EMCORE CORP. FY'05 10-K EX-4.6 NOVEMBER 2005 INDENTURE


    
      
        

      

    

    Exhibit
      4.6

     

     

    

      EMCORE
        CORPORATION

       

      5%
        CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011

       

      


      INDENTURE

       

      Dated
        as
        of November 16, 2005

       

      


      


      Deutsche
        Bank Trust Company Americas

       

      Trustee

       

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      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

      


      ARTICLE
        2. THE NOTES

      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
        Notes

      Section
        2.08. Outstanding
        Notes

      Section
        2.09. Treasury
        Notes

      Section
        2.10. Temporary
        Notes

      Section
        2.11. Cancellation

      Section
        2.12. Additional
        Transfer and Exchange Requirements

      Section
        2.13. CUSIP
        Numbers

      Section
        2.14. Defaulted
        Interest

      


      ARTICLE
        3. REDEMPTION AND PREPAYMENT

      Section
        3.01. Notices
        to Trustee

      Section
        3.02. Selection
        of Notes 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. Notes
        Redeemed in Part

      Section
        3.07. Provisional
        Redemption

      Section
        3.08. Early
        Call Premium

      Section
        3.09. Mandatory
        Redemption

      


      ARTICLE
        4. CONVERSION

      Section
        4.01. Conversion
        Privilege

      Section
        4.02. Conversion
        Procedure

      Section
        4.03. Fractional
        Shares

      Section
        4.04. Taxes
        on
        Conversion

      Section
        4.05. Company
        to Provide Stock

      Section
        4.06. Adjustment
        of Conversion Price

      Section
        4.07. No
        Adjustment

      Section
        4.08. Other
        Adjustments

      Section
        4.09. Adjustments
        for Tax Purposes

      Section
        4.10. Notice
        of
        Adjustment

      Section
        4.11. Notice
        of
        Certain Transactions

      Section
        4.12. Effect
        of
        Reclassifications, Consolidations, Mergers or Sales on

      Conversion
        Privilege

      Section
        4.13. Trustee’s
        Disclaimer

      Section
        4.14. Voluntary
        Reduction

      


      ARTICLE
        5. SUBORDINATION

      Section
        5.01. Agreement
        to Subordinate

      Section
        5.02. Liquidation;
        Dissolution; Bankruptcy

      Section
        5.03. Default
        on Designated Senior Indebtedness

      Section
        5.04. Acceleration
        of Notes

      Section
        5.05. When
        Distribution Must Be Paid Over

      Section
        5.06. Notice
        by
        Company

      Section
        5.07. Subrogation

      Section
        5.08. Relative
        Rights

      Section
        5.09. Subordination
        May Not Be Impaired by Company

      Section
        5.10. Distribution
        or Notice to Representative

      Section
        5.11. Rights
        of
        Trustee and Paying Agent

      Section
        5.12. Authorization
        to Effect Subordination

      Section
        5.13. Amendments

      Section
        5.14. Agreement
        to Subordinate Unaffected

      Section
        5.15. Certain
        Conversions Deemed Payment

      


      ARTICLE
        6. COVENANTS

      Section
        6.01. Payment
        of Notes

      Section
        6.02. Maintenance
        of Office or Agency

      Section
        6.03. Reports

      Section
        6.04. Information
        Requirement

      Section
        6.05. Compliance
        Certificate

      Section
        6.06. Taxes

      Section
        6.07. Stay,
        Extension and Usury Laws

      Section
        6.08. Corporate
        Existence

      Section
        6.09. Offer
        to
        Repurchase Upon Change of Control

      


      ARTICLE
        7. SUCCESSORS

      Section
        7.01. Merger,
        Consolidation, or Sale of Assets

      Section
        7.02. Successor
        Corporation Substituted

      


      ARTICLE
        8. DEFAULTS AND REMEDIES

      Section
        8.01. Events
        of
        Default

      Section
        8.02. Acceleration

      Section
        8.03. Other
        Remedies

      Section
        8.04. Waiver
        of
        Past Defaults

      Section
        8.05. Control
        by Majority

      Section
        8.06. Limitation
        on Suits

      Section
        8.07. Rights
        of
        Holders of Notes to Receive Payment

      Section
        8.08. Collection
        Suit by Trustee

      Section
        8.09. Trustee
        May File Proofs of Claim

      Section
        8.10. Priorities

      Section
        8.11. Undertaking
        for Costs

      


      ARTICLE
        9. TRUSTEE

      Section
        9.01. Duties
        of
        Trustee

      Section
        9.02. Rights
        of
        Trustee

      Section
        9.03. Individual
        Rights of Trustee

      Section
        9.04. Trustee’s
        Disclaimer

      Section
        9.05. Notice
        of
        Defaults

      Section
        9.06. Reports
        by Trustee to Holders of the Notes

      Section
        9.07. Compensation
        and Indemnity

      Section
        9.08. Replacement
        of Trustee

      Section
        9.09. Successor
        Trustee by Merger, etc

      Section
        9.10. Eligibility;
        Disqualification

      Section
        9.11. Preferential
        Collection of Claims Against Company

      


      ARTICLE
        10. SATISFACTION AND DISCHARGE

      Section
        10.01. Satisfaction
        and Discharge

      Section
        10.02. Application
        of Trust Money

      Section
        10.03. Repayment
        to Company

      Section
        10.04. Reinstatement

      


      ARTICLE
        11. AMENDMENT, SUPPLEMENT AND WAIVER

      Section
        11.01. Without
        Consent of Holders of Notes

      Section
        11.02. With
        Consent of Holders of Notes

      Section
        11.03. Compliance
        with Trust Indenture Act

      Section
        11.04. Revocation
        and Effect of Consents

      Section
        11.05. Notation
        on or Exchange of Notes

      Section
        11.06. Trustee
        to Sign Amendments, etc.

      


      ARTICLE
        12. MISCELLANEOUS

      Section
        12.01. Trust
        Indenture Act Controls

      Section
        12.02. Notices

      Section
        12.03. Communication
        by Holders of Notes with Other Holders of Notes

      Section
        12.04. Certificate
        and Opinion as to Conditions Precedent

      Section
        12.05. Statements
        Required in Certificate or Opinion

      Section
        12.06. Rules
        by
        Trustee and Agents

      Section
        12.07. No
        Personal Liability of Directors, Officers, Employees and
        Stockholders

      Section
        12.08. Governing
        Law

      Section
        12.09. No
        Adverse Interpretation of Other Agreements

      Section
        12.10. Successors

      Section
        12.11. Severability

      Section
        12.12. Counterpart
        Originals

      Section
        12.13. Table
        of
        Contents, Headings, etc

    

     

    

      EXHIBITS

       

      Exhibit
        A FORM
        OF
        NOTE

      Exhibit
        B CERTIFICATE

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      INDENTURE
        dated as of November 16, 2005 between EMCORE Corporation, a New Jersey
        corporation (the “Company”),
        and
        Deutsche Bank Trust Company Americas, as trustee (the “Trustee”).

       

      The
        Company and the Trustee agree as follows for the benefit of each other and
        for
        the equal and ratable benefit of the Holders of the 5% Convertible Senior
        Subordinated Notes due 2011 (the “Notes”):

       

      ARTICLE
        1.  

       

      DEFINITIONS
        AND INCORPORATION

       

       

      BY
        REFERENCE

       

      
        	Section
                1.01.  	
                Definitions

              


      

       

      “144A
        Global Note”
        means a
        global note substantially in the form of Exhibit A hereto bearing the
        Global Note Legend and the Private Placement Legend and deposited with or
        on
        behalf of, and registered in the name of, the Depositary or its nominee that
        will be issued in a denomination equal to the outstanding principal amount
        of
        the Notes sold in reliance on Rule 144A.

       

      “Affiliate”
        of any
        specified Person means any other Person directly or indirectly controlling
        or
        controlled by or under direct or indirect common control with such specified
        Person. For purposes of this definition, “control” (including, with correlative
        meanings, the terms “controlling,” “controlled by” and “under common control
        with”), as used with respect to any Person, shall mean the possession, directly
        or indirectly, of the power to direct or cause the direction of the management
        or policies of such Person, whether through the ownership of voting securities,
        by agreement or otherwise; provided, however, that beneficial ownership of
        10%
        or more of the voting securities of a Person shall be deemed to be
        control.

       

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

       

      “Applicable
        Procedures”
        means,
        with respect to any transfer or exchange of or for beneficial interests in
        any
        Global Note, the rules and procedures of the Depositary, Euroclear and Cedel
        that apply to such transfer or exchange.

       

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

       

      “Board
        of Directors”
        means
        the Board of Directors of the Company, or any authorized committee of the
        Board
        of Directors.

       

      “Business
        Day”
        means
        any day other than a Legal Holiday.

       

      “Capital
        Lease Obligation”
        means,
        at the time any determination thereof is to be made, the amount of the liability
        in respect of a capital lease that would at such time be required to be
        capitalized on a balance sheet in accordance with GAAP.

       

      “Capital
        Stock”
        means
        any and all shares, interests, participations, rights or other equivalents
        (however designated) of corporate stock, including, without limitation, with
        respect to partnerships, partnership interests (whether general or limited)
        and
        any other interest or participation that confers on a Person the right to
        receive a share of the profits and losses of, or distributions of assets
        of,
        such partnership.

       

      “Cedel”
        means
        Cedel Bank, SA., and any and all successors thereto.

       

      “Closing
        Sale Price”
        means
        the last reported sales price or, in case no such reported sale takes place
        on
        such date, the average of the reported closing bid and asked prices in either
        case on The Nasdaq National Market or, if the Common Stock is not listed
        or
        admitted to trading on The Nasdaq National Market, on the principal national
        securities exchange on which the Common Stock is listed or admitted to trading
        or, if not listed or admitted to trading on The Nasdaq National Market or
        any
        national securities exchange, the last reported sales price of the Common
        Stock
        as quoted on The Nasdaq National Market or, in case no reported sales takes
        place, the average of the closing bid and asked prices as quoted on The Nasdaq
        National Market or any comparable system or, if the Common Stock is not quoted
        on The Nasdaq National Market or any comparable system, the closing sales
        price
        or, in case no reported sale takes place, the average of the closing bid
        and
        asked prices, as furnished by any two members of the National Association
        of
        Securities Dealers, Inc. selected from time to time by the Company for that
        purpose.

       

      “Company”
        means
        the issuer, and any and all successors thereto.

       

      “Common
        Stock” means
        the
        common stock, no par value per share, of the Company.

       

      “Corporate
        Trust Office of the Trustee”
        shall be
        at the address of the Trustee specified in Section 12.02 hereof or such other
        address as to which the Trustee may give notice to the Company.

       

      “Custodian”
        means
        the Trustee, as custodian with respect to the Global Notes or any successor
        entity thereto.

       

      “Default”
        means
        any event that is or with the passage of time or the giving of notice or
        both
        would be an Event of Default.

       

      “Definitive
        Note”
        means a
        certificated Note registered in the name of the Holder thereof and issued
        in
        accordance with Section 2.06 hereof, substantially in the form of Exhibit
        A
        hereto except that such Note shall not bear the Global Note Legend and shall
        not
        have the “Schedule of Exchanges of Interests in the Global Note” attached
        thereto.

       

      “Depositary”
        means,
        with respect to any Global Notes, the Person specified in Section 2.03 hereof
        as
        the Depositary with respect to such Global Notes, and any and all successors
        thereto appointed as depositary hereunder and having become such pursuant
        to the
        applicable provision of this Indenture.

       

      “Designated
        Senior Indebtedness”
        means
        any Senior Indebtedness permitted hereunder the principal amount of which
        is
        $10.0 million or more and that has been designated by the Company as “Designated
        Senior Indebtedness.” 

       

      “Equity
        Interests”
        means
        Capital Stock and all warrants, options or other rights to acquire Capital
        Stock
        (but excluding any debt security that is convertible into, or exchangeable
        for,
        Capital Stock).

       

      “Euroclear”
        means
        Morgan Guaranty Trust Company of New York, Brussels office, as operator of
        the
        Euroclear system, and any and all successors thereto.

       

      “Exchange
        Act”
        means
        the Securities Exchange Act of 1934, as amended.

       

      “Existing
        2006 Notes”
        means
        the Company’s 5% Convertible Subordinated Notes due 2006 issued under the
        Existing 2006 Notes Indenture.

       

      “Existing
        2006 Notes Indenture”
        means
        that Indenture, dated as of May 7, 2001, between the Company and Wilmington
        Trust Company.

       

      “Existing
        2011 Notes”
        means
        the Company’s 5% Convertible Senior Subordinated Notes due 2011 issued under the
        Existing 2011 Notes Indenture.

       

      “Existing
        2011 Notes Indenture”
        means
        that Indenture, dated as of February 24, 2004, between the Company and Deutsche
        Bank Trust Company Americas.

       

      “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
        have been approved by a significant segment of the accounting profession,
        which
        are in effect on the date of this Indenture.

       

      “Global
        Note”
        means a
        permanent global Note substantially in the form of Exhibit A hereto issued
        in
        accordance with this Indenture, that is deposited with or on behalf of and
        registered in the name of the Depositary and that bears the Global Note Legend
        and has the “Schedule of Exchanges of Notes” attached thereto.

       

      “Global
        Note Legend”
        means
        the legend set forth under the heading “Global Note Legend” in Exhibit A hereto,
        which is required to be placed on all Global Notes issued under this
        Indenture.

       

      “Government
        Securities”
        means
        direct obligations of, or obligations guaranteed by, the United States of
        America, and the payment for which the United States pledges its full faith
        and
        credit.

       

      “Holder”
        means a
        Person in whose name a Note is registered.

       

      “Indebtedness”
        means,
        with respect to any Person, without duplication, (a) all indebtedness,
        obligations and other liabilities (contingent or otherwise) of such Person
        for
        borrowed money (including obligations of such Person in respect of overdrafts,
        foreign exchange contracts, currency exchange agreements, interest rate
        protection agreements, and any loans or advances from banks, whether or not
        evidenced by notes or similar instruments) or evidenced by credit or loan
        agreements, bonds, debentures, notes or other written obligations (whether
        or
        not the recourse of the lender is to the whole of the assets of such Person
        or
        to only a portion thereof) (other than any accounts payable or other accrued
        current liability or obligation incurred in the ordinary course of business
        in
        connection with the obtaining of materials or services), (b) all reimbursement
        obligations and other liabilities (contingent or otherwise) of such Person
        with
        respect to letters of credit, bank guarantees or bankers’ acceptances, (c) all
        obligations and liabilities (contingent or otherwise) of such Person in respect
        of leases of such Person required, in conformity with generally accepted
        accounting principles, to be accounted for as Capitalized Lease Obligations
        on
        the balance sheet of such Person, (d) all obligations of such Person evidenced
        by a note or similar instrument given in connection with the acquisition
        of any
        business, properties or assets of any kinds, (e) all obligations of such
        Person
        issued or assumed as the deferred purchase price of property or services
        (excluding trade account payables and accrued liabilities arising in the
        ordinary course of business), (f) all obligations (contingent or otherwise)
        of
        such Person under any lease or related document (including a purchase agreement)
        in connection with the lease of real property or improvements (or any personal
        property included as part of any such lease) which provides that such Person
        is
        contractually obligated to purchase or cause a third party to purchase the
        leased property and thereby guarantee a minimum residual value of the leased
        property to the lessor and the obligations of such Person under such lease
        or
        related document to purchase or to cause a third party to purchase such leased
        property (whether or not such lease transaction is characterized as an operating
        lease or a capitalized lease in accordance with generally accepted accounting
        principles), (g) all obligations (contingent or otherwise) of such Person
        with
        respect to any interest rate, currency or other swap, cap, floor or collar
        agreement, hedge agreement, forward contract, or other similar instrument
        or
        agreement or foreign currency hedge, exchange, purchase or similar instrument
        or
        agreement, (h) all direct or indirect guaranties, agreements to be jointly
        liable or similar agreements by such Person in respect of, and obligations
        or
        liabilities (contingent or otherwise) of such Person to purchase or otherwise
        acquire or otherwise assure a creditor against loss in respect of, indebtedness,
        obligations or liabilities of another Person of the kind described in clauses
        (a) through (g), and (i) any and all deferrals, renewals, extensions and
        refundings of, or amendments, modifications or supplements to, any indebtedness,
        obligation or liability of the kind described in clauses (a) through (h).
        

       

      “Indenture”
        means
        this Indenture, as amended or supplemented from time to time.

       

      “Indirect
        Participant”
        means a
        Person who holds a beneficial interest in a Global Note through a
        Participant.

       

      “Legal
        Holiday”
        means a
        Saturday, a Sunday or a day on which banking institutions in the City of
        New
        York or at a place of payment are authorized by law, regulation or executive
        order to remain closed. If a payment date is a Legal Holiday at a place of
        payment, payment may be made at that place on the next succeeding day that
        is
        not a Legal Holiday, and no interest shall accrue on such payment for the
        intervening period.

       

      “Non-U.S.
        Person”
        means a
        Person who is not a U.S. Person.

       

      “Notes”
        has the
        meaning assigned to it in the preamble to this Indenture.

       

      “Obligations”
        means
        any principal, interest, penalties, fees, indemnifications, reimbursements,
        fees
        and expenses, damages and other liabilities payable under the documentation
        governing any Indebtedness.

       

      “Officer”
        means,
        with respect to any Person, the Chairman of the Board, the Chief Executive
        Officer, the President, the Chief Operating Officer, the Chief Financial
        Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
        or any Vice-President of such Person.

       

      “Officers’
        Certificate”
        means a
        certificate signed on behalf of the Company by two Officers of the Company,
        one
        of whom must be the principal executive officer, the principal financial
        officer, the treasurer or the principal accounting officer of the Company,
        that
        meets the requirements of Section 12.05 hereof.

       

      “Opinion
        of Counsel”
        means an
        opinion from legal counsel who is reasonably acceptable to the Trustee, that
        meets the requirements of Section 12.05 hereof. The counsel may be an employee
        of or counsel to the Company, any Subsidiary of the Company or the
        Trustee.

       

      “Participant”
        means,
        with respect to the Depositary, Euroclear or Cedel, a Person who has an account
        with the Depositary, Euroclear or Cedel, respectively (and, with respect
        to DTC,
        shall include Euroclear and Cedel).

       

      “Permitted
        Junior Securities”
        means
        Equity Interests in the Company or debt securities that are subordinated
        to all
        Senior Indebtedness (and any debt securities issued in exchange for Senior
        Indebtedness) to substantially the same extent as, or to a greater extent
        than,
        the Notes are subordinated to Senior Indebtedness pursuant to the
        Indenture.

       

      “Person”
        means
        any individual, corporation, partnership, limited liability company, joint
        venture, association, joint-stock company, trust, unincorporated organization
        or
        government or agency or political subdivision thereof (including any subdivision
        or ongoing business of any such entity or substantially all of the assets
        of any
        such entity, subdivision or business).

       

      “Private
        Placement Legend”
        means
        the legend set forth under the heading “Private Placement Legend” in Exhibit A
        hereto to be placed on all Notes issued under this Indenture except where
        otherwise permitted by the provisions of this Indenture.

       

      “QIB”
        means a
“qualified institutional buyer” as defined in Rule 144A.

       

      “Regulation
        S”
        means
        Regulation S promulgated under the Securities Act.

       

      “Regulation
        S Global Note”
        means a
        global Note bearing the Private Placement Legend and deposited with or on
        behalf
        of the Depositary and registered in the name of the Depositary or its nominee,
        issued in a denomination equal to the outstanding principal amount of the
        Notes
        initially sold in reliance on Rule 903 of Regulation S.

       

      “Representative”
        means
        the indenture trustee or other trustee, agent or representative for any Senior
        Indebtedness.

       

      “Responsible
        Officer,”
        when
        used with respect to the Trustee, means any officer within the Corporate
        Trust
        Administration of the Trustee (or any successor group of the Trustee) with
        direct responsibilities for the administration of this Indenture and also
        means,
        with respect to a particular corporate trust matter, any other officer to
        whom
        such matter is referred because of his knowledge of and familiarity with
        the
        particular subject.

       

      “Restricted
        Definitive Note”
        means a
        Definitive Note bearing the Private Placement Legend.

       

      “Restricted
        Global Note”
        means a
        Global Note bearing the Private Placement Legend.

       

      “Restricted
        Period”
        means
        the 40-day restricted period as defined in Regulation S.

       

      “Rule
        144”
        means
        Rule 144 promulgated under the Securities Act.

       

      “Rule
        144A”
        means
        Rule 144A promulgated under the Securities Act.

       

      “Rule
        903”
        means
        Rule 903 promulgated under the Securities Act.

       

      “Rule
        904”
        means
        Rule 904 promulgated the Securities Act.

       

      “SEC”
        means
        the Securities and Exchange Commission.

       

      “Securities
        Act”
        means
        the Securities Act of 1933, as amended.

       

      “Senior
        Indebtedness”
        means
        (i) the principal of, premium, if any, interest including all interest accruing
        subsequent to the commencement of any bankruptcy or similar proceeding, whether
        or not a claim for post-petition interest is allowable as a claim in any
        such
        proceeding, and rent payable on or in connection with, Indebtedness of the
        Company unless the instrument under which such Indebtedness is incurred
        expressly provides that it is on a parity with or subordinated in right of
        payment to the Notes, and (ii) all Obligations with respect to any of the
        foregoing, whether secured or unsecured, absolute or contingent, due or to
        become due, outstanding on the date hereof or hereafter credited, incurred,
        assumed, guaranteed or in effect guaranteed by the Company, including all
        deferrals, renewals, extensions and refundings of or amendments, modifications
        or supplements to, the foregoing. Notwithstanding anything to the contrary
        in
        the foregoing, Senior Indebtedness shall not include (x) any of the Existing
        2006 Notes, (y) any of the Existing 2011 Notes, (z) any Indebtedness of the
        Company to any of its Subsidiaries or other Affiliates, (aa) any Indebtedness
        incurred for the purchase of goods or materials or for services obtained
        in the
        ordinary course of business (other than with the proceeds of revolving credit
        borrowings permitted hereby) and (bb) any Indebtedness that is incurred in
        violation of this Indenture.

       

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

       

      “TIA”
        means
        the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on
        the date on which this Indenture is qualified under the TIA; provided,
        however,
        that in
        the event the Trust Indenture Act of 1939 is amended after such date, “TIA”
means, to the extent required by any such amendment, the Trust Indenture
        Act of
        1939 as so amended.

       

      “Trading
        Day”
        means a
        day on which trades may be made on The Nasdaq National Market.

       

      “Trustee”
        means
        the party named as such above until a successor replaces it in accordance
        with
        the applicable provisions of this Indenture and thereafter means the successor
        serving hereunder.

       

      “Unrestricted
        Global Note”
        means a
        permanent Global Note substantially in the form of Exhibit A attached hereto
        that bears the Global Note Legend and that is deposited with or on behalf
        of and
        registered in the name of the Depositary, representing a series of Notes
        that do
        not bear the Private Placement Legend.

       

      “Unrestricted
        Definitive Note”
        means
        one or more Definitive Notes that do not bear and are not required to bear
        the
        Private Placement Legend.

       

      “U.S.
        Person”
        means a
        U.S. person as defined in Rule 902(o) under the Securities Act.

       

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

       

      
        	Section
                1.02.  	
                Other
                  Definitions

              


      

       

      
        	 	
                Defined
                  in 

              
	
                Term

                 

              	
                Section

                 

              
	
                “Authentication
                  Order”

              	
                2.02

              
	
                “Change
                  of Control” 

              	
                6.08

              
	
                “Change
                  of Control Offer”

              	
                6.08

              
	
                “Change
                  of Control Payment”

              	
                6.08

              
	
                “Change
                  of Control Payment Date”

              	
                6.08

              
	
                “Change
                  of Control Payment Notice” 

              	
                6.08

              
	
                “Conversion
                  Price” 

              	
                4.01

              
	
                “Determination
                  Date” 

              	
                4.06

              
	
                “Early
                  Call Premium”

              	
                3.08

              
	
                “Event
                  of Default”

              	
                8.01

              
	
                “Expiration
                  Date” 

              	
                4.06

              
	
                “Expiration
                  Date” 

              	
                4.06

              
	
                “Notice
                  Date” 

              	
                3.07

              
	
                “Paying
                  Agent”

              	
                2.03

              
	
                “Provisional
                  Redemption” 

              	
                3.07

              
	
                “Provisional
                  Redemption Date” 

              	
                3.07

              
	
                “Provisional
                  Redemption Notice” 

              	
                3.07

              
	
                “Provisional
                  Redemption Notice Date” 

              	
                3.07

              
	
                “Provisional
                  Redemption Price” 

              	
                3.07

              
	
                “Purchased
                  Shares” 

              	
                4.06

              
	
                “Registrar”

              	
                2.03

              
	
                “tender
                  offer” 

              	
                4.06

              
	
                “Triggering
                  Distribution”

              	
                4.06

              


      

      


      
        	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 used in this Indenture have the following
        meanings:

       

      “indenture
        securities”
        means
        the Notes;

       

      “indenture
        security Holder”
        means a
        Holder of a Note;

       

      “indenture
        to be qualified”
        means
        this Indenture;

       

      “indenture
        trustee”
        or
“institutional
        trustee”
        means
        the Trustee; and

       

      “obligor”
        on the
        Notes means the Company and any successor obligor upon the Notes.

       

      All
        other
        terms used in this Indenture that are defined by the TIA, defined by TIA
        reference to another statute or defined by SEC rule under the TIA have the
        meanings so assigned to them.

       

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

       

      (e)
          provisions
        apply to successive events and transactions; and

       

      (f)
          references
        to sections of or rules under the Securities Act shall be deemed to include
        substitute, replacement of successor sections or rules adopted by the SEC
        from
        time to time.

       

       

      ARTICLE
        2.  

       

      THE
        NOTES

       

      
        	Section
                2.01.  	
                Form
                  and Dating

              


      

       

      (a)
          General.
        The
        Notes and the Trustee’s certificate of authentication shall be substantially in
        the form of Exhibit A hereto. The Notes may have notations, legends or
        endorsements required by law, stock exchange rule or usage. Each Note shall
        be
        dated the date of its authentication. The Notes shall be in denominations
        of
        $1,000 and integral multiples thereof.

       

      The
        terms
        and provisions contained in the Notes shall constitute, and are hereby expressly
        made, a part of this Indenture and the Company and the Trustee, by their
        execution and delivery of this Indenture, expressly agree to such terms and
        provisions and to be bound thereby. However, to the extent any provision
        of any
        Note conflicts with the express provisions of this Indenture, the provisions
        of
        this Indenture shall govern and be controlling.

       

      (b)
          Global
        Notes.
        Notes
        issued in global form shall be substantially in the form of Exhibit A
        attached hereto (including the Global Note Legend thereon and the “Schedule of
        Exchanges of Interests in the Global Note” attached thereto). Notes issued in
        definitive form shall be substantially in the form of Exhibit A attached
        hereto
        (but without the Global Note Legend thereon and without the “Schedule of
        Exchanges of Interests in the Global Note” attached thereto). Each Global Note
        shall represent such of the outstanding Notes as shall be specified therein
        and
        each shall provide that it shall represent the aggregate principal amount
        of
        outstanding Notes from time to time endorsed thereon and that the aggregate
        principal amount of outstanding Notes represented thereby may from time to
        time
        be reduced or increased, as appropriate, to reflect exchanges and redemptions.
        Any endorsement of a Global Note to reflect the amount of any increase or
        decrease in the aggregate principal amount of outstanding Notes represented
        thereby shall be made by the Trustee or the Custodian, at the direction of
        the
        Trustee, in accordance with instructions given by the Holder thereof as required
        by Section 2.13 hereof.

       

      (c)
          Euroclear
        and Cedel Procedures Applicable.
        The
        provisions of the “Operating Procedures of the Euroclear System” and “Terms and
        Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
        Cedel Bank” and “Customer Handbook” of Cedel Bank shall be applicable to
        transfers of beneficial interests in the Regulation S Global Notes that are
        held
        by Participants through Euroclear or Cedel Bank.

       

      
        	Section
                2.02.  	
                Execution
                  and Authentication

              


      

       

      An
        Officer shall sign the Notes for the Company by manual or facsimile signature.
        The Company’s seal shall be reproduced on the Notes and may be in facsimile
        form.

       

      If
        an
        Officer whose signature is on a Note no longer holds that office at the time
        a
        Note is authenticated, the Note shall nevertheless be valid.

       

      A
        Note
        shall not be valid until authenticated by the manual signature of the Trustee.
        The signature shall be conclusive evidence that the Note has been authenticated
        under this Indenture.

       

      The
        Trustee shall, upon receipt of a written order of the Company signed by an
        Officer (an “Authentication
        Order”),
        authenticate Notes for original issue in the aggregate principal amount
        specified in the Authentication Order. The Authentication Order shall specify
        the amount of Notes to be authenticated, shall provide that all Notes will
        be
        represented by a Restricted Global Note and the date on which each original
        issue of Notes is to be authenticated. The aggregate principal amount of
        Notes
        which may be authenticated and delivered pursuant to this Indenture is
        unlimited.

       

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

       

      
        	Section
                2.03.  	
                Registrar,
                  Paying Agent and Conversion
                  Agent

              


      

       

      The
        Company shall maintain an office or agency where Notes may be presented for
        registration of transfer or for exchange (“Registrar”),
        an
        office or agency where Notes may be presented for payment (“Paying
        Agent”),
        an
        office or agency where Notes may be presented for conversion (“Conversion
        Agent”)
        and an
        office or agent where notices and demands to or upon the Company in respect
        of
        the Notes and this Indenture may be served. The Registrar shall keep a register
        of the Notes and of their registration of transfer and exchange. The Company
        may
        appoint one or more co-registrars and one or more additional paying agents
        and
        conversion agents. The term “Registrar” includes any co-registrar, the term
“Paying Agent” includes any additional paying agent and the term “Conversion
        Agent” includes any additional conversion agent. The Company may change any
        Paying Agent, Conversion Agent or Registrar without notice to any Holder.
        The
        Company shall notify the Trustee in writing of the name and address of any
        Agent
        not a party to this Indenture. If the Company fails to appoint or maintain
        another entity as Registrar, Paying Agent, Conversion Agent or agent for
        service
        of notices and demands in any place required by this Indenture, or fails
        to give
        the foregoing notice, the Trustee shall act as such. The Company or any of
        its
        Subsidiaries may act as Paying Agent, Conversion Agent or
        Registrar.

       

      The
        Company initially appoints The Depository Trust Company (“DTC”)
        to act
        as Depositary with respect to the Global Notes.

       

      The
        Company initially appoints the Trustee to act as the Registrar, Paying Agent
        and
        Conversion Agent and to act as Custodian with respect to the Global
        Notes.

       

      
        	Section
                2.04.  	
                Paying
                  Agent to Hold Money in Trust

              


      

       

      Prior
        to
        10:00 a.m., New York City time, on each due date of the principal of, premium,
        if any, or interest, on any Notes, the Company shall deposit with the Paying
        Agent a sum sufficient to pay such principal, premium, if any, or interest
        so
        becoming due. The Company shall require each Paying Agent other than the
        Trustee
        to agree in writing that the Paying Agent will hold in trust for the benefit
        of
        Holders or the Trustee all money held by the Paying Agent for the payment
        of
        principal, premium or interest on the Notes, and will notify the Trustee
        of any
        default by the Company in making any such payment. While any such default
        continues, the Trustee may require a Paying Agent to pay all money held by
        it to
        the Trustee. The Company at any time may require a Paying Agent to pay all
        money
        held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
        (if other than the Company or a Subsidiary) shall have no further liability
        for
        the money. If the Company or a Subsidiary acts as Paying Agent, it shall
        before
        10:00 a.m. New York City time on each due date of the principal of, premium,
        if
        any, or interest, segregate and hold in a separate trust fund for the benefit
        of
        the Holders all money held by it as Paying Agent. Upon any bankruptcy or
        reorganization proceedings relating to the Company, the Trustee shall serve
        as
        Paying Agent for the Notes.

       

      
        	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 all Holders
        and
        shall otherwise comply with TIA § 312(a). If the Trustee is not the
        Registrar, the Company shall furnish to the Trustee at least seven Business
        Days
        before each interest payment date and at such other times as the Trustee
        may
        request in writing, a list in such form and as of such date as the Trustee
        may
        reasonably require of the names and addresses of the Holders of Notes and
        the
        Company shall otherwise comply with TIA § 312(a).

       

      
        	Section
                2.06.  	
                Transfer
                  and Exchange

              


      

       

      (a)
          Subject
        to compliance with any applicable additional requirements contained in Section
        2.12, when a Note is presented to a Registrar with a request to register
        a
        transfer thereof or to exchange such Note for an equal principal amount of
        Notes
        of other authorized denominations, the Registrar shall register the transfer
        or
        make the exchange as requested; provided,
        however,
        that
        every Note presented or surrendered for registration of transfer or exchange
        shall be duly endorsed or accompanied by an assignment form and, if applicable,
        a transfer certificate each in the form included in Exhibit A, and in form
        satisfactory to the Registrar duly executed by the Holder thereof or its
        attorney duly authorized in writing. To permit registration of transfers
        and
        exchanges, upon surrender of any Note for registration of transfer or exchange
        at an office or agency maintained pursuant to Section 2.03, the Company shall
        execute and the Trustee shall authenticate Notes of a like aggregate principal
        amount at the Registrar’s request. Any exchange or registration of transfer
        shall be without charge, except that the Company or the Registrar may require
        payment of a sum sufficient to cover any tax or other governmental charge
        that
        may be imposed in relation thereto, and provided, that this sentence shall
        not
        apply to any exchange pursuant to Section 2.07, 2.10, 2.12(a), 3.06, 4.02
        (last
        paragraph), 6.08(a)(7) or 11.05.

       

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

       

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

       

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

       

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


       

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

       

      
        	Section
                2.07.  	
                Replacement
                  Notes

              


      

       

      If
        any
        mutilated Note is surrendered to the Trustee or the Company and the Trustee
        receives evidence to its satisfaction of the destruction, loss or theft of
        any
        Note, the Company shall issue and the Trustee, upon receipt of an Authentication
        Order, shall authenticate a replacement Note if the Trustee’s requirements are
        met. If required by the Trustee or the Company, an indemnity bond must be
        supplied by the Holder that is sufficient in the judgment of the Trustee
        and the
        Company to protect the Company, the Trustee, any Agent and any authenticating
        agent from any loss that any of them may suffer if a Note is replaced. The
        Company may charge for its expenses in replacing a Note.

       

      Every
        replacement Note is an additional obligation of the Company and shall be
        entitled to all of the benefits of this Indenture equally and proportionately
        with all other Notes duly issued hereunder.

       

      
        	Section
                2.08.  	
                Outstanding
                  Notes

              


      

       

      The
        Notes
        outstanding at any time are all the Notes authenticated by the Trustee except
        for those canceled by it, those delivered to it for cancellation, those
        reductions in the interest in a Global Note effected by the Trustee in
        accordance with the provisions hereof, and those described in this Section
        as
        not outstanding. Except as set forth in Section 2.09 hereof, a Note does
        not
        cease to be outstanding because the Company or an Affiliate of the Company
        holds
        the Note.

       

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

       

      If
        the
        principal amount of any Note is considered paid under Section 6.01 hereof,
        it
        ceases to be outstanding and interest on it ceases to accrue.

       

      If
        the
        Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
        thereof) holds, on a redemption date, a Change of Control Payment Date or
        maturity date, money sufficient to pay Notes payable on that date, then on
        and
        after that date such Notes shall be deemed to be no longer outstanding and
        shall
        cease to accrue interest.

       

      
        	Section
                2.09.  	
                Treasury
                  Notes

              


      

       

      In
        determining whether the Holders of the required principal amount of Notes
        have
        concurred in any notice, direction, waiver or consent, Notes owned by the
        Company, or by any Person directly or indirectly controlling or controlled
        by or
        under direct or indirect common control with the Company, shall be considered
        as
        though not outstanding, except that for the purposes of determining whether
        the
        Trustee shall be protected in relying on any such notice, direction, waiver
        or
        consent, only Notes that the Trustee knows are so owned shall be so
        disregarded.

       

      
        	Section
                2.10.  	
                Temporary
                  Notes

              


      

       

      Until
        certificates representing Notes are ready for delivery, the Company may prepare
        and execute, and the Trustee, upon receipt of an Authentication Order, shall
        authenticate and deliver temporary Notes. Temporary Notes shall be substantially
        in the form of definitive Notes but may have variations that the Company
        considers appropriate for temporary Notes and as shall be reasonably acceptable
        to the Trustee. Without unreasonable delay, the Company shall prepare and
        the
        Trustee, upon receipt of an Authentication Order, shall authenticate and
        deliver
        definitive Notes in exchange for temporary Notes.

       

      Holders
        of temporary Notes shall be entitled to all of the benefits of this
        Indenture.

       

      
        	Section
                2.11.  	
                Cancellation

              


      

       

      The
        Company at any time may deliver Notes to the Trustee for cancellation. The
        Registrar, Paying Agent and Conversion Agent shall forward to the Trustee
        any
        Notes surrendered to them for registration of transfer, exchange, redemption,
        payment or conversion. The Trustee and no one else shall cancel all Notes
        surrendered for registration of transfer, exchange, redemption, payment,
        conversion, replacement or cancellation and shall destroy canceled Notes
        (subject to the record retention requirement of the Exchange Act), in accordance
        with their normal procedures. All Notes which are redeemed, purchased or
        otherwise acquired by the Company or any of its Subsidiaries prior to the
        maturity date shall be delivered to the Trustee for cancellation. Certification
        of the destruction of all canceled Notes shall be delivered to the Company.
        The
        Company may not hold or resell such Notes or issue new Notes to replace Notes
        that it has purchased or otherwise acquired or that have been delivered to
        the
        Trustee for cancellation.

       

      
        	Section
                2.12.  	
                Additional
                  Transfer and Exchange
                  Requirements

              


      

       

      (a)
          Transfer
        And Exchange Of Global Notes. 

       

      (1) Definitive
        Notes shall be issued in exchange for interests in the Global Notes only
        if (x)
        the Depositary notifies the Company that it is unwilling or unable to continue
        as depositary for the Global Notes or if it at any time ceases to be a “clearing
        agency” registered under the Exchange Act, if so required by applicable law or
        regulation and a successor depositary is not appointed by the Company within
        90
        days, or (y) an Event of Default has occurred and is continuing. In either
        case,
        the Company shall execute, and the Trustee shall, upon receipt of an
        Authentication Order (which the Company agrees to delivery promptly),
        authenticate and deliver Definitive Notes in an aggregate principal amount
        equal
        to the principal amount of such Global Notes in exchange therefor. Only
        Restricted Definitive Notes shall be issued in exchange for beneficial interests
        in Restricted Global Notes, and only Unrestricted Definitive Notes shall
        be
        issued in exchange for beneficial interests in Unrestricted Global Notes.
        Definitive Notes issued in exchange for beneficial interests in Global Notes
        shall be registered in such names and shall be in such authorized denominations
        as the Depositary, pursuant to instructions from its direct or Indirect
        Participants or otherwise, shall instruct the Trustee. The Trustee shall
        deliver
        or cause to be delivered such Definitive Notes to the persons in whose names
        such Notes are so registered. Such exchange shall be effected in accordance
        with
        the Applicable Procedures.

       

      (2) Notwithstanding
        any other provisions of this Indenture other than the provisions set forth
        in
        Section 2.12(a)(1), a Global Note may not be transferred as a whole except
        by
        the Depositary to a nominee of the Depositary or by a nominee of the Depositary
        to the Depositary or another nominee of the Depositary or by the Depositary
        or
        any such nominee to a successor Depositary or a nominee of such successor
        Depositary. 

       

      (b)
          Transfer
        And Exchange Of Definitive Notes.
        In the
        event that Definitive Notes are issued in exchange for beneficial interests
        in
        Global Notes in accordance with Section 2.12(a)(1) of this Indenture, on
        or
        after such event when Definitive Notes are presented by a Holder to a Registrar
        with a request:

       

      (x) to
        register the transfer of the Definitive Notes to a person who will take delivery
        thereof in the form of Definitive Notes only; or

       

      (y) to
        exchange such Definitive Notes for an equal principal amount of Definitive
        Notes
        of other authorized denominations, 

       

      such
        Registrar shall register the transfer or make the exchange as requested;
        provided, however, that the Definitive Notes presented or surrendered for
        register of transfer or exchange: 

       

      (1) shall
        be
        duly endorsed or accompanied by a written instrument of transfer in accordance
        with the proviso to the first paragraph of Section 2.06(a); and

       

      (2) in
        the
        case of a Restricted Definitive Note, such request shall be accompanied by
        the
        following additional information and documents, as applicable:

       

      (i) if
        such
        Restricted Definitive Note is being delivered to the Registrar by a Holder
        for
        registration in the name of such Holder, without transfer, or such Restricted
        Definitive Note is being transferred to the Company or a Subsidiary of the
        Company, a certification to that effect from such Holder (in substantially
        the
        form set forth in the Transfer Certificate);

       

      (ii) if
        such
        Restricted Definitive Note is being transferred to a person the Holder
        reasonably believes is a QIB in accordance with Rule 144A or is being
        transferred to a Non-U.S. Person in an offshore transaction in accordance
        with
        Rule 903 or Rule 904 or pursuant to an effective registration statement under
        the Securities Act, a certification to that effect from such Holder (in
        substantially the form set forth in the Transfer Certificate); or

       

      (iii) if
        such
        Restricted Definitive Note is being transferred (A) pursuant to an exemption
        from the registration requirements of the Securities Act in accordance with
        Rule
        144 or (B) pursuant to an exemption from the registration requirements of
        the
        Securities Act (other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule
        904) and as a result of which, in the case of a Note transferred pursuant
        to
        this clause (B), such Note shall cease to be a “restricted security” within the
        meaning of Rule 144, a certification to that effect from the Holder (in
        substantially the form set forth in the Transfer Certificate) and, if the
        Company or such Registrar so requests, a customary opinion of counsel,
        certificates and other information reasonably acceptable to the Company and
        such
        Registrar to the effect that such transfer is in compliance with the
        registration requirements of the Securities Act.

       

      (c)
          Transfer
        of a Beneficial Interest in a Restricted Global Note for a Beneficial Interest
        in an Unrestricted Global Note.
        Any
        person having a beneficial interest in a Restricted Global Note may upon
        request, subject to the Applicable Procedures, transfer such beneficial interest
        to a person who is required or permitted to take delivery thereof in the
        form of
        a beneficial interest in an Unrestricted Global Note. Upon receipt by the
        Trustee of written instructions, or such other form of instructions as is
        customary for the Depositary, from the Depositary or its nominee on behalf
        of
        any person having a beneficial interest in a Restricted Global Note and the
        following additional information and documents in such form as is customary
        for
        the Depositary from the Depositary or its nominee on behalf of the person
        having
        such beneficial interest in the Restricted Global Note (all of which may
        be
        submitted by facsimile or electronically):

       

      (1) if
        such
        beneficial interest is being transferred pursuant to an effective registration
        statement under the Securities Act, a certification to that effect from the
        transferor (in substantially the form set forth in the Transfer Certificate);
        or

       

      (2) if
        such
        beneficial interest is being transferred (i) pursuant to an exemption from
        the
        registration requirements of the Securities Act in accordance with Rule 144
        or
        (ii) pursuant to an exemption from the registration requirements of the
        Securities Act (other than pursuant to Rule 144A, Rule 144, Rule 903 or Rule
        904) and as a result of which, in the case of a Note transferred pursuant
        to
        this clause (ii), such Note shall cease to be a “restricted security” within the
        meaning of Rule 144, a certification to that effect from the transferor (in
        substantially the form set forth in the Transfer Certificate) and, if the
        Company or the Trustee so requests, a customary opinion of counsel, certificates
        and other information reasonably acceptable to the Company and the Trustee
        to
        the effect that such transfer is in compliance with the registration
        requirements of the Securities Act.

       

      The
        Trustee, as a Registrar and Custodian, shall reduce or cause to be reduced
        the
        aggregate principal amount of the Restricted Global Note by the appropriate
        principal amount and shall increase or cause to be increased the aggregate
        principal amount of the Unrestricted Global Note by a like principal amount.
        Such transfer shall otherwise be effected in accordance with the Applicable
        Procedures. If no Unrestricted Global Note is then outstanding, the Company
        shall execute and the Trustee shall, upon receipt of an Authentication Order
        (which the Company agrees to deliver promptly), authenticate and deliver
        an
        Unrestricted Global Note.

       

      (d)
          Transfer
        of a Beneficial Interest in an Unrestricted Global Note for a Beneficial
        Interest In a Restricted Global Note.
        Any
        person having a beneficial interest in an Unrestricted Global Note may upon
        request, subject to the Applicable Procedures, transfer such beneficial interest
        to a person who is required or permitted to take delivery thereof in the
        form of
        a Restricted Global Note (it being understood that only QIBs may own beneficial
        interests in Restricted Global Notes). Upon receipt by the Trustee of written
        instructions or such other form of instructions as is customary for the
        Depositary, from the Depositary or its nominee, on behalf of any person having
        a
        beneficial interest in an Unrestricted Global Note and, in such form as is
        customary for the Depositary, from the Depositary or its nominee on behalf
        of
        the person having such beneficial interest in the Unrestricted Global Note
        (all
        of which may be submitted by facsimile or electronically) a certification
        from
        the transferor (in substantially the form set forth in the Transfer Certificate)
        to the effect that such beneficial interest is being transferred to a person
        that the transferor reasonably believes is a QIB in accordance with Rule
        144A.
        The Trustee, as a Registrar and Custodian, shall reduce or cause to be reduced
        the aggregate principal amount of the Unrestricted Global Note by the
        appropriate principal amount and shall increase or cause to be increased
        the
        aggregate principal amount of the Restricted Global Note by a like principal
        amount. Such transfer shall otherwise be effected in accordance with the
        Applicable Procedures. If no Restricted Global Note is then outstanding,
        the
        Company shall execute and the Trustee shall, upon receipt of an Authentication
        Order (which the Company agrees to deliver promptly), authenticate and deliver
        a
        Restricted Global Note.

       

      (e)
          Transfers
        of Definitive Notes for Beneficial Interest in Global Notes.
        In the
        event that Definitive Notes are issued in exchange for beneficial interests
        in
        Global Notes and, thereafter, the events or conditions specified in Section
        2.12(a)(1) which required such exchange shall cease to exist, the Company
        shall
        mail notice to the Trustee and to the Holders stating that Holders may exchange
        Definitive Notes for interests in Global Notes by complying with the procedures
        set forth in this Indenture and briefly describing such procedures and the
        events or circumstances requiring that such notice be given. Thereafter,
        if
        Definitive Notes are presented by a Holder to a Registrar with a request:
        

       

      (x) to
        register the transfer of such Definitive Notes to a person who will take
        delivery thereof in the form of a beneficial interest in a Global Note, which
        request shall specify whether such Global Note will be a Restricted Global
        Note
        or an Unrestricted Global Note; or 

       

      (y) to
        exchange such Definitive Notes for an equal principal amount of beneficial
        interests in a Global Note, which beneficial interests will be owned by the
        Holder transferring such Definitive Notes (provided that in the case of such
        an
        exchange, Restricted Definitive Notes may be exchanged only for Restricted
        Global Notes and Unrestricted Definitive Notes may be exchanged only for
        Unrestricted Global Notes),

       

      the
        Registrar shall register the transfer or make the exchange as requested by
        canceling such Definitive Note and causing, or directing the Custodian to
        cause,
        the aggregate principal amount of the applicable Global Note to be increased
        accordingly and, if no such Global Note is then outstanding, the Company
        shall
        issue and the Trustee, upon receipt of an Authentication Order, shall
        authenticate and deliver a new Global Note; provided, however, that the
        Definitive Notes presented or surrendered for registration of transfer or
        exchange: 

       

      (1) shall
        be
        duly endorsed or accompanied by a written instrument of transfer in accordance
        with the proviso to Section 2.06; and

       

      (2) in
        the
        case of a Definitive Note to be transferred or exchanged for a beneficial
        interest in a Global Note, such request need not be accompanied by any
        additional information or documents. 

       

      (f)
          Legends.

       

      (1) Except
        as
        permitted by the following paragraphs (2) and (3), each Global Note and
        Definitive Note (and all Notes issued in exchange therefor or upon registration
        of transfer or replacement thereof) shall bear a Private Placement Legend
        (each
        a “Restricted Global Note” for so long as it is required by this Indenture to
        bear such legend). Each Restricted Global Note shall have attached thereto
        a
        certificate (a “Transfer Certificate”) in substantially the form called for by
        Exhibit B hereto.

       

      (2) Upon
        any
        sale or transfer of a Restricted Global Note (w) after the expiration of
        the
        holding period applicable to sales of the Notes under Rule 144(k) of the
        Securities Act, (x) pursuant to Rule 144, (y) pursuant to an effective
        registration statement under the Securities Act or (z) pursuant to any other
        available exemption (other than Rule 144A) from the registration requirements
        of
        the Securities Act and as a result of which, in the case of a Note transferred
        pursuant to this clause (z), such Note shall cease to be a “restricted security”
within the meaning of Rule 144:

       

      (i) in
        the
        case of any Restricted Definitive Note, any Registrar shall permit the Holder
        thereof to exchange such Restricted Definitive Note for an Unrestricted
        Definitive Note, or (under the circumstances described in Section 2.12(e))
        to
        transfer such Restricted Definitive Note to a transferee who shall take such
        Note in the form of a beneficial interest in an Unrestricted Global Note,
        and in
        each case shall rescind any restriction on the transfer of such Note; provided,
        however, that the Holder of such Restricted Definitive Note shall, in connection
        with such exchange or transfer, comply with the other applicable provisions
        of
        this Section 2.12; and

       

      (ii) in
        the
        case of any beneficial interest in a Restricted Global Note, the Trustee
        shall
        permit the beneficial owner thereof to transfer such beneficial interest
        to a
        transferee who shall take such interest in the form of a beneficial interest
        in
        an Unrestricted Global Note and shall rescind any restriction on transfer
        of
        such beneficial interest; provided, that such Unrestricted Global Note shall
        continue to be subject to the provisions of Section 2.12(a)(2); and provided,
        further, that the owner of such beneficial interest shall, in connection
        with
        such transfer, comply with the other applicable provisions of this Section
        2.12.

       

      (3) Upon
        the
        exchange, registration of transfer or replacement of Notes not bearing the
        legend described in paragraph (1) above, the Company shall execute, and the
        Trustee shall authenticate and deliver Notes that do not bear such legend
        and
        that do not have a Transfer Certificate attached thereto.

       

      (4) After
        the
        expiration of the holding period pursuant to Rule 144(k) of the Securities
        Act,
        the Company may with the consent of the Holder of a Restricted Global Note
        or
        Restricted Definitive Note, remove any restriction of transfer on such Note,
        and
        the Company shall execute, and the Trustee shall authenticate and deliver
        Notes
        that do not bear such legend and that do not have a Transfer Certificate
        attached thereto.

       

      (g)
          Transfers
        to the Company.
        Nothing
        in this Indenture or in the Notes shall prohibit the sale or other transfer
        of
        any Notes (including beneficial interests in Global Notes) to the Company
        or any
        of its Subsidiaries, which Notes shall thereupon be cancelled in accordance
        with
        Section 2.11.

       

      
        	Section
                2.13.  	
                CUSIP
                  Numbers

              


      

       

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

       

      
        	Section
                2.14.  	
                Defaulted
                  Interest

              


      

       

      If
        the
        Company defaults in a payment of interest on the Notes, it shall pay the
        defaulted interest in any lawful manner plus, to the extent lawful, interest
        payable on the defaulted interest, to the Persons who are Holders on a
        subsequent special record date, in each case at the rate provided in the
        Notes
        and in Section 4.01 hereof. The Company shall notify the Trustee in writing
        of
        the amount of defaulted interest proposed to be paid on each Note and the
        date
        of the proposed payment. The Company shall fix or cause to be fixed each
        such
        special record date and payment date, provided
        that no
        such special record date shall be less than 10 days prior to the related
        payment
        date for such defaulted interest. At least 15 days before the special record
        date, the Company (or, upon the written request of the Company, the Trustee
        in
        the name and at the expense of the Company) shall mail or cause to be mailed
        to
        Holders a notice that states the special record date, the related payment
        date
        and the amount of such interest to be paid.

       

       

      ARTICLE
        3.  

       

      REDEMPTION
        AND PREPAYMENT

       

      
        	Section
                3.01.  	
                Notices
                  to Trustee

              


      

       

      If
        the
        Company elects to redeem Notes pursuant to the provisional or optional
        redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
        at least 20 days but not more than 60 days before a redemption date, an
        Officers’ Certificate setting forth (i) the clause of this Indenture pursuant to
        which the redemption shall occur, (ii) the redemption date, (iii) the principal
        amount of Notes to be redeemed and (iv) the redemption price.

       

      
        	Section
                3.02.  	
                Selection
                  of Notes to Be Redeemed

              


      

       

      If
        less
        than all of the Notes are to be redeemed or purchased in an offer to purchase
        at
        any time, the Trustee shall select the Notes to be redeemed or purchased
        among
        the Holders of the Notes in compliance with the requirements of the principal
        national securities exchange, if any, on which the Notes are listed or, if
        the
        Notes are not so listed, on a pro
        rata
        basis,
        by lot or in accordance with any other method the Trustee considers fair
        and
        appropriate. In the event of partial redemption by lot, the particular Notes
        to
        be redeemed shall be selected, unless otherwise provided herein, not less
        than
        20 nor more than 60 days prior to the redemption date by the Trustee from
        the
        outstanding Notes not previously called for redemption.

       

      The
        Trustee shall promptly notify the Company in writing of the Notes selected
        for
        redemption and, in the case of any Note selected for partial redemption,
        the
        principal amount thereof to be redeemed. Notes and portions of Notes selected
        shall be in amounts of $1,000 or whole multiples of $1,000; except that if
        all
        of the Notes of a Holder are to be redeemed, the entire outstanding amount
        of
        Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
        Except as provided in the preceding sentence, provisions of this Indenture
        that
        apply to Notes called for redemption also apply to portions of Notes called
        for
        redemption.

       

      
        	Section
                3.03.  	
                Notice
                  of Redemption

              


      

       

      At
        least
        20 days but not more than 60 days before a redemption date, the Company shall
        mail or cause to be mailed, by first class mail, a notice of redemption to
        each
        Holder whose Notes are to be redeemed at its registered address.

       

      The
        notice shall identify the Notes to be redeemed and shall state:

       

      (a)
          the
        redemption date;

       

      (b)
          the
        redemption price;

       

      (c)
          the
        then
        current Conversion Price;

       

      (d)
          if
        any
        Note is being redeemed in part, the portion of the principal amount of such
        Note
        to be redeemed and that, after the redemption date upon surrender of such
        Note,
        a new Note or Notes in principal amount equal to the unredeemed portion shall
        be
        issued upon cancellation of the original Note;

       

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

       

      (f)
          that
        Notes called for redemption must be surrendered to the Paying Agent to collect
        the redemption price;

       

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

       

      (h)
          that
        Holders who wish to convert Notes must surrender such Notes for conversion
        no
        later than the close of business on the Business Day immediately preceding
        the
        Redemption Date and must satisfy the other requirements in paragraph 8 of
        the
        Notes;

       

      (i)
          that,
        unless the Company defaults in making such redemption payment, interest on
        Notes
        called for redemption ceases to accrue on and after the redemption
        date;

       

      (j)
          the
        paragraph of the Notes and/or Section of this Indenture pursuant to which
        the
        Notes called for redemption are being redeemed; and

       

      (k)
          that
        no
        representation is made as to the correctness or accuracy of the CUSIP number,
        if
        any, listed in such notice or printed on the Notes.

       

      At
        the
        Company’s request, the Trustee shall give the notice of redemption in the
        Company’s name and at its expense; provided,
        however,
        that
        the Company shall have delivered to the Trustee, at least 40 days prior to
        the
        redemption date, an Officers’ Certificate requesting that the Trustee give such
        notice and setting forth the information to be stated in such notice as provided
        in the preceding paragraph.

       

      
        	Section
                3.04.  	
                Effect
                  of Notice of Redemption

              


      

       

      Once
        notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
        called for redemption become irrevocably due and payable on the redemption
        date
        at the redemption price. A notice of redemption may not be
        conditional.

       

      
        	Section
                3.05.  	
                Deposit
                  of Redemption Price

              


      

       

      One
        Business Day prior to the redemption date, the Company shall deposit with
        the
        Trustee or with the Paying Agent money sufficient to pay the redemption price
        of
        and accrued interest on all Notes to be redeemed on that date. The Trustee
        or
        the Paying Agent shall promptly return to the Company any money deposited
        with
        the Trustee or the Paying Agent by the Company in excess of the amounts
        necessary to pay the redemption price of, and accrued interest on, all Notes
        to
        be redeemed.

       

      If
        the
        Company complies with the provisions of the preceding paragraph, on and after
        the redemption date, interest shall cease to accrue on the Notes or the portions
        of Notes called for redemption. If a Note is redeemed on or after an interest
        record date but on or prior to the related interest payment date, then any
        accrued and unpaid interest shall be paid to the Person in whose name such
        Note
        was registered at the close of business on such record date. If any Note
        called
        for redemption shall not be so paid upon surrender for redemption because
        of the
        failure of the Company to comply with the preceding paragraph, interest shall
        be
        paid on the unpaid principal, from the redemption date until such principal
        is
        paid, and to the extent lawful on any interest not paid on such unpaid
        principal, in each case at the rate provided in the Notes and in Section
        6.01
        hereof.

       

      
        	Section
                3.06.  	
                Notes
                  Redeemed in Part

              


      

       

      Upon
        surrender of a Note that is redeemed in part, the Company shall issue and,
        upon
        the Company’s written request, the Trustee shall authenticate for the Holder at
        the expense of the Company a new Note equal in principal amount to the
        unredeemed portion of the Note surrendered.

       

      
        	Section
                3.07.  	
                Provisional
                  Redemption

              


      

       

      (a)
          The
        Notes
        may be redeemed at the election of the Company, as a whole or in part from
        time
        to time, at any time (a “Provisional
        Redemption”),
        upon
        at least 20 and not more than 60 days’ notice by mail to the Holders of the
        Notes (a “Provisional
        Redemption Notice”)
        at a
        redemption price equal to $1,000 per $1,000 principal amount of the Notes
        redeemed plus accrued and unpaid interest, if any (such amount, together
        with
        the Early Call Premium described below, the “Provisional
        Redemption Price”),
        to
        but excluding the date of redemption (the “Provisional
        Redemption Date”)
        if the
        Closing Sale Price of the Common Stock has exceeded 150% of the Conversion
        Price
        for at least 20 Trading Days within a period of any 30 consecutive Trading
        Days
        ending on the Trading Day prior to the date of mailing of the notice of
        Provisional Redemption (the “Provisional
        Redemption Notice Date”).

       

      (b)
          Except
        as
        set forth in clause (a) of this Section 3.07, the Company shall not have
        the
        option to redeem the Notes pursuant to this Section 3.07.

       

      (c)
          Any
        redemption pursuant to this Section 3.07 shall be made pursuant to the
        provisions of Section 3.01 through 3.06 hereof.

       

      
        	Section
                3.08.  	
                Early
                  Call Premium

              


      

       

      If
        the
        Company delivers a Provisional Redemption Notice pursuant to Section 3.07(a)
        on
        or prior to May 15, 2007, the Company shall make an additional payment, at
        its
        option, in cash or Common Stock or a combination of cash and Common Stock
        (the
“Early Call Premium”) with respect to the Notes called for redemption to holders
        on the Provisional Redemption Notice Date in an amount equal to $150.00 per
        $1,000 principal amount of the Notes, less the amount of any interest actually
        paid (including, if the Provisional Redemption Date occurs after a record
        date
        but before an interest payment date, any interest paid or to be paid in
        connection with such interest payment date) on such Notes prior to the
        Provisional Redemption Date. Payments made in Common Stock will be valued
        at 95%
        of the average closing sales prices of Common Stock for the five Trading
        Days
        ending on and including the third day prior to the Provisional Redemption
        Date.
        The Company shall pay the Early Call Premium on all Notes called for Provisional
        Redemption, including those Notes converted into Common Stock between the
        Provisional Redemption Notice Date and the Provisional Redemption
        Date.

       

      
        	Section
                3.09.  	
                Mandatory
                  Redemption

              


      

       

      The
        Company shall not be required to make mandatory redemption payments with
        respect
        to the Notes.

       

       

      ARTICLE
        4.  

       

      Conversion

       

      
        	Section
                4.01.  	
                Conversion
                  Privilege

              


      

       

      A
        Holder
        of a Note may convert it into fully paid and nonassessable shares of Common
        Stock at any time prior to maturity at the Conversion Price then in effect,
        except that, with respect to any Note called for redemption or submitted
        or
        presented for purchase pursuant to Section 6.08, such conversion right shall
        terminate at the close of business on the Business Day immediately preceding
        the
        Redemption Date or Change of Control Payment Date, as the case may be (unless
        the Company shall default in making the redemption payment or Change
of
        Control
        Payment when it becomes due, in which case the conversion right shall terminate
        on the date such default is cured and such Note is redeemed or purchased,
        as the
        case may be). The number of shares of Common Stock issuable upon conversion
        of a
        Note is determined by dividing the principal amount of such Note by the
        conversion price in effect on the Conversion Date (the “Conversion
        Price”).

       

      The
        initial Conversion Price is stated in Section 9 of the Notes and is subject
        to
        adjustment as provided in this Article 4.

       

      A
        Holder
        may convert a portion of a Note equal to any integral multiple of $1,000.
        Provisions of this Indenture that apply to conversion of all of a Note also
        apply to conversion of a portion of it.

       

      A
        Note in
        respect of which a Holder has delivered a Change of Control Payment Notice
        pursuant to Section 6.08 exercising the option of such Holder to require
        the
        Company to purchase such Note may be converted only if such Change of Control
        Payment Notice is withdrawn by a written notice of withdrawal delivered to
        a
        Paying Agent prior to the close of business on the Business Day immediately
        preceding the Change of Control Payment Date in accordance with Section 6.08.
        

       

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

       

      
        	Section
                4.02.  	
                Conversion
                  Procedure

              


      

       

      To
        convert a Note, a Holder must satisfy the requirements in Section 9 of the
        Notes. The date on which the Holder satisfies all of those requirements is
        the
        conversion date (the “Conversion
        Date”).
        As
        soon as practicable after the Conversion Date, the Company shall deliver
        to the
        Holder through the Conversion Agent a certificate for the number of whole
        shares
        of Common Stock issuable upon the conversion and a check for any fractional
        share determined pursuant to Section 4.03 hereof. The Person in whose name
        the
        certificate is registered shall become the stockholder of record on the
        Conversion Date and, as of such date, such Person’s rights as a Holder shall
        cease; provided,
        however,
        that no
        surrender of a Note on any date when the stock transfer books of the Company
        shall be closed shall be effective to constitute the Person entitled to receive
        the shares of Common Stock upon such conversion as the stockholder of record
        of
        such shares of Common Stock on such date, but such surrender shall be effective
        to constitute the Person entitled to receive such shares of Common Stock
        as the
        stockholder of record thereof for all purposes at the close of business on
        the
        next succeeding day on which such stock transfer books are open; provided
        further, however,
        that
        such conversion shall be at the Conversion Price in effect on the date that
        such
        Note shall have been surrendered for conversion, as if the stock transfer
        books
        of the Company had not been closed.

       

      No
        payment or other adjustment shall be made for accrued interest or dividends
        or
        distributions on any Common Stock issued upon conversion of the Notes. If
        any
        Notes are converted during any period after any record date for the payment
        of
        an installment of interest but before the next interest payment date, interest
        for such notes will be paid on the next interest payment date, notwithstanding
        such conversion, to the Holders of such Notes. Any Notes that are, however,
        delivered to the Company for conversion after any record date but before
        the
        next interest payment date must, except as described in the next sentence,
        be
        accompanied by a payment equal to the interest payable on such interest payment
        date on the principal amount of Notes being converted. The payment to the
        Company described in the preceding sentence shall not be required if, during
        that period between a record date and the next interest payment date, a
        conversion occurs on or after the date that the Company has issued a redemption
        notice or Change of Control Offer and prior to the date of redemption stated
        in
        such notice or the Change on Control Payment Date, as the case may be. No
        fractional shares will be issued upon conversion, but a cash adjustment will
        be
        made for any fractional shares.

       

      If
        a
        Holder converts more than one Note at the same time, the number of whole
        shares
        of Common Stock issuable upon the conversion shall be based on the total
        principal amount of Notes converted.

       

      Upon
        surrender of a Note that is converted in part, the Trustee shall authenticate
        for the Holder a new Note equal in principal amount to the unconverted portion
        of the Note surrendered.

       

      
        	Section
                4.03.  	
                Fractional
                  Shares

              


      

       

      The
        Company will not issue fractional shares of Common Stock upon conversion
        of a
        Note. In lieu thereof, the Company will pay an amount in cash based upon
        the
        Closing Sale Price of the Common Stock on the last trading day prior to the
        date
        of conversion.

       

      
        	Section
                4.04.  	
                Taxes
                  on Conversion

              


      

       

      The
        issuance of certificates for shares of Common Stock upon the conversion of
        any
        Note shall be made without charge to the converting Holder for such certificates
        or for any tax in respect of the issuance of such certificates, and such
        certificates shall be issued in the respective names of, or in such names
        as may
        be directed by, the Holder or Holders of the converted Note; provided,
        however,
        that in
        the event that certificates for shares of Common Stock are to be issued in
        a
        name other than the name of the Holder of the Note converted, such Note,
        when
        surrendered for conversion, shall be accompanied by an instrument of transfer,
        in form satisfactory to the Company, duly executed by the registered holder
        thereof or his duly authorized attorney; and provided
        further, however,
        that the
        Company shall not be required to pay any tax which may be payable in respect
        of
        any transfer involved in the issuance and delivery of any such certificates
        in a
        name other than that of the Holder of the converted Note, and the Company
        shall
        not be required to issue or deliver such certificates unless or until the
        Person
        or Persons requesting the issuance thereof shall have paid to the Company
        the
        amount of such tax or shall have established to the satisfaction of the Company
        that such tax has been paid or is not applicable.

       

      
        	Section
                4.05.  	
                Company
                  to Provide Stock

              


      

       

      The
        Company shall at all times reserve and keep available, free from preemptive
        rights, out of its authorized but unissued Common Stock, solely for the purpose
        of issuance upon conversion of Notes as herein provided, a sufficient number
        of
        shares of Common Stock to permit the conversion of all outstanding Notes
        for
        shares of Common Stock. All shares of Common Stock which may be issued upon
        conversion of the Notes shall be duly authorized, validly issued, fully paid
        and
        nonassessable and free of preemptive rights and free of any lien or adverse
        claim when so issued.

       

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

       

      
        	Section
                4.06.  	
                Adjustment
                  of Conversion Price

              


      

       

      The
        Conversion Price shall be subject to adjustment from time to time as
        follows:

       

      (a)
          Stock
        split and combinations.
        In case
        the Company, at any time or from time to time after the issuance date of
        the
        Notes (a) subdivides or splits the outstanding shares of its Common Stock,
        (b) combines or reclassifies the outstanding shares of its Common Stock
        into a smaller number of shares or (c) issues by reclassification of the
        shares of its Common Stock any shares of its capital stock, then the Conversion
        Price in effect immediately prior to that event or the record date for that
        event, whichever is earlier, will be adjusted so that the holder of any Notes
        thereafter surrendered for conversion will be entitled to receive the number
        of
        shares of the Company’s Common Stock or of its other securities which the Holder
        would have owned or have been entitled to receive after the occurrence of
        any of
        the events described above, had those Notes been surrendered for conversion
        immediately before the occurrence of that event or the record date for that
        event, whichever is earlier.

       

      (b)
          Stock
        Dividends in Common Stock.
        In case
        the Company, at any time or from time to time after the issuance date of
        the
        Notes, pays a dividend or makes a distribution in shares of its Common Stock
        on
        any class of its capital stock other than dividends or distributions of shares
        of Common Stock or other securities with respect to which adjustments are
        provided in paragraph (a) above or with respect to payments of interest or
        dividend obligations with respect to a particular series of capital stock
        in
        accordance with the terms of such capital stock, the Conversion Price will
        be
        adjusted so that the Holder of each Note will be entitled to receive, upon
        conversion of that Note, the number of shares of the Company’s Common Stock
        determined by multiplying (a) the Conversion Price by (b) a fraction,
        the numerator of which will be the number of shares of Common Stock outstanding
        and the denominator of which will be the sum of that number of shares and
        the
        total number of shares issued in that dividend or distribution;

       

      (c)
          Issuance
        of rights or warrants.
        In case
        the Company issues to all holders of its Common Stock rights or warrants
        entitling those holders for a period of not more than 60 days to subscribe
        for
        or purchase its Common Stock or securities convertible into its Common Stock
        at
        a price per share or conversion price per share less than the Current Market
        Price, the Conversion Price in effect immediately before the close of business
        on the record date fixed for determination of shareholders entitled to receive
        those rights or warrants will be reduced by multiplying the Conversion Price
        by
        a fraction, the numerator of which is the sum of the number of shares of
        the
        Company’s Common Stock outstanding at the close of business on that record date
        and the number of shares of Common Stock that the aggregate offering price
        of
        the total number of shares of the Company’s Common Stock so offered for
        subscription or purchase would purchase at the Current Market Price and the
        denominator of which is the sum of the number of shares of Common Stock
        outstanding at the close of business on that record date and the number of
        additional shares of the Company’s Common Stock so offered for subscription or
        purchase. For purposes of this paragraph (c), the issuance of rights or warrants
        to subscribe for or purchase securities convertible into shares of the Company’s
        Common Stock will be deemed to be the issuance of rights or warrants to purchase
        shares of the Company’s Common Stock into which those securities are convertible
        at an aggregate offering price equal to the sum of the aggregate offering
        price
        of those securities and the minimum aggregate amount, if any, payable upon
        conversion of those securities into shares of the Company’s Common Stock. This
        adjustment will be made successively whenever any such event
        occurs.

       

      (d)
          Distribution
        of indebtedness, securities or assets.
        In case
        the Company shall distribute to all or substantially all holders of its Common
        Stock any shares of capital stock of the Company (other than Common Stock),
        evidences of indebtedness or other non-cash assets (including securities
        of any
        person other than the Company but excluding (1) dividends or distributions
        paid exclusively in cash or (2) dividends or distributions referred to in
        subsection (b) of this Section 4.06), or shall distribute to all or
        substantially all holders of its Common Stock rights or warrants to subscribe
        for or purchase any of its securities (excluding those rights and warrants
        referred to in subsection (c) of this Section 4.06 and also excluding the
        distribution of rights to all holders of Common Stock pursuant to the adoption
        of a stockholders rights plan or the detachment of such rights under the
        terms
        of such stockholder rights plan), then in each such case the Conversion Price
        shall be adjusted so that the same shall equal the price determined by
        multiplying the current Conversion Price by a fraction of which the numerator
        shall be the current market price per share (as defined in subsection (g)
        of
        this Section 4.06) of the Common Stock on the record date mentioned below
        less
        the fair market value on such record date (as determined by the Board of
        Directors, whose determination shall be conclusive evidence of such fair
        market
        value and which shall be evidenced by an Officers’ Certificate delivered to the
        Trustee) of the portion of the capital stock, evidences of indebtedness or
        other
        non-cash assets so distributed or of such rights or warrants applicable to
        one
        share of Common Stock (determined on the basis of the number of shares of
        Common
        Stock outstanding on the record date), and of which the denominator shall
        be the
        current market price per share (as defined in subsection (g) of this Section
        4.06) of the Common Stock on such record date. Such adjustment shall be made
        successively whenever any such distribution is made and shall become effective
        immediately after the record date for the determination of shareholders entitled
        to receive such distribution.

       

      (e)
          In
        case
        the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering
        Distribution”)
        to all
        or substantially all holders of its Common Stock cash in an aggregate amount
        that, together with the aggregate amount of (A) any cash and the fair
        market value (as determined by the Board of Directors, whose determination
        shall
        be conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee) of any other consideration payable
        in
        respect of any tender offer by the Company or a Subsidiary of the Company
        for
        Common Stock consummated within the 12 months preceding the date of payment
        of
        the Triggering Distribution and in respect of which no Conversion Price
        adjustment pursuant to this Section 4.06 has been made and (B) all other
        cash distributions to all or substantially all holders of its Common Stock
        made
        within the 12 months preceding the date of payment of the Triggering
        Distribution and in respect of which no Conversion Price adjustment pursuant
        to
        this Section 4.06 has been made, exceeds an amount equal to 10.0% of the
        product
        of the current market price per share of Common Stock (as determined in
        accordance with subsection (g) of this Section 4.06) on the Business Day
        (the
“Determination
        Date”)
        immediately preceding the day on which such Triggering Distribution is declared
        by the Company multiplied by the number of shares of Common Stock outstanding
        on
        the Determination Date (excluding shares held in the treasury of the Company),
        the Conversion Price shall be reduced so that the same shall equal the price
        determined by multiplying such Conversion Price in effect immediately prior
        to
        the Determination Date by a fraction of which the numerator shall be the
        current
        market price per share of the Common Stock (as determined in accordance with
        subsection (g) of this Section 4.06) on the Determination Date less the sum
        of
        the aggregate amount of cash and the aggregate fair market value (determined
        as
        aforesaid in this Section 4.06(d)) of any such other consideration so
        distributed, paid or payable within such 12 months (including, without
        limitation, the Triggering Distribution) applicable to one share of Common
        Stock
        (determined on the basis of the number of shares of Common Stock outstanding
        on
        the Determination Date) and the denominator shall be such current market
        price
        per share of the Common Stock (as determined in accordance with subsection
        (g)
        of this Section 4.06) on the Determination Date, such reduction to become
        effective immediately prior to the opening of business on the day following
        the
        date on which the Triggering Distribution is paid.

       

      (f)
          In
        case
        any tender offer made by the Company or any of its Subsidiaries for Common
        Stock
        shall expire and such tender offer (as amended upon the expiration thereof)
        shall involve the payment of aggregate consideration in an amount (determined
        as
        the sum of the aggregate amount of cash consideration and the aggregate fair
        market value (as determined by the Board of Directors, whose determination
        shall
        be conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee thereof) of any other consideration)
        that,
        together with the aggregate amount of (A) any cash and the fair market
        value (as determined by the Board of Directors, whose determination shall
        be
        conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to the Trustee) of any other consideration payable
        in
        respect of any other tender offers by the Company or any Subsidiary of the
        Company for Common Stock consummated within the 12 months preceding the date
        of
        the Expiration Date (as defined below) and in respect of which no Conversion
        Price adjustment pursuant to this Section 4.06 has been made and (B) all
        cash distributions to all or substantially all holders of its Common Stock
        made
        within the 12 months preceding the Expiration Date and in respect of which
        no
        Conversion Price adjustment pursuant to this Section 4.06 has been made,
        exceeds an amount equal to 10.0% of the product of the current market price
        per
        share of Common Stock (as determined in accordance with subsection (g) of
        this
        Section 4.06) as of the last date (the “Expiration
        Date”)
        tenders could have been made pursuant to such tender offer (as it may be
        amended) (the last time at which such tenders could have been made on the
        Expiration Date is hereinafter sometimes called the “Expiration
        Time”)
        multiplied by the number of shares of Common Stock outstanding (including
        tendered shares but excluding any shares held in the treasury of the Company)
        at
        the Expiration Time, then, immediately prior to the opening of business on
        the
        day after the Expiration Date, the Conversion Price shall be reduced so that
        the
        same shall equal the price determined by multiplying the Conversion Price
        in
        effect immediately prior to close of business on the Expiration Date by a
        fraction of which the numerator shall be the product of the number of shares
        of
        Common Stock outstanding (including tendered shares but excluding any shares
        held in the treasury of the Company) at the Expiration Time multiplied by
        the
        current market price per share of the Common Stock (as determined in accordance
        with subsection (g) of this Section 4.06) on the Trading Day next succeeding
        the
        Expiration Date and the denominator shall be the sum of (x) the aggregate
        consideration (determined as aforesaid) payable to stockholders based on
        the
        acceptance (up to any maximum specified in the terms of the tender offer)
        of all
        shares validly tendered and not withdrawn as of the Expiration Time (the
        shares
        deemed so accepted, up to any such maximum, being referred to as the
“Purchased
        Shares”)
        and
        (y) the product of the number of shares of Common Stock outstanding (less
        any Purchased Shares and excluding any shares held in the treasury of the
        Company) at the Expiration Time and the current market price per share of
        Common
        Stock (as determined in accordance with subsection (g) of this Section 4.06)
        on
        the Trading Day next succeeding the Expiration Date, such reduction to become
        effective immediately prior to the opening of business on the day following
        the
        Expiration Date. In the event that the Company is obligated to purchase shares
        pursuant to any such tender offer, but the Company is permanently prevented
        by
        applicable law from effecting any or all such purchases or any or all such
        purchases are rescinded, the Conversion Price shall again be adjusted to
        be the
        Conversion Price which would have been in effect based upon the number of
        shares
        actually purchased. If the application of this Section 4.06(f) to any tender
        offer would result in an increase in the Conversion Price, no adjustment
        shall
        be made for such tender offer under this Section 4.06(f).

       

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

       

      (g)
          For
        the
        purpose of any computation under subsections (b), (c), (d) and (e) of this
        Section 4.06, the current market price per share of Common Stock on any date
        shall be deemed to be the average of the daily Closing Sale Prices for the
        30
        consecutive Trading Days commencing 45 Trading Days before (i) the
        Determination Date or the Expiration Date, as the case may be, with respect
        to
        distributions or tender offers under subsections (d) and (e) of this Section
        4.06 or (ii) the record date with respect to distributions, issuances or
        other events requiring such computation under subsection (c), (d) or (e)
        of this
        Section 4.06. If no such prices are available, the current market price per
        share shall be the fair value of share of Common Stock as determined by the
        Board of Directors (which shall be evidenced by an Officers’ Certificate
        delivered to the Trustee).

       

      (h)
          If
        any
        distribution in respect of which an adjustment to the Conversion Price is
        required to be made as of the record date or Determination Date or Expiration
        Date therefor is not thereafter made or paid by the Company for any reason,
        the
        Conversion Price shall be readjusted to the Conversion Price which would
        then be
        in effect if such record date had not been fixed or such effective date or
        Determination Date or Expiration Date had not occurred.

       

      
        	Section
                4.07.  	
                No
                  Adjustment

              


      

       

      No
        adjustment in the Conversion Price shall be required until cumulative
        adjustments amount to 1% or more of the Conversion Price as last adjusted;
        provided,
        however,
        that
        any adjustments which by reason of this Section 4.07 are not required to
        be made
        shall be carried forward and taken into account in any subsequent adjustment.
        All calculations under this Article 4 shall be made to the nearest cent or
        to
        the nearest one-hundredth of a share, as the case may be. No adjustment need
        be
        made for rights to purchase Common Stock pursuant to a Company plan for
        reinvestment of dividends or interest. No adjustment need be made for a change
        in the par value or no par value of the Common Stock.

       

      
        	Section
                4.08.  	
                Other
                  Adjustments

              


      

       

      (a)
          In
        the
        event that, as a result of an adjustment made pursuant to Section 4.06 hereof,
        the Holder of any Note thereafter surrendered for conversion shall become
        entitled to receive any shares of Capital Stock of the Company other than
        shares
        of its Common Stock, thereafter the Conversion Price of such other shares
        so
        receivable upon conversion of any Note 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 4.


       

      (b)
          In
        the
        event that shares of Common Stock are not delivered after the expiration
        of any
        of the rights or warrants referred to in Section 4.06(b) and Section 4.06(c)
        hereof, the Conversion Price shall be readjusted to the Conversion Price
        which
        would otherwise be in effect had the adjustment made upon the issuance of
        such
        rights or warrants been made on the basis of delivery of only the number
        of
        shares of Common Stock actually delivered.

       

      
        	Section
                4.09.  	
                Adjustments
                  for Tax Purposes

              


      

       

      The
        Company may make such reductions in the Conversion Price, in addition to
        those
        required by Section 4.06 hereof, as it determines in its discretion to be
        advisable in order that any stock dividend, subdivision of shares, distribution
        or rights to purchase stock or securities or distribution of securities
        convertible into or exchangeable for stock made by the Company to its
        stockholders will not be taxable to the recipients thereof.

       

      
        	Section
                4.10.  	
                Notice
                  of Adjustment

              


      

       

      Whenever
        the Conversion Price is adjusted, the Company shall promptly mail to Holders
        at
        the addresses appearing on the Registrar’s books 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. Unless and
        until a
        Trust Officer of the Trustee shall receive written notice of an adjustment
        of
        the Conversion Price, the Trustee may assume without inquiry that the Conversion
        Price has not been adjusted and that the last Conversion Price of which it
        has
        knowledge remains in effect.

       

      
        	Section
                4.11.  	
                Notice
                  of Certain Transactions

              


      

       

      In
        the
        event that:

       

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

       

      (2) the
        Company takes any action that would require a supplemental indenture pursuant
        to
        Section 4.12; or

       

      (3) there
        is
        a dissolution or liquidation of the Company;

       

      the
        Company shall mail to Holders at the addresses appearing on the Registrar’s
        books and the Trustee a notice stating the proposed record or effective date,
        as
        the case may be, to permit a Holder of a Note to convert such Note into shares
        of Common Stock prior to the record date for or the effective date of the
        transaction in order to receive the rights, warrants, securities or assets
        which
        a holder of shares of Common Stock on that date may receive. The Company
        shall
        mail the notice at least 15 days before such date; however, failure to mail
        such
        notice or any defect therein shall not affect the validity of any transaction
        referred to in clause (1), (2) or (3) of this Section 4.11.

       

      
        	Section
                4.12.  	
                Effect
                  of Reclassifications, Consolidations, Mergers or Sales on Conversion
                  Privilege

              


      

       

      If
        any of
        the following shall occur, namely: (i) any reclassification or change of
        outstanding shares of Common Stock issuable upon conversion of Notes (other
        than
        a change in par value, or from par value to no par value, or from no par
        value
        to par value, or as a result of a subdivision or combination or as a result
        of a
        reincorporation of the Company in another jurisdiction), (ii) any consolidation
        or merger to which the Company is a party other than a merger in which the
        Company is the continuing corporation and which does not result in any
        reclassification of, or change (other than 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 property or
        business of the Company as an entirety, then the Company, or such successor
        or
        purchasing corporation, as the case may be, shall, as a condition precedent
        to
        such reclassification, change, consolidation, merger, sale or conveyance,
        execute and deliver to the Trustee a supplemental indenture in form reasonably
        satisfactory to the Trustee providing that the Holder of each Note then
        outstanding shall have the right to convert such Note into the kind and amount
        of shares of stock and other securities and property (including cash) receivable
        upon such reclassification, change, consolidation, merger, sale or conveyance
        by
        a Holder of the number of shares of Common Stock deliverable upon conversion
        of
        such Note immediately prior to such reclassification, change, consolidation,
        merger, sale or conveyance. In the event that the shares of Common Stock
        are
        exchanged or substituted for other securities in connection with any such
        reclassification, change, consolidation, merger, 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 4. If, in the case of any
        such consolidation, merger, sale or conveyance, the stock or other securities
        and property (including cash) receivable thereupon by a Holder of Common
        Stock
        includes shares of stock or other securities and property of a corporation
        other
        than the successor or purchasing corporation, as the case may be, in such
        consolidation, merger, 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 Notes
        as
        the Board of Directors of the Company shall reasonably consider necessary
        by
        reason of the foregoing. The provision of this Section 4.12 shall similarly
        apply to successive consolidations, mergers, sales or conveyances.

       

      In
        the
        event the Company shall execute a supplemental indenture pursuant to this
        Section 4.12, the Company shall promptly file with the Trustee an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
        of stock or securities or property (including cash) receivable by Holders
        of the
        Notes upon the conversion of their Notes after any such reclassification,
        change, consolidation, merger, sale or conveyance and any adjustment to be
        made
        with respect thereto.

       

      
        	Section
                4.13.  	
                Trustee’s
                  Disclaimer

              


      

       

      The
        Trustee has no duty to determine when an adjustment under this Article 4
        should
        be made, how it should be made or what such adjustment should be, but may
        accept
        as conclusive evidence of the correctness of any such adjustment, 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 4.10
        hereof. The Trustee makes no representation as to the validity or value of
        any
        securities or assets issued upon conversion of Notes, and the Trustee shall
        not
        be responsible for the Company’s failure to comply with any provisions of this
        Article 4.

       

      The
        Trustee shall not be under any responsibility to determine the correctness
        of
        any provisions contained in any supplemental indenture executed pursuant
        to
        Section 4.12, 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 4.12 hereof.

       

      
        	Section
                4.14.  	
                Voluntary
                  Reduction

              


      

       

      The
        Company from time to time may reduce the Conversion Price by any amount for
        any
        period of time if the period is at least 20 days and if the reduction is
        irrevocable during the period if the Board of Directors determines that such
        reduction would be in the best interest of the Company and the Company provides
        15 days prior notice of any reduction in the Conversion Price; provided,
        however, that in no event may the Company reduce the Conversion Price to
        be less
        than the par value of a share of Common Stock.

       

       

      ARTICLE
        5.  

       

      SUBORDINATION

       

      
        	Section
                5.01.  	
                Agreement
                  to Subordinate

              


      

       

      (a)
          The
        Company agrees, and each Holder by accepting a Note agrees, that the
        Indebtedness evidenced by the Notes (including the principal of, premium,
        if
        any, and interest on all the Notes and the redemption price and Early Call
        Premium, if any, with respect to any Notes being called for redemption and
        the
        Change of Control Payment with respect to all Notes subject to purchase pursuant
        to Section 6.08 hereof) is subordinated in right of payment, to the extent
        and
        in the manner provided in this Article 5, to the prior payment in full of
        all
        Senior Indebtedness (whether outstanding on the date hereof or hereafter
        created, incurred, assumed or guaranteed), and that the subordination is
        for the
        benefit of the holders of Senior Indebtedness. No provision of this Section
        5
        shall prevent the occurrence of any Default or Event of Default.

       

      (b)
          The
        Notes
        issued under this Indenture shall be “Senior Indebtedness” (as such term is
        defined in the Existing Notes Indenture) for purposes of the Existing 2006
        Notes
        and the Existing 2006 Notes Indenture, and in furtherance thereof, the Company
        agrees that the Notes shall be senior to the Existing 2006 Notes, and that
        nothing contained in this Indenture or in the definition of Senior Indebtedness
        under this Indenture is meant or shall be construed to provide that the Notes
        issued under this Indenture are not senior to the Existing 2006
        Notes.

       

      (c)
          The
        Notes
        issued under this Indenture shall rank pari passu with the Existing 2011
        Notes.

       

      
        	Section
                5.02.  	
                Liquidation;
                  Dissolution; Bankruptcy

              


      

       

      Upon
        any
        distribution to creditors of the Company in a liquidation or dissolution
        of the
        Company or in a bankruptcy, reorganization, insolvency, receivership or similar
        proceeding relating to the Company or its property, in an assignment for
        the
        benefit of creditors or any marshaling of the Company’s assets and
        liabilities:

       

      (i)  holders
        of Senior Indebtedness shall be entitled to receive payment in full of all
        Obligations due in respect of such Senior Indebtedness (including interest
        after
        the commencement of any such proceeding at the rate specified in the applicable
        Senior Indebtedness) before Holders of the Notes shall be entitled to receive
        any payment with respect to the Notes (except that Holders may receive Permitted
        Junior Securities); and

       

      (ii)  until
        all
        Obligations with respect to Senior Indebtedness (as provided in clause (i)
        above) are paid in full, any distribution to which Holders would be entitled
        but
        for this Article 5 shall be made to holders of Senior Indebtedness (except
        that
        Holders of Notes may receive Permitted Junior Securities), as their interests
        may appear.

       

      
        	Section
                5.03.  	
                Default
                  on Designated Senior
                  Indebtedness

              


      

       

      (a)
          The
        Company may not make any payment or distribution to the Trustee or any Holder
        in
        respect of Obligations with respect to the Notes and may not acquire from
        the
        Trustee or any Holder any Notes for cash or property (other than Permitted
        Junior Securities) until all principal and other Obligations with respect
        to the
        Senior Indebtedness have been paid in full if:

       

      (i)  a
        default
        in the payment of any principal or other Obligations with respect to Designated
        Senior Indebtedness occurs and is continuing beyond any applicable grace
        period
        in the agreement, indenture or other document governing such Designated Senior
        Indebtedness; or

       

      (ii)  a
        default, other than a payment default, on Designated Senior Indebtedness
        occurs
        and is continuing that then permits holders of the Designated Senior
        Indebtedness to accelerate its maturity and the Trustee receives a notice
        of the
        default (a “Payment
        Blockage Notice”)
        from a
        Person who may give it pursuant to Section 5.12 hereof. If the Trustee receives
        any such Payment Blockage Notice, no subsequent Payment Blockage Notice shall
        be
        effective for purposes of this Section unless and until (A) at least 360
        days
        shall have elapsed since the issuance of the immediately prior Payment Blockage
        Notice and (B) all scheduled payments of principal, premium, if any, and
        interest on the Notes that have come due have been paid in full in cash.
        No
        nonpayment default that existed or was continuing on the date of delivery
        of any
        Payment Blockage Notice to the Trustee shall be, or be made, the basis for
        a
        subsequent Payment Blockage Notice unless such default shall have been waived
        for a period of not less than 180 days.

       

      (b)
          The
        Company may and shall resume payments on and distributions in respect of
        the
        Notes and may acquire them upon the earlier of:

       

      (i)  the
        date
        upon which the Trustee receives notice from the Company that the default
        is
        cured or waived or ceases to exist, or

       

      (ii)  in
        the
        case of a default referred to in clause (ii) of Section 5.03(a) hereof, 179
        days
        pass after the Payment Blockage Notice is received if the maturity of such
        Designated Senior Indebtedness has not been accelerated,

       

      if
        this
        Article 5 otherwise permits the payment, distribution or acquisition at the
        time
        of such payment or acquisition.

       

      
        	Section
                5.04.  	
                Acceleration
                  of Notes

              


      

       

      If
        payment of the Notes is accelerated because of an Event of Default, the Company
        shall promptly notify holders of Senior Indebtedness of the
        acceleration.

       

      
        	Section
                5.05.  	
                When
                  Distribution Must Be Paid Over

              


      

       

      In
        the
        event that the Trustee or any Holder receives any payment of any Obligations
        or
        distribution of assets of the Company of any kind or character (other than
        Permitted Junior Securities pursuant to Section 5 hereof), whether in cash,
        property or securities (including, without limitation, by way of setoff or
        otherwise) with respect to the Notes at a time when the Trustee or such Holder,
        as applicable, has actual knowledge that such payment is prohibited by Section
        5.03 hereof, such payment shall be held by the Trustee or such Holder, in
        trust
        for the benefit of, and shall be paid forthwith over and delivered, upon
        written
        request, to, the holders of Senior Indebtedness as their interests may appear
        or
        their Representative under the indenture or other agreement (if any) pursuant
        to
        which Senior Indebtedness may have been issued, as their respective interests
        may appear, for application to the payment of all Obligations with respect
        to
        Senior Indebtedness remaining unpaid to the extent necessary to pay such
        Obligations in full in accordance with their terms, after giving effect to
        any
        concurrent payment or distribution to or for the holders of Senior
        Indebtedness.

       

      With
        respect to the holders of Senior Indebtedness, the Trustee undertakes to
        perform
        only such obligations on the part of the Trustee as are specifically set
        forth
        in this Article 5, and no implied covenants or obligations with respect to
        the
        holders of Senior Indebtedness shall be read into this Indenture against
        the
        Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
        holders of Senior Indebtedness, and shall not be liable to any such holders
        if
        the Trustee shall pay over or distribute to or on behalf of Holders or the
        Company or any other Person money or assets to which any holders of Senior
        Indebtedness shall be entitled by virtue of this Article 5, except if such
        payment is made as a result of the willful misconduct or gross negligence
        of the
        Trustee.

       

      
        	Section
                5.06.  	
                Notice
                  by Company

              


      

       

      The
        Company shall promptly notify the Trustee and the Paying Agent of any facts
        known to the Company that would cause a payment of any Obligations with respect
        to the Notes to violate this Article 5, but failure to give such notice
        shall not affect the subordination of the Notes to the Senior Indebtedness
        as
        provided in this Article 5.

       

      
        	Section
                5.07.  	
                Subrogation

              


      

       

      After
        all
        Senior Indebtedness is paid in full in cash or other payment satisfactory
        to the
        holders of the Senior Indebtedness and until the Notes are paid in full,
        Holders
        of Notes shall be subrogated (equally and ratably with all other Indebtedness
        pari
        passu
        with the
        Notes and entitled to similar rights of subrogation) to the rights of holders
        of
        Senior Indebtedness to receive payments or distributions applicable to Senior
        Indebtedness to the extent that payments or distributions otherwise payable
        to
        the Holders of Notes have been applied to the payment of Senior Indebtedness.
        A
        distribution made under this Article 5 to holders of Senior Indebtedness
        that
        otherwise would have been made to Holders of Notes (whether by the Company,
        any
        Holder, the Trustee or otherwise) is not, as between the Company and Holders,
        a
        payment by the Company on the Notes.

       

      
        	Section
                5.08.  	
                Relative
                  Rights

              


      

       

      This
        Article 5 defines the relative rights of Holders of Notes and holders of
        Senior
        Indebtedness. Nothing in this Indenture shall:

       

      (i)  impair,
        as between the Company and Holders of Notes, the obligation of the Company,
        which is absolute and unconditional, to pay principal of, premium, if any,
        and
        interest on the Notes in accordance with their terms;

       

      (ii)  affect
        the relative rights of Holders of Notes and creditors of the Company other
        than
        their rights in relation to holders of Senior Indebtedness; or

       

      (iii)  prevent
        the Trustee or any Holder of Notes from exercising its available remedies
        upon a
        Default or Event of Default, subject to the rights of holders and owners
        of
        Senior Indebtedness to receive distributions and payments otherwise payable
        to
        Holders of Notes.

       

      If
        the
        Company fails because of this Article 5 to pay principal of, premium, if
        any, or
        interest on a Note on the due date, the failure is still a Default or Event
        of
        Default.

       

      
        	Section
                5.09.  	
                Subordination
                  May Not Be Impaired by Company

              


      

       

      No
        right
        of any holder of Senior Indebtedness to enforce the subordination of the
        Indebtedness evidenced by the Notes shall be impaired by any act or failure
        to
        act by the Company or any Holder or by the failure of the Company or any
        Holder
        to comply with this Indenture.

       

      
        	Section
                5.10.  	
                Distribution
                  or Notice to Representative

              


      

       

      Whenever
        a distribution is to be made or a notice given to holders of Senior
        Indebtedness, the distribution may be made and the notice given to their
        Representative.

       

      Upon
        any
        payment or distribution of assets of the Company referred to in this Article
        5,
        the Trustee and the Holders of Notes shall be entitled to rely upon any order
        or
        decree made by any court of competent jurisdiction or upon any certificate
        of
        such Representative or of the liquidating trustee or agent or other Person
        making any distribution to the Trustee or to the Holders of Notes for the
        purpose of ascertaining the Persons entitled to participate in such
        distribution, the holders of the Senior Indebtedness and other Indebtedness
        of
        the Company, the amount thereof or payable thereon, the amount or amounts
        paid
        or distributed thereon and all other facts pertinent thereto or to this Article
        5.

       

      
        	Section
                5.11.  	
                Rights
                  of Trustee and Paying Agent

              


      

       

      Notwithstanding
        the provisions of this Article 5 or any other provision of this Indenture,
        the
        Trustee shall not at any time be charged with knowledge of the existence
        of any
        facts that would prohibit the making of any payment or distribution by the
        Trustee, and the Trustee and the Paying Agent may continue to make payments
        on
        the Notes, unless the Trustee shall have received at its Corporate Trust
        Office
        at least five Business Days prior to the date of such payment written notice
        of
        facts that would cause the payment of any Obligations with respect to the
        Notes
        to violate this Article 5. Only the Company or a Representative may give
        the
        notice. Nothing in this Article 5 shall impair the claims of, or payments
        to,
        the Trustee under or pursuant to Section 9.07 hereof.

       

      The
        Trustee in its individual or any other capacity may hold Senior Indebtedness
        with the same rights it would have if it were not Trustee. Any Agent may
        do the
        same with like rights.

       

      
        	Section
                5.12.  	
                Authorization
                  to Effect Subordination

              


      

       

      Each
        Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
        Trustee on such Holder’s behalf to take such action as may be necessary or
        appropriate to effectuate the subordination as provided in this Article 5,
        and
        appoints the Trustee to act as such Holder’s attorney-in-fact for any and all
        such purposes. If the Trustee does not file a proper proof of claim or proof
        of
        debt in the form required in any proceeding referred to in Section 8.09 hereof
        at least 30 days before the expiration of the time to file such claim, the
        holders of any Designated Senior Indebtedness are hereby authorized to file
        an
        appropriate claim for and on behalf of the Holders of the Notes.

       

      
        	Section
                5.13.  	
                Amendments

              


      

       

      The
        provisions of this Article 5 shall not be amended or modified without the
        written consent of the holders of all Senior Indebtedness.

       

      
        	Section
                5.14.  	
                Agreement
                  to Subordinate Unaffected

              


      

       

      The
        provisions of this Article 5 shall remain in full force and effect irrespective
        of (a) any amendment, modification, or supplement of, or any waiver or consent
        to, any of the terms of the Senior Indebtedness or the agreement or instrument
        governing the Senior Indebtedness, (b) the release or non-perfection of any
        collateral securing the Senior Indebtedness or (c) the manner of sale or
        other
        disposition of the collateral securing the Senior Indebtedness or the
        application of the proceeds upon such sale.

       

      
        	Section
                5.15.  	
                Certain
                  Conversions Deemed Payment

              


      

       

      For
        the
        purposes of this Article 5 only, (1) the issuance and delivery of Permitted
        Junior Securities upon conversion of Notes in accordance with Article 4 shall
        not be deemed to constitute a payment or distribution on account of the
        principal of, or premium, if any, or interest on the Notes or on account
        of the
        purchase or other acquisition of Notes, and (2) the payment, issuance or
        delivery of cash (except in satisfaction of fractional shares pursuant to
        Section 4.03), property or securities (other than Permitted Junior Securities)
        upon conversion of a Note shall be deemed to constitute payment on account
        of
        the principal of such Note. Nothing contained in this Article 5 or elsewhere
        in
        this Indenture or in the Notes is intended to or shall impair, as among the
        Company, its creditors other than holders of Senior Indebtedness and the
        Holders, the right, which is absolute and unconditional, of the Holder of
        any
        Note to convert such Note in accordance with Article 4.

       

       

      ARTICLE
        6.  

       

      COVENANTS

       

      
        	Section
                6.01.  	
                Payment
                  of Notes

              


      

       

      The
        Company shall pay or cause to be paid the principal of, premium, if any,
        and
        interest on the Notes on the dates and in the manner provided in the Notes.
        Principal, premium, if any, and interest shall be considered paid on the
        date
        due if the Paying Agent, if other than the Company or a Subsidiary thereof,
        holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
        Company in immediately available funds and designated for and sufficient
        to pay
        all principal, premium, if any, and interest then due. 

       

      The
        Company shall pay interest (including post-petition interest in any proceeding
        under any Bankruptcy Law) on overdue principal at the rate borne by the Notes
        to
        the extent lawful; it shall pay interest (including post-petition interest
        in
        any proceeding under any Bankruptcy Law) on overdue installments of interest
        (without regard to any applicable grace period) at the same rate to the extent
        lawful.

       

      
        	Section
                6.02.  	
                Maintenance
                  of Office or Agency

              


      

       

      The
        Company shall maintain in the Borough of Manhattan, the City of New York,
        a
        Paying Agent, Conversion Agent, Registrar and an office or agency (which
        may be
        an office of the Trustee or an affiliate of the Trustee, Registrar or
        co-registrar) where Notes may be surrendered for registration of transfer
        or for
        exchange and where notices and demands to or upon the Company in respect
        of the
        Notes and this Indenture may be served. The Company shall give prompt written
        notice to the Trustee of the location, and any change in the location, of
        such
        office or agency. 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 Corporate Trust Office of the Trustee.

       

      The
        Company may also from time to time designate one or more other offices or
        agencies where the Notes may be presented or surrendered for any or all such
        purposes and may from time to time rescind such designations; provided,
        however,
        that no
        such designation or rescission shall in any manner relieve the Company of
        its
        obligation to maintain an office or agency in the Borough of Manhattan, the
        City
        of New York for such purposes. The Company shall give prompt written notice
        to
        the Trustee of any such designation or rescission and of any change in the
        location of any such other office or agency.

       

      The
        Company hereby designates the Corporate Trust Office of the Trustee as one
        such
        office or agency of the Company in accordance with Section 2.03.

       

      
        	Section
                6.03.  	
                Reports

              


      

       

      The
        Company shall furnish to the Holders of Notes copies of the annual reports
        and
        of the information, documents and other reports (or copies of such portions
        of
        any of the foregoing as the SEC may from time to time by rules and regulations
        prescribe) which the Company may be required to file with the SEC pursuant
        to
        Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
        the
        Company is not required to file information, documents or reports pursuant
        to
        either of said Sections, then it shall file with the Trustee and the SEC,
        in
        accordance with rules and regulations prescribed from time to time by the
        SEC,
        such of the supplementary and periodic information, documents and reports
        which
        may be required pursuant to Section 13 of the Securities Exchange Act of
        1934 in
        respect of a security listed and registered on a national securities exchange
        as
        may be prescribed from time to time in such rules and regulations; provided,
        that if the Company files the reports required by this Section 6.03 with
        the SEC
        and such reports are publicly available, it shall be deemed to have satisfied
        its obligation to furnish such reports to the Holders pursuant to this Section
        6.03. The Company shall at all times comply with TIA § 314(a).


       

      
        	Section
                6.04.  	
                Information
                  Requirement

              


      

       

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

       

      
        	Section
                6.05.  	
                Compliance
                  Certificate

              


      

       

      (a)
          The
        Company shall deliver to the Trustee, within 90 days after the end of each
        fiscal year, an Officers’ Certificate stating that a review of the activities of
        the Company and its Subsidiaries during the preceding fiscal year has been
        made
        under the supervision of the signing Officers with a view to determining
        whether
        the Company has kept, observed, performed and fulfilled its obligations under
        this Indenture, and further stating, as to each such Officer signing such
        certificate, that to the best of his or her knowledge the Company has kept,
        observed, performed and fulfilled each and every covenant contained in this
        Indenture and is not in default in the performance or observance of any of
        the
        terms, provisions and conditions of this Indenture (or, if a Default or Event
        of
        Default shall have occurred, describing all such Defaults or Events of Default
        of which he or she may have knowledge and what action the Company is taking
        or
        proposes to take with respect thereto) and that to the best of his or her
        knowledge no event has occurred and remains in existence by reason of which
        payments on account of the principal of or interest, if any, on the Notes
        is
        prohibited or if such event has occurred, a description of the event and
        what
        action the Company is taking or proposes to take with respect
        thereto.

       

      (b)
          The
        Company shall, so long as any of the Notes are outstanding, deliver to the
        Trustee, forthwith upon any Officer becoming aware of any Default or Event
        of
        Default, an Officers’ Certificate specifying such Default or Event of Default
        and what action the Company is taking or proposes to take with respect thereto.
        

       

      
        	Section
                6.06.  	
                Taxes

              


      

       

      The
        Company shall pay, and shall cause each of its Subsidiaries to pay, prior
        to
        delinquency, all material taxes, assessments, and governmental levies except
        such as are contested in good faith and by appropriate proceedings or where
        the
        failure to effect such payment is not adverse in any material respect to
        the
        Holders of the Notes.

       

      
        	Section
                6.07.  	
                Stay,
                  Extension and Usury Laws

              


      

       

      The
        Company covenants (to the extent that it may lawfully do so) that it shall
        not
        at any time insist upon, plead, or in any manner whatsoever claim or take
        the
        benefit or advantage of, any stay, extension or usury law wherever enacted,
        now
        or at any time hereafter in force, that may affect the covenants or the
        performance of this Indenture; and the Company (to the extent that it may
        lawfully do so) hereby expressly waives all benefit or advantage of any such
        law, and covenants that it shall not, by resort to any such law, hinder,
        delay
        or impede the execution of any power herein granted to the Trustee, but shall
        suffer and permit the execution of every such power as though no such law
        has
        been enacted. 

       

      
        	Section
                6.08.  	
                Corporate
                  Existence

              


      

       

      Subject
        to Article 7 hereof, the Company shall do or cause to be done all things
        necessary to preserve and keep in full force and effect (i) its corporate
        existence, and the corporate, partnership or other existence of each of its
        Subsidiaries, in accordance with the respective organizational documents
        (as the
        same may be amended from time to time) of the Company or any such Subsidiary
        and
        (ii) the rights (charter and statutory), licenses and franchises of the Company
        and its Subsidiaries; provided,
        however,
        that the
        Company shall not be required to preserve any such right, license or franchise,
        or the corporate, partnership or other existence of any of its Subsidiaries,
        if
        the Board of Directors shall determine that the preservation thereof is no
        longer desirable in the conduct of the business of the Company and its
        Subsidiaries, taken as a whole, and that the loss thereof is not adverse
        in any
        material respect to the Holders of the Notes. 

       

      
        	Section
                6.09.  	
                Offer
                  to Repurchase Upon Change of
                  Control

              


      

       

      (a)
          Upon
        the
        occurrence of a Change of Control, the Company shall make an offer (a
“Change
        of Control Offer”)
        to each
        Holder to repurchase all or any part (equal to $1,000 or an integral multiple
        thereof) of each Holder’s Notes at a purchase price equal to 100% of the
        aggregate principal amount thereof plus accrued and unpaid interest thereon,
        if
        any, to, but excluding, the date of purchase (the “Change
        of Control Payment”).
        Within
        10 business days following any Change of Control, the Company shall mail
        a
        notice to each Holder stating: (1) that the Change of Control Offer is being
        made pursuant to this Section 6.09 and that all Notes tendered will be accepted
        for payment; (2) the purchase price and the purchase date, which shall be
        30 business days after the occurrence of a Change of Control (the “Change
        of Control Payment Date”);
        (3)
        that any Note not tendered will continue to accrue interest; (4) the name
        and
        address of each Paying Agent and Conversion Agent, (5) the Conversion Price
        and
        any adjustments thereto, (6) that Notes as to which a Change of Control Payment
        Notice has been given may be converted into Common Stock pursuant to Article
        4
        of this Indenture only to the extent that the Change of Control Payment Notice
        has been withdrawn in accordance with the terms of this Indenture, (7) that,
        unless the Company defaults in the payment of the Change of Control Payment,
        all
        Notes accepted for payment pursuant to the Change of Control Offer shall
        cease
        to accrue interest after the Change of Control Payment Date; (8) that Holders
        electing to have any Notes purchased pursuant to a Change of Control Offer
        will
        be required to surrender the Notes, with the form entitled “Option of Holder to
        Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at
        the address specified in the notice prior to the close of business on the
        Business Day preceding the Change of Control Payment Date; (9) that Holders
        will
        be entitled to withdraw their election if the Paying Agent receives, not
        later
        than the close of business on the Business Day preceding the Change of Control
        Payment Date, a telegram, telex, facsimile transmission, letter or any other
        written form setting forth the name of the Holder, the principal amount of
        Notes
        delivered for purchase, and a statement that such Holder is withdrawing his
        election to have the Notes purchased; and (10) that Holders whose Notes are
        being purchased only in part will be issued new Notes equal in principal
        amount
        to the unpurchased portion of the Notes surrendered, which unpurchased portion
        must be equal to $1,000 in principal amount or an integral multiple thereof.
        The
        Company shall comply with the requirements of Rule 13e-4 and Rule 14e-1 under
        the Exchange Act and any other securities laws and regulations thereunder
        to the
        extent such laws and regulations are applicable in connection with the
        repurchase of Notes in connection with a Change of Control.

       

      A
“Change
        of Control” shall be deemed to have occurred if any of the following occurs
        after the date hereof: 

       

      (i) any
        “person” or “group” (as such terms are defined below) is or becomes the
“beneficial owner” (as defined below), directly or indirectly (other than as a
        direct result of repurchases of stock by the Company), of shares of Voting
        Stock
        of the Company representing 50% or more of the total voting power of all
        outstanding classes of Voting Stock of the Company or such person or group
        (other than the “management group”) has the power, directly or indirectly, to
        elect a majority of the members of the Board of Directors of the Company;
        provided, that Voting Stock acquired in an exempt transaction shall not
        constitute a Change of Control;

       

      (ii) the
        Company consolidates with, or merges with or into, another Person or the
        Company
        sells, assigns, conveys, transfers, leases or otherwise disposes of all or
        substantially all of the assets of the Company, or any Person consolidates
        with,
        or merges with or into, the Company, in any such event other than (a) pursuant
        to a transaction in which the Persons that “beneficially owned” (as defined
        below), directly or indirectly, shares of Voting Stock of the Company
        immediately prior to such transaction “beneficially own” (as defined below),
        directly or indirectly, shares of Voting Stock of the Company representing
        at
        least a majority of the total voting power of all outstanding classes of
        Voting
        Stock of the surviving or transferee Person or (b) an exempt transaction;
        or


       

      (iii) there
        shall occur the liquidation or dissolution of the Company.

       

      For
        the
        purpose of the definition of “Change of Control”, (i) “person” and “group” have
        the meanings given such terms under Section 13(d) and 14(d) of the Exchange
        Act
        or any successor provision to either of the foregoing, and the term “group”
includes any group acting for the purpose of acquiring, holding or disposing
        of
        securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act
        (or any
        successor provision thereto), (ii) a “beneficial owner” shall be determined in
        accordance with Rule 13d-3 under the Exchange Act, as in effect on the date
        of
        this Indenture, except that the number of shares of Voting Stock of the Company
        shall be deemed to include, in addition to all outstanding shares of Voting
        Stock of the Company and Unissued Shares deemed to be held by the “person” or
“group” (as such terms are defined above) or other Person with respect to which
        the Change of Control determination is being made, all Unissued Shares deemed
        to
        be held by all other Persons, and (iii) the terms “beneficially owned” and
“beneficially own” shall have meanings correlative to that of “beneficial
        owner”. The term “Unissued Shares” means shares of Voting Stock not outstanding
        that are subject to options, warrants, rights to purchase or conversion
        privileges exercisable within 60 days of the date of determination of a Change
        of Control. The term “exempt transaction” means any purchase from the Company of
        equity interests in the Company by the management group; provided that the
        management group does not collectively beneficially own more than 65% of
        the
        total Voting Stock of all outstanding classes of Voting Stock of the Company
        following such purchase. The term “management group” means any of Thomas
        Russell, The AER 1997 Trust, Robert Louis - Dreyfus, Gallium Enterprises,
        Inc.
        and Reuben Richards.

       

      Notwithstanding
        anything to the contrary set forth in this Section 6.08, a Change of Control
        will not be deemed to have occurred if either: 

       

      (i) the
        Closing Sale Price of the Common Stock for any five Trading Days during the
        period of the ten Trading Days immediately preceding the Change of Control
        is at
        least equal to 105% of the Conversion Price in effect on such day; or


       

      (ii) in
        the
        case of a merger or consolidation, all of the consideration (excluding cash
        payments for fractional shares in the merger or consolidation constituting
        the
        Change of Control) consists of common stock traded on a United States national
        securities exchange or quoted on The Nasdaq National Market (or which will
        be so
        traded or quoted when issued or exchanged in connection with such Change
        of
        Control) and as a result of such transaction or transactions the Notes become
        convertible solely into such common stock.

       

      (b)
          A
        Holder
        may exercise its rights pursuant to this Section 6.09 upon delivery of a
        written
        notice (which shall be in substantially the form entitled “Option of Holder to
        Elect Purchase” on the reverse of the Notes and which may be delivered by
        letter, overnight courier, hand delivery, facsimile transmission or in any
        other
        written form and, in the case of Global Notes, may be delivered electronically
        or by other means in accordance with the Depositary’s customary procedures) of
        the exercise of such rights (a “Change
        of Control Payment Notice”)
        to any
        Paying Agent at any time prior to the close of business on the Business Day
        next
        preceding the Change of Control Purchase Date.

       

      Notwithstanding
        anything herein to the contrary, any Holder delivering to a Paying Agent
        the
        Change of Control Payment Notice contemplated by this Section 6.09(b) shall
        have
        the right to withdraw such Change of Control Payment Notice in whole or in
        a
        portion thereof that is a principal amount of $1,000 or in an integral multiple
        thereof at any time prior to the close of business on the Business Day next
        preceding the Change of Control Payment Date by delivery of a written notice
        of
        withdrawal to the Paying Agent in accordance with Section 6.09(a) hereof.
        

       

      Upon
        receipt by any Paying Agent of the Change of Control Payment Notice specified
        in
        this Section 6.09(b), the Holder of the Security in respect of which such
        Change
        of Control Payment Notice was given shall (unless such Change of Control
        Payment
        Notice is withdrawn as specified below) thereafter be entitled to receive
        the
        Change of Control Payment Price with respect to such Note. Such Change of
        Control Payment Price shall be paid to such Holder promptly following the
        later
        of (i) the Change of Control Payment Date with respect to such Note (provided
        the conditions in this Section 6.08(b) have been satisfied) and (ii) the
        time of
        delivery of such Note to a Paying Agent by the Holder thereof in the manner
        required by this Section 6.09(b). Notes in respect of which a Change of Control
        Payment Notice has been given by the Holder thereof may not be converted
        into
        shares of Common Stock on or after the date of the delivery of such Change
        of
        Control Payment Notice unless such Change of Control Payment Notice has first
        been validly withdrawn. 

       

      (c)
          On
        the
        Change of Control Payment Date, the Company shall, to the extent lawful,
        (1) accept for payment all Notes or portions thereof properly tendered
        pursuant to the Change of Control Offer, (2) deposit with the Paying Agent
        an
        amount equal to the Change of Control Payment in respect of all Notes or
        portions thereof so tendered and (3) deliver or cause to be delivered to
        the
        Trustee the Notes so accepted together with an Officers’ Certificate stating the
        aggregate principal amount of Notes or portions thereof being purchased by
        the
        Company. The Paying Agent shall promptly mail to each Holder of Notes so
        tendered payment in an amount equal to the purchase price for the Notes,
        and the
        Trustee shall promptly authenticate and mail (or cause to be transferred
        by book
        entry) to each Holder a new Note equal in principal amount to any unpurchased
        portion of the Notes surrendered by such Holder, if any; provided,
        that
        each such new Note shall be in a principal amount of $1,000 or an integral
        multiple thereof. The Company shall publicly announce the results of the
        Change
        of Control Offer on or as soon as practicable after the Change of Control
        Payment Date.

       

      If
        a
        Paying Agent holds, in accordance with the terms hereof, money sufficient
        to pay
        the Change of Control Payment Price of any Note for which a Change of Control
        Payment Notice has been tendered and not withdrawn in accordance with this
        Indenture then, on the Change of Control Payment Date, such Note will cease
        to
        be outstanding and the rights of the Holder in respect thereof shall terminate
        (other than the right to receive the Change of Control Payment Price as
        aforesaid).

       

      (d)
          Notwithstanding
        anything to the contrary in this Section 6.09, the Company shall not be required
        to make a Change of Control Offer upon a Change of Control if a third party
        makes the Change of Control Offer in the manner, at the times and otherwise
        in
        compliance with the requirements set forth in this Section 6.09 hereof and
        all
        other provisions of this Indenture applicable to a Change of Control Offer
        made
        by the Company and purchases all Notes validly tendered and not withdrawn
        under
        such Change of Control Offer.

       

       

      ARTICLE
        7.  

       

      SUCCESSORS

       

      
        	Section
                7.01.  	
                Merger,
                  Consolidation, or Sale of
                  Assets

              


      

       

      The
        Company shall not, directly or indirectly, consolidate or merge with or into
        (whether or not the Company is the surviving corporation), or sell, assign,
        transfer, convey or otherwise dispose of all or substantially all of its
        properties or assets in one or more related transactions to, another Person
        unless (i) the Company is the surviving corporation or the Person formed by
        or surviving any such consolidation or merger (if other than the Company)
        or to
        which such sale, assignment, transfer, conveyance or other disposition shall
        have been made is a corporation organized or existing under the laws of the
        United States, any state thereof or the District of Columbia, (ii) the Person
        formed by or surviving any such consolidation or merger (if other than the
        Company) or the Person to which such sale, assignment, transfer, conveyance
        or
        other disposition shall have been made assumes all the obligations of the
        Company under the Registration Rights Agreement, the Notes and this Indenture
        pursuant to a supplemental indenture in a form reasonably satisfactory to
        the
        Trustee, (iii) immediately after such transaction, no Default or Event of
        Default exists and (iv) the Company or the surviving corporation, as the
        case
        may be, shall have delivered to the Trustee and Officers’ Certificate and an
        Opinion of Counsel, each stating that such merger, consolidation, conveyance,
        transfer or lease comply with this Article Seven and that all conditions
        precedent herein provided for relating to such transaction have been
        satisfied.

       

      
        	Section
                7.02.  	
                Successor
                  Corporation Substituted

              


      

       

      Upon
        any
        consolidation or merger, or any sale, assignment, transfer, lease, conveyance
        or
        other disposition of all or substantially all of the assets of the Company
        in
        accordance with Section 7.01 hereof, the successor corporation formed by
        such
        consolidation or into or with which the Company is merged or to which such
        sale,
        assignment, transfer, lease, conveyance or other disposition is made shall
        succeed to, and be substituted for (so that from and after the date of such
        consolidation, merger, sale, lease, conveyance or other disposition, the
        provisions of this Indenture referring to the “Company” shall refer instead to
        the successor corporation and not to the Company), and may exercise every
        right
        and power of the Company under this Indenture with the same effect as if
        such
        successor Person had been named as the Company herein; provided,
        however,
        that
        the predecessor Company shall not be relieved from the obligation to pay
        the
        principal of and interest on the Notes except in the case of a sale, assignment,
        transfer, conveyance or other disposition of all of the Company’s assets that
        meets the requirements of Section 7.01 hereof.

       

       

      ARTICLE
        8.  

       

      DEFAULTS
        AND REMEDIES

       

      
        	Section
                8.01.  	
                Events
                  of Default

              


      

       

      An
“Event
        of Default” occurs if:

       

      (a)
          the
        Company defaults in the payment when due of interest on the Notes and such
        default continues for a period of 30 days;

       

      (b)
          the
        Company defaults in the payment when due of principal of or premium, if any,
        on
        the Notes when the same becomes due and payable at maturity, upon redemption
        (including in connection with an offer to purchase) or otherwise;

       

      (c)
          the
        Company fails to comply with any of the provisions of Section 6.08
        hereof;

       

      (d)
          the
        Company fails to observe or perform any other covenant, representation, warranty
        or other agreement in this Indenture or the Notes for 60 days after notice
        to
        the Company by the Trustee or the Holders of at least 25% in aggregate principal
        amount of the Notes then outstanding voting as a single class;

       

      (e)
          the
        Company fails to provide timely notice of a Change of Control;

       

      (f)
          the
        Company:

       

      (i)  commences
        a voluntary case,

       

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

       

      (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

       

      (v)  generally
        is not paying its debts as they become due; or

       

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

       

      (i)  is
        for
        relief against the Company in an involuntary case;

       

      (ii)  appoints
        a custodian of the Company or for all or substantially all of the property
        of
        the Company; or

       

      (iii)  orders
        the liquidation of the Company;

       

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

       

      
        	Section
                8.02.  	
                Acceleration

              


      

       

      If
        any
        Event of Default (other than an Event of Default specified in clause (f)
        or (g)
        of Section 8.01 hereof with respect to the Company) occurs and is continuing,
        the Trustee or the Holders of at least 25% in principal amount of the then
        outstanding Notes may declare all the Notes to be due and payable immediately.
        Upon any such declaration, the Notes shall become due and payable immediately.
        Notwithstanding the foregoing, if an Event of Default specified in clause
        (f) or
        (g) of Section 8.01 hereof occurs with respect to the Company, all outstanding
        Notes shall be due and payable immediately without further action or notice.
        The
        Holders of a majority in aggregate principal amount of the then outstanding
        Notes by written notice to the Trustee may on behalf of all of the Holders
        rescind an acceleration and its consequences if the rescission would not
        conflict with any judgment or decree and if all existing Events of Default
        (except nonpayment of principal, interest or premium that has become due
        solely
        because of the acceleration) have been cured or waived.

       

      
        	Section
                8.03.  	
                Other
                  Remedies

              


      

       

      If
        an
        Event of Default occurs and is continuing, the Trustee may pursue any available
        remedy to collect the payment of principal, premium, if any, and interest
        on the
        Notes or to enforce the performance of any provision of the Notes or this
        Indenture.

       

      The
        Trustee may maintain a proceeding even if it does not possess any of the
        Notes
        or does not produce any of them in the proceeding. A delay or omission by
        the
        Trustee or any Holder of a Note 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. All remedies are cumulative to
        the
        extent permitted by law.

       

      
        	Section
                8.04.  	
                Waiver
                  of Past Defaults

              


      

       

      Subject
        to Section 8.02, Holders of not less than a majority in aggregate principal
        amount of the then outstanding Notes by notice to the Trustee may on behalf
        of
        the Holders of all of the Notes waive an existing Default or Event of Default
        and its consequences hereunder, except a continuing Default or Event of Default
        in the payment of the principal of, premium, if any, or interest on, the
        Notes
        (including in connection with an offer to purchase) or a failure by the Company
        to convert any Notes into Common Stock (provided,
        however,
        that
        the Holders of a majority in aggregate principal amount of the then outstanding
        Notes may rescind an acceleration and its consequences, including any related
        payment default that resulted from such acceleration). Upon any such waiver,
        such Default shall cease to exist, and any Event of Default arising therefrom
        shall be deemed to have been cured for every purpose of this Indenture; but
        no
        such waiver shall extend to any subsequent or other Default or impair any
        right
        consequent thereon.

       

      
        	Section
                8.05.  	
                Control
                  by Majority

              


      

       

      Holders
        of a majority in principal amount of the then outstanding Notes may direct
        the
        time, method and place of conducting any proceeding for exercising any remedy
        available to the Trustee or exercising any trust or power conferred on it.
        However, the Trustee may refuse to follow any direction that conflicts with
        law
        or this Indenture that the Trustee determines may be unduly prejudicial to
        the
        rights of other Holders of Notes or that may involve the Trustee in personal
        liability.

       

      
        	Section
                8.06.  	
                Limitation
                  on Suits

              


      

       

      A
        Holder
        of a Note may pursue a remedy with respect to this Indenture or the Notes
        only
        if:

       

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

       

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

       

      (c)
          such
        Holder of a Note or Holders of Notes offer and, if requested, provide to
        the
        Trustee 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
        the
        request and the offer and, if requested, the provision of indemnity;
        and

       

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

       

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

       

      
        	Section
                8.07.  	
                Rights
                  of Holders of Notes to Receive
                  Payment

              


      

       

      Notwithstanding
        any other provision of this Indenture, the right of any Holder of a Note
        to
        receive payment of principal, premium and interest on the Note, on or after
        the
        respective due dates expressed in the Note (including in connection with
        an
        offer to purchase), to convert such Note in accordance with Article 4 or
        to
        bring suit for the enforcement of any such payment on or after such respective
        dates, shall not be impaired or affected without the consent of such
        Holder.

       

      
        	Section
                8.08.  	
                Collection
                  Suit by Trustee

              


      

       

      If
        an
        Event of Default specified in Section 8.01(a) or (b) occurs and is continuing,
        the Trustee is authorized to recover judgment in its own name and as trustee
        of
        an express trust against the Company for the whole amount of principal of,
        premium and interest remaining unpaid on the Notes and interest on overdue
        principal and, to the extent lawful, interest and such further amount as
        shall
        be sufficient to cover the costs and expenses of collection, including the
        reasonable compensation, expenses, disbursements and advances of the Trustee,
        its agents and counsel.

       

      
        	Section
                8.09.  	
                Trustee
                  May File Proofs of Claim

              


      

       

      The
        Trustee is authorized to file such proofs of claim and other papers or documents
        as may be necessary or advisable in order to have the claims of the Trustee
        (including any claim for the reasonable compensation, expenses, disbursements
        and advances of the Trustee, its agents and counsel) and the Holders of the
        Notes allowed in any judicial proceedings relative to the Company (or any
        other
        obligor upon the Notes), its creditors or its property and shall be entitled
        and
        empowered to collect, receive and distribute any money or other property
        payable
        or deliverable on any such claims and any custodian in any such judicial
        proceeding is hereby authorized by each Holder to make such payments to the
        Trustee, and in the event that the Trustee shall consent to the making of
        such
        payments directly to the Holders, to pay to the Trustee any amount due to
        it for
        the reasonable compensation, expenses, disbursements and advances of the
        Trustee, its agents and counsel, and any other amounts due the Trustee under
        Section 9.07 hereof. To the extent that the payment of any such compensation,
        expenses, disbursements and advances of the Trustee, its agents and counsel,
        and
        any other amounts due the Trustee under Section 9.07 hereof out of the estate
        in
        any such proceeding, shall be denied for any reason, payment of the same
        shall
        be secured by a Lien on, and shall be paid out of, any and all distributions,
        dividends, money, securities and other properties that the Holders may be
        entitled to receive in such proceeding whether in liquidation or under any
        plan
        of reorganization or arrangement or otherwise. Nothing herein contained shall
        be
        deemed to authorize the Trustee to authorize or consent to or accept or adopt
        on
        behalf of any Holder any plan of reorganization, arrangement, adjustment
        or
        composition affecting the Notes or the rights of any Holder, or to authorize
        the
        Trustee to vote in respect of the claim of any Holder in any such
        proceeding.

       

      
        	Section
                8.10.  	
                Priorities

              


      

       

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

       

      First: to
        the
        Trustee, its agents and attorneys for amounts due under Section 9.07 hereof,
        including payment of all compensation, expense and liabilities incurred,
        and all
        advances made, by the Trustee and the costs and expenses of
        collection;

       

      Second: to
        Holders of Notes for amounts due and unpaid on the Notes for principal, premium
        and interest, ratably, without preference or priority of any kind, according
        to
        the amounts due and payable on the Notes for principal, premium and interest,
        respectively; and

       

      Third: to
        the
        Company or to such party as a court of competent jurisdiction shall
        direct.

       

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

       

      
        	Section
                8.11.  	
                Undertaking
                  for Costs

              


      

       

      In
        any
        suit for the enforcement of any right or remedy under this Indenture or in
        any
        suit against the Trustee for any action taken or omitted by it as a Trustee,
        a
        court in its discretion may require the filing by any party litigant in the
        suit
        of an undertaking to pay the costs of the suit, and the court in its discretion
        may assess reasonable costs, including reasonable attorneys’ fees, 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 does not
        apply
        to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
        8.07
        hereof, or a suit by Holders of more than 10% in principal amount of the
        then
        outstanding Notes.

       

       

      ARTICLE
        9.  

       

      TRUSTEE

       

      
        	Section
                9.01.  	
                Duties
                  of Trustee

              


      

       

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

       

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

       

      (i)  the
        duties of the Trustee shall be determined solely by the express provisions
        of
        this Indenture and the Trustee need perform only those duties that are
        specifically set forth in this Indenture and no others, and no implied covenants
        or obligations shall be read into this Indenture against the Trustee;
        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. However, the Trustee shall examine the
        certificates and opinions to determine whether or not they conform to the
        requirements of this Indenture.

       

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

       

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

       

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

       

      (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
        7.05 hereof.

       

      (d)
          Whether
        or not therein expressly so provided, every provision of this Indenture that
        in
        any way relates to the Trustee is subject to paragraphs (a), (b), and (c)
        of
        this Section.

       

      (e)
          No
        provision of this Indenture shall require the Trustee to expend or risk its
        own
        funds or incur any liability. The Trustee shall be under no obligation to
        exercise any of its rights and powers under this Indenture at the request
        of any
        Holders, unless such Holder shall have offered to the Trustee security and
        indemnity satisfactory to it against any loss, liability or
        expense.

       

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

       

      
        	Section
                9.02.  	
                Rights
                  of Trustee

              


      

       

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

       

      (b)
          Before
        the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
        for any action it takes or omits to take in good faith in reliance on such
        Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
        counsel and the written advice of such counsel or any Opinion of Counsel
        shall
        be full and complete authorization and protection from liability in respect
        of
        any action taken, suffered or omitted by it hereunder in good faith and in
        reliance thereon.

       

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

       

      (d)
          The
        Trustee shall not be liable for any action it takes or omits to take in good
        faith that it believes to be authorized or within the rights or powers conferred
        upon it by this Indenture.

       

      (e)
          Unless
        otherwise specifically provided in this Indenture, any demand, request,
        direction or notice from the Company shall be sufficient if signed by an
        Officer
        of the Company.

       

      (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 or direction of any of the
        Holders
        unless such Holders shall have offered to the Trustee reasonable security
        or
        indemnity against the costs, expenses and liabilities that might be incurred
        by
        it in compliance with such request or direction.

       

      (g) The
        Trustee shall not be charged with knowledge of any Default or Event of Default
        with respect to the Notes unless either (1) a Responsible Officer shall have
        actual knowledge of such Default or Event of Default or (2) written notice
        of
        such Default or Event of Default shall have been given to the Trustee by
        the
        Company or by any Holder of the Notes.

       

      
        	Section
                9.03.  	
                Individual
                  Rights of Trustee

              


      

       

      The
        Trustee in its individual or any other capacity may become the owner or pledgee
        of Notes and may otherwise deal with the Company or any Affiliate of the
        Company
        with the same rights it would have if it were not Trustee. However, in the
        event
        that the Trustee acquires any conflicting interest it must eliminate such
        conflict within 90 days, apply to the SEC for permission to continue as trustee
        or resign. Any Agent may do the same with like rights and duties. The Trustee
        is
        also subject to Sections 9.10 and 9.11 hereof.

       

      
        	Section
                9.04.  	
                Trustee’s
                  Disclaimer

              


      

       

      The
        Trustee shall not be responsible for and makes no representation as to the
        validity or adequacy of this Indenture or the Notes, it shall not be accountable
        for the Company’s use of the proceeds from the Notes or any money paid to the
        Company or upon the Company’s direction under any provision of this Indenture,
        it shall not be responsible for the use or application of any money received
        by
        any Paying Agent other than the Trustee, and it shall not be responsible
        for any
        statement or recital herein or any statement in the Notes or any other document
        in connection with the sale of the Notes or pursuant to this Indenture other
        than its certificate of authentication.

       

      
        	Section
                9.05.  	
                Notice
                  of Defaults

              


      

       

      If
        a
        Default or Event of Default occurs and is continuing and if it is known to
        the
        Trustee, the Trustee shall mail to Holders of Notes a notice of the Default
        or
        Event of Default within 90 days after it occurs. Except in the case of a
        Default
        or Event of Default in payment of principal of, premium, if any, or interest
        on
        any Note, the Trustee may withhold the notice if and so long as a committee
        of
        its Responsible Officers in good faith determines that withholding the notice
        is
        in the interests of the Holders of the Notes.

       

      
        	Section
                9.06.  	
                Reports
                  by Trustee to Holders of the
                  Notes

              


      

       

      Within
        60
        days after each May 15 beginning with the May 15 following the date of this
        Indenture, and for so long as Notes remain outstanding, the Trustee shall
        mail
        to the Holders of the Notes a brief report dated as of such reporting date
        that
        complies with TIA § 313(a) (but if no event described in TIA § 313(a)
        has occurred within the twelve months preceding the reporting date, no report
        need be transmitted). The Trustee also shall comply with TIA § 313(b)(2).
        The Trustee shall also transmit by mail all reports as required by TIA
§ 313(c).

       

      A
        copy of
        each report at the time of its mailing to the Holders of Notes shall be mailed
        to the Company and filed with the SEC and each stock exchange on which the
        Notes
        are listed in accordance with TIA § 313(d). The Company shall promptly
        notify the Trustee when the Notes are listed on any stock exchange.

       

      
        	Section
                9.07.  	
                Compensation
                  and Indemnity

              


      

       

      The
        Company shall pay to the Trustee from time to time reasonable compensation
        for
        its acceptance of this Indenture and services hereunder. The Trustee’s
        compensation shall not be limited by any law on compensation of a trustee
        of an
        express trust. The Company shall reimburse the Trustee promptly upon request
        for
        all reasonable disbursements, advances and expenses incurred or made by it
        in
        addition to the compensation for its services. Such expenses shall include
        the
        reasonable compensation, disbursements and expenses of the Trustee’s agents and
        counsel.

       

      The
        Company shall indemnify the Trustee and its officers, directors, employees,
        representatives and agents against any and all losses, liabilities or expenses
        incurred by it, including in any Agent capacity in which it acts, arising
        out of
        or in connection with the acceptance or administration of its duties under
        this
        Indenture, including the costs and expenses of enforcing this Indenture against
        the Company (including this Section 9.07) and defending itself against any
        claim
        (whether asserted by the Company or any Holder or any other person) or liability
        in connection with the exercise or performance of any of its powers or duties
        hereunder, except to the extent any such loss, liability or expense may be
        attributable to its negligence or bad faith. The Trustee shall notify the
        Company promptly of any claim for which it may seek indemnity. Failure by
        the
        Trustee to so notify the Company shall not relieve the Company of its
        obligations hereunder. The Company shall defend the claim and the Trustee
        shall
        cooperate in the defense. The Trustee may have separate counsel and the Company
        shall pay the reasonable fees and expenses of such counsel. The Company need
        not
        pay for any settlement made without its consent, which consent shall not
        be
        unreasonably withheld.

       

      The
        obligations of the Company under this Section 9.07 shall survive the resignation
        or removal of the Trustee and the satisfaction and discharge of this
        Indenture.

       

      To
        secure
        the Company’s payment obligations in this Section, the Trustee shall have a Lien
        prior to the Notes on all money or property held or collected by the Trustee,
        except that held in trust to pay principal and interest on particular Notes.
        Such Lien shall survive the satisfaction and discharge of this
        Indenture.

       

      When
        the
        Trustee incurs expenses or renders services after an Event of Default specified
        in Section 8.01(g) or (h) hereof occurs, the expenses and the compensation
        for
        the services (including the fees and expenses of its agents and counsel)
        are
        intended to constitute expenses of administration under any Bankruptcy
        Law.

       

      The
        Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent
        applicable.

       

      
        	Section
                9.08.  	
                Replacement
                  of Trustee

              


      

       

      A
        resignation or removal of the Trustee and appointment of a successor Trustee
        shall become effective only upon the successor Trustee’s acceptance of
        appointment as provided in this Section.

       

      The
        Trustee may resign in writing at any time and be discharged from the trust
        hereby created by so notifying the Company. The Holders of a majority in
        principal amount of the then outstanding Notes may remove the Trustee by
        so
        notifying the Trustee and the Company in writing. The Company may remove
        the
        Trustee if:

       

      (a)
          the
        Trustee fails to comply with Section 9.10 hereof;

       

      (b)
          the
        Trustee is adjudged a bankrupt or an insolvent or an order for relief is
        entered
        with respect to the Trustee under any Bankruptcy Law;

       

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

       

      (d)
          the
        Trustee 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 a successor Trustee. Within
        one year after the successor Trustee takes office, the Holders of a majority
        in
        principal amount of the then outstanding Notes may appoint a successor Trustee
        to replace the successor Trustee appointed by the Company.

       

      If
        a
        successor Trustee does not take office within 60 days after the retiring
        Trustee
        resigns or is removed, the retiring Trustee, the Company, or the Holders
        of at
        least 10% in principal amount of the then outstanding Notes may petition
        any
        court of competent jurisdiction for the appointment of a successor
        Trustee.

       

      If
        the
        Trustee, after written request by any Holder who has been a Holder for at
        least
        six months, fails to comply with Section 9.10, such Holder may petition any
        court of competent jurisdiction for the removal of the Trustee and the
        appointment of a successor Trustee.

       

      A
        successor Trustee shall deliver a written acceptance of its appointment to
        the
        retiring Trustee and to the Company. Thereupon, the resignation or removal
        of
        the retiring Trustee shall become effective, and the successor Trustee shall
        have all the rights, powers and duties of the Trustee under this Indenture.
        The
        successor Trustee shall mail a notice of its succession to Holders. The retiring
        Trustee shall promptly transfer all property held by it as Trustee to the
        successor Trustee, provided
        all sums
        owing to the Trustee hereunder have been paid and subject to the Lien provided
        for in Section 9.07 hereof. Notwithstanding replacement of the Trustee pursuant
        to this Section 9.08, the Company’s obligations under Section 9.07 hereof shall
        continue for the benefit of the retiring Trustee.

       

      
        	Section
                9.09.  	
                Successor
                  Trustee by Merger, etc

              


      

       

      If
        the
        Trustee consolidates, merges or converts into, or transfers all or substantially
        all of its corporate trust business or assets to, another corporation or
        banking
        association, the successor corporation or banking association without any
        further act shall be the successor Trustee; provided, however, that such
        corporation or banking association shall be otherwise eligible under Section
        9.10 of the Indenture.

       

      
        	Section
                9.10.  	
                Eligibility;
                  Disqualification

              


      

       

      There
        shall at all times be a Trustee hereunder that is a corporation organized
        and
        doing business under the laws of the United States of America or of any state
        thereof that is authorized under such laws to exercise corporate trustee
        power,
        that is subject to supervision or examination by federal or state authorities
        and that has a combined capital and surplus of at least $100 million as set
        forth in its most recent published annual report of condition.

       

      This
        Indenture shall always have a Trustee who satisfies the requirements of TIA
        § 310(a)(1), (2) and (5). The Trustee is subject to TIA
§ 310(b).

       

      
        	Section
                9.11.  	
                Preferential
                  Collection of Claims Against
                  Company

              


      

       

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

       

       

      ARTICLE
        10.  

       

      SATISFACTION
        AND DISCHARGE

       

      
        	Section
                10.01.  	
                Satisfaction
                  and Discharge

              


      

       

      This
        Indenture will be discharged and will cease to be of further effect as to
        all
        Notes issued hereunder, when:

       

      
        	
                (1)

              	
                either:

              


      

       

      (a) all
        Notes
        that have been authenticated (except lost, stolen or destroyed Notes that
        have
        been replaced or paid and Notes for whose payment money has theretofore been
        deposited in trust and thereafter repaid to the Company) have been delivered
        to
        the Trustee for cancellation; or

       

      (b) all
        Notes
        that have not been delivered to the Trustee for cancellation have become
        due and
        payable by reason of the making of a notice of redemption or otherwise or
        will
        become due and payable within one year and the Company has irrevocably deposited
        or caused to be deposited with the Trustee as trust funds in trust solely
        for
        the benefit of the Holders, cash in U.S. dollars, non-callable Government
        Securities, or a combination thereof, in such amounts as will be sufficient
        without consideration of any reinvestment of interest, to pay and discharge
        the
        entire indebtedness on the Notes not delivered to the Trustee for cancellation
        for principal, premium and accrued interest to the date of maturity or
        redemption;

       

      
        	
                (2)

              	
                no
                  Default or Event of Default shall have occurred and be continuing
                  on the
                  date of such deposit or shall occur as a result of such deposit
                  and such
                  deposit will not result in a breach or violation of, or constitute
                  a
                  default under, any other instrument to which the Company is a party
                  or by
                  which the Company is bound;

              


      

       

      
        	
                (3)

              	
                the
                  Company has paid or caused to be paid all sums payable by it under
                  this
                  Indenture; and

              


      

       

      
        	
                (4)

              	
                the
                  Company has delivered irrevocable instructions to the Trustee under
                  this
                  Indenture to apply the deposited money toward the payment of the
                  Notes at
                  maturity or the redemption date, as the case may
                  be.

              


      

       

      In
        addition, the Company must deliver an Officers’ Certificate and an Opinion of
        Counsel to the Trustee stating that all conditions precedent to satisfaction
        and
        discharge have been satisfied.

       

      Notwithstanding
        the satisfaction and discharge of this Indenture, if money shall have been
        deposited with the Trustee pursuant to subclause (b) of clause (1) of this
        Section, the provisions of Section 10.02 shall survive.

       

      
        	Section
                10.02.  	
                Application
                  of Trust Money

              


      

       

      All
        money
        deposited with the Trustee pursuant to Section 10.01 shall be held in trust
        and
        applied by it, in accordance with the provisions of the Notes and this
        Indenture, to the payment, either directly or through any Paying Agent
        (including the Company acting as its own Paying Agent) as the Trustee may
        determine, to the Persons entitled thereto, of the principal (and premium,
        if
        any) and interest for whose payment such money has been deposited with the
        Trustee; but such money need not be segregated from other funds except to
        the
        extent required by law.

       

      If
        the
        Trustee or Paying Agent is unable to apply any money or Government Securities
        in
        accordance with Section 10.01 by reason of any legal proceeding or by reason
        of
        any order or judgment of any court or governmental authority enjoining,
        restraining or otherwise prohibiting such application, the Company’s obligations
        under this Indenture and the Notes shall be revived and reinstated as though
        no
        deposit had occurred pursuant to Section 10.01; provided
        that if
        the Company has made any payment of principal of, premium, if any, or interest
        on any Notes because of the reinstatement of its obligations, the Company
        shall
        be subrogated to the rights of the Holders of such Notes to receive such
        payment
        from the money or Government Securities held by the Trustee or Paying
        Agent.

       

      
        	Section
                10.03.  	
                Repayment
                  to Company

              


      

       

      The
        Trustee and each Paying Agent shall promptly pay to the Company upon request
        any
        excess money (i) deposited with them pursuant to Section 10.1 and (ii) held
        by
        them at any time.

       

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

       

      
        	Section
                10.04.  	
                Reinstatement

              


      

       

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

       

       

      ARTICLE
        11.  

       

      AMENDMENT,
        SUPPLEMENT AND WAIVER

       

      
        	Section
                11.01.  	
                Without
                  Consent of Holders of Notes

              


      

       

      Notwithstanding
        Section 11.02 of this Indenture, the Company and the Trustee may amend or
        supplement this Indenture or the Notes without the consent of any Holder
        of a
        Note:

       

      (a)
          to
        cure
        any ambiguity, defect or inconsistency;

       

      (b)
          to
        provide for uncertificated Notes in addition to or in place of certificated
        Notes or to alter the provisions of Article 2 hereof (including the related
        definitions) in a manner that does not materially adversely affect any
        Holder;

       

      (c)
          to
        provide for the assumption of the Company’s obligations to the Holders of the
        Notes by a successor to the Company pursuant to Article 7 hereof;

       

      (d)
          to
        make
        any change that would provide any additional rights or benefits to the Holders
        of the Notes or that does not adversely affect the legal rights hereunder
        of any
        Holder of the Note;

       

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

       

      (f)
          to
        provide for the issuance of additional Notes pursuant to the purchasers option
        set forth in the Purchase Agreement.

       

      Upon
        the
        request of the Company accompanied by a resolution of its Board of Directors
        authorizing the execution of any such amended or supplemental Indenture,
        and
        upon receipt by the Trustee of the documents described in Section 9.02 hereof,
        the Trustee shall join with the Company in the execution of any amended or
        supplemental Indenture authorized or permitted by the terms of this Indenture
        and to make any further appropriate agreements and stipulations that may
        be
        therein contained, but the Trustee shall not be obligated to enter into such
        amended or supplemental Indenture that affects its own rights, duties or
        immunities under this Indenture or otherwise.

       

      
        	Section
                11.02.  	
                With
                  Consent of Holders of Notes

              


      

       

      Except
        as
        provided below in this Section 11.02, the Company and the Trustee may amend
        or
        supplement this Indenture (including Section 6.08 hereof) and the Notes with
        the
        consent of the Holders of at least a majority in principal amount of the
        Notes
        then outstanding voting as a single class (including consents obtained in
        connection with a tender offer or exchange offer for, or purchase of, the
        Notes), and, subject to Sections 8.04 and 8.07 hereof, any existing Default
        or
        Event of Default (other than a Default or Event of Default in the payment
        of the
        principal of, premium, if any, or interest on the Notes, except a payment
        default resulting from an acceleration that has been rescinded) or compliance
        with any provision of this Indenture or the Notes may be waived with the
        consent
        of the Holders of a majority in principal amount of the then outstanding
        Notes
        voting as a single class (including consents obtained in connection with
        a
        tender offer or exchange offer for, or purchase of, the Notes). Section
        2.08 hereof shall determine which Notes are considered to be “outstanding” for
        purposes of this Section 11.02.

       

      Upon
        the
        request of the Company accompanied by a resolution of its Board of Directors
        authorizing the execution of any such amended or supplemental Indenture,
        and
        upon the filing with the Trustee of evidence satisfactory to the Trustee
        of the
        consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
        of
        the documents described in Section 9.02 hereof, the Trustee shall join with
        the
        Company in the execution of such amended or supplemental Indenture unless
        such
        amended or supplemental Indenture directly affects the Trustee’s own rights,
        duties or immunities under this Indenture or otherwise, in which case the
        Trustee may in its discretion, but shall not be obligated to, enter into
        such
        amended or supplemental Indenture.

       

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

       

      After
        an
        amendment, supplement or waiver under this Section becomes effective, the
        Company shall mail to the Holders of Notes affected thereby a notice briefly
        describing the amendment, supplement or waiver. Any failure of the Company
        to
        mail such notice, or any defect therein, shall not, however, in any way impair
        or affect the validity of any such amended or supplemental Indenture or waiver.
        Subject to Sections 8.04 and 8.07 hereof, the Holders of a majority in aggregate
        principal amount of the Notes then outstanding voting as a single class may
        waive compliance in a particular instance by the Company with any provision
        of
        this Indenture or the Notes. However, without the consent of each Holder
        affected, an amendment or waiver under this Section 11.02 may not (with respect
        to any Notes held by a non-consenting Holder):

       

      (a)
          reduce
        the principal amount of Notes whose Holders must consent to an amendment,
        supplement or waiver;

       

      (b)
          reduce
        the principal of or change the fixed maturity of any Note or alter or waive
        any
        of the provisions with respect to the redemption of the Notes except as provided
        above with respect to Section 6.08 hereof;

       

      (c)
          reduce
        the rate of or change the time for payment of interest, including default
        interest, on any Note;

       

      (d)
          waive
        a
        Default or Event of Default in the payment of principal of or premium, if
        any,
        or interest on the Notes (except a rescission of acceleration of the Notes
        by
        the Holders of at least a majority in aggregate principal amount of the then
        outstanding Notes and a waiver of the payment default that resulted from
        such
        acceleration);

       

      (e)
          make
        any
        Note payable in money other than that stated in the Notes;

       

      (f)
          make
        any
        change in the provisions of this Indenture relating to waivers of past Defaults
        or the rights of Holders of Notes to receive payments of principal of or
        interest on the Notes; or

       

      (g)
          make
        any
        change in Section 8.04 or 8.07 hereof or in the foregoing amendment and waiver
        provisions.

       

      
        	Section
                11.03.  	
                Compliance
                  with Trust Indenture Act

              


      

       

      Every
        amendment or supplement to this Indenture or the Notes shall be set forth
        in an
        amended or supplemental Indenture that complies with the TIA as then in
        effect.

       

      
        	Section
                11.04.  	
                Revocation
                  and Effect of Consents

              


      

       

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

       

      
        	Section
                11.05.  	
                Notation
                  on or Exchange of Notes

              


      

       

      The
        Trustee may place an appropriate notation about an amendment, supplement
        or
        waiver on any Note thereafter authenticated. The Company in exchange for
        all
        Notes may issue and the Trustee shall, upon receipt of an Authentication
        Order,
        authenticate new Notes that reflect the amendment, supplement or
        waiver.

       

      Failure
        to make the appropriate notation or issue a new Note shall not affect the
        validity and effect of such amendment, supplement or waiver.

       

      
        	Section
                11.06.  	
                Trustee
                  to Sign Amendments, etc.

              


      

       

      The
        Trustee shall sign any amended or supplemental Indenture authorized pursuant
        to
        this Article Nine if the amendment or supplement does not adversely affect
        the
        rights, duties, liabilities or immunities of the Trustee. The Company may
        not
        sign an amendment or supplemental Indenture until the Board of Directors
        approves it. In executing any amended or supplemental indenture, the Trustee
        shall be entitled to receive and (subject to Section 9.01 hereof) shall be
        fully
        protected in relying upon, in addition to the documents required by Section
        12.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that
        the execution of such amended or supplemental indenture is authorized or
        permitted by this Indenture.

       

       

      ARTICLE
        12.  

       

      MISCELLANEOUS

       

      
        	Section
                12.01.  	
                Trust
                  Indenture Act Controls

              


      

       

      If
        any
        provision of this Indenture limits, qualifies or conflicts with the duties
        imposed by TIA §318(c), the imposed duties shall control.

       

      
        	Section
                12.02.  	
                Notices

              


      

       

      Any
        notice or communication by the Company or the Trustee to the others is duly
        given if in writing and delivered in Person or mailed by first class mail
        (registered or certified, return receipt requested), telex, telecopier or
        overnight air courier guaranteeing next day delivery, to the others’
address:

       

      If
        to the
        Company:

      EMCORE
        Corporation

      145
        Belmont Drive

      Somerset,
        New Jersey 08873

      Telecopier
        No.: (732) 271-9686

      Attention:
        Chief Financial Officer

       

      With
        a
        copy to:

      Jenner
        & Block LLP

      601
        Thirteenth Street, N.W.

      Washington,
        D.C. 20005

      Telecopier
        No.: (202) 637-6374

      Attention:
        John E. Welch, Esq.

       

      If
        to the
        Trustee:

      Deutsche
        Bank Trust Company Americas

      60
        Wall
        Street

      27th
        Floor - MSNYC60-2710

      New
        York,
        NY 10005

      Telecopier
        No.: (212) 454-2223

      Attention:
        Corporate Trust & Services Agency

      


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

       

      All
        notices and communications (other than those sent to Holders) shall be deemed
        to
        have been duly given: at the time delivered by hand, if personally delivered;
        five Business Days after being deposited in the mail, postage prepaid, if
        mailed; when answered back, if telexed; when receipt acknowledged, if
        telecopied; and the next Business Day after timely delivery to the courier,
        if
        sent by overnight air courier guaranteeing next day delivery.

       

      Any
        notice or communication to a Holder shall be mailed by first class mail,
        certified or registered, return receipt requested, or by overnight air courier
        guaranteeing next day delivery to its address shown on the register kept
        by the
        Registrar. Any notice or communication shall also be so mailed to any Person
        described in TIA § 313(c), to the extent required by the TIA. 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 within the
        time
        prescribed, it is duly given, whether or not the addressee receives
        it.

       

      If
        the
        Company mails a notice or communication to Holders, it shall mail a copy
        to the
        Trustee and each Agent at the same time.

       

      
        	Section
                12.03.  	
                Communication
                  by Holders of Notes with Other Holders of
                  Notes

              


      

       

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

       

      
        	Section
                12.04.  	
                Certificate
                  and Opinion as to Conditions
                  Precedent

              


      

       

      Upon
        any
        request or application by the Company to the Trustee to take any action under
        this Indenture, the Company shall furnish to the Trustee:

       

      (a)
          an
        Officers’ Certificate in form and substance reasonably satisfactory to the
        Trustee (which shall include the statements set forth in Section 12.05 hereof)
        stating that, in the opinion of the signers, all conditions precedent and
        covenants, if any, provided for in this Indenture relating to the proposed
        action have been satisfied; and

       

      (b)
          an
        Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
        (which shall include the statements set forth in Section 12.05 hereof) stating
        that, in the opinion of such counsel, all such conditions precedent and
        covenants have been satisfied.

       

      
        	Section
                12.05.  	
                Statements
                  Required in Certificate or
                  Opinion

              


      

       

      Each
        certificate or opinion with respect to compliance with a condition or covenant
        provided for in this Indenture (other than a certificate provided pursuant
        to
        TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and
        shall include:

       

      (a)
          a
        statement that the Person making such certificate or opinion 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 certificate or opinion
        are
        based;

       

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

       

      (d)
          a
        statement as to whether or not, in the opinion of such Person, such condition
        or
        covenant has been satisfied.

       

      
        	Section
                12.06.  	
                Rules
                  by Trustee and Agents

              


      

       

      The
        Trustee may make reasonable rules for action by or at a meeting of Holders.
        The
        Registrar or Paying Agent may make reasonable rules and set reasonable
        requirements for its functions.

       

      
        	Section
                12.07.  	
                No
                  Personal Liability of Directors, Officers, Employees and
                  Stockholders

              


      

       

      No
        past,
        present or future director, officer, employee, incorporator or stockholder
        of
        the Company, as such, shall have any liability for any obligations of the
        Company under the Notes, this Indenture or for any claim based on, in respect
        of, or by reason of, such obligations or their creation. Each Holder by
        accepting a Note waives and releases all such liability. The waiver and release
        are part of the consideration for issuance of the Notes.

       

      
        	Section
                12.08.  	
                Governing
                  Law

              


      

       

      THE
        INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
        THIS
        INDENTURE THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
        OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
        WOULD BE REQUIRED THEREBY.

       

      
        	Section
                12.09.  	
                No
                  Adverse Interpretation of Other
                  Agreements

              


      

       

      This
        Indenture may not be used to interpret any other indenture, loan or debt
        agreement of the Company or its Subsidiaries or of any other Person. Any
        such
        indenture, loan or debt agreement may not be used to interpret this
        Indenture.

       

      
        	Section
                12.10.  	
                Successors

              


      

       

      All
        agreements of the Company in this Indenture and the Notes shall bind its
        successors. All agreements of the Trustee in this Indenture shall bind its
        successors. 

       

      
        	Section
                12.11.  	
                Severability

              


      

       

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

       

      
        	Section
                12.12.  	
                Counterpart
                  Originals

              


      

       

      The
        parties may sign any number of copies of this Indenture. Each signed copy
        shall
        be an original, but all of them together represent the same
        agreement.

       

      
        	Section
                12.13.  	
                Table
                  of Contents, Headings, etc

              


      

       

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

       

      [Signature
        page follows]

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    
      SIGNATURES

       

      Dated
        as
        of November 16, 2005

       

      
        
          	 	
                  EMCORE
                    Corporation

                   

                  By: 
                    /s/ Howard W. Brodie

                   

                  Howard
                    W. Brodie

                  Executive
                    Vice President and Chief Legal Officer

                
	 	 
	 	 
	 	
                  Deutsche
                    Bank Trust Company Americas,

                  as
                    Trustee

                   

                  By: 
                    /s/ Wanda Camacho

                   

                  Wanda
                    Camacho 

                  Vice
                    President

                
	 	 


        

      

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    Exhibit
      A

    


    Form
      of Note

    


    [Global
      Note Legend]

    


    UNLESS
      THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
      TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
      OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
      THE
      DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
      SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
      DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
      OR
      OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
      CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE IS A GLOBAL NOTE WITHIN THE
      MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
      OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR SECURITIES
      REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
      ONLY
      IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL
      IT
      IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS NOTE
      MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
      THE
      DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
      NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
      SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY AND TRANSFERS
      OF
      PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
      WITH SECTION 2.12 OF THE INDENTURE. 

     

    [Private
      Placement Legend]

     

    THIS
      NOTE
      (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
      REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES
      ACT”), AND THIS NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY
      NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
      REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE
      IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE 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 NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE
      AND
      THE NOTE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD,
      PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES 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, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
      ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (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 PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
      TO
      IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY,
      ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE NOTES EXCEPT AS PERMITTED
      UNDER THE SECURITIES ACT.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EMCORE
      CORPORATION

    


    CUSIP: [_________]         R-1

    


    5%
      CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011

    


    EMCORE
      Corporation, a New Jersey corporation (the “Company”, which term shall include
      any successor corporation under the Indenture referred to on the reverse
      hereof), promises to pay to Cede & Co., or registered assigns, the principal
      sum of [____________]
      Dollars
      ($[_______])
      on
[_______],
      2011 or
      such greater or lesser amount as is indicated on the Schedule of Exchanges
      of
      Notes on the other side of this Note.

     

    Interest
      Payment Dates: May 15 and November 15

     

    Record
      Dates: May 1 and November 1

     

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


     

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

     

    EMCORE
      Corporation

    


    


    By:      

    Name:

    Title

    


    Attest:

    


    


    By:      

    Name:

    Title:

    


    Dated:    

    


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

    


    DEUTSCHE
      BANK TRUST COMPANY AMERICAS,

    as
      Trustee

    


    


    By:      

    Name:
      

    Title:
      Authorized Signer

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    [REVERSE
      SIDE OF SECURITY]

    


    EMCORE
      CORPORATION

    5%
      CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011

    


    
      	1.  	
              INTEREST

            


    

     

    EMCORE
      Corporation, a New Jersey corporation (the “Company,” which term shall include
      any successor corporation under the Indenture hereinafter referred to), promises
      to pay interest on the principal amount of this Note at the rate of 5% per
      annum. The Company shall pay interest semiannually on May 15 and November 15
      of
      each year, commencing May 15, 2006, unless such date is not a business day,
      in
      which case, we shall pay interest on the next succeeding business day and such
      payment shall be deemed to have been paid on such interest payment date and
      no
      interest shall accrue during the additional period of time. Interest on the
      Notes shall accrue from the most recent date to which interest has been paid
      or,
      if no interest has been paid, from [_______],
      2006;
      provided, however, that if there is not an existing default in the payment
      of
      interest and if this Note is authenticated between a record date referred to
      on
      the face hereof and the next succeeding interest payment date, interest shall
      accrue from such interest payment date. Interest will be computed on the basis
      of a 360-day year of twelve 30-day months. 

     

    
      	2.  	
              METHOD
                OF PAYMENT

            


    

     

    The
      Company shall pay interest on this Note (except defaulted interest) to the
      person who is the Holder of this Note at the close of business on May 1 or
      November 1, as the case may be, next preceding the related interest payment
      date. The Holder must surrender this Note to a Paying Agent to collect payment
      of principal. The Company will pay principal and interest in money of the United
      States that at the time of payment is legal tender for payment of public and
      private debts. The Company may, however, pay principal and interest in respect
      of any Definitive Note by check or wire payable in such money; provided,
      however, that a Holder with an aggregate principal amount in excess of
      $2,000,000 will be paid by wire transfer in immediately available funds at
      the
      election of such Holder. The Company may mail an interest check to the Holder’s
      registered address. Notwithstanding the foregoing, so long as this Note is
      registered in the name of a Depositary or its nominee, all payments hereon
      shall
      be made by wire transfer of immediately available funds to the account of the
      Depositary or its nominee.

     

    
      	3.  	
              PAYING
                AGENT, REGISTRAR AND CONVERSION
                AGENT

            


    

     

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

     

    
      	4.  	
              INDENTURE,
                LIMITATIONS

            


    

     

    This
      Note
      is one of a duly authorized issue of Notes of the Company designated as its
      5%
      Convertible Senior Subordinated Notes due 2011 (the “Notes”), issued under an
      Indenture dated as of [_______],
      2005
      (together with any supplemental indentures thereto, the “Indenture”), between
      the Company and the Trustee. The terms of this Note include those stated in
      the
      Indenture and those required by or made part of the Indenture by reference
      to
      the Trust Indenture Act of 1939, as amended, as in effect on the date of the
      Indenture. This Note is subject to all such terms, and the Holder of this Note
      is referred to the Indenture and said Act for a statement of them. All
      capitalized terms used but not defined herein shall have the meaning ascribed
      to
      such term in the Indenture.

     

    The
      Notes
      are subordinated unsecured obligations of the Company. The aggregate principal
      amount of Notes which may be authenticated and delivered pursuant to the
      Indenture is unlimited. The Indenture does not limit other debt of the Company,
      secured or unsecured, including Senior Indebtedness.

     

    
      	5.  	
              PROVISIONAL
                REDEMPTION

            


    

     

    The
      Notes
      may be redeemed at the election of the Company, as a whole or in part from
      time
      to time, at any time (a “Provisional
      Redemption”),
      upon
      at least 20 and not more than 60 days’ notice by mail to the Holders of the
      Notes (a “Provisional
      Redemption Notice”)
      at a
      redemption price equal to $1,000 per $1,000 principal amount of the Notes
      redeemed plus accrued and unpaid interest, if any (such amount, together with
      the Early Call Premium described below, the “Provisional
      Redemption Price”),
      to
      but excluding the date of redemption (the “Provisional
      Redemption Date”)
      if the
      Closing Sale Price of the Common Stock has exceeded 150% of the Conversion
      Price
      for at least 20 Trading Days within a period of any 30 consecutive Trading
      Days
      ending on the Trading Day prior to the date of mailing of the notice of
      Provisional Redemption (the “Provisional
      Redemption Notice Date”).

     

    Except
      as
      set forth above, the Company shall not have the option to redeem the
      Notes.

     

    
      	6.  	
              EARLY
                CALL PREMIUM

            


    

     

    If
      the
      Company delivers a Provisional Redemption Notice on or prior to January
[
      ],
      2007,
      the Company shall make an additional payment, at its option, in cash or Common
      Stock or a combination of cash and Common Stock (the “Early
      Call Premium”)
      with
      respect to the Notes called for redemption to holders on the Provisional
      Redemption Notice Date in an amount equal to $150.00 per $1,000 principal amount
      of the Notes, less the amount of any interest actually paid (including, if
      the
      Provisional Redemption Date occurs after a record date but before an interest
      payment date, any interest paid or to be paid in connection with such interest
      payment date) on such Notes prior to the Provisional Redemption Date. Payments
      made in Common Stock will be valued at 95% of the average closing sales prices
      of Common Stock for the five Trading Days ending on the third day prior to
      the
      Provisional Redemption Date. The Company shall pay the Early Call Premium on
      all
      Notes called for Provisional Redemption on or prior to January [
      ],
      2007,
      including those Notes converted into Common Stock between the Provisional
      Redemption Notice Date and the Provisional Redemption Date.

     

    
      	7.  	
              NOTICE
                OF REDEMPTION

            


    

     

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

     

    
      	8.  	
              PURCHASE
                OF NOTES AT OPTION OF HOLDER UPON A CHANGE OF CONTROL
                

            


    

     

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

     

    
      	9.  	
              CONVERSION

            


    

     

    A
      Holder
      of a Note may convert the principal amount of such Note (or any portion thereof
      equal to $1,000 or any integral multiple of $1,000 in excess thereof) into
      shares of Common Stock at any time prior to the close of business on May 15,
      2011; provided, however, that if the Note is called for redemption or subject
      to
      purchase upon a Change of Control, the conversion right will terminate at the
      close of business on the Business Day immediately preceding the redemption
      date
      or the Change of Control Purchase Date, as the case may be, for such Note or
      such earlier date as the Holder presents such Note for redemption or purchase
      (unless the Company shall default in making the redemption payment or Change
      of
      Control Purchase Price, as the case may be, when due, in which case the
      conversion right shall terminate at the close of business on the date such
      default is cured and such Note is redeemed or purchased).

     

    The
      initial Conversion Price is $[ ]
      per
      share, subject to adjustment under certain circumstances. The number of shares
      of Common Stock issuable upon conversion of a Note is determined by dividing
      the
      principal amount of the Note or portion thereof converted by the Conversion
      Price in effect on the Conversion Date. No fractional shares will be issued
      upon
      conversion; in lieu thereof, an amount will be paid in cash based upon the
      Closing Price (as defined in the Indenture) of the Common Stock on the Trading
      Day immediately prior to the Conversion Date.

     

    To
      convert a Note, a Holder must (a) complete and manually sign the conversion
      notice set forth below and deliver such notice to a Conversion Agent, (b)
      surrender the Note to a Conversion Agent, (c) furnish appropriate endorsements
      and transfer documents if required by a Registrar or a Conversion Agent, and
      (d)
      pay any transfer or similar tax, if required. Notes so surrendered for
      conversion (in whole or in part) during the period from the close of business
      on
      any regular record date to the opening of business on the next succeeding
      interest payment date (excluding Notes or portions thereof called for redemption
      or subject to purchase upon a Change of Control on a Redemption Date or Change
      of Control Purchase Date, as the case may be, during the period beginning at
      the
      close of business on a regular record date and ending at the opening of business
      on the first Business Day after the next succeeding interest payment date,
      or if
      such interest payment date is not a Business Day, the second such Business
      Day)
      shall also be accompanied by payment in funds acceptable to the Company of
      an
      amount equal to the interest payable on such interest payment date on the
      principal amount of such Note then being converted, and such interest shall
      be
      payable to such registered Holder notwithstanding the conversion of such Note,
      subject to the provisions of this Indenture relating to the payment of defaulted
      interest by the Company. If the Company defaults in the payment of interest
      payable on such interest payment date, the Company shall promptly repay such
      funds to such Holder. A Holder may convert a portion of a Note equal to $1,000
      or any integral multiple thereof. 

     

    A
      Note in
      respect of which a Holder had delivered a Change of Control Purchase Notice
      exercising the option of such Holder to require the Company to purchase such
      Note may be converted only if the Change of Control Purchase Notice is withdrawn
      in accordance with the terms of the Indenture. 

     

    
      	10.  	
              SUBORDINATION

            


    

     

    The
      indebtedness evidenced by the Notes is, to the extent and in the manner provided
      in the Indenture, subordinate and junior in right of payment to the prior
      payment in full in cash of all Senior Indebtedness. Any Holder by accepting
      this
      Note agrees to and shall be bound by such subordination provisions and
      authorizes the Trustee to give them effect. In addition to all other rights
      of
      Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
      continue to be Senior Indebtedness and entitled to the benefits of the
      subordination provisions irrespective of any amendment, modification or waiver
      of any terms of any instrument relating to the Senior Indebtedness or any
      extension or renewal of the Senior Indebtedness. The indebtedness evidenced
      by
      the Notes shall rank pari passu with the Company’s 5% Convertible Senior
      Subordinated Notes due 2011 issued under that certain Indenture dated as of
      February 24, 2004, between the Company and the Trustee.

     

    
      	11.  	
              DENOMINATIONS,
                TRANSFER, EXCHANGE

            


    

     

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

     

    
      	12.  	
              PERSONS
                DEEMED OWNERS

            


    

     

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

     

    
      	13.  	
              UNCLAIMED
                MONEY

            


    

     

    If
      money
      for the payment of principal or interest remains unclaimed for two years, the
      Trustee or Paying Agent will pay the money back to the Company at its written
      request. After that, Holders entitled to money must look to the Company for
      payment.

     

    
      	14.  	
              AMENDMENT,
                SUPPLEMENT AND WAIVER

            


    

     

    Subject
      to certain exceptions, the Indenture or the Notes may be amended or supplemented
      with the consent of the Holders of at least a majority in principal amount
      of
      the Notes then outstanding, and an existing default or Event of Default and
      its
      consequence or compliance with any provision of the Indenture or the Notes
      may
      be waived in a particular instance with the consent of the Holders of a majority
      in principal amount of the Notes then outstanding. Without the consent of or
      notice to any Holder, the Company and the Trustee may amend or supplement the
      Indenture or the Notes to, among other things, cure any ambiguity, defect or
      inconsistency or make any other change that does not adversely affect the rights
      of any Holder.

     

    
      	15.  	
              SUCCESSOR
                CORPORATION

            


    

     

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

     

    
      	16.  	
              DEFAULTS
                AND REMEDIES

            


    

     

    Under
      the
      Indenture, an Event of Default includes: (i) default for 30 days in payment
      of
      any interest on any Notes; (ii) default in payment of any principal (including,
      without limitation, any premium, if any) on the Notes when due; (iii) failure
      by
      the Company for 60 days after notice, given in accordance with the terms of
      the
      indenture, to it to comply with any of its other agreements contained in the
      Indenture or the Notes; (iv) the Company fails to comply with any of the
      provisions of Section 6.08 of the Indenture; (v) the Company fails to provide
      timely notice of a change of control; and (vi) certain events of bankruptcy,
      insolvency or reorganization of the Company. If an Event of Default (other
      than
      as a result of certain events of bankruptcy, insolvency or reorganization of
      the
      Company) occurs and is continuing, the Trustee or the Holders of at least 25%
      in
      principal amount of the Notes then outstanding may declare all unpaid principal
      to the date of acceleration on the Notes then outstanding to be due and payable
      immediately, all as and to the extent provided in the Indenture. If an Event
      of
      Default occurs as a result of certain events of bankruptcy, insolvency or
      reorganization of the Company, unpaid principal of the Notes then outstanding
      shall become due and payable immediately without any declaration or other act
      on
      the part of the Trustee or any Holder, all as and to the extent provided in
      the
      Indenture. Holders may not enforce the Indenture or the Notes except as provided
      in the Indenture. The Trustee may require indemnity satisfactory to it before
      it
      enforces the Indenture or the Notes. Subject to certain limitations, Holders
      of
      a majority in principal amount of the Notes then outstanding may direct the
      Trustee in its exercise of any trust or power. The Trustee may withhold from
      Holders notice of any continuing default (except a default in payment of
      principal or interest) if it determines that withholding notice is in their
      interests. The Company is required to file periodic reports with the Trustee
      as
      to the absence of default. 

     

    
      	17.  	
              TRUSTEE
                DEALINGS WITH THE COMPANY

            


    

     

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

     

    
      	18.  	
              NO
                RECOURSE AGAINST OTHERS

            


    

     

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

     

    
      	19.  	
              AUTHENTICATION

            


    

     

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

     

    
      	20.  	
              ABBREVIATIONS
                AND DEFINITIONS

            


    

     

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

     

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

     

    
      	21.  	
              INDENTURE
                TO CONTROL; GOVERNING LAW

            


    

     

    In
      the
      case of any conflict between the provisions of this Note and the Indenture,
      the
      provisions of the Indenture shall control. This Note shall be governed by,
      and
      construed in accordance with, the laws of the State of New York, without regard
      to principles of conflicts of law.

     

    The
      Company will furnish to any Holder, upon written request and without charge,
      a
      copy of the Indenture. Requests may be made to: EMCORE Corporation, 145 Belmont
      Drive, Somerset, New Jersey 08873, Attention: Chief Financial
      Officer.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    ASSIGNMENT
      FORM

    


    To
      assign
      this Note, fill in the form below:

    


    I
      or we
      assign and transfer this Note to

    


     

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

    


    


     

    


     

    


     

    


     

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

    


    


    and
      irrevocably appoint

    


     

    


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

    


     

    Your
      Signature:    

    


    


    Date:      

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

    


    *Signature
      guaranteed by:

    


    


    By:      

    


    


    
      	
              *

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

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    CONVERSION
      NOTICE

    


    


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

    


    


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

    


    


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

    


    


     

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

    


    


     

    


     

    


     

    


     

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

    


    


     

    Your
      Signature:    

    


    


    Date:     

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

    


    *Signature
      guaranteed by:

    


    


    By:      

    


    


    
      	
              *

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

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    To: EMCORE
      Corporation

    


    The
      undersigned registered owner of this Note hereby irrevocably acknowledges
      receipt of a notice from EMCORE Corporation (the “Company”) as to the occurrence
      of a Change of Control with respect to the Company and requests and instructs
      the Company to redeem the entire principal amount of this Note, or the portion
      thereof (which is $1,000 or an integral multiple thereof) below designated,
      in
      accordance with the terms of the Indenture referred to in this Note at the
      Change of Control Purchase Price, together with accrued interest to, but
      excluding, such date.

    


    


    


    Dated:      

    


     

    


    Signature(s)

    


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

    


    


     

    Signature
      Guaranty

    


    


    Principal
      amount to be redeemed

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

    


    


     

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

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      OF EXCHANGES OF NOTES

    


    


    The
      following exchanges, redemptions, repurchases or conversions of a part of this
      global Note have been made:

    


    


    


    
      	
              Principal
                Amount of this Global Note Following Such Decrease Date of
                Exchange
                (or Increase)

            	
               

               

               

              Authorized
                Signatory of
                Custodian

            	
               

               

              Amount
                of Decrease in Principal Amount of this
                Global Note

            	
               

               

              Amount
                of Increase in Principal Amount of this
                Global Note

            
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 


    

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      Exhibit
        B

       

      CERTIFICATE
        TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

      OF
        TRANSFER OF TRANSFER RESTRICTED SECURITIES

      


      Re: 5%
        Convertible Subordinated Notes due 2011 (the “Notes”) of EMCORE
        Corporation.

       

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

       

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

       

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

       

      In
        connection with such request and in respect of each such Note, the Transferor
        does hereby certify that the Transferor is familiar with transfer restrictions
        relating to the Notes as provided in Section 2.12 of the Indenture dated
        as of
        November __, 2005 between EMCORE Corporation and Deutsche Bank Trust Company
        Americas, (the “Indenture”), and the transfer of such Note is being made
        pursuant to an effective registration statement under the Securities Act
        of
        1933, as amended (the “Securities Act”) (check applicable box) or the transfer
        or exchange, as the case may be, of such Note does not require registration
        under the Securities Act because (check applicable box):

       

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

       

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

       

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

       

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

       

       ྡྷ
        Such
        Note
        is being transferred pursuant to and in accordance with Rule 903 or Rule
        904
        under the Securities Act and, accordingly, the Transferor hereby further
        certifies that (i) the transfer is not being made to a person in the United
        States and (x) at the time the buy order was originated, the transferee was
        outside the United States or such Transferor and any Person acting on its
        behalf
        reasonably believed and believes that the transferee was outside the United
        States or (y) the transaction was executed in, on or through the facilities
        of a
        designated offshore securities market and neither such Transferor nor any
        Person
        acting on its behalf knows that the transaction was prearranged with a buyer
        in
        the United States, (ii) no directed selling efforts have been made in
        contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
        S
        under the Securities Act and (iii) the transaction is not part of a plan
        or
        scheme to evade the registration requirements of the Securities Act and (iv)
        if
        the proposed transfer is being made prior to the expiration of the Restricted
        Period, the transfer is not being made to a U.S. Person or for the account
        or
        benefit of a U.S. Person (other than an Initial Purchaser).

       

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

       

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

       

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

       

      Date:

       

      (Insert
        Name of Transferor)