurchase Notice or Change in Control Repurchase Notice.  Upon receipt by the Paying Agent
of a Repurchase Notice or Change in Control Repurchase Notice, the Holder of
the Security in respect of which such Repurchase Notice or Change in Control
Repurchase Notice, as the case may be, was given shall (unless such Repurchase
Notice or Change in Control Repurchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Repurchase Price or Change in Control Repurchase Price, together with accrued
but unpaid interest (including Liquidated Damages, if any) thereon, to but not
including the Repurchase Date or Change in Control Repurchase Date, as the case
may be, with respect to such Security. 
Such Repurchase Price or Change in Control Repurchase Price, together
with accrued but unpaid interest (including Liquidated Damages, if any)
thereon, to but not including the Repurchase Date or Change in Control
Repurchase Date, as the case may be, shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, promptly following the later of (x) the
Repurchase Date or the Change in Control Repurchase Date, as the case may be,
with respect to such Security (provided that the conditions in Section
3.08 or Section 3.09, as applicable, have been satisfied) and (y) the time of
delivery or book-entry transfer of such Security to the Paying Agent by the
Holder thereof in the manner required by Section 3.08 or Section 3.09(c), as
applicable.  Securities in respect of
which a Repurchase Notice or Change in


 


29

















 


Control
Repurchase Notice, as the case may be, has been given by the Holder thereof may
not be converted pursuant to Article 10 hereof on or after the date of the
delivery of such Repurchase Notice or Change in Control Repurchase Notice, as
the case may be, unless such Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, has first been validly withdrawn as specified in
the following two paragraphs.


 


A Repurchase Notice or Change in Control
Repurchase 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 Repurchase Notice or Change in Control Repurchase Notice, as the case
may be, at any time prior to the close of business on the Repurchase Date or
the Change in Control Repurchase Date, as the case may be, specifying:


 


(i)            if
the Security with respect to which such notice of withdrawal is being submitted
is a Security in definitive form, the certificate number of such Security, or
if such Security is a Global Security, the notice must comply with the
Applicable Procedures;


 


(ii)           the
principal amount of the Security with respect to which such notice of withdrawal
is being submitted; and


 


(iii)          the
principal amount, if any, of such Security which remains subject to the
original Repurchase Notice or Change in Control Repurchase Notice, as the case
may be, and which has been or will be delivered for repurchase by the Company.


 


There shall be no repurchase of any
Securities pursuant to Section 3.08 or Section 3.09 or redemption pursuant to
Section 3.01 if an Event of Default (other than a default in the payment of the
Redemption Price, Repurchase Price or Change in Control Repurchase Price, as
the case may be) has occurred prior to, on or after, as the case may be, the
giving by the Holders of such Securities of the required Repurchase Notice or
Change in Control Repurchase Notice, or the giving by the Company of the notice
of redemption, as the case may be, and such Event of Default is
continuing.  The Paying Agent will
promptly return to the respective Holders thereof any Securities (x) with
respect to which a Repurchase Notice or Change in Control Repurchase 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 Repurchase Price or Change in Control Repurchase Price,
as the case may be) in which case, upon such return, the Repurchase Notice or
Change in Control Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.


 


Section 3.11. 
Deposit of Repurchase Price or Change in Control Repurchase Price.  Prior to 11:00 a.m. (New York
City time) on the Repurchase


 


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Date or the
Change in Control Repurchase 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 thereof or an Affiliate of either of them is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 2.04) an amount
of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Repurchase Price or Change in Control
Repurchase Price, as the case may be, together with accrued but unpaid interest
(including Liquidated Damages, if any) thereon, to but not including the
Repurchase Date or Change in Control Repurchase Date, as the case may be, of
all the Securities or portions thereof which are to be repurchased as of the
Repurchase Date or Change in Control Repurchase Date, as the case may be.


 


Section 3.12. 
Securities Repurchased in Part.  Any
Security in definitive form that is to be repurchased 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, one or more new Securities in definitive
form, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Security in definitive form so surrendered which is not
repurchased.


 


Section 3.13. 
Covenant to Comply with Securities Laws upon Repurchase of
Securities.  When complying
with the provisions of Sections 3.08 or 3.09 hereof (so long as such offer or
repurchase 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 repurchase), the Company shall
(i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act and (iii) otherwise comply in all
material respects with all federal and state securities laws so as to permit
the rights and obligations under Sections 3.08 or 3.09 to be exercised in the
time and in the manner specified in Sections 3.08 or 3.09.


 


Section 3.14. 
Repayment to the Company.  To
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.11 exceeds the aggregate Repurchase Price or Change in Control
Repurchase Price, as the case may be, of the Securities or portions thereof
which the Company is obligated to repurchase as of the Repurchase Date or
Change in Control Repurchase Date, as the case may be, together with accrued
but unpaid interest (including Liquidated Damages, if any) thereon, then,
unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Repurchase Date or Change in Control Repurchase
Date, as the case may be, the


 


31

















 


Trustee shall
return any such excess to the Company together with interest, if any, thereon
(subject to the provisions of Section 7.01(f)).


 


Section 3.15. 
Mandatory Disposition Pursuant to Gaming Laws.


 


(a)        Each Holder, by accepting
a Security, will be deemed to have agreed that if the gaming authority of any
jurisdiction in which the Company or any of its subsidiaries conducts or
proposes to conduct gaming operations requires that a Person who is a Holder or
the Beneficial Owner of Securities (or an affiliate of such Holder or
Beneficial Owner) be licensed, qualified or found suitable under applicable
gaming laws, such Holder or the Beneficial Owner, as the case may be, will
apply for a license, qualification or a finding of suitability within the
required time period.  If such Person
fails to apply or become licensed or qualified or is found unsuitable (a “Disqualified
Holder”), the Company will have the right, at any time, at its
option:


 


(i)            to require such Person
to dispose of its Securities or beneficial interest therein within 30 days of
receipt of notice of the Company’s election or such earlier date as may be
requested or prescribed by such gaming authority, or


 


(ii)           to redeem such
Securities at a redemption price equal to the lesser of (1) such Person’s cost,
(2) 100% of the principal amount thereof, plus accrued and unpaid interest
(including Liquidated Damages, if any), to the earlier of the redemption date
or the date of the finding of unsuitability, which redemption date may be less
than 30 days following the notice of redemption if so requested or prescribed
by the applicable gaming authority or (3) such lesser amount as may be required
by an applicable gaming authority.


 


(b)        Immediately
upon a determination by a gaming authority that a Holder or Beneficial Owner of
Securities (or an affiliate thereof) will not be licensed, qualified or found
suitable or is denied a license, qualification or finding of suitability, the
Holder or Beneficial Owner will not have any further right with respect to the
Securities to:


 


(i)            exercise, directly or
indirectly, through any Person, any right conferred by the Securities; or


 


(ii)           receive any interest
(including Liquidated Damages, if any), or any other distribution or payment with
respect to the Securities, or any remuneration in any form from the Company for
services rendered or otherwise, except for the redemption of the Securities.


 


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(c)        The Company will notify
the Trustee in writing of any such Disqualified Holder status or redemption of
Securities as soon as practicable.  The
Company will not be responsible for any costs or expenses any such Holder or
Beneficial Owner may incur in connection with its application for a license,
qualification or a finding of suitability.


 


ARTICLE 4

COVENANTS


 


Section 4.01. 
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, as the case may be, shall be deposited with the
Trustee or Paying Agent, as the case may be, by 11:00 a.m. (New York City
time), on the dates required pursuant to Section 2.04 hereof.  Interest installments, Liquidated Damages,
principal amount, Redemption Price, Repurchase Price, Change in Control
Repurchase Price and interest, if any, due on overdue amounts shall be
considered paid on the applicable date due if at 11:00 a.m. (New York City
time) on such date, the Trustee or the Paying Agent, as the case may be, holds,
in accordance with this Indenture, money 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 accrual of interest on
the Securities.


 


Section 4.02. 
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 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 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 to the Trustee at the times the Company would have been required to
provide reports had it continued


 


33

















 


to have been
subject to such reporting requirements. 
In addition, the Company shall comply with the other provisions of TIA
Section 314(a).


 


Section 4.03. 
Compliance Certificate; Notice of Default.


 


(a)        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 October 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, describing all such Defaults and the nature and
status thereof of which the signers thereof may have knowledge.


 


(b)        The Company shall, so long
as any of the Securities are outstanding, deliver to the Trustee promptly, and
in any event within 30 days after becoming aware of any Default or Event of
Default under this Indenture, an Officers’ Certificate describing such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.  The Trustee shall
not be deemed to have knowledge of a Default or Event of Default unless one of
its Responsible Officers receives written notice of the Default or Event of
Default from the Company or any of the Holders.


 


Section 4.04. 
Further Instruments and Acts.  Upon
request of the Trustee, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purposes of this Indenture.


 


Section 4.05. 
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, repurchase, 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 Trustee’s Corporate Trust
Office 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 or agency 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 11.02.  The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any


 


34

















 


or all such
purposes, and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain at least one Paying Agent having an office or
agency in the Borough of Manhattan, The City of New York, for such purposes.


 


Section 4.06. 
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 Common Stock delivered 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 Common Stock delivered upon
conversion thereof 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 by such Holder or 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 or any
successor provisions.  Whether a Person
is a Beneficial Owner shall be determined by the Company to the Company’s
reasonable satisfaction.


 


Section 4.07. 
Liquidated Damages.  If
at any time Liquidated Damages become payable by the Company pursuant to the
Registration Rights Agreement, the Company shall promptly deliver to the
Trustee a certificate to that effect and stating (i) the amount of such
Liquidated Damages that are payable and (ii) the date on which such Liquidated
Damages are payable pursuant to the terms of the Registration Rights
Agreement.  Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Liquidated Damages are payable.  If the Company has paid Liquidated Damages
directly to the Persons entitled to them, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.


 


ARTICLE 5

SUCCESSOR
CORPORATION


 


Section 5.01. 
When the Company May Consolidate, Merge or Transfer Assets.  The Company shall not consolidate
with or merge with or into any other Person or sell, lease, exchange or
otherwise transfer (in one transaction or a series of related transactions) all
or substantially all of its properties and assets to any other Person, unless:


 


(a)        (i) the Company shall be
the resulting or surviving corporation or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or
the Person which acquires by sale, lease,


 


35

















 


exchange or
other transfer all or substantially all of the properties and assets of the
Company (A) shall be a corporation, limited partnership, limited liability
company or other business entity organized and validly existing under the laws
of the United States or any State thereof or the District of Columbia, and (B)
shall expressly assume, by an indenture supplemental 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; and


 


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


 


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 another Subsidiary of the
Company), 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 sale, lease, exchange or other transfer is made
shall succeed to, and (except in the case of a lease) 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 except for obligations the
Company may have under a supplemental indenture pursuant to Section 9.06, the
Company shall be discharged from all obligations and covenants under this
Indenture and the Securities.  Subject
to Section 9.06, 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, as
applicable.


 


ARTICLE 6

DEFAULTS
AND REMEDIES


 


Section 6.01. 
Events of Default.  Subject
to the provisions set forth below in this Section 6.01, each of the following
events is an “Event of Default”:


 


(a)        the failure to pay
interest (including Liquidated Damages, if any) on any Security when the same
becomes due and payable and the continuation of such default for a period of 30
days, whether or not such failure shall be due to compliance with agreements
with respect to any other indebtedness or any other cause;


 


(b)        the failure to pay the
principal of any Security, when such principal becomes due and payable, at the
stated maturity, upon acceleration, upon


 


36

















 


redemption or
otherwise (including the failure to make cash payments due upon conversion,
failure to make a Change in Control offer or make a payment to repurchase
Securities tendered pursuant to a Change in Control offer or failure to
repurchase Securities pursuant to Section 3.08 hereof), whether or not such
failure shall be due to compliance with agreements with respect to any other
indebtedness or any other cause;


 


(c)        the failure to provide a
Company Change in Control Repurchase Notice in accordance with the terms of
Section 3.09(b) hereof;


 


(d)        a default in the
observance or performance of any other covenant or agreement contained in this
Indenture that continues for a period of 60 days after the Company has received
written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding
principal amount of the Securities;


 


(e)        a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness of the Company or any of its
Subsidiaries, or the payment of which is guaranteed by the Company or any of
its Subsidiaries, whether such indebtedness now exists or is created after the
date hereof, which default results in the acceleration of such indebtedness
prior to its express maturity and the principal amount of such indebtedness,
together with the principal amount of any other such indebtedness the maturity
of which has been so accelerated, aggregates at least $10,000,000;


 


(f)         one or more judgments in
an uninsured aggregate amount in excess of $10,000,000 shall have been rendered
against the Company or any of its Subsidiaries and remain undischarged, unpaid
or unstayed for a period of 60 days after such judgment or judgments become
final and nonappealable;


 


(g)        the Company or any of its
Significant Subsidiaries pursuant to or under or within the meaning of any
Bankruptcy Law:


 


(i)            commences a voluntary
case or proceeding;


 


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


 


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


 


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


 


37

















 


(v)           shall generally not pay
its debts when such debts become due or shall admit in writing its inability to
pay its debts generally; or


 


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


 


(i)            is for relief against
the Company or any Significant Subsidiary of the Company in an involuntary case
or proceeding;


 


(ii)           appoints a custodian of
the Company or any Significant Subsidiary of the Company for all or
substantially all of its properties; or


 


(iii)          orders the liquidation
of the Company or any Significant Subsidiary of Company;


 


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


 


Section 6.02. 
Acceleration.


 


(a)        If an Event of Default
(other than an Event of Default specified in clause (g) or (h) of Section 6.01)
shall occur and be continuing, the Trustee may, and at the written request of
the Holders of at least 25% in principal amount of outstanding Securities
shall, declare the principal of and accrued but unpaid interest on all the
Securities to be due and payable by notice in writing to the Company (the “Acceleration
Notice”).  Such notice shall
specify the respective Event of Default and that it is a “notice of
acceleration.”  Upon the giving of an
Acceleration Notice, the principal of and accrued but unpaid interest
(including Liquidated Damages, if any) on all the Securities shall become immediately
due and payable.  If an Event of Default
specified in clause (g) or (h) of Section 6.01 occurs and is continuing, then
all unpaid principal of, and premium, if any, and accrued but unpaid interest
(including Liquidated Damages, if any) on all of the outstanding Securities
shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.


 


(b)        At any time after a
declaration of acceleration with respect to the Securities as described in the
preceding paragraph, the Holders of a majority in aggregate principal amount of
the Securities at the time outstanding may rescind and cancel such declaration
and its consequences (i) if the rescission would not conflict with any judgment
or decree, (ii) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because
of such acceleration, (iii) if interest on overdue installments of interest (to
the extent the payment of such interest is lawful) and on overdue principal,
which has become due otherwise than by such declaration of


 


38

















 


acceleration,
has been paid, (iv) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements and
advances and (v) in the event of the cure or waiver of an Event of Default of
the type described in clause (d) of Section 6.01, the Trustee shall have
received an Officers’ Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived.  No
such rescission shall affect any subsequent Event of Default or impair any
right consequent thereto.


 


Section 6.03. 
Other Remedies.  If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of the principal amount of all the Securities
plus accrued but unpaid interest (including Liquidated Damages, if any)
thereon, 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 Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of, or acquiescence in, the Event of Default.  No remedy is exclusive of any other
remedy.  All available remedies are
cumulative to the extent permitted by law.


 


Section 6.04. 
Waiver of Past Defaults.  The
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding, by notice in writing to the Trustee (and without notice to
any other Holder), may waive an existing Event of Default and its consequences,
except (i) an Event of Default described in Section 6.01(a) or Section 6.01(b),
(ii) an Event of Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected or (iii) an Event
of Default which constitutes a failure to convert any Security in accordance
with the terms of Article 10.  When an
Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Event of Default or impair any consequent
right.  This Section 6.04 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 6.05. 
Control by Majority.  The
Holders of a majority in aggregate principal amount 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 (including gaming laws) or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability unless the Trustee is
offered indemnity satisfactory to it. 
This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the


 


39

















 


TIA and such
Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.


 


Section 6.06. 
Limitation on Suits.  A
Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:


 


(a)        the Holder gives to the
Trustee written notice stating that an Event of Default is continuing;


 


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


 


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


 


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


 


(e)        the Holders of a majority
in aggregate principal amount of the Securities at the time outstanding do not
give the Trustee a direction inconsistent with the request during such 60-day
period.


 


A Holder may not use this Indenture to
prejudice the rights of any other Holder or to obtain a preference or priority
over any other Holder.


 


Section 6.07. 
Rights of Holders to Receive Payment and to Convert.  Notwithstanding any other
provision of this Indenture, except for restrictions imposed by applicable
gaming regulatory authorities or pursuant to applicable gaming laws, the right of
any Holder to receive payment of interest installments (including Liquidated
Damages, if any), the principal amount, Redemption Price, Repurchase Price,
Change in Control Repurchase Price or interest, if any, due on overdue amounts
in respect of the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, and to convert the Securities in
accordance with Article 10, or to bring suit for the enforcement of any such
payment on or after such respective dates or the enforcement of the right to
convert, shall not be impaired or affected adversely without the consent of
such Holder.


 


Section 6.08. 
Collection Suit by Trustee.  If
an Event of Default described in Section 6.01(a) or 6.01(b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor upon the Securities
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.07.


 


40

















 


Section 6.09. 
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 any amounts 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 amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


(a)        to file and prove a claim
for any accrued but unpaid amounts due in respect of the Securities, 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 7.07) 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
7.07.


 


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 6, it shall pay out the
money in the following order:


 


FIRST: 
to the Trustee for amounts due under Section 7.07;


 


SECOND: 
to Holders for amounts due and unpaid on the Securities and for any
accrued but unpaid interest amounts due in respect of the Securities, ratably,
without preference or priority of any kind, according to such amounts due and
payable on the Securities; and


 


41

















 


THIRD: 
the balance, if any, to the Company.


 


The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 6.10.  At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.


 


Section 6.11. 
Suits.  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 6.07
or a suit by Holders of more than 10% in aggregate principal amount 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 fullest 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 any amounts due in respect of the Securities, as contemplated
herein, or which may affect the covenants or the performance of this Indenture;
and the Company (to the fullest 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.


 


Section 6.13. 
 Disqualified Holders. To the
extent required by applicable gaming laws, Securities held by a Disqualified
Holder shall, so long as held by such Person, be disregarded for purposes of
providing notices, directions, waivers or other actions and determining the
sufficiency of such notices, directions waivers or actions under this Article
6.


 


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ARTICLE 7

TRUSTEE


 


Section 7.01. 
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:


 


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


 


(ii)           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 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 7.01(b) shall be in lieu of
Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded
from this Indenture, as permitted by the TIA.


 


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


 


(i)            this paragraph (c)
does not limit the effect of paragraph (b) of this Section 7.01;


 


(ii)           the Trustee shall not
be liable for any error of judgment made in good faith by a Responsible Officer
unless it is conclusively determined by a court of competent jurisdiction that
the Trustee was negligent in ascertaining the pertinent facts; and


 


(iii)          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 6.02, 6.04 or
6.05.


 


Sections
7.01(c)(i), (ii) and (iii) 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 Sections
7.01(a), (b), (c), (e) and (f).


 


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(e)        The Trustee may refuse to
perform any duty or exercise any right or power or expend 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.


 


(g)           The Trustee shall cooperate with, produce
any document or information (to the extent previously provided to the Trustee
in connection with this Indenture) requested in writing by, and comply with any
order or directive of any gaming authority of any jurisdiction in which the
Company or any Subsidiary conducts or proposes to conduct gaming in connection
with this Indenture, including that the Trustee submit an application for any
license, finding of suitability or other approval pursuant to any applicable
gaming laws (unless the Trustee shall have submitted its resignation) and will
cooperate fully and completely in any proceeding related to such application; provided
the Company agrees to prepare all documentation in connection with any such
order, directive, application and proceeding and to reimburse the Trustee for
all costs and expenses incurred by it in connection therewith.


 


Section 7.02. 
Rights of Trustee.  Subject
to its duties and responsibilities under the TIA,


 


(a)        the Trustee may
conclusively rely and shall be fully 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 reasonably 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 obtain and, in the absence of bad faith or negligence on its
part, conclusively rely upon an Officers’ Certificate and/or an Opinion of
Counsel;


 


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


 


44



















(d)           the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it reasonably 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
such 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 such 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 Order and any resolution of the Board of Directors shall
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 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, during normal business
hours, 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 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, and such notice references the
Securities and this Indenture;


 


(j)            the
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder (including
Paying Agent, Registrar and Conversion Agent), and to all other Persons
employed to act hereunder, including the Trustee’s officers, employees, agents
and custodians;


 


(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


 


45

















 


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;


 


(l)            neither
the Trustee nor any of its officers, directors, employees or agents shall be
liable for any action taken or omitted under this Indenture or in connection
therewith except to the extent caused by the Trustee’s gross negligence, bad
faith or willful misconduct, as determined by the final judgment of a court of
competent jurisdiction, no longer subject to appeal or review.  Anything in this Indenture to the contrary
notwithstanding, in no event shall the Trustee be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;


 


(m)          the
Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture;
and


 


(n)           notwithstanding
anything else herein contained, whenever any provision of this Indenture
indicates that any confirmation of a condition or event is qualified by the
words “to the knowledge of” or “known to” the Trustee or other words of similar
meaning, said words shall mean and refer to the current awareness of one or
more Responsible Officers who are located at the Corporate Trust Office.


 


Section 7.03. 
Individual Rights of Trustee.  The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or 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 7.04. 
Trustee’s Disclaimer.  The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, shall not be accountable for the Company’s use or application of
the proceeds from the Securities, and shall not be responsible for any
statement in any 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 7.05. 
Notice of Defaults.  If an Event of Default occurs and
if it is actually known to a Responsible Officer of the Trustee, the Trustee
shall give to each Holder notice of all current Event of Defaults known to it
within 90 days


 


46

















 


after any such Event of Default occurs or, if
later, within 15 days after it is known to the Trustee, unless such Event of Default
shall have been cured or waived before the giving of such notice.  Notwithstanding the preceding sentence,
except in the case of an Event of Default described in Sections 6.01(a) and
6.01(b), the Trustee may withhold the notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
officers of the Trustee in good faith determines that withholding the notice is
in the interests of Holders.  The second
sentence of this Section 7.05 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.


 


Section 7.06. 
Reports by Trustee to Holders.  Within 60 days after each October
31 beginning with the October 31 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such October 31
that complies with TIA Section 313(a), if required by such Section 313(a), but
only to the extent any such report is required to be given pursuant to said TIA
Section 313(a), or any successor provision of the TIA.  The Trustee also shall comply with TIA
Section 313(b).


 


Commencing at
the time this Indenture is qualified under the TIA, a copy of each report at
the time of its mailing to Holders 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 in
writing promptly whenever the Indenture is qualified under the TIA and the
Securities become listed on any securities exchange and of any delisting
thereof.


 


Section 7.07.  Compensation and Indemnity.  The Company agrees:


 


(a)           to pay to the Trustee from time to
time, and the Trustee shall be entitled to, 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 or any
documents executed in connection herewith (including costs incurred in
connection with applications to any gaming authority and 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, bad faith or willful misconduct; and


 


(c)           to indemnify the Trustee or any
predecessor Trustee and their respective agents, officers, directors and
employees for, and to hold them


 


47

















 


harmless against, any loss,
damage, claim, liability, cost or expense (including attorneys’ fees and
expenses and taxes (other than franchise, capital, net worth, employment and ad
valorem taxes and taxes based upon, measured by or determined by the income or
gross receipts 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 Trustee’s exercise or performance of any of
its powers or duties hereunder.


 


To secure the
Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, except any money or property held in trust to pay interest
installments (including Liquidated Damages, if any), the principal amount,
Redemption Price, Repurchase Price, Change in Control Repurchase Price or
interest, if any, due on overdue amounts, as the case may be, in respect of any
particular Securities.


 


The Company’s
payment obligations pursuant to this Section 7.07 shall survive the discharge
of this Indenture or the earlier termination or resignation of the
Trustee.  When the Trustee incurs
expenses after the occurrence of an Event of Default specified in Section
6.01(g) or Section 6.01(h), the expenses, including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any Bankruptcy Law.


 


Any amounts
due and owing the Trustee hereunder (whether in nature of fees, expenses,
indemnification payments or reimbursement for advances) which have not been
paid by or on behalf of the Company within 15 days following written notice
thereof given to the Company in accordance with the provisions of Section
11.02, shall bear interest at an interest rate equal to the Trustee’s announced
prime rate in effect from time to time, plus four percent (4.0%) per annum.


 


Section 7.08. 
Replacement of Trustee.  Subject to compliance with
applicable gaming laws, the Trustee may resign by so notifying the Company; provided
that no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 7.08.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and the Company in writing.  The Company shall remove the Trustee if:


 


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


 


(b)           the Trustee is adjudged bankrupt or
insolvent;


 


48

















 


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


 


(d)           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.  As soon
as practicable, the successor Trustee shall mail a notice of its succession to
the Company and the Holders.  Any such
successor must nevertheless be eligible and qualified under the provisions of
Section 7.01 hereof.


 


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; provided, notwithstanding the foregoing,
the effectiveness of any such resignation or removal shall be conditioned on
receipt by the retiring Trustee of all amounts due and owing under Section 7.07
hereof.  The successor Trustee shall
mail a notice of its succession to Holders. 
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
7.07.


 


If a successor
Trustee does not take office within 30 days after the retiring Trustee gives
its notice of resignation or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount 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 Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


 


Section 7.09. 
Successor Trustee by Merger Etc.  Subject to compliance with
applicable gaming laws, if the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or
assets (including the administration of the trust created by this Indenture)
to, another Person, the resulting or surviving Person 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 Section 310(a)(1).  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
filed annual report of condition.


 


49

















 


Nothing herein contained shall prevent the
Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b).  The
Trustee shall comply with TIA Section 310(b); provided that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.


 


If at any time
the Trustee shall cease to be eligible in accordance with this Section 7.10, it
shall resign immediately in the manner and with the effect specified in Article
7.


 


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.


 


Section 7.12. 
Force Majeure. 
To the extent permitted by the TIA, in no event shall the
Trustee be liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond the Trustee’s control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo or government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.


 


Section 7.13. 
Gaming License Requirements.  To the extent required by gaming
laws, the Trustee will provide any applicable gaming authority upon its or the
Company’s written request with:


 


(1)           copies
of all notices, reports and other written communications which the Trustee
gives to holders of Securities;


 


(2)           a
list of holders of Securities promptly after the original issuance of the
Securities, eight months and two months prior to the expiration date of each
then-current gaming license held by the Company or its Subsidiaries, and upon
demand;


 


(3)           notice
of any Event of Default or of any Default, any acceleration of the indebtedness
evidenced or secured hereby, the institution of any legal actions or
proceedings before any court or governmental authority in respect of this
Indenture and any rescission, annulment or waiver in respect of an Event of
Default;


 


(4)           notice
of the removal or resignation of the Trustee within five Business Days thereof;


 


50

















 


(5)           notice
of any transfer or assignment of rights under this Indenture (but no transfers
or assignments of the Notes) within five Business Days thereof; and


 


(6)           a
copy of any amendment to the Notes or this Indenture within five Business Days
of the effectiveness thereof.


 


The notice
specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the Trustee has
transmitted the notice required by Section 6.02.  In the case of any notice in respect of any Event of Default,
such notice shall be accompanied by a copy of any notice from the holders of
the Notes, or a representative thereof or the Trustee, to the Company and, if
accompanied by any such notice to the Company, shall be given simultaneously
with the giving of any such notice to the Company.  In the case of any legal actions or proceedings, such notice shall
be accompanied by a copy of the complaint or other initial pleading or
document.


 


The Trustee shall in accordance
with the limitations set forth herein cooperate with any applicable gaming
authority in order to provide such gaming authority with information and
documentation relevant to compliance with clause (3) above and as
otherwise required by any applicable gaming laws.


 


ARTICLE 8

DISCHARGE OF INDENTURE


 


Section 8.01. 
Discharge of Liability on
Securities.  When (a) the
Company delivers to the Trustee all outstanding Securities (other than Securities
replaced pursuant to Section 2.07) for cancellation or (b) all outstanding
Securities have become due and payable whether at stated maturity or any
Redemption Date, or any Repurchase Date, or upon Conversion or otherwise, and
the Company deposits with the Trustee, the Paying Agent, or the Conversion
Agent, if applicable, cash or shares of Common Stock (as applicable under the
terms of this Indenture) sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable hereunder
by the Company, then this Indenture shall, subject to Section 7.07, be
satisfied and discharged and 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 at the cost and expense of the Company and accompanied
by an Officers’ Certificate and Opinion of Counsel.


 


Section 8.02. 
Repayment to the Company.  The Trustee, the Paying Agent and
the Conversion Agent shall return to the Company upon written request any


 


51

















 


money or shares of Common Stock held by them
for the payment of any amount and any shares of Common Stock with respect to
the Securities that remain unclaimed for two years, subject to applicable
unclaimed property law.  After return to
the Company, as applicable, Holders entitled to the money or shares of Common
Stock must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and the Trustee,
the Paying Agent and the Conversion Agent shall have no further liability to
the Holders with respect to such money or shares of Common Stock for that
period commencing after the return thereof.


 


The terms of
any document entered into pursuant to this Article 8 shall be subject to prior
approval, if required, of any applicable gaming authority.


 


ARTICLE 9

AMENDMENTS


 


Section 9.01. 
Without Consent of Holders.  The Company and the Trustee may
amend or supplement this Indenture or the Securities without notice to or
consent of any Holder:


 


(a)           to comply with Article 5 or Section
10.11;


 


(b)           to cure any ambiguity, omission,
defect or inconsistency in this Indenture;


 


(c)           to make any change that does not
adversely affect the rights of any Holder in any material respect; provided
that any change to conform this Indenture to the Offering Memorandum shall be
deemed not to adversely affect the rights of any Holder;


 


(d)           to make provisions with respect to
the conversion right of the Holders pursuant to the requirements of Section
10.01;


 


(e)           to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Securities;


 


(f)            to comply with the provisions of the
TIA, or with any requirement of the SEC arising as a result of the
qualification of this Indenture under the TIA; or


 


(g)           to
provide for the issuance of Additional Securities in accordance with this
Indenture.


 


52

















 


The terms of
any document entered into pursuant to this Section 9.01 shall be subject to
prior approval, if required, of any applicable gaming authority.


 


Section 9.02. 
With Consent of Holders.


 


The Company
and the Trustee may amend or supplement this Indenture or the Securities
without notice to any Holder but with the written consent or consent pursuant
to DTC procedures of the Holders of at least a majority in aggregate principal
amount of the Securities at the time outstanding.  The Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may, on behalf of the Holders of all
outstanding Securities, waive compliance by the Company with restrictive
provisions of this Indenture other than as set forth in this Section 9.02
below, and waive any past Event of Default under this Indenture and its
consequences, except a default in the payment of the principal of, or
Redemption Price, Repurchase Price, Change in Control Repurchase Price of, or
any interest on, any Security, or in respect of a provision which under this
Indenture cannot be modified or amended without the consent of the Holder of
each outstanding Security affected.


 


Subject to
Section 9.04, without the written consent or consent pursuant to DTC procedures
of each Holder affected, however, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.04, may not:


 


(a)           change the Stated Maturity of, or any
payment date of any installment of interest on, any Security;


 


(b)           reduce the principal amount or
Redemption Price of, or the rate of interest on, any Security, whether upon
acceleration, redemption or otherwise, or alter the manner of calculation of
interest or the rate of accrual thereof on any Security;


 


(c)           change the currency for payment of
principal of, or interest on, any Security;


 


(d)           impair the right to institute suit
for the enforcement of any payment of any amount with respect to any Security
when due;


 


(e)           adversely affect the conversion
rights provided in Article 10;


 


(f)            modify the provisions of this
Indenture requiring the Company to make an offer to repurchase Securities upon
a Change in Control pursuant to Section 3.09, or to repurchase the Securities at
the option of the Holders pursuant to Section 3.08;


 


53

















 


(g)           reduce the percentage of principal
amount of the outstanding Securities necessary to modify or amend this
Indenture or to consent to any waiver provided for in this Indenture;


 


(h)           waive a default in the payment of any
amount or shares of Common Stock with respect to any Security when due (except
as provided in Section 6.02); or


 


(i)            make any changes to Section 6.04,
Section 6.07 or this Section 9.02.


 


It shall not
be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After an amendment
under this Section 9.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment.  Failure to mail the notice or a defect in the notice shall not
affect the validity of the amendment.


 


The terms of
any documents entered into pursuant to this Section 9.02 shall be subject to
prior approval, if required, of any applicable gaming authority. To the extent
required by applicable gaming laws, Securities held by a Disqualified Holder
shall, so long as held by such a Person, be disregarded for purposes of
providing consents and determining the sufficiency of consents under this
Section 9.02.


 


Section 9.03. 
Compliance with Trust Indenture
Act.  Every supplemental
indenture executed pursuant to this Article 9 shall comply with the TIA.


 


Section 9.04. 
Revocation and Effect of Consents.  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 such Holder and every subsequent Holder
of such Security or portion of such 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 such Security. 
However, unless otherwise agreed in writing by such Holder or a
predecessor Holder, 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 before the date the
amendment, waiver or action becomes effective. 
After an amendment, waiver or action becomes effective, it shall bind
every Holder.


 


Section 9.05. 
Notation on or Exchange of
Securities.  Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 may, and shall if required by the Trustee, bear a
notation


 


54

















 


in form approved by the Trustee 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
such new Securities may be authenticated and delivered by the Trustee in
exchange for outstanding Securities.


 


Section 9.06. 
Trustee to Sign Supplemental
Indentures.  The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not, in the sole determination of the
Trustee, adversely affect the rights, duties, powers, privileges, benefits,
indemnities, 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 be entitled to receive,
and (subject to the provisions of Section 7.01) 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 9.07. 
Effect of Supplemental Indentures.  Upon the execution of any
supplemental indenture under this Article 9, 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 10

CONVERSION OF THE SECURITIES


 


Section 10.01. 
Conversion Privilege.


 


(a)           Subject
to the provisions of this Article 10, a Holder of a Security, except a
Disqualified Holder, may convert such Security into cash and, if applicable,
Common Stock equal to the Conversion Value in accordance with Section 10.14, if
any of the following conditions is satisfied:


 


(i)    during
any fiscal quarter (the “Quarter”) commencing after the date of
original issuance of the Securities, if the Common Stock Price for at least 20
Trading Days in the period of 30 consecutive Trading Days ending on the last
Trading Day of the Quarter immediately preceding such Quarter (appropriately
adjusted to take into account the occurrence, during such 30 consecutive
Trading Day period, of any event requiring adjustment of the Conversion Price
under this Indenture) is more than 120% of the Conversion Price on such 30th
Trading Day;


 


(ii)   such
Security has been called for redemption by the Company pursuant to Section 3.01
and the redemption has not yet


 


55

















 


occurred, so long as the Holder surrenders such
Security for conversion prior to the close of business on the date that is two
Business Days prior to the applicable Redemption Date, even if the Security is
not otherwise convertible at such time;


 


(iii)  (A)          during the five Trading Day period
immediately after any period of five consecutive Trading Days in which the
Trading Price of the Securities for each Trading Day in such period was less
than 95% of the product of (x) the Common Stock Price on such Trading Day
and (y) the Conversion Rate on such Trading Day;


 


(B)           notwithstanding
the foregoing, if on the date of any conversion pursuant to Section
10.01(a)(iii)(A), the Common Stock Price on such date is greater than the
Conversion Price on such date but less than 120% of the Conversion Price on
such date, then, for purposes of Section 10.14, the Conversion Value a Holder
of Securities will be entitled to receive will be equal to the principal amount
of the Securities surrendered by such Holder plus accrued and unpaid interest
(including Liquidated Damages, if any) as of the Conversion Date (such a
conversion, a “Principal Value Conversion”);


 


(iv)  (A)          a distribution to all holders of
Common Stock of rights, warrants or options entitling them (for a period
commencing no earlier than the date of distribution and expiring not more than
60 days after the date of distribution) to subscribe for or purchase shares of
Common Stock at a price less than the average Common Stock Price for the 10
Trading Days immediately preceding the date such distribution was first
publicly announced; or


 


(B)           a
distribution to all holders of Common Stock of cash, other assets, debt
securities or certain rights or warrants to purchase Capital Stock or other
securities of the Company, where the fair market value of such distribution per
share of Common Stock (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value) exceeds
10% of the Common Stock Price on the Trading Day immediately preceding the date
that such distribution was first publicly announced;


 


provided that
the Holder shall have no right to convert any Security pursuant to this Section
10.01(a)(iv) hereof if the Holder of a Security otherwise participates in the
distribution described in this Section 10.01(a)(iv) on an as-converted basis
solely into Common Stock at the


 


56

















 


then applicable Conversion Price without conversion of such Holder’s
Securities; or


 


(v)   if
the Company is party to a consolidation, merger, share exchange, sale of all or
substantially all of its properties and assets or other similar transaction, in
each case pursuant to which the Common Stock is subject to conversion into
cash, securities or other property, from and after the effective date of such
transaction until and including the date that is 30 days after the effective
date of such transaction.


 


(b)           In the case of Section 10.01(a)(iii),
the Trustee shall have no obligation to determine the Trading Price of the
Securities unless the Company has requested such determination in writing, and
the Company shall have no obligation to make such request unless a Holder of
the Securities provides the Company with reasonable evidence that the Trading
Price of the Securities on any date would be less than 95% of the product of
(x) the Common Stock Price on such date and (y) the Conversion Rate then in
effect.  Upon receipt of such reasonable
evidence, the Company shall instruct the Trustee in writing to determine the
Trading Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the Trading Price of the Securities is greater
than or equal to 95% of the product of the Common Stock Price and the
Conversion Rate.  Neither the Trustee
nor the Conversion Agent shall be under any duty or obligation to make the
calculations described in Section 10.01(a)(iii) hereof or to determine whether
the Securities are convertible pursuant to such Section.  The Company shall make the calculations
described in Section 10.01(a)(iii) hereof using the Trading Price of the
Securities provided by the Trustee, shall determine whether the Securities are
convertible under Section 10.01(a)(iii) and shall advise the Trustee (or
Conversion Agent, as the case may be) of any determination that the Securities
are convertible under Section 10.01(a)(iii).


 


(c)           In the case of the foregoing Sections
10.01(a)(iv)(A) and 10.01(a)(iv)(B), the Company shall cause a notice of such
distribution to be filed with the Trustee and the Conversion Agent and to be mailed
to each Holder of Securities no later than 20 days prior to the Ex-Dividend
Date for such distribution.  Once the
Company has given such notice, Holders may surrender their Securities for
conversion at any time thereafter until the earlier of the close of business on
the Business Day prior to the Ex-Dividend Date or the Company’s announcement
that such distribution will not take place. 
The “Ex-Dividend Date” for any such issuance or distribution means
the date immediately prior to the commencement of “ex-dividend” trading for
such issuance or distribution on The New York Stock Exchange or such other
national securities exchange or The Nasdaq Stock Market or similar system of
automated dissemination of quotations of securities prices on which the Common
Stock is then listed or quoted.


 


57

















 


(d)           A Holder may convert a portion of a
Security equal to $1,000 or any integral multiple thereof.  Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


 


If a Security
is called for redemption pursuant to Section 3.01, in order to convert such
Security, the Holder must deliver the Security to the Conversion Agent (or, if
the Security is held in book-entry form, complete and deliver to the Depositary
appropriate instructions in accordance with the Applicable Procedures) at any
time prior to the close of business on the day that is two Business Days prior
to the applicable Redemption Date for such Security (unless the Company shall
default in paying the Redemption Price when due, in which case the conversion
right shall terminate on the date such default is cured and such Security is
redeemed).  A Security in respect of
which a Holder has delivered a Repurchase Notice pursuant to Section 3.08 or a
Change in Control Repurchase Notice pursuant to Section 3.09 exercising the
option of such Holder to require the Company to repurchase such Security may be
converted only if such Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, is withdrawn by a written notice of withdrawal
delivered to the Paying Agent prior to the close of business on the Repurchase
Date or the Change in Control Repurchase Date, as the case may be, in
accordance with Section 3.10.


 


(e)           A
Holder of Securities is not entitled to any rights of a holder of Common Stock
until such Holder has converted its Securities into Common Stock.


 


Section 10.02. 
Conversion Procedure.


 


(a)           To
convert a Security, a Holder must (i) if the Security is in definitive form,
complete and manually sign the irrevocable conversion notice on the back of the
Security and deliver such notice to the Conversion Agent, (ii) if the Security
is in definitive form, surrender the Security to the Conversion Agent, (iii) if
the Security is in definitive form, furnish appropriate endorsements and
transfer documents if required by the Registrar or the Conversion Agent, (iv)
pay any transfer or other tax, if required by Section 10.03 and (v) if the
Security is held in book-entry form, complete and deliver to the Depositary
appropriate instructions pursuant to the Applicable Procedures.  The later of (x) the date on which the
Holder satisfies all of the foregoing requirements and (y) the Determination
Date is the “Conversion Date”.  As
promptly as practicable after the Conversion Date and in any event within four
Business Days thereof, the Company shall deliver to the Holder through the
Conversion Agent (1) cash in the amount calculated in accordance with Section
10.14, (2) either a certificate for or a book-entry notation of the number of
whole shares of Common Stock issuable upon the conversion and (3) cash in lieu
of any fractional shares pursuant to Section 10.14.


 


58

















 


(b)           The Person in whose name the Security
is registered shall be deemed to be a stockholder of record on the Conversion
Date; provided
that no surrender of a Security on any date when the stock transfer books of
the Company shall be closed shall be effective to constitute the Person or
Persons entitled to receive the shares of Common Stock upon such conversion as
the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the Person or Persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided, further, that such conversion shall
be at the Conversion Price in effect on the date that such Security shall have
been surrendered for conversion, as if the stock transfer books of the Company
had not been closed.  Upon conversion of
a Security, such Person shall no longer be a Holder of such Security.


 


(c)           No payment or adjustment will be made
for accrued but unpaid interest (including Liquidated Damages, if any) on a
converted Security or for dividends or distributions on shares of Common Stock
issued upon conversion of a Security. 
The Company shall not adjust the Conversion Price to account for the
accrued but unpaid interest. 
Nonetheless, if Securities are converted after the close of business on
a regular record date and prior to the opening of business on the next interest
payment date, including the date of maturity, Holders of such converted
Securities at the close of business on such regular record date shall receive
the accrued but unpaid interest (including Liquidated Damages, if any) payable
on such Securities on the corresponding interest payment date notwithstanding
the conversion.  In such event, such
Security, when surrendered for conversion, must be accompanied by delivery of a
check payable to the Conversion Agent in an amount equal to the accrued but
unpaid interest (including Liquidated Damages, if any) payable on such interest
payment date on the portion so converted. 
If such payment does not accompany such Security, the Security shall not
be converted; provided that no such check shall be required if such
Security has been called for redemption on a redemption date within the period
between the close of business on such record date and the opening of business
on such interest payment date, or if such Security is surrendered for
conversion on the interest payment date. 
If the Company defaults in the payment of interest (including Liquidated
Damages, if any) payable on the interest payment date, the Conversion Agent
shall repay such funds to the Holder.


 


(d)           Upon surrender of a Security that is
converted in part, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order, authenticate and deliver to the Holder, a new
Security equal in principal amount to the unconverted portion of the Security
surrendered.


 


Section 10.03. 
Taxes on Conversion.  If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on


 


59

















 


the issue of shares of Common Stock upon such
conversion.  However, the Holder shall
pay any tax which is due because the Holder requests the shares to be issued in
a name other than the Holder’s name. 
The Conversion Agent may refuse to deliver the certificates representing
the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s
name.  Nothing herein shall preclude any
tax withholding required by law or regulations.


 


Section 10.04. 
Company to Provide Stock.  The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.  The certificates representing the shares of Common Stock issued
upon conversion of Transfer Restricted Securities shall bear a legend substantially
in the following form:


 


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


 


THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF SHUFFLE MASTER,
INC. (THE “COMPANY”) THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (II)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY


 


60

















 


APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.


 


The Company
covenants that all shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly
authorized, validly issued, fully paid and non-assessable and shall be free
from preemptive rights and free of any lien or adverse claim.


 


The Company
will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Securities, if any, and will list or cause to have quoted such shares of Common
Stock on each national securities exchange or in the over-the-counter market or
such other market on which the Common Stock is then listed or quoted.


 


Section 10.05. 
Adjustment of Conversion Price.  The Conversion Price shall be
adjusted (without duplication) from time to time by the Company as follows:


 


(a)           In case the Company shall (i) issue
shares of Common Stock to all holders of Common Stock as a dividend or
distribution on Common Stock, (ii) subdivide its outstanding Common Stock into
a greater number of shares or (iii) combine its outstanding Common Stock into a
smaller number of shares, the Conversion Price shall be adjusted so that the
Holder of any Security thereafter surrendered for conversion shall be entitled
to receive the number of shares of Common Stock which it would have owned or
been entitled to receive had such Security been converted immediately prior to
the happening of such event.  For the
purposes of calculating the Conversion Price adjustment pursuant to this
Section 10.05(a), Holders of a Security shall be treated as if they had the
right to convert the Security solely into Common Stock at the then applicable
Conversion Price.  An adjustment made
pursuant to this Section 10.05(a) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of subdivision,
combination or reclassification.


 


(b)           In case the Company shall issue to
all holders of Common Stock rights, warrants or options entitling such holders
(for a period commencing no earlier than the date of distribution and expiring
not more than 60 days after the date of distribution) to subscribe for or
purchase shares of Common Stock at a price per share less than the average
Common Stock Price for the 10 Trading Days immediately preceding the date that
such distribution was first publicly announced, the Conversion Price shall be
decreased so that the Conversion Price


 


61

















 


shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to such record
date by a fraction,


 


(i)    the
numerator of which shall be the number of shares of Common Stock outstanding on
such date of public announcement, plus the number of shares which the aggregate
subscription or purchase price for the total number of shares of Common Stock
offered by the rights, warrants or options so issued (or the aggregate
conversion price of the convertible securities offered by such rights, warrants
or options) would purchase at such average Common Stock Price, and


 


(ii)   the
denominator of which shall be the number of shares of Common Stock outstanding
on such date of public announcement plus the number of additional shares of
Common Stock offered by such rights, warrants or options (or into which the
convertible securities so offered by such rights, warrants or options are
convertible);


 


provided
that no adjustment will be made if Holders are entitled to participate in the
distribution on substantially the same terms as holders of Common Stock as if
such Holders had converted their Securities solely into Common Stock
immediately prior to such distribution at the then applicable Conversion Price.


 


Such
adjustment shall be made successively whenever any such rights, warrants or
options are issued, and shall become effective immediately after such record
date.  If at the end of the period
during which such rights, warrants or options are exercisable not all rights,
warrants or options shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been upon application of
the foregoing adjustment substituting the number of additional shares of Common
Stock actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued) for the total number of
shares of Common Stock offered (or convertible securities offered).


 


(c)           In case the Company shall distribute
to all holders of Common Stock evidences of its indebtedness, shares of Capital
Stock of the Company (other than Common Stock), other securities or other
assets, or rights, warrants or options to subscribe for or purchase any of its
securities (excluding (i) those rights, options and warrants referred to in
Section 10.05(b); (ii) those dividends and distributions referred to in Section
10.05(a); and (iii) those dividends or distributions paid in cash referred to
in Section 10.05(e)), then in each such case the Conversion Price shall be
decreased so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such distribution
by a fraction,


 


62

















 


(i)    the
numerator of which shall be the Market Price on the record date for the
determination of holders of Common Stock entitled to receive such distribution
less the fair market value on such record date (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value) of the portion of the Capital Stock or evidences of indebtedness,
securities or assets so distributed or of such rights, warrants or options, in
each case applicable to one share of Common Stock, and


 


(ii)   the
denominator of which shall be the Market Price on such record date,


 


such adjustment to become effective immediately after the record date
for such distribution; provided that if the numerator of the
foregoing fraction is less than $1.00 (including a negative amount), then in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion, in addition to the cash
and Common Stock issuable upon such conversion, the distribution such Holder
would have received had such Holder converted its Security solely into Common
Stock at the then applicable Conversion Price immediately prior to the record
date for such distribution; provided further that no adjustment will
be made if Holders are entitled to participate in the distribution on
substantially the same terms as holders of Common Stock as if such Holders had
converted their Securities solely into Common Stock immediately prior to such
distribution at the then applicable Conversion Price.


 


(d)           In
case the Company or any of its Subsidiaries makes a payment to holders of
Common Stock in respect of a tender or exchange offer, other than an odd lot
offer, for shares of Common Stock to the extent that the offer involves
aggregate consideration that, together with any cash and the fair market value
of any other consideration in respect of any tender or exchange offer by the
Company or any of its Subsidiaries for shares of Common Stock consummated
within the preceding 12 months not triggering a Conversion Price adjustment,
exceeds an amount equal to 5.0% of the market capitalization of the Common
Stock on the expiration date of the tender offer, the Conversion Price shall be
decreased so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the expiration time of such
tender or exchange offer (the “Expiration Time”) by a fraction,


 


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


 


63

















 


(ii)   the
denominator of which shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to holders of Common Stock
based on the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares of Common Stock validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed so accepted up
to any such maximum being referred to as the “Purchased Shares”) and (y)
the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Common Stock Price on the
Trading Day next succeeding the Expiration Time,


 


such
adjustment to become effective immediately prior to the opening of business on
the day following the Expiration Time. 
If the Company is obligated to purchase shares pursuant to any such tender
or exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price that would
then be in effect if such tender or exchange offer had not been made.


 


(e)           In
case the Company shall declare a cash dividend or cash distribution to all of
the holders of Common Stock, the Conversion Price shall be decreased so that
the Conversion Price shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date for such
dividend or distribution by a fraction,


 


(i)    the
numerator of which shall be the average of the Common Stock Price for the three
consecutive Trading Days ending on the Trading Day immediately preceding the
record date for such dividend or distribution (the “Pre-Dividend Sale Price”),
minus the full amount of such cash dividend or cash distribution applicable to
one share of Common Stock (the “Dividend Adjustment Amount”), and


 


(ii)   the
denominator of which shall be the Pre-Dividend Sale Price,


 


such
adjustment to become effective immediately after the record date for such
dividend or distribution; provided that no adjustment will be made
if Holders are entitled to participate in the distribution on substantially the
same terms as holders of Common Stock as if such Holders had converted their
Securities solely into Common Stock immediately prior to such distribution at
the then applicable Conversion Price; and provided further that if the numerator of
the foregoing fraction is less than $1.00 (including a negative amount), then
in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion, in addition to the
cash and Common Stock issuable upon such conversion, the amount of cash such
Holder would have


 


64

















 


received had
such Holder converted its Security solely into Common Stock at the then
applicable Conversion Price immediately prior to the record date for such cash
dividend or cash distribution.  If such
cash dividend or cash distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price that would then be in effect
if such dividend or distribution had not been declared.


 


(f)            If
the rights provided for in the Company’s Shareholder Rights Plan dated as of
June 26, 1998 (the “Shareholder Rights Plan”), have separated
from the Common Stock in accordance with the provisions of the Shareholder
Rights Plan so that the Holders of the Securities would not be entitled to
receive any rights in respect of Common Stock issuable upon conversion of the
Securities, the Conversion Price will be adjusted as provided in Section
10.05(c) above, subject to readjustment in the event of the expiration,
termination or redemption of the rights. 
In lieu of any such adjustment, the Company may amend the Shareholder
Rights Plan to provide that upon conversion of the Securities the Holders will
receive, in addition to the cash and Common Stock issuable upon such
conversion, the rights which would have attached to the shares of Common Stock
issuable upon conversion of the Securities solely into Common Stock at the then
applicable Conversion Price, if the rights had not become separated from the
Common Stock under the Shareholder Rights Plan.  To the extent that the Company adopts any future rights plan,
upon conversion of the Securities, Holders will receive, in addition to the
cash and Common Stock issuable upon such conversion, the rights under the
future rights plan in respect of the shares of Common Stock issuable upon
conversion of the Securities solely into Common Stock at the then applicable
Conversion Price, whether or not the rights have separated from the Common
Stock at the time of conversion, and no adjustment to the Conversion Price will
be made in connection with any distribution of rights thereunder.


 


(g)           In
any case in which this Section 10.05 shall require that an adjustment be made
immediately following a record date established for purposes of this Section
10.05, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 10.09) issuing to the holder of any Security converted
after such record date the shares of Common Stock and other Capital Stock of
the Company issuable upon such conversion over and above the shares of Common
Stock and other Capital Stock of the Company issuable upon such conversion only
on the basis of the Conversion Price prior to adjustment; and, in lieu of the
shares the issuance of which is so deferred, the Company shall issue or cause
its transfer agents to issue due bills or other appropriate evidence of the
right to receive such shares.


 


(h)           Before
taking any action which would cause an adjustment decreasing the Conversion
Price so that the shares of Common Stock issuable


 


65

















 


upon conversion of the Securities would be
issued for less than the par value of such Common Stock, the Company will take
all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares of such Common
Stock at such adjusted Conversion Price.


 


(i)            If the Company is required by law to
withhold any taxes with respect to a deemed distribution to a Holder or
Beneficial Owner resulting from a Conversion Price adjustment, such taxes may
be withheld from interest payments made to such Holder or Beneficial Owner on
or after the date of such Conversion Price adjustment.


 


Section 10.06. 
No Adjustment. 
No adjustment in the Conversion Price shall be required
unless the adjustment would require an increase or decrease of at least 1% in
the Conversion Price as last adjusted; provided that any adjustments which by
reason of this Section 10.06 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.  All calculations under this Article 10 shall
be made to the nearest cent, with one-half cent rounded up, or to the nearest
one-ten thousandth (0.0001) of a share, with one-five hundred thousandth
(0.00005) of a share being rounded up, as the case may be.


 


No adjustment
need be made upon the issuance of Common Stock (or securities convertible into
or exchangeable for Common Stock) under any present or future employee benefit
plan or program of the Company.


 


No adjustment
need be made upon the issuance of Common Stock (or securities convertible into
or exchangeable for Common Stock) pursuant to (i) the exercise of any option,
warrant or right to purchase such Common Stock, (ii) the exchange of any
exchangeable security for such Common Stock or (iii) the conversion of any convertible
security into such Common Stock, in each case so long as such option, warrant,
right to purchase, exchangeable security or convertible security is outstanding
as of the date on which the Securities are first issued.


 


No adjustment
need be made for a change in the par value or a change to no par value of the
Common Stock.


 


To the extent
that the Securities become convertible into cash, no adjustment need be made
thereafter as to the cash.  Interest
will not accrue on the cash.


 


Section 10.07. 
Equivalent Adjustments.  If, as a result of an adjustment
made pursuant to Section 10.05 above, the Holder of any Security thereafter
surrendered for conversion shall become entitled to receive any shares of
Capital Stock of the Company other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of any


 


66

















 


Securities shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in this Article 10.


 


Section 10.08. 
Adjustment for Tax Purposes.  The Company shall be entitled to
make such reductions in the Conversion Price, in addition to those required by
Section 10.05, as the Board of Directors in its discretion shall determine to
be advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or other securities, or distributions
of securities convertible into or exchangeable for stock hereafter made by the
Company to its holders of Common Stock shall not be taxable to such holders.


 


Section 10.09. 
Notice of Adjustment.  Whenever the Conversion Price is
adjusted, or Holders become entitled to other securities or due bills, the
Company shall promptly mail to Holders a notice of the adjustment and file with
the Trustee an Officers’ Certificate briefly stating the facts requiring the
adjustment and the manner of computing it. 
The certificate shall be conclusive evidence of the correctness of such
adjustment and the Trustee may conclusively assume that, unless and until such
certificate is received by it, no such adjustment is required.


 


Section 10.10.  Notice of Certain Transactions.  In case:


 


(a)           the Company shall declare a dividend
(or any other distribution) on the Common Stock; or


 


(b)           the Company shall authorize the
granting to the holders of Common Stock of rights, warrants or options to
subscribe for or purchase any share of any class or any other rights, warrants
or options; or


 


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


 


(d)           of the voluntary or involuntary
dissolution, liquidation or winding-up of the Company;


 


the Company
shall cause to be filed with the Trustee and the Conversion Agent and to be
mailed to each Holder of Securities at its address appearing on the list provided
for in Section 2.05, as promptly as possible but in any event at least ten 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 such dividend,
distribution or


 


67

















 


rights,
warrants or options, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or
occur, 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, share
exchange, sale, transfer, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, share exchange,
transfer, dissolution, liquidation or winding-up.


 


Section 10.11. 
Effect of Reclassification, Consolidation,
Merger, Share Exchange or Sale on Conversion Privilege.  If any of the following shall
occur, namely:  (i) any reclassification
or change of outstanding shares of 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); (ii) any consolidation,
combination, merger or share exchange to which the Company is a party other
than a merger in which the Company is the resulting or surviving corporation
and which does not result in any reclassification of, or change (other than a
change in name, or par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination) in,
outstanding shares of Common Stock; or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company, in each case
pursuant to which the shares of Common Stock are converted into cash,
securities, or other property, then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, combination, merger, share
exchange, sale or conveyance, execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall
have the right to convert such Security into the kind and amount of cash,
securities and other property receivable upon such reclassification, change,
consolidation, combination, merger, share exchange, sale or conveyance by a
holder of the number of shares of Common Stock deliverable upon conversion of
such Security solely into Common Stock at the then applicable Conversion Price
immediately prior to the effective date of such reclassification, change,
consolidation, combination, merger, share exchange, sale or conveyance.  Such supplemental indenture shall provide
for adjustments of the Conversion Price which shall be as nearly equivalent as
may be practicable to the adjustments of the Conversion Price provided for in
this Article 10.  If, in the case of any
such consolidation, merger, share exchange, sale or conveyance, the stock or
other securities and property (including cash) receivable thereupon by a holder
of Common Stock includes shares of Capital Stock or other securities and
property of a corporation other than the successor or


 


68

















 


purchasing corporation, as the case may be,
in such consolidation, merger, share exchange, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. 
The provision of this Section 10.11 shall similarly apply to successive
consolidations, mergers, share exchanges, sales or conveyances.  Notwithstanding the foregoing, a
distribution by the Company to all or substantially all holders of Common Stock
for which an adjustment to the Conversion Price or provision for conversion of
the Securities may be made pursuant to Section 10.05 shall not be deemed to be
a sale or conveyance of all or substantially all of the properties and assets
of the Company for purposes of this Section 10.11.


 


In the event
the Company shall execute a supplemental indenture pursuant to this Section
10.11, the Company shall promptly file with the Trustee an Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture and an Officers’ Certificate briefly stating the reasons therefor,
the kind or amount of cash, securities or other property receivable by Holders
of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, share exchange, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with.


 


Section 10.12. 
Trustee’s Disclaimer.  The Trustee has no duty to determine when an
adjustment under this Article 10 should be made, how it should be made or what
such adjustment should be made, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be fully protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 10.09.  The Trustee shall not be accountable for and
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities, and the Trustee shall not be responsible
for the Company’s failure to comply with any provisions of this Article
10.  Each Conversion Agent (other than
the Company or an Affiliate of the Company) shall have the same protection
under this Section 10.12 as the Trustee.


 


The Trustee
shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section
10.11, but may accept as conclusive evidence of the correctness thereof, and
shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to
Section 10.11.


 


Section 10.13. 
Voluntary Reduction.  The Company may from time to time
reduce the Conversion Price if the Board of Directors determines that this


 


69

















 


reduction would be in the best interests of
the Company;
provided that in no event may the Conversion Price be less than the
par value of a share of Common Stock. 
Any such determination by the Board of Directors shall be
conclusive.  Any such reduction in the
Conversion Price must remain in effect for at least 20 trading days or such
longer period as may be required by law. 
In addition, the Company may from time to time reduce the Conversion
Price if the Board of Directors deems it advisable to avoid or diminish any
income tax to Holders of Common Stock resulting from any stock or rights distribution
on Common Stock.


 


Section 10.14. 
Conversion Value of
Securities Tendered.


 


(a)           Subject
to certain exceptions described in Sections 10.01(a)(iii) and 10.01(a)(iv),
Holders tendering the Securities for conversion shall be entitled to receive,
upon conversion of such Securities, cash and, if applicable, shares of Common
Stock, the value of which (the “Conversion Value”) shall be equal to the
product of:


 


(i)    (A)
the aggregate principal amount of Securities to be converted divided by 1,000
multiplied by (B) the then applicable Conversion Rate; and


 


(ii)   the
average of the Common Stock Prices for the ten consecutive Trading Days
(appropriately adjusted to take into account the occurrence during such period
of stock splits, stock dividends and similar events) beginning on the second
Trading Day immediately following the day the Securities are tendered for
conversion (the “Ten Day Average Closing Stock Price”).


 


(b)           Subject
to certain exceptions described below and under Sections 10.01(a)(iii) and
10.01(a)(iv), the Company shall deliver the Conversion Value to converting
holders as follows:


 


(i)    an
amount in cash (the “Principal Return”) equal to the lesser of
(a) the aggregate Conversion Value of the Securities to be converted and (b)
the aggregate principal amount of the Securities to be converted;


 


(ii)   if
the Conversion Value of the Securities to be converted is greater than the
Principal Return, an amount in whole shares (the “Net Shares”), determined as
set forth below, equal to such aggregate Conversion Value less the Principal
Return (the “Net Share Amount”); and


 


(iii)  an
amount paid in cash, determined as set forth below, in lieu of any fractional
shares of Common Stock.


 


70

















 


The number of
Net Shares to be paid shall be determined by dividing the Net Share Amount by
the Ten Day Average Closing Stock Price. 
Holders of Securities will not receive fractional shares upon conversion
of Securities.  In lieu of fractional
shares, Holders will receive cash for the value of the fractional shares, which
cash payment shall be based on the Ten Day Average Closing Stock Price.


 


The Conversion
Value, Principal Return, number of Net Shares and Net Share Amount shall be
determined by the Company at the end of the ten consecutive Trading Day period
beginning on the second Trading Day immediately following the day the
Securities are tendered for conversion (the “Determination Date”).


 


(c)           The Company shall pay the Principal
Return and cash for fractional shares and deliver the Net Shares, if any, as
promptly as practicable after the Conversion Date, but in no event later than
four Business Days thereafter.  Except
as provided in Section 10.02(c), delivery of the Principal Return, Net Shares
and cash in lieu of fractional shares shall be deemed to satisfy the Company’s
obligation to pay the principal amount of a converted Security and accrued but
unpaid interest (including Liquidated Damages, if any) thereon.  Any accrued interest (including Liquidated
Damages, if any) payable on a converted Security shall be deemed paid in full
rather than canceled, extinguished or forfeited.  The Company will not adjust the Conversion Price to account for
accrued interest.


 


(d)           Neither the Trustee nor the
Conversion Agent has any duty to determine or calculate the Conversion Value,
Principal Return, number of Net Shares, the Net Share Amount or any other
computation required under this Article 10, all of which shall be determined by
the Company (or the Trustee, as the case may be) in accordance with the
provisions of this Indenture, and the Trustee and Conversion Agent shall not be
under any responsibility to determine the correctness of any such
determinations and/or calculations and may conclusively rely on the correctness
thereof.


 


Section 10.15. 
Simultaneous Adjustments.  In the event that this Article 10
requires adjustments to the Conversion Price under more than one of Sections
10.05(a) and (c), and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.05(c), as applicable,
and, second, the provisions of Section 10.05(a).  If more than one event requiring adjustment pursuant to Section
10.05 shall occur before completing the determination of the Conversion Price
for the first event requiring such adjustment, then the Board of Directors
(whose determination shall, if made in good faith, be conclusive) shall make
such adjustments to the Conversion Price (and the calculation thereof) after
giving effect to all such events as shall preserve for Holders the Conversion
Price protection provided in Section 10.05.


 


71



















ARTICLE 11

MISCELLANEOUS


 


Section 11.01. 
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 11.02. 
Notices.  Any request,
demand, authorization, notice, waiver, consent or communication shall be in
writing, in the English language and delivered in person or mailed by
first-class mail, postage prepaid, addressed as follows, or transmitted by
facsimile transmission (confirmed orally) to the following facsimile numbers:


 


if to the
Company, to:


 


Shuffle Master, Inc.


1106 Palms Airport Drive


Las Vegas, Nevada 89119


Attention: General Counsel


Facsimile No.: (702) 270-5161


 


with a copy to:


 


Latham & Watkins LLP 


885 Third Avenue


New York, New York 10022


Facsimile No.: (212) 751-4864


Attention:                                         Kirk
A. Davenport II


 


 


if to the
Trustee, to:


 


Wells Fargo Bank, National Association


Corporate Trust Services


Sixth Street & Marquette Avenue


Minneapolis, MN 55479


Attn: Jeffery Rose


Facsimile No.: (612) 667-9825


 


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 Holder
shall be mailed to the Holder, by first-class mail, postage prepaid, at the
Holder’s address as it appears


 


72

















 


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


 


If the Company mails a notice or
communication to the Holders, it shall mail a copy to the Trustee and each
Registrar, Paying Agent, Conversion Agent or co-registrar.


 


Section 11.03. 
Communication by Holders with Other Holders.  Holders may communicate pursuant to TIA Section 312(b)
with other Holders 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 11.04. 
Certificate and Opinion as to Conditions Precedent.  Upon any request or application
by the Company to the Trustee to take or refrain from taking any action under
this Indenture, the Company shall furnish to the Trustee:


 


(a)        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


 


(b)        an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with.


 


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


 


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


 


73

















 


counsel is relying unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


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


 


Section 11.05. 
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:


 


(a)        a statement that each person making such
Officers’ Certificate or Opinion of Counsel has read such covenant or
condition;


 


(b)        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;


 


(c)        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


 


(d)        a statement that, in the opinion of such
person, such covenant or condition has been complied with.


 


Section 11.06. 
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 11.07. 
Rules by Trustee, Paying Agent, Conversion Agent and Registrar.  The Trustee may make reasonable
rules for action by or a meeting of Holders. 
The Registrar, the Conversion Agent and the Paying Agent may make
reasonable rules for their functions.


 


Section 11.08. 
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 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 interest (including
Liquidated Damages, if any), shall accrue for the intervening period.


 


74

















 


Section 11.09. 
Governing Law.  THIS
INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 11.10. 
No Recourse Against Others.  A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any Obligations of the Company under the Securities or
for any claim based on, in respect of or by reason of such Obligations or their
creation.  By accepting a Security, each
Holder 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.  This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.


 


Section 11.13. 
Table of Contents and Headings.  The
Table of Contents and the headings of the Articles or Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered as part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.


 


75

















 


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.


 


	
   

  	
  SHUFFLE
  MASTER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul
  Meyer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Paul Meyer

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey
  Rose

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey Rose

  
	
   

  	
   

  	
  Title:

  	
  Corporate
  Trust Officer

  
					



 

















 


EXHIBIT A


 


[FORM OF FACE
OF GLOBAL SECURITY]


 


[Transfer
Restricted Securities Legend — Include only on Transfer Restricted Securities]


 


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


 


THE HOLDER OF THIS SECURITY AGREES FOR THE
BENEFIT OF SHUFFLE MASTER, INC. (THE “COMPANY”) THAT (A) THIS SECURITY MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.


 


THE FOREGOING LEGEND MAY BE REMOVED FROM THE
SECURITY ON SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.]


 


[Global
Securities Legend — Include only on Global Securities]


 


[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF


 


A-1

















 


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 THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.]


 


A-2

















 


SHUFFLE MASTER, INC.


 


1.25% Contingent Convertible Senior Note Due
2024


 


	
  No.:  1

  	
  CUSIP:  [825549AA6]*

  
	
   

  	
   

  
	
  Issue
  Date:  April 21, 2004

  	
   

  



 


SHUFFLE MASTER, INC., a Minnesota
corporation, promises to pay to [Cede & Co.]** or registered assigns, [the
principal amount of                    ]
[the principal amount as set forth on Schedule I hereto]**, on April 15, 2024,
subject to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.  This
Security is convertible as specified on the other side of this Security.


 


Interest Payment Dates:  April 15 and October 15, commencing October
15, 2004.


 


Record Dates:  April 1 and October 1, commencing October 1, 2004.


 


	
   

  	
  SHUFFLE
  MASTER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 












* For Rule 144A Global Security
only.


** Include only on Global
Security.


 


A-3

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


Wells Fargo Bank, National Association, as
Trustee, certifies that this is one of the Securities referred to in the
within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


Dated:


 


A-4

















 


[FORM OF
REVERSE SIDE OF NOTE]


 


SHUFFLE
MASTER, INC.


 


1.25%
Contingent Convertible Senior Note Due 2024


 


(1)           Interest.


 


This Security will bear interest at the rate
of 1.25% per annum from April 21, 2004 or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on April
15 and October 15 of each year, subject to Section 11.08 of the Indenture,
commencing October 15, 2004.  The
Company will pay interest on any overdue principal amount and on overdue
installments of interest and Liquidated Damages, if any (without regard to any
applicable grace period), at the rate of 1.25% per annum, compounded
semiannually.  Interest (including
Liquidated Damages, if any) on the Securities will be computed on the basis of
a 360-day year comprised of twelve 30-day months.


 


(2)           Method
of Payment.


 


The Company will pay interest (including
Liquidated Damages, if any) on this Security to the Person who is the
registered Holder of this Security at the close of business on April 1 or
October 1, as the case may be, immediately preceding the related interest
payment date.  Subject to the terms and
conditions of the Indenture, the Company will make payments in respect of the Redemption
Price, Repurchase Price, Change in Control Repurchase Price and the principal
amount at Stated Maturity, as the case may be, to the Holder who surrenders a
Security to a Paying Agent to collect such payments in respect of the Security.  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 pay interest (including Liquidated Damages, if any), the Redemption
Price, Repurchase Price, Change in Control Repurchase Price and the principal
amount at Stated Maturity, as the case may be, to a Holder holding Securities
in definitive form by check or wire payable in such money; provided that a Holder
holding Securities in definitive form with an aggregate principal amount in
excess of $1,000,000 may request payment by wire transfer in immediately
available funds to an account in North America at the election of such
Holder.  The Company may mail an interest
check to the Holder’s registered address. 
Notwithstanding the foregoing, so long as this Security is registered in
the name of a Depositary or its nominee, all payments hereon shall be made by
wire transfer of immediately available funds to the account of the Depositary
or its nominee.


 


A-5

















 


(3)           Paying
Agent, Conversion Agent and Registrar.


 


Initially, Wells Fargo Bank, National
Association (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 having an office or agency 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 April 21, 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 Holders are referred to the Indenture and the TIA for a statement of
those terms.


 


The Initial Securities are general unsecured
obligations of the Company limited to up to $125,000,000 aggregate principal
amount (which amount shall be increased by up to $25,000,000 in principal
amount of additional Initial Securities purchased pursuant to the Initial
Purchasers’ option to purchase additional Securities).  The Indenture provides that Additional
Securities may be issued pursuant to the Indenture, and the originally issued
Initial Securities and all such Additional Securities vote together for all
purposes as a single class.  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.  On or after April 21, 2009,
the Securities are redeemable in whole at any time, or in part from time to
time, in any integral multiple of $1,000, at the option of the Company for cash
at a Redemption Price equal to 100% of the principal amount of the Securities
to be redeemed, together with accrued but unpaid interest (including Liquidated
Damages, if any) thereon, up to but not including the Redemption Date; provided that,
if the Redemption Date is between the close of business on an interest record
date and the opening of business on the related interest payment date, accrued
but unpaid interest (including Liquidated Damages, if any) will be payable to
the Holders in whose names the Securities are registered at the close of
business on the relevant interest record date.


 


A-6

















 


Notice of redemption pursuant to paragraph 5
of this Security will be mailed at least 30 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 11:00 a.m., New York City time, on the Redemption Date, immediately after
such Redemption Date, interest (including Liquidated Damages, if any) shall
cease to accrue on such Securities or portions thereof.  Securities in denominations larger than
$1,000 of principal amount may be redeemed in part but only in integral multiples
of $1,000 of principal amount.


 


(6)           Mandatory
Disposition Pursuant to Gaming Laws


 


(A)          Each
Holder, by accepting this Security, will be deemed to have agreed that if the
gaming authority of any jurisdiction in which the Company or any of its Subsidiaries
conducts or proposes to conduct gaming operations requires that a Person who is
a Holder or the Beneficial Owner of this Security (or an affiliate of such
Holder or Beneficial Owner) be licensed, qualified or found suitable under
applicable gaming laws, such Holder or the Beneficial Owner, as the case may
be, will apply for a license, qualification or a finding of suitability within
the required time period.  If such
Person fails to apply or become licensed or qualified or is found unsuitable (a
“Disqualified Holder”), the Company will have the right, at any time, at its
option:


 


(i)    to require such Person to dispose of this
Security or beneficial interest herein within 30 days of receipt of notice of
the Company’s election or such earlier date as may be requested or prescribed
by such gaming authority, or


 


(ii)   to redeem such Securities at a redemption
price equal to the lesser of (1) such Person’s cost, (2) 100% of the principal
amount thereof, plus accrued and unpaid interest (including Liquidated Damages,
if any) to the earlier of the redemption date or the date of the finding of
unsuitability, which redemption date may be less than 30 days following the
notice of redemption if so requested or prescribed by the applicable gaming
authority or (3) such lesser amount as may be required by an applicable gaming
authority.


 


(B)           Immediately
upon a determination by a gaming authority that a Holder or Beneficial Owner of
this Security (or an affiliate thereof) will not be licensed, qualified or
found suitable or is denied a license, qualification or finding of suitability,
the Holder or Beneficial Owner will not have any further right with respect to
this Security to:


 


A-7

















 


(i)    exercise, directly or indirectly, through
any Person, any right conferred by this Security; or


 


(ii)   receive any interest (including Liquidated
Damages, if any), or any other distribution or payment with respect to this
Security, or any remuneration in any form from the Company for services
rendered or otherwise, except for the redemption of this Security.


 


(C)           The
Company will notify the Trustee in writing of any such Disqualified Holder
status or redemption as soon as practicable. 
The Company will not be responsible for any costs or expenses any such
Holder or the Beneficial Owner may incur in connection with its application for
a license, qualification or a finding of suitability.


 


(7)           Repurchase
By the Company at the Option of the Holder on Specified Dates; Repurchase at
the Option of the Holder Upon a Change in Control.


 


Subject to the terms and conditions of the
Indenture, the Company shall become obligated to repurchase, at the option of
the Holder, all or a portion of the Securities tendered pursuant to the
Indenture, in any integral multiple of $1,000, on April 15, 2009, April 15,
2014 and April 15, 2019 (each, a “Repurchase Date”), for cash at a price per
Security equal to 100% of the aggregate principal amount of the Security (the “Repurchase
Price”), together with accrued but unpaid interest (including
Liquidated Damages, if any) thereon, up to but not including the Repurchase
Date upon delivery of a Repurchase Notice containing the information set forth
in the Indenture, together with the Securities subject thereto, at any time from
the opening of business on the date that is 30 Business Days prior to such
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date, and upon delivery or book-entry transfer of the Securities to
the Paying Agent by the Holder as set forth in the Indenture.


 


At the option of the Holder and subject to
the terms and conditions of the Indenture, the Company shall become obligated
to repurchase the Securities held by such Holder after the occurrence of a
Change in Control of the Company for a Change in Control Repurchase Price equal
to 100% of the aggregate principal amount thereof plus accrued but unpaid
interest (including Liquidated Damages, if any) thereon, up to but not
including the Change in Control Repurchase Date which Change in Control
Repurchase Price shall be paid in cash (provided that if the Change in Control
Repurchase Date is between the close of business on an interest record date and
the opening of business on the related interest payment date, accrued but unpaid
interest (including Liquidated Damages, if any) will be payable to the Holders
in whose names the Securities are registered at the close of business on the
relevant interest record date).  Holders
have the right to withdraw any Repurchase Notice or Change in Control
Repurchase Notice, as the case may


 


A-8

















 


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 Repurchase
Price or Change in Control Repurchase Price, as the case may be, and accrued
but unpaid interest (including Liquidated Damages, if any) on all Securities or
portions thereof to be repurchased as of the Repurchase Date or the Change in
Control Repurchase Date, as the case may be, is held by the Paying Agent by
11:00 a.m., New York City time, on the Business Day immediately following the
Repurchase Date or the Change in Control Repurchase Date, interest (including
Liquidated Damages, if any) shall cease to accrue on such Securities (or
portions thereof) as of such Repurchase Date or Change in Control Repurchase
Date, and the Holder thereof shall have no other rights as such, other than the
right to receive the Repurchase Price or Change in Control Repurchase Price, as
the case may be, and interest (including Liquidated Damages, if any) upon
surrender of such Security.


 


(8)           Conversion.


 


Upon satisfaction of the conditions set forth
in Section 10.01(a) of the Indenture, a Holder of a Security may convert any
portion of the principal amount of any Security that is an integral multiple of
$1,000 into cash and fully paid and non-assessable shares (calculated as to
each conversion to the nearest 1/10000th of a share) of Common Stock in
accordance with the provisions of Section 10.14 of the Indenture; provided that
if such Security is called for redemption, the conversion right will terminate
at the close of business on the second Business Day immediately preceding the
Redemption Date of such Security (unless the Company shall default in making
the redemption payment when due, in which case the conversion right shall
terminate at the close of business on the date such Default is cured and such
Security is redeemed).  Such conversion
right shall commence on the initial issuance date of the Securities and expire
at the close of business on the Business Day immediately preceding the date of
maturity, subject, in the case of conversion of any Global Security, to any
Applicable Procedures.  The Conversion
Price shall, as of the date of the Indenture, initially be $42.11 per share of
Common Stock.  The Conversion Rate
shall, as of the date of the Indenture, initially be approximately 23.7473.  The Conversion Price and Conversion Rate
will be adjusted under the circumstances specified in the Indenture.  Upon conversion, no adjustment for interest
(including Liquidated Damages, if any) or dividends will be made.  No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the Ten
Day Average Closing Stock Price (as defined in the Indenture).  Except as provided in Section 10.02(c) of
the Indenture, delivery of the Principal Return, Net Shares and cash in lieu of
fractional shares shall be deemed to satisfy the Company’s obligation to pay
the principal amount of a converted Security and accrued but unpaid interest
(including Liquidated Damages, if any) thereon.  Any accrued interest (including Liquidated Damages, if any)
payable on a converted


 


A-9

















 


Security will be deemed paid in
full, rather than canceled, extinguished or forfeited.


 


To convert a Security, a Holder must (a)
complete and manually sign the conversion notice set forth below and deliver
such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents
if required by the Registrar or the Conversion Agent, (d) pay any transfer or
other tax, if required and (e) if the Security is held in book-entry form,
complete and deliver to the Depositary appropriate instructions pursuant to the
Applicable Procedures.  If a Holder
surrenders a Security for conversion between the close of business on the
record date for the payment of an installment of interest and the opening of
business on the related interest payment date, the Security must be accompanied
by payment of an amount equal to the interest (including Liquidated Damages, if
any) payable on such interest payment date on the principal amount of the
Security or portion thereof then converted; provided that no such payment shall be
required if such Security has been called for redemption on a Redemption Date
within the period between the close of business on such record date and the
opening of business on such interest payment date, or if such Security is
surrendered for conversion on the interest payment date.  A Holder may convert a portion of a Security
equal to $1,000 or any integral multiple thereof.


 


A Security in respect of which a Holder has
delivered a Repurchase Notice or a Change in Control Repurchase Notice
exercising the option of such Holder to require the Company to repurchase such
Security as provided in Section 3.08 or Section 3.09, respectively, of the
Indenture may be converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.


 


(9)           Denominations;
Transfer; Exchange.


 


The Securities are in fully registered form,
without coupons, in denominations of $1,000 of principal amount 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 Repurchase Notice or a Change in Control
Repurchase Notice has been given and not withdrawn (except, in the case of a
Security to be repurchased in part, the portion of the Security not to be
repurchased), or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.


 


A-10

















 


(10)         Persons
Deemed Owners.


 


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


 


(11)         Amendment;
Waiver.


 


Subject to certain exceptions set forth in
the Indenture, (i) the Indenture or the Securities may be amended with the
written consent or consent pursuant to DTC procedures of the Holders of at
least a majority in aggregate principal amount of the Securities at the time
outstanding and (ii) certain defaults may be waived with the written consent or
consent pursuant to DTC procedures of the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding.  Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee
may amend the Indenture or the Securities (i) to cure any ambiguity, omission,
defect or inconsistency, or make any other change that does not adversely
affect the rights of any Holder in any material respect; provided that any change to
conform the Indenture to the Offering Memorandum shall be deemed not to
adversely affect the rights of any Holder, (ii) to comply with Article 5 or
Section 10.11 of the Indenture, (iii) to make provisions with respect to the
conversion right of Holders pursuant to the requirements of Section 10.01 of
the Indenture, (iv) to evidence and provide for the acceptance of appointment
under the Indenture by a successor Trustee, or (v) to comply with the
provisions of the TIA or any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.


 


(12)         Defaults
and Remedies.


 


Except as set forth in the Indenture, if an
Event of Default occurs and is continuing, the Trustee may, and at the written
request of the Holders of at least 25% in principal amount of outstanding
Securities shall, declare all the Securities to be due and payable in the
manner, at the time and with the effect provided in the Indenture.  Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture.  The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received security or indemnity
reasonably satisfactory to it.  The
Indenture permits, subject to certain limitations therein provided, Holders of
a majority in aggregate principal amount of the Securities at the time
outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
default in payment of principal or interest when due, for any reason) if it
determines in good faith that withholding notice is in the interests of
Holders.


 


(13)         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


 


A-11

















 


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.


 


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


 


(15)         Ranking.


 


The Securities shall be senior unsecured
obligations of the Company and shall rank equally in right of payment with any
other existing and future senior indebtedness of the Company and senior to any
future subordinated indebtedness of the Company.


 


(16)         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.


 


(17)         Abbreviations.


 


Customary abbreviations may be used in the
name of a Holder or an assignee, such as TEN COM (“Tenants In Common”), TEN ENT
(“Tenants By The Entireties”), JT TEN (“Joint Tenants With Right Of Survivorship And Not As
Tenants In Common”), CUST (“Custodian”) and U/G/M/A (“Uniform Gift
To Minors Act”).


 


(18)         Governing
Law.


 


THE INDENTURE AND THIS SECURITY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.


 


(19)         CUSIP
Numbers.


 


Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities.  No


 


A-12

















 


representation is made as to
the accuracy of such numbers as printed on the Securities and reliance may be
placed only on the other identification numbers printed hereon.


 


A-13

















 


	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign
  this Security, fill in the form below

  	
   

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

  
	
   

  	
   

  	
   

  
	
  I or we
  assign and transfer this Security to

  	
   

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

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  	
  (Insert the
  other person’s soc.  sec.  tax ID no.)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  and
  irrevocably
  appoint                                    agent
  to transfer this Security on the books of the Company.  The agent may substitute another to act
  for him.

  	
   

  	
  (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

  	
   

  	
   

  
								



 


A-14

















 


FORM OF
REPURCHASE NOTICE


 


To:          Shuffle
Master, Inc.


 


The undersigned registered holder of this
Security requests and instructs the Company to repurchase this Security, or the
portion hereof (which is $1,000 principal amount or a multiple thereof)
designated below, on the date specified below, in accordance with the terms and
conditions specified in paragraph 7 of this Security and the Indenture referred
to in this Security and directs that the check in payment for this Security or
the portion thereof and any Securities representing the portion of principal
amount hereof not to be so repurchased, be issued and delivered to the registered
holder hereof unless a different name has been indicated below.  If any portion of this Security not
repurchased is to be issued in the name of a Person other than the undersigned,
the undersigned shall pay all transfer taxes payable with respect thereto.


 


	
  Dated:

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


Fill in for registration of
Securities not repurchased if

to be issued other than to and in the name

of registered holder:


 


 


	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
  (Street
  Address)

  
	
   

  
	
   

  
	
  (City, state
  and zip code)

  



 


 


Please print name and address


 


principal amount to be repurchased (if less
than all):  $   ,000


 


date of requested repurchase: 
April 15, 20   

(specify either April 15, 2009, 2014 or 2019)


 


A-15

















 


FORM OF OPTION
TO ELECT REPURCHASE 

UPON A CHANGE IN CONTROL


 


To: 
Shuffle Master, Inc.


 


The undersigned registered holder of this
Security hereby acknowledges receipt of a notice from Shuffle Master, Inc. (the
“Company”) as to the occurrence of a Change in Control with respect to the
Company and requests and instructs the Company to repurchase this Security, or
the portion hereof (which is $1,000 principal amount or a multiple thereof)
designated below, in accordance with the terms of the Indenture referred to in
this Security and directs that the check in payment for this Security or the
portion thereof and any Securities representing any unrepurchased principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If any portion of this Security not
repurchased is to be issued in the name of a Person other than the undersigned,
the undersigned shall pay all transfer taxes payable with respect thereto.


 


	
  Dated:

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


 


Fill in for registration of
Securities not repurchased if

to be issued other than to and in the name of

registered holder:


 


 


	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
  (Street
  Address)

  
	
   

  
	
   

  
	
  (City, state
  and zip code)

  



 


Please print name and address


 


principal amount to be
repurchased (if less than all): 
$  ,000


 


A-16

















 


SCHEDULE I*


 


 


SHUFFLE MASTER, INC.

1.25% Contingent Convertible Senior Notes Due 2024


 


No:


 


	
  Date

  	
   

  	
  Principal
  Amount

  	
   

  	
  Notation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 












* Include only on Global
Security


 


A-17

















 


EXHIBIT B


 


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 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 deliverable 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:


 


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


 


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


 


o            The transfer of the Surrendered
Securities is pursuant to an exemption from the registration requirement of the
Securities Act provided by Rule 144
thereunder; or


 


o            The transfer of the Surrendered
Securities is pursuant to an effective registration statement under the
Securities Act.


 


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”).


 


	
  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

  	
   

  	
   

  
					



 


B-1