exv4w5



 





Exhibit 4.5




COMPUTER NETWORK TECHNOLOGY CORPORATION




3.00% CONVERTIBLE SUBORDINATED NOTES

DUE 2007




INDENTURE




DATED AS OF FEBRUARY 20, 2002




U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE




 









 





CROSS-REFERENCE TABLE*




	 	 	 	 	 	 	 
	TIA SECTION

	 	INDENTURE SECTION

	 
	Section 310
	 	(a)(1) 	 	 	9.10	 
	 
	 	(a)(2) 	 	 	9.10	 
	 
	 	(a)(3) 	 	 	N.A.**	
	 
	 	(a)(4) 	 	 	N.A.	 
	 
	 	(a)(5) 	 	 	9.10	 
	 
	 	(b) 	 	 	9.8; 9.10	 
	 
	 	(c) 	 	 	N.A.	 
	Section 311
	 	(a) 	 	 	9.11	 
	 
	 	(b) 	 	 	9.11	 
	 
	 	(c) 	 	 	N.A.	 
	Section 312
	 	(a) 	 	 	2.5	 
	 
	 	(b) 	 	 	13.3	 
	 
	 	(c) 	 	 	13.3	 
	Section 313
	 	(a) 	 	 	9.6	 
	 
	 	(b)(1) 	 	 	N.A.	 
	 
	 	(b)(2) 	 	 	9.6	 
	 
	 	(c) 	 	 	9.6; 13.2	 
	 
	 	(d) 	 	 	9.6	 
	Section 314
	 	(a) 	 	 	6.2; 6.3, 6.4; 13.2	 
	 
	 	(b) 	 	 	N.A.	 
	 
	 	(c)(1) 	 	 	13.4(a)	
	 
	 	(c)(2) 	 	 	13.4(a)	
	 
	 	(c)(3) 	 	 	N.A.	 
	 
	 	(d) 	 	 	N.A.	 
	 
	 	(e) 	 	 	13.4(b)	
	 
	 	(f) 	 	 	N.A.	 
	Section 315
	 	(a) 	 	 	9.1(b)	
	 
	 	(b) 	 	 	9.5; 13.2	 
	 
	 	(c) 	 	 	9.1(a)	
	 
	 	(d) 	 	 	9.1(c)	
	 
	 	(e) 	 	 	8.11	 
	Section 316
	 	(a)(last sentence) 	 	 	2.9	 
	 
	 	(a)(1)(A) 	 	 	8.5	 
	 
	 	(a)(1)(B) 	 	 	8.4	 
	 
	 	(a)(2) 	 	 	N.A.	 
	 
	 	(b) 	 	 	8.7	 
	 
	 	(c) 	 	 	13.5	 
	Section 317
	 	(a)(1) 	 	 	8.8	 
	 
	 	(a)(2) 	 	 	8.9	 
	 
	 	(b) 	 	 	2.4	 








 




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




ii 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.1
	 	Definitions 	 	 	1	 
	Section 1.2
	 	Other Definitions 	 	 	4	 
	Section 1.3
	 	Trust Indenture Act Provisions 	 	 	5	 
	Section 1.4
	 	Rules of Construction 	 	 	5	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	THE SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1
	 	Form and Dating	 	 	5	 
	Section 2.2
	 	Execution and Authentication 	 	 	6	 
	Section 2.3
	 	Registrar, Paying Agent and Conversion Agent 	 	 	6	 
	Section 2.4
	 	Paying Agent To Hold Money in Trust 	 	 	7	 
	Section 2.5
	 	Securityholder Lists 	 	 	7	 
	Section 2.6
	 	Transfer and Exchange 	 	 	7	 
	Section 2.7
	 	Replacement Securities 	 	 	8	 
	Section 2.8
	 	Outstanding Securities 	 	 	8	 
	Section 2.9
	 	Treasury Securities 	 	 	8	 
	Section 2.10
	 	Temporary Securities 	 	 	8	 
	Section 2.11
	 	Cancellation 	 	 	8	 
	Section 2.12
	 	Additional Transfer and Exchange Requirements 	 	 	9	 
	Section 2.13
	 	CUSIP Numbers 	 	 	12	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	PROVISIONAL REDEMPTION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1
	 	Right to Provisionally Redeem; Notice to Trustee 	 	 	12	 
	Section 3.2
	 	Selection of Securities to be Redeemed 	 	 	13	 
	Section 3.3
	 	Notice of Redemption 	 	 	13	 
	Section 3.4
	 	Effect of Notice of Redemption 	 	 	13	 
	Section 3.5
	 	Deposit of Redemption Price 	 	 	14	 
	Section 3.6
	 	Securities Redeemed in Part 	 	 	14	 
	Section 3.7
	 	Conversion Arrangement on Call For Redemption 	 	 	14	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV	 	 	 	 
	 
	 	CONVERSION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1
	 	Conversion Privilege 	 	 	14	 
	Section 4.2
	 	Conversion Procedure 	 	 	15	 
	Section 4.3
	 	Fractional Shares 	 	 	16	 
	Section 4.4
	 	Taxes on Conversion 	 	 	16	 
	Section 4.5
	 	Company to Provide Stock 	 	 	16	 
	Section 4.6
	 	Adjustment of Conversion Price 	 	 	16	 
	Section 4.7
	 	No Adjustment 	 	 	19	 
	Section 4.8
	 	Adjustment for Tax Purposes 	 	 	19	 
	Section 4.9
	 	Notice of Adjustment 	 	 	19	 
	Section 4.10
	 	Notice of Certain Transactions 	 	 	19	 
	Section 4.11
	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege 	 	 	19	 
	Section 4.12
	 	Trustee’s Disclaimer 	 	 	20	 
	Section 4.13
	 	Voluntary Reduction 	 	 	20	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE V	 	 	 	 
	 
	 	SUBORDINATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1
	 	Agreement of Subordination 	 	 	20	 
	Section 5.2
	 	Payments to Holders 	 	 	20	 
	Section 5.3
	 	Subrogation of Securities 	 	 	22	 
	Section 5.4
	 	Authorization to Effect Subordination 	 	 	23	 
	Section 5.5
	 	Notice to Trustee 	 	 	23	 
	Section 5.6
	 	Trustee’s Relation to Senior Indebtedness 	 	 	23	 
	Section 5.7
	 	No Impairment of Subordination 	 	 	24	 
	Section 5.8
	 	Certain Conversions Deemed Payment 	 	 	24	 
	Section 5.9
	 	Article Applicable to Paying Agents 	 	 	24	 
	Section 5.10
	 	Senior Indebtedness Entitled to Rely 	 	 	24	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI	 	 	 	 
	 
	 	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1
	 	Payment of Securities 	 	 	24	 
	Section 6.2
	 	SEC Reports 	 	 	24	 
	Section 6.3
	 	Compliance Certificates 	 	 	25	 
	Section 6.4
	 	Further Instruments and Acts 	 	 	25	 
	Section 6.5
	 	Maintenance of Corporate Existence 	 	 	25	 
	Section 6.6
	 	Rule 144A Information Requirement 	 	 	25	 
	Section 6.7
	 	Stay, Extension and Usury Laws 	 	 	25	 
	Section 6.8
	 	Payment of Liquidated Damages 	 	 	25	 
	Section 6.9
	 	Resale of Certain Securities 	 	 	25	 






iii 









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VII	 	 	 	 
	 
	 	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.1
	 	Company May Consolidate, Etc. Only on Certain Terms 	 	 	26	 
	Section 7.2
	 	Successor Substituted 	 	 	26	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VIII	 	 	 	 
	 
	 	DEFAULT AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.1
	 	Events of Default 	 	 	26	 
	Section 8.2
	 	Acceleration 	 	 	27	 
	Section 8.3
	 	Other Remedies 	 	 	27	 
	Section 8.4
	 	Waiver of Defaults and Events of Default 	 	 	28	 
	Section 8.5
	 	Control By Majority 	 	 	28	 
	Section 8.6
	 	Limitations on Suits 	 	 	28	 
	Section 8.7
	 	Rights of Holders to Receive Payment and to Convert 	 	 	28	 
	Section 8.8
	 	Collection Suit By Trustee 	 	 	28	 
	Section 8.9
	 	Trustee May File Proofs of Claim 	 	 	28	 
	Section 8.10
	 	Priorities 	 	 	29	 
	Section 8.11
	 	Undertaking for Costs 	 	 	29	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IX	 	 	 	 
	 
	 	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.1
	 	Duties of Trustee 	 	 	29	 
	Section 9.2
	 	Rights of Trustee 	 	 	29	 
	Section 9.3
	 	Individual Rights of Trustee 	 	 	30	 
	Section 9.4
	 	Trustee’s Disclaimer 	 	 	30	 
	Section 9.5
	 	Notice of Default or Events of Default 	 	 	30	 
	Section 9.6
	 	Reports By Trustee To Holders 	 	 	30	 
	Section 9.7
	 	Compensation and Indemnity 	 	 	31	 
	Section 9.8
	 	Replacement of Trustee 	 	 	31	 
	Section 9.9
	 	Successor Trustee By Merger, Etc. 	 	 	32	 
	Section 9.10
	 	Eligibility; Disqualification 	 	 	32	 
	Section 9.11
	 	Preferential Collection of Claims Against Company 	 	 	32	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE X	 	 	 	 
	 
	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.1
	 	Satisfaction and Discharge of Indenture 	 	 	32	 
	Section 10.2
	 	Application of Trust Money 	 	 	32	 
	Section 10.3
	 	Repayment To Company 	 	 	33	 
	Section 10.4
	 	Reinstatement 	 	 	33	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE XI	 	 	 	 
	 
	 	AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.1
	 	Without Consent of Holders 	 	 	33	 
	Section 11.2
	 	With Consent of Holders 	 	 	33	 
	Section 11.3
	 	Compliance With Trust Indenture Act 	 	 	34	 
	Section 11.4
	 	Revocation and Effect of Consents 	 	 	34	 
	Section 11.5
	 	Notation on or Exchange of Securities 	 	 	34	 
	Section 11.6
	 	Trustee To Sign Amendments, Etc 	 	 	34	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE XII	 	 	 	 
	 
	 	REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE IN CONTROL	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.1
	 	Change in Control Put 	 	 	34	 
	Section 12.2
	 	Effect of Change in Control Repurchase Notice 	 	 	36	 
	Section 12.3
	 	Deposit of Change in Control Repurchase Price 	 	 	36	 
	Section 12.4
	 	Securities Purchased in Part 	 	 	37	 
	Section 12.5
	 	Compliance with Securities Laws Upon Purchase of Securities 	 	 	37	 
	Section 12.6
	 	Repayment to the Company 	 	 	37	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE XIII	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 13.1
	 	Trust Indenture Act Controls 	 	 	37	 
	Section 13.2
	 	Notices 	 	 	37	 
	Section 13.3
	 	Communications By Holders With Other Holders 	 	 	37	 
	Section 13.4
	 	Certificate and Opinion as to Conditions Precedent 	 	 	38	 
	Section 13.5
	 	Record Date for Vote or Consent of Securityholders 	 	 	38	 
	Section 13.6
	 	Rules By Trustee, Paying Agent, Registrar and Conversion Agent 	 	 	38	 
	Section 13.7
	 	Legal Holidays 	 	 	38	 
	Section 13.8
	 	Governing Law 	 	 	38	 
	Section 13.9
	 	No Adverse Interpretation of Other Agreements 	 	 	38	 
	Section 13.10
	 	No Recourse Against Others 	 	 	38	 
	Section 13.11
	 	Successors 	 	 	38	 
	Section 13.12
	 	Multiple Counterparts 	 	 	38	 
	Section 13.13
	 	Separability 	 	 	38	 
	Section 13.14
	 	Table of Contents, Headings, Etc. 	 	 	39	 






iv 









 





EXHIBITS



Form of Security A-1





v 









 







THIS INDENTURE dated as of February 20, 2002 is between Computer Network Technology Corporation, a
Minnesota corporation (the “Company”), and U.S. Bank National Association, a national banking
association, as Trustee (the “Trustee”).



In consideration of the premises and the purchase of the Securities by the Holders thereof, both
parties agree as follows for the benefit of the other and for the equal and ratable benefit of the
registered Holders of the Company’s 3.00% Convertible Subordinated Notes due 2007.



DEFINITIONS AND INCORPORATION BY REFERENCE



DEFINITIONS.



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



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



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



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



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



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



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



“Certificated Security” means a Security that is in substantially the form attached hereto as
Exhibit A and that does not include the information or the schedule called for by footnotes 1, 3
and 4 thereof.



“Closing Price” means the closing price per share of the Company’s Common Stock determined in
accordance with Section 4.6(f) hereof.



“Common Stock” means the common stock of the Company, par value $0.01 per share, as it exists on
the date of this Indenture and any shares of any class or classes of Capital Stock of the Company
resulting from any reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are not subject to redemption by
the Company; provided, however, that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable on conversion of Securities shall be
substantially in the proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes resulting from all
such reclassifications.



“Company” means the party named as such in this Indenture until a successor replaces it pursuant to
this Indenture, and thereafter means the successor.




1









 







“Corporate Trust Office” means the corporate trust office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the date of the execution
of this Indenture is located at 180 East Fifth Street, St. Paul, Minnesota 55101, Attention:
Corporate Trust Group, or at any other time at such other address as the Trustee may designate from
time to time by notice to the Company.



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



“Designated Senior Indebtedness” means any particular Senior Indebtedness in which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or related agreements or
documents to which the Company is a party) expressly provides that such Indebtedness shall be
“Designated Senior Indebtedness” for purposes of this Indenture (provided that such instrument,
agreement or other document may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness). If any payment made to any
holder of any Designated Senior Indebtedness or its Representative with respect to such Designated
Senior Indebtedness is rescinded or must otherwise be returned by such holder or Representative
upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the reinstated
Indebtedness of the Company arising as a result of such rescission or return shall constitute
Designated Senior Indebtedness effective as of the date of such rescission or return.



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



“Final Maturity Date” means February 15, 2007.



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



“Global Security” means a permanent Global Security that is in substantially the form attached
hereto as Exhibit A and that includes the information and schedule called for by footnotes 1, 3, 4
and 5 thereof and which is deposited with the Depositary or its custodian and registered in the
name of the Depositary or its nominee.



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



“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 without limitation obligations of such Person in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements, loans or advances
from banks, whether or not evidenced by notes or similar instruments or evidenced by credit or loan
agreements, and bonds, debentures, notes or similar instruments (whether or not the recourse of the
lender is to the whole of the assets of such Person or to only a portion thereof) but excluding any
trade accounts payable or other accrued current expense 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


2









 






otherwise) of such Person with respect to letters of credit, bank guarantees, bankers’ acceptances,
or similar facilities, (c) all obligations and liabilities (contingent or otherwise) of such Person
(i) in respect of leases of such Person required, in conformity with GAAP, to be accounted for as
capitalized lease obligations on the balance sheet of such Person, (ii) as lessee under other
leases for facilities equipment (and related assets leased together therewith), whether or not
capitalized, entered into or leased for financing purposes (as determined by the Company) or (iii)
under any lease or related document (including a purchase agreement) in connection with the lease
of real property or improvements thereon (or any personal property included as part of any such
lease) which provides that such Person is contractually obligated to purchase or cause a third
party to purchase the leased property and thereby guarantee a 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 GAAP),
(d) 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 foreign currency hedge, exchange, purchase or similar instrument or
agreement, (e) 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 (d), (f) any indebtedness or other obligations described in clauses (a) through
(e) secured by any mortgage, pledge, lien or other encumbrance existing on property which is owned
or held by such Person, regardless of whether the indebtedness or other obligation secured thereby
shall have been assumed by such Person, and (g) 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 (f).



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



“Liquidated Damages” has the meaning specified in Section 3(a) of the Registration Rights
Agreement. All references herein or in the Securities to interest accrued or payable as of any date
shall include any Liquidated Damages accrued or payable as of such date as provided in the
Registration Rights Agreement.



“Maturity” means the date on which the outstanding principal amount, Redemption Price or Change in
Control Repurchase Price with respect to such Securities becomes due and payable as therein or
herein provided, whether at the Final Maturity Date or by acceleration, conversion, call for
redemption, exercise of a repurchase right or otherwise.



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



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



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



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






3









 







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



“Redemption Date” or “redemption date,” when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.



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



“Registration Rights Agreement” means the Registration Rights Agreement, dated as of February 20,
2002, among the Company, Bear, Stearns & Co. Inc., SG Cowen and SoundView Technology Group, as the
initial purchasers.



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



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



“Restricted Certificated Security” means a Certificated Security which is a Transfer Restricted
Security.



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



“Restricted Security” means a Restricted Certificated Security or a Restricted Global Security.



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



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



“Securities” means the 3.00% Convertible Subordinated Notes due 2007 or any of them (each, a
“Security”), as amended or supplemented from time to time, that are issued under this Indenture.



“SEC” means the Securities and Exchange Commission.



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



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



“Senior Indebtedness” means the principal of, premium, if any, interest (including all interest
accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowable as a claim in any such proceeding) and rent payable
on or in connection with, and all fees, costs, expenses and other amounts accrued or due on or in
connection with, Indebtedness of the Company, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including
all deferrals, renewals, extensions or refundings of, or


4









 






amendments, modifications or supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or guarantee thereof
expressly provides that such Indebtedness shall not be senior in right of payment to the Securities
or expressly provides that such Indebtedness is “pari passu” or “junior” to the Securities.
Notwithstanding the foregoing, the term Senior Indebtedness shall not include any Indebtedness of
the Company to any Subsidiary of the Company. If any payment made to any holder of any Senior
Indebtedness or its Representative with respect to such Senior Indebtedness is rescinded or must
otherwise be returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the reinstated Indebtedness of the Company arising as a
result of such rescission or return shall constitute Senior Indebtedness effective as of the date
of such rescission or return.



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



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



“Trading Day” means:



IF THE APPLICABLE SECURITY IS LISTED OR ADMITTED FOR TRADING ON THE NEW YORK STOCK EXCHANGE, A DAY
ON WHICH THE NEW YORK STOCK EXCHANGE IS OPEN FOR BUSINESS;



IF THAT SECURITY IS NOT LISTED ON THE NEW YORK STOCK EXCHANGE, A DAY ON WHICH TRADES MAY BE MADE ON



THE NNM;



IF THAT SECURITY IS NOT SO LISTED ON THE NEW YORK STOCK EXCHANGE AND NOT QUOTED ON THE NNM, A DAY
ON WHICH THE PRINCIPAL U.S. SECURITIES EXCHANGE ON WHICH THE SECURITIES ARE LISTED IS OPEN FOR
BUSINESS; OR



IF THE APPLICABLE SECURITY IS NOT SO LISTED, ADMITTED FOR TRADING OR QUOTED, ANY DAY OTHER THAN A
SATURDAY OR A SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE STATE OF NEW YORK ARE AUTHORIZED
OR OBLIGATED BY LAW OR EXECUTIVE ORDER TO CLOSE.



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



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



“Unrestricted Certificated Security” means a Certificated Security that is not a Transfer
Restricted Security.



“Unrestricted Global Security” means a Global Security that is not a Transfer Restricted Security.



“Voting Stock” of a Person means any class or classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and entitled under ordinary
circumstances (without regard to the occurrence of any


5









 






contingency) to vote in the election of directors, managers or trustees thereof or other persons
performing similar functions.



OTHER DEFINITIONS




	 	 	 
	TERM
	DEFINED IN SECTION
	“Agent Members”
	 	2.1(a)
	“Bankruptcy Law”
	 	8.1
	“Change in Control”
	 	12.1(a)
	“Change in Control Repurchase Date”
	 	12.1(a)
	“Change in Control Repurchase Notice”
	 	12.1(c)
	“Change in Control Repurchase Price”
	 	12.1(a)
	“Change in Control Repurchase Right”
	 	12.1(a)
	“Company Order”
	 	2.2
	“Conversion Agent”
	 	2.3
	“Conversion Date”
	 	4.2
	“Conversion Price”
	 	4.6
	“current market price”
	 	4.6(f)
	“Custodian”
	 	8.1
	“DTC”
	 	2.1(a)
	“Depositary”
	 	2.1(a)
	“Determination Date”
	 	4.6(d)
	“Event of Default”
	 	8.1
	“Expiration Date”
	 	4.6(e)
	“Expiration Time”
	 	4.6(e)
	“Legal Holiday”
	 	13.7
	“Make-Whole Payment”
	 	3.1
	“NNM”
	 	4.5
	“Notice Date”
	 	3.1
	“Paying Agent”
	 	2.3
	“Payment Blockage Notice”
	 	5.2(b)
	“Primary Registrar”
	 	2.3
	“Purchased Shares”
	 	4.6(e)
	“QIB”
	 	2.1(a)
	“Redemption Price”
	 	3.1
	“Registrar”
	 	2.3
	“Transfer Certificate”
	 	2.12(f)
	“Transfer Restricted Security”
	 	2.12(f)
	“Triggering Distribution”
	 	4.6(d)
	“Unissued Shares”
	 	12.1(a)





TRUST INDENTURE ACT PROVISIONS



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



“indenture securities” means the Securities;



“indenture security holder” means a Securityholder;



“indenture to be qualified” means this Indenture;



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



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



RULES OF CONSTRUCTION



Unless the context otherwise requires:



A TERM HAS THE MEANING ASSIGNED TO IT;






6









 







AN ACCOUNTING TERM NOT OTHERWISE DEFINED HAS THE MEANING ASSIGNED TO IT IN ACCORDANCE WITH GAAP;



WORDS IN THE SINGULAR INCLUDE THE PLURAL, AND WORDS IN THE PLURAL INCLUDE THE SINGULAR;



PROVISIONS APPLY TO SUCCESSIVE EVENTS AND TRANSACTIONS;



THE TERM “MERGER” INCLUDES A STATUTORY SHARE EXCHANGE AND THE TERM “MERGED” HAS A CORRELATING



MEANING;



THE MASCULINE GENDER INCLUDES THE FEMININE AND THE NEUTER;



REFERENCES TO AGREEMENTS AND OTHER INSTRUMENTS INCLUDE SUBSEQUENT AMENDMENTS

THERETO; AND



“HEREIN,” “HEREOF” AND OTHER WORDS OF SIMILAR IMPORT REFER TO THIS INDENTURE AS A WHOLE AND NOT TO
ANY PARTICULAR ARTICLE, SECTION OR OTHER SUBDIVISION.



THE SECURITIES



FORM AND DATING



The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its authentication. The Securities
are being offered and sold by the Company in transactions exempt from, or not subject to, the
registration requirements of the Securities Act.



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



Global Securities in General. Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a Global Security to reflect the amount of any increase or decrease
in the amount of outstanding Securities represented thereby shall be made by the Securities
Custodian in accordance with the standing instructions and procedures existing between the
Depositary and the Securities Custodian.



Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the Depositary or under any
Global Security, and the Depositary (including, for this purpose, its nominee) may be treated by
the Company, the Trustee and any agent of the


7









 






Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the exercise of the rights of
a Holder of any Security.



Certificated Securities. Certificated Securities shall be issued only under the limited
circumstances provided in Section 2.12(a)(1) hereof.



EXECUTION AND AUTHENTICATION



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




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



A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.



The Trustee shall authenticate and make available for delivery Securities for original issue in the
aggregate principal amount of up to $150,000,000 upon receipt of a written order or orders of the
Company signed by an Officer of the Company (a “Company Order”). The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such Securities will be
represented by a Restricted Global Security and the date on which each original issue of Securities
is to be authenticated. The aggregate principal amount of Securities outstanding at any time may
not exceed $150,000,000 except as provided in Section 2.7.



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



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



REGISTRAR, PAYING AGENT AND CONVERSION AGENT



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






8









 







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



The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian and Conversion Agent (which shall initially be located at 180 East Fifth Street, St.
Paul, Minnesota 55101, Attention: Corporate Trust Operations), one such office or agency of the
Company for each of the aforesaid purposes.



PAYING AGENT TO HOLD MONEY IN TRUST



Prior to 11:00 a.m., New York City time, on each due date of the principal of or interest, if any,
on any Securities, the Company shall deposit with a Paying Agent a sum sufficient to pay such
principal or interest, if any, so becoming due. Subject to Section 5.9, a Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest, if any, on the Securities, and shall notify the Trustee of
any default by the Company (or any other obligor on the Securities) in making any such payment. If
the Company or an Affiliate of the Company acts as Paying Agent, it shall, before 11:00 a.m., New
York City time, on each due date of the principal of or interest on any Securities, segregate the
money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee, and the Trustee may at any time during the continuance of
any Default, upon written request to a Paying Agent, require such Paying Agent to forthwith pay to
the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other
than the Company) shall have no further liability for the money.



SECURITYHOLDER LISTS



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



TRANSFER AND EXCHANGE



Subject to compliance with any applicable additional requirements contained in Section 2.12, when a
Security is presented to a Registrar with a request to register a transfer thereof or to exchange
such Security for an equal principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested; provided, however, that
every Security presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by an assignment form and, if applicable, a transfer certificate each in
the form included in Exhibit A, and in form satisfactory to the Registrar duly executed by the
Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or exchange at an office or
agency maintained pursuant to Section 2.3, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any
exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto, and provided, that this sentence shall not apply to any exchange pursuant to
Section 2.7, 2.10, 2.12(a)(1), 3.6, 4.2 (last paragraph), 11.5 or 12.4.






9









 







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



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



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



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



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



REPLACEMENT SECURITIES



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



In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due
and payable, or is about to be redeemed or purchased by the Company pursuant to Article III or
Article XII, the Company in its discretion may, instead of issuing a new Security, pay, redeem or
purchase such Security, as the case may be. Upon the issuance of any new Securities under this
Section 2.7, the Company shall require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other reasonable expenses
(including the reasonable fees and expenses of the Trustee or the Registrar) in connection
therewith.



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






10









 







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

Securities.



OUTSTANDING SECURITIES



Securities outstanding at any time are all Securities authenticated by the Trustee, except for
those canceled by it, those delivered to it for cancellation and those described in this Section
2.8 as not outstanding.



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



If a Paying Agent (other than the Company or an Affiliate of the Company) holds on a redemption
date, a Change in Control Repurchase Date or the Final Maturity Date money sufficient to pay the
principal of (including premium, if any) and accrued interest on Securities (or portions thereof)
payable on that date, then on and after that date such Securities (or portions thereof, as the case
may be) cease to be outstanding and interest on them ceases to accrue.



Subject to the restrictions contained in Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.



TREASURY SECURITIES



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




TEMPORARY SECURITIES



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



CANCELLATION



The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, the
Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any Securities
surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one else
shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer,
exchange, redemption, payment, conversion or cancellation and shall deliver the canceled Securities
to the Company. All Securities which are redeemed, purchased or
otherwise acquired by the Company or any of its Subsidiaries prior to the Final Maturity Date shall be
delivered to the Trustee for cancellation and the Company may not hold or


11









 






resell such Securities or issue any new Securities to replace any such Securities or any Securities
that any Holder has converted pursuant to Article IV. Without limitation to the foregoing, any
Securities acquired by any investment bankers or other purchasers pursuant to Section 3.7 shall be
surrendered for conversion and thereafter canceled, and may not be reoffered, sold or otherwise
transferred.



ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS



Transfer and Exchange of Global Securities.



CERTIFICATED SECURITIES SHALL BE ISSUED IN EXCHANGE FOR INTERESTS IN THE GLOBAL SECURITIES ONLY IF
(x) THE DEPOSITARY NOTIFIES THE COMPANY THAT IT IS UNWILLING OR UNABLE TO CONTINUE AS DEPOSITARY
FOR THE GLOBAL SECURITIES 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 A COMPANY ORDER
(WHICH THE COMPANY AGREES TO DELIVERY PROMPTLY), AUTHENTICATE AND DELIVER CERTIFICATED SECURITIES
IN AN AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF SUCH GLOBAL SECURITIES IN
EXCHANGE THEREFOR. ONLY RESTRICTED CERTIFICATED SECURITIES SHALL BE ISSUED IN EXCHANGE FOR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES, AND ONLY UNRESTRICTED CERTIFICATED SECURITIES
SHALL BE ISSUED IN EXCHANGE FOR BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL SECURITIES.
CERTIFICATED SECURITIES ISSUED IN EXCHANGE FOR BENEFICIAL INTERESTS IN GLOBAL SECURITIES 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 CERTIFICATED SECURITIES TO THE PERSONS IN
WHOSE NAMES SUCH SECURITIES ARE SO REGISTERED. SUCH EXCHANGE SHALL BE EFFECTED IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES.



NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS INDENTURE OTHER THAN THE PROVISIONS SET FORTH IN
SECTION 2.12(a)(1), A GLOBAL SECURITY 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.



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



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



                 (y) to exchange such Certificated Securities for an equal principal amount
of Certificated Securities of other authorized denominations, such Registrar
shall register the transfer or make the exchange as requested; provided,
however, that the Certificated Securities presented or surrendered for register
of transfer or exchange:



SHALL BE DULY ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER IN ACCORDANCE WITH THE
PROVISO TO THE FIRST PARAGRAPH OF SECTION 2.6; AND



IN THE CASE OF A RESTRICTED CERTIFICATED SECURITY, SUCH REQUEST SHALL BE ACCOMPANIED BY THE
FOLLOWING ADDITIONAL INFORMATION AND DOCUMENTS, AS APPLICABLE:



if such Restricted Certificated Security is being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, or such Restricted Certificated Security
is being transferred to the Company or a Subsidiary


12









 






of the Company, a certification to that effect from such Holder (in substantially the form set
forth in the Transfer Certificate);



if such Restricted Certificated Security is being transferred to a person the Holder reasonably
believes is a QIB in accordance with Rule 144A 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



if such Restricted Certificated Security 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 or Rule 144) and as a result of which, in the case of a Security transferred pursuant to this
clause (ii), such Security 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.



Transfer of a Beneficial Interest in a Restricted Global Security for a Beneficial Interest in an
Unrestricted Global Security. Any person having a beneficial interest in a Restricted Global
Security 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 an Unrestricted
Global Security. 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 Security 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 Security (all of which may be submitted by facsimile or electronically):



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



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 OR RULE
144) AND AS A RESULT OF WHICH, IN THE CASE OF A SECURITY TRANSFERRED PURSUANT TO THIS CLAUSE (ii),
SUCH SECURITY 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 SECURITIES CUSTODIAN, SHALL REDUCE OR CAUSE TO BE REDUCED THE
AGGREGATE PRINCIPAL AMOUNT OF THE RESTRICTED GLOBAL SECURITY BY THE APPROPRIATE PRINCIPAL AMOUNT
AND SHALL INCREASE OR CAUSE TO BE INCREASED THE AGGREGATE PRINCIPAL AMOUNT OF THE UNRESTRICTED
GLOBAL SECURITY BY A LIKE PRINCIPAL AMOUNT. SUCH TRANSFER SHALL OTHERWISE BE EFFECTED IN ACCORDANCE
WITH THE APPLICABLE PROCEDURES. IF NO UNRESTRICTED GLOBAL SECURITY IS THEN OUTSTANDING, THE COMPANY
SHALL EXECUTE AND THE TRUSTEE SHALL, UPON RECEIPT OF A COMPANY ORDER (WHICH THE COMPANY AGREES TO
DELIVER PROMPTLY), AUTHENTICATE AND DELIVER AN UNRESTRICTED GLOBAL SECURITY.



Transfer of a Beneficial Interest in an Unrestricted Global Security for a Beneficial Interest in a
Restricted Global Security. Any person having a beneficial interest in an Unrestricted Global
Security may upon request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted


13









 






to take delivery thereof in the form of a Restricted Global Security (it being understood that only
QIBs may own beneficial interests in Restricted Global Securities). 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 Security 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 Security (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
Securities Custodian, shall reduce or cause to be reduced the aggregate principal amount of the
Unrestricted Global Security by the appropriate principal amount and shall increase or cause to be
increased the aggregate principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the Applicable Procedures. If
no Restricted Global Security is then outstanding, the Company shall execute and the Trustee shall,
upon receipt of a Company Order (which the Company agrees to deliver promptly), authenticate and
deliver a Restricted Global Security.



Transfers of Certificated Securities for Beneficial Interest in Global Securities. In the event
that Certificated Securities are issued in exchange for beneficial interests in Global Securities
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 Certificated Securities for interests in Global Securities 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 Certificated
Securities are presented by a Holder to a Registrar with a request:



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



                 (y) to exchange such Certificated Securities for an equal principal amount of
beneficial
interests in a Global Security, which beneficial interests will be owned by the Holder transferring
such Certificated Securities (provided that in the case of such an exchange, Restricted
Certificated Securities may be exchanged only for Restricted Global Securities and Unrestricted
Certificated Securities may be exchanged only for Unrestricted Global Securities), the Registrar
shall register the transfer or make the exchange as requested by canceling such Certificated
Security and causing, or directing the Securities Custodian to cause, the aggregate principal
amount of the applicable Global Security to be increased accordingly and, if no such Global
Security is then outstanding, the Company shall issue and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly) authenticate and deliver a new Global
Security;



provided, however, that the Certificated Securities presented or surrendered for registration of
transfer or exchange:



SHALL BE DULY ENDORSED OR ACCOMPANIED BY A WRITTEN INSTRUMENT OF TRANSFER IN ACCORDANCE WITH THE
PROVISO TO THE FIRST PARAGRAPH OF SECTION 2.6;



IN THE CASE OF A RESTRICTED CERTIFICATED SECURITY TO BE TRANSFERRED FOR A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY, SUCH REQUEST SHALL BE ACCOMPANIED BY THE FOLLOWING ADDITIONAL
INFORMATION AND DOCUMENTS, AS APPLICABLE:






14









 







if such Restricted Certificated Security is being transferred 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



if such Restricted Certificated Security is being transferred pursuant to (A) 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 or Rule 144) and as a result of which, in the case of a Security transferred pursuant to this
clause (B), such Security shall cease to be a “restricted security” within the meaning of Rule 144,
a certification to that effect from such Holder (in substantially the form set forth in the
Transfer Certificate), and, if the Company or the Registrar 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;



IN THE CASE OF A RESTRICTED CERTIFICATED SECURITY TO BE TRANSFERRED OR EXCHANGED FOR A BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL SECURITY, SUCH REQUEST SHALL BE ACCOMPANIED BY A CERTIFICATION FROM
SUCH HOLDER (IN SUBSTANTIALLY THE FORM SET FORTH IN THE TRANSFER CERTIFICATE) TO THE EFFECT THAT
SUCH RESTRICTED CERTIFICATED SECURITY IS BEING TRANSFERRED TO A PERSON THE HOLDER REASONABLY
BELIEVES IS A QIB (WHICH, IN THE CASE OF AN EXCHANGE, SHALL BE SUCH HOLDER) IN ACCORDANCE WITH RULE
144A;



IN THE CASE OF AN UNRESTRICTED CERTIFICATED SECURITY TO BE TRANSFERRED OR EXCHANGED FOR A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY, SUCH REQUEST NEED NOT BE ACCOMPANIED BY ANY
ADDITIONAL INFORMATION OR DOCUMENTS; AND



IN THE CASE OF AN UNRESTRICTED CERTIFICATED SECURITY TO BE TRANSFERRED OR EXCHANGED FOR A
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY, SUCH REQUEST SHALL BE ACCOMPANIED BY A
CERTIFICATION FROM SUCH HOLDER (IN SUBSTANTIALLY THE FORM SET FORTH IN THE TRANSFER CERTIFICATE) TO
THE EFFECT THAT SUCH UNRESTRICTED CERTIFICATED
SECURITY IS BEING TRANSFERRED TO A PERSON THE HOLDER REASONABLY BELIEVES IS A QIB (WHICH, IN THE
CASE OF AN EXCHANGE, SHALL BE SUCH HOLDER) IN ACCORDANCE WITH RULE 144A.



Legends.



EXCEPT AS PERMITTED BY THE FOLLOWING PARAGRAPHS (2) AND (3), EACH GLOBAL SECURITY AND CERTIFICATED
SECURITY (AND ALL SECURITIES ISSUED IN EXCHANGE THEREFOR OR UPON REGISTRATION OF TRANSFER OR
REPLACEMENT THEREOF) SHALL BEAR A LEGEND IN SUBSTANTIALLY THE FORM CALLED FOR BY FOOTNOTE 2 TO
EXHIBIT A HERETO (EACH A “TRANSFER RESTRICTED SECURITY” FOR SO LONG AS IT IS REQUIRED BY THIS
INDENTURE TO BEAR SUCH LEGEND). EACH TRANSFER RESTRICTED SECURITY SHALL HAVE ATTACHED THERETO A
CERTIFICATE (A “TRANSFER CERTIFICATE”) IN SUBSTANTIALLY THE FORM CALLED FOR BY FOOTNOTE 5 TO
EXHIBIT A HERETO.



UPON ANY SALE OR TRANSFER OF A TRANSFER RESTRICTED SECURITY (w) AFTER THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITIES 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 SECURITY TRANSFERRED PURSUANT TO
THIS CLAUSE (z), SUCH SECURITY SHALL CEASE TO BE A “RESTRICTED SECURITY” WITHIN THE MEANING OF RULE
144:



in the case of any Restricted Certificated Security, any Registrar shall permit the Holder thereof
to exchange such Restricted Certificated Security for an Unrestricted Certificated Security, or
(under the circumstances described in Section 2.12(e)) to transfer such Restricted Certificated
Security to a transferee who shall take such Security in the form of a beneficial interest in an
Unrestricted Global Security, and in each case shall rescind any restriction on the transfer of
such Security; provided,


15









 






however, that the Holder of such Restricted Certificated Security shall, in connection with such
exchange or transfer, comply with the other applicable provisions of this Section 2.12; and



in the case of any beneficial interest in a Restricted Global Security, 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 Security and shall
rescind any restriction on transfer of such beneficial interest; provided, that such Unrestricted
Global Security 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.



UPON THE EXCHANGE, REGISTRATION OF TRANSFER OR REPLACEMENT OF SECURITIES NOT BEARING THE LEGEND
DESCRIBED IN PARAGRAPH (1) ABOVE, THE COMPANY SHALL EXECUTE, AND THE TRUSTEE SHALL AUTHENTICATE AND
DELIVER SECURITIES THAT DO NOT BEAR SUCH LEGEND AND THAT DO NOT HAVE A TRANSFER CERTIFICATE
ATTACHED THERETO.



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 SECURITY OR RESTRICTED
CERTIFICATED SECURITY, REMOVE ANY RESTRICTION OF TRANSFER ON SUCH SECURITY, AND THE COMPANY SHALL
EXECUTE, AND THE TRUSTEE SHALL AUTHENTICATE AND DELIVER SECURITIES THAT DO NOT BEAR SUCH LEGEND AND
THAT DO NOT HAVE A TRANSFER CERTIFICATE ATTACHED THERETO.



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



CUSIP NUMBERS



The Company in issuing the Securities 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 Securities or as contained in any notice of a
redemption or purchase and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption or purchase shall not be affected by any defect
in or omission of such numbers. The Company will promptly notify the Trustee of any change in the
“CUSIP” numbers.



PROVISIONAL REDEMPTION



RIGHT TO PROVISIONALLY REDEEM; NOTICE TO TRUSTEE



The Securities may be redeemed at the election of the Company, as a whole or from time to time in
part, at any time prior to the Maturity Date on at least 20 days and no more than 60 days notice at
a redemption price equal to $1,000 per $1,000 principal amount of the Securities redeemed plus the
“Make-Whole Payment” described below (the “Redemption Price”) if (a) the Closing Price of the
Common Stock has exceeded 175% 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 “Notice Date”), and (b) a shelf registration statement
covering resales of the Securities and the Common Stock issuable upon conversion thereof is
effective and available for use and is expected to remain effective and available for use until the
Redemption Date unless registration is no longer required.



Upon any such redemption, the Company shall make an additional payment in cash (the “Make-Whole
Payment”) with respect to the Securities called for redemption to holders


16









 






on the Notice Date in an amount equal to the aggregate amount of interest that would have been
payable on such Securities from the last day through which interest was paid on the Securities (or
February 20, 2002, if no interest has been paid) to the Maturity Date.



If the Company elects to redeem Securities pursuant to this Section 3.1 and paragraph 5 of the
Securities, it shall notify the Trustee in writing, not less than 20 days prior to the redemption
date as fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), of the
redemption date and the principal amount of Securities to be redeemed. If fewer than all of the
Securities are to be redeemed, the record date relating to such redemption shall be selected by the
Company and given to the Trustee, which record date shall not be less than ten days after the date
of notice to the Trustee.



SELECTION OF SECURITIES TO BE REDEEMED



If less than all of the Securities are to be redeemed, the Trustee shall, not more than 60 days
prior to the redemption date, select the Securities to be redeemed. The Trustee shall make the
selection from the Securities outstanding and not previously called for redemption, by lot.
Securities in denominations of $1,000 may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 or any multiple thereof) of the principal of Securities that
have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption.



If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by the Trustee as
outstanding for the purpose of such selection.



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 a notice of redemption to each Holder of Securities to be redeemed at such
Holder’s address as it appears on the Primary Registrar’s books.



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



the Redemption Date;



the Redemption Price;



the then current Conversion Price;



the name and address of each Paying Agent and Conversion Agent;



that Securities called for redemption must be presented and surrendered to a Paying Agent to
collect the redemption price;



that Holders who wish to convert Securities must surrender such Securities for conversion no later
than the close of business on the second Business Day immediately preceding the redemption date and
must satisfy the other requirements in paragraph 8 of the Securities;



that, unless the Company defaults in making the redemption payment, interest on Securities called
for redemption shall cease accruing on and after the redemption date and the only remaining right
of the Holder shall be to receive payment of the


17









 






redemption price, plus accrued and unpaid interest, if any upon presentation and surrender to a
Paying Agent of the Securities; and



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



If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the Depositary
applicable to redemptions. At the Company’s written request, which request shall (i) be given at
least 30 days prior to the redemption date, (ii) be irrevocable once given and (iii) set forth all
relevant information required by clauses (1) through (8) of the preceding paragraph, the Trustee
shall give the notice of redemption in the Company’s name and at the Company’s expense.



EFFECT OF NOTICE OF REDEMPTION



Once notice of redemption is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice, together with accrued and unpaid
interest, if any, except for Securities that are converted in accordance with the provisions of
Article IV. Upon presentation and surrender to a Paying Agent, Securities called for redemption
shall be paid at the redemption price, plus accrued interest up to but not including the redemption
date; provided if the redemption date is an interest payment date, interest will be payable to the
Holders in whose names the Securities are registered at the close of business on the relevant
record dates for payment of such interest.



DEPOSIT OF REDEMPTION PRICE



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



SECURITIES REDEEMED IN PART



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



CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION



In connection with any redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities called for redemption by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to a Paying Agent (other than the
Company or any of its Affiliates) in trust for the Holders, on or before 11:00 a.m., New York City
time on the Redemption Date, an amount that, together with any amounts deposited with such Paying
Agent by the Company for the redemption of such Securities, is not less than the Redemption Price,
together with interest accrued to, but not including, the Redemption Date, of such Securities.
Notwithstanding anything to the contrary contained in this Article III, the obligation of the
Company to pay the Redemption Price of such Securities, including all accrued interest, shall be
deemed to be satisfied and discharged to the


18









 






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



CONVERSION



CONVERSION PRIVILEGE



Subject to and upon compliance with the provisions of this Article IV, at the option of the Holder,
any Security or any portion of the principal amount thereof which is an integral multiple of $1,000
may be converted at the principal amount thereof, or of such portion thereof, into duly authorized,
fully paid and nonassessable shares of Common Stock, at the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion; provided, however, that if such Security
is called for redemption pursuant to Article III or submitted or presented for repurchase pursuant
to Article XII, such conversion right shall terminate at the close of business on the second
Business Day immediately preceding the Redemption Date or Change in Control Repurchase Date, as the
case may be, for such Security or such earlier date as the Holder presents such Security for
redemption or for purchase (unless the Company shall default in making the Redemption Price or
Change in Control Repurchase Price payment when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured and such Security is redeemed
or purchased, as the case may be). If such Security is submitted or presented for purchase pursuant
to Article III or Article XII and is then subsequently withdrawn, such conversion right shall no
longer be terminated, and the Holder of such Security may convert such Security pursuant to this
Section 4.1. The number of shares of Common Stock issuable upon conversion of a Security shall be
determined by dividing the principal amount of the Security or portion thereof surrendered for
conversion by the Conversion Price in effect on the Conversion Date. The initial Conversion Price
is set forth in paragraph 8 of the Securities and is subject to adjustment as provided in this
Article IV.



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



A Security in respect of which a Holder has delivered a Change in Control Repurchase Notice
pursuant to Section 12.1(c) exercising the option of such Holder to require the Company to purchase
such Security may be converted only if such Change in Control Repurchase 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 in Control Repurchase Date in accordance with Section
12.2.






19









 







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



CONVERSION PROCEDURE



To convert a Security, a Holder must (a) complete and manually sign the conversion notice on the
back of the Security and deliver such notice to a Conversion Agent, (b) surrender the Security 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. The date on
which the Holder satisfies all of those requirements is the “Conversion Date.” As soon as
practicable after the Conversion Date, the Company shall deliver to the Holder through a Conversion
Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and
cash in lieu of any fractional shares pursuant to Section 4.3. Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may be delivered and such
Securities may be surrendered for conversion in accordance with the Applicable Procedures as in
effect from time to time.



The person in whose name the Common Stock certificate is registered shall be deemed to be a
shareholder of record on the Conversion Date; provided, however, that no surrender of a Security on
any date when the stock transfer books of the Company shall be closed shall be effective to
constitute the person or persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; provided, further, that such
conversion shall be at the Conversion Price in effect on the Conversion Date as if the stock
transfer books of the Company had not been closed. Upon conversion of a Security, such person shall
no longer be a Holder of such Security. No payment or adjustment will be made for dividends or
distributions on shares of Common Stock issued upon conversion of a Security.



Securities so surrendered for conversion (in whole or in part) during the period from the close of
business on any regular record date to the opening of business on the next succeeding interest
payment date (excluding Securities or portions thereof called for redemption on a Redemption Date
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 Security then being
converted, and such interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of this Indenture relating to the payment of
defaulted interest by the Company. Except as otherwise provided in this Section 4.2, no payment or
adjustment will be made for accrued interest on a converted Security. If the Company defaults in
the payment of interest payable on such interest payment date, the Company shall promptly repay
such funds to such Holder.



Nothing in this Section shall affect the right of a Holder in whose name any Security is registered
at the close of business on a record date to receive the interest payable on such Security on the
related interest payment date in accordance with the terms of this Indenture and the Securities. If
a Holder converts more than one Security at the same time, the number of shares of Common Stock
issuable upon the conversion shall be based on the aggregate principal amount of Securities
converted.






20









 







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



FRACTIONAL SHARES



The Company will not issue fractional shares of Common Stock upon conversion of Securities. In lieu
thereof, the Company will pay an amount in cash based upon the current market price (determined as
set forth in Section 4.6(f)) of the Common Stock on the Trading Day immediately prior to the
Conversion Date.



TAXES ON CONVERSION



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



COMPANY TO PROVIDE STOCK



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



All shares of Common Stock delivered upon conversion of the Securities shall be newly issued
shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be free
from preemptive rights and free of any lien or adverse claim.



The Company will endeavor promptly to comply with all federal and state securities laws regulating
the offer and delivery of shares of Common Stock upon conversion of Securities, if any, and will
list or cause to have quoted such shares of Common Stock on each national securities exchange or on
the Nasdaq National Market (“NNM”) or other over-the-counter market or such other market on which
the Common Stock is then listed or quoted; provided, however, that if rules of such automated
quotation system or exchange permit the Company to defer the listing of such Common Stock until the
first conversion of the Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon conversion of the
Securities in accordance with the requirements of such automated quotation system or exchange at
such time.



ADJUSTMENT OF CONVERSION PRICE



The conversion price as stated in paragraph 8 of the Securities (the “Conversion Price”) shall be
adjusted from time to time by the Company as follows:



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


21









 






date in the case of a dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision or combination.



In case the Company shall issue rights or warrants to all or substantially all holders of its
Common Stock entitling them (for a period commencing no earlier than the record date described
below and expiring not more than 60 days after such record date) to subscribe for or purchase
shares of Common Stock (or securities convertible into Common Stock) at a price per share (or
having a conversion price per share) less than the current market price per share of Common Stock
(as determined in accordance with subsection (f) of this Section 4.6) on the record date for the
determination of shareholders entitled to receive such rights or warrants, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares which the aggregate offering price of the total number of
shares of Common Stock so offered (or the aggregate conversion price of the convertible securities
so offered, which shall be determined by multiplying the number of shares of Common Stock issuable
upon conversion of such convertible securities by the conversion price per share of Common Stock
pursuant to the terms of such convertible securities) would purchase at the current market price
per share (as determined in accordance with subsection (f) of this Section 4.6) of Common Stock on
such record date, and of which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible). Such adjustment shall be made
successively whenever any such rights or warrants are issued, and shall become effective
immediately after such record date. If at the end of the period during which such rights or
warrants are exercisable not all rights or warrants shall have been exercised, the adjusted
Conversion Price shall be immediately readjusted to what it would have been based upon the number
of additional shares of Common Stock actually issued (or the number of shares of Common Stock
issuable upon conversion of convertible securities actually issued).



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 (i)
dividends or distributions paid exclusively in cash or (ii) dividends or distributions referred to
in subsection (a) of this Section 4.6), 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 (b) of this Section 4.6), 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 determined in accordance with subsection (f) of this Section 4.6) of the
Common Stock on the record date described 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 determined in accordance with subsection (f) of
this Section 4.6) 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.



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 (i) any cash


22









 






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 4.6 has been made and (ii) 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 4.6 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 (f) of
this Section 4.6) 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 (f) of this Section 4.6) 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 4.6(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 (f) of this Section 4.6) on
the Determination Date, such reduction to become effective immediately prior to the opening of
business on the day next following the date on which the Triggering Distribution is paid.



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 (i) 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 Expiration Date (as defined below) and in respect of
which no Conversion Price adjustment pursuant to this Section 4.6 has been made and (ii) 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 4.6 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 (f) of this
Section 4.6) 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


23









 






accordance with subsection (f) of this Section 4.6) 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 shareholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased
Shares”) and (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 (f) of this Section 4.6) 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 4.6(e) 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 4.6(e). For purposes of this Section 4.6(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.



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



In any case in which this Section 4.6 shall require that an adjustment be made following a record
date or a Determination Date or Expiration Date, as the case may be, established for purposes of
this Section 4.6, the Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section 4.9) issuing to the
Holder of any Security converted after such record date or Determination Date or Expiration Date
the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion
over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the
shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents
to issue due bills or other


24









 






appropriate evidence prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion 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.



NO ADJUSTMENT



No adjustment in the Conversion Price shall be required unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Price as last adjusted; provided, however,
that any adjustments which by reason of this Section 4.7 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations under this
Article IV 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 issuances of Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for a change in the par value or a change to no par value
of the Common Stock. To the extent that the Securities become convertible into the right to receive
cash, no adjustment need be made thereafter as to the cash. Interest will not accrue on the cash.



ADJUSTMENT FOR TAX PURPOSES



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



NOTICE OF ADJUSTMENT



Whenever the Conversion Price or conversion privilege is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment and file with the Trustee an Officers’ Certificate
briefly stating the facts requiring the adjustment and the manner of computing it. Unless and until
the Trustee shall receive an Officers’ Certificate setting forth an adjustment of the Conversion
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.



NOTICE OF CERTAIN TRANSACTIONS



In the event that:



THE
COMPANY TAKES ANY ACTION WHICH WOULD REQUIRE AN ADJUSTMENT IN THE
CONVERSION PRICE;




THE COMPANY CONSOLIDATES OR MERGES WITH, OR TRANSFERS ALL OR SUBSTANTIALLY ALL OF ITS PROPERTY AND
ASSETS TO, ANOTHER CORPORATION AND SHAREHOLDERS OF THE COMPANY MUST APPROVE THE TRANSACTION; OR



THERE IS A DISSOLUTION OR LIQUIDATION OF THE COMPANY,



the Company shall mail to Holders and file with the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least ten days before such
date. 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 4.10.






25









 







EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION
PRIVILEGE



If any of the following shall occur, namely: (a) any reclassification or change of shares of Common
Stock issuable upon conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a subdivision or
combination, or any other change for which an adjustment is provided in Section 4.6); (b) any
consolidation or merger or combination to which the Company is a party other than a merger in which
the Company is the continuing corporation and which does not result in any reclassification of, or
change (other than in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding shares of Common Stock; or
(c) any sale or conveyance as an entirety or substantially as an entirety of the property and
assets of the Company (determined on a consolidated basis), directly or indirectly, to any person,
then the Company, or such successor, purchasing or transferee corporation, as the case may be,
shall, as a condition precedent to such reclassification, change, combination, consolidation,
merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, combination, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such
Security immediately prior to such reclassification, change, combination, 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 IV. If, in the case of any such consolidation,
merger, combination, sale or conveyance, the stock or other securities and property (including
cash) receivable thereupon by a holder of Common Stock include shares of stock or other securities
and property of a person other than the successor, purchasing or transferee corporation, as the
case may be, in such consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other person and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this Section 4.11 shall
similarly apply to successive reclassifications, changes, combinations, consolidations, mergers,
sales or conveyances. In the event the Company shall execute a supplemental indenture pursuant to
this Section 4.11, the Company shall promptly file with the Trustee (x) an Officers’ Certificate
briefly stating the reasons therefor, the kind or amount of shares of stock or other securities or
property (including cash) receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all conditions precedent have
been complied with and (y) an Opinion of Counsel that all conditions precedent have been complied
with, and shall promptly mail notice thereof to all Holders.



TRUSTEE’S DISCLAIMER



The Trustee shall have no duty to determine when an adjustment under this Article IV should be
made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officers’ Certificate including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.9. The Trustee makes no
representation as to the validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure to comply with any
provisions of this Article IV.



The Trustee shall not be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 4.11,


26









 






but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in
relying upon, the Officers’ Certificate with respect thereto which the Company is obligated to file
with the Trustee pursuant to Section 4.11.



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 such 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.



SUBORDINATION



AGREEMENT OF SUBORDINATION



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



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



No provision of this Article V shall prevent the occurrence of any default or

Event of Default hereunder.



PAYMENTS TO HOLDERS



No payment shall be made with respect to the principal of, or premium, if any, or interest
(including Liquidated Damages, if any) on the Securities (including, but not limited to, the
redemption price with respect to the Securities to be called for redemption or the Change in
Control Purchase Price with respect to the Securities subject to purchase in accordance with
Article III or Article XII, as applicable, as provided in this Indenture or any other purchase or
acquisition with respect to the Securities), or any other payment with respect to the Securities,
except payments and distributions made by the Trustee as permitted by the first or second paragraph
of Section 5.5, if:



a default in the payment of principal, premium, interest, rent or other obligations due on any
Designated Senior Indebtedness occurs and is continuing (or, in the case of Designated Senior
Indebtedness for which there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated
Senior Indebtedness), unless and until such default shall have been cured or waived or shall have
ceased to exist; or



a default, other than a default referred to in clause (a) of this Section 5.2, on a Designated
Senior Indebtedness occurs and is continuing that then permits holders of such Designated Senior
Indebtedness to accelerate its maturity and the Trustee


27









 






receives a notice of the default (a “Payment Blockage Notice”) from a Representative or holder of
Designated Senior Indebtedness.



Subject to the provisions of Section 5.5, if the Trustee receives any Payment Blockage Notice
pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes
of this Section unless and until at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee (unless
such default was waived, cured or otherwise ceased to exist and thereafter subsequently reoccurred)
shall be, or be made, the basis for a subsequent Payment Blockage Notice.



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



     (i) the date upon which the default is cured or waived or ceases to exist, or



     (ii) in the case of a default referred to in clause (b) above, 179 days pass after a Payment
Blockage Notice is received, unless this Article V otherwise prohibits the payment or distribution
at the time of such payment or distribution.



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



For purposes of this Article V, the words, “cash, property or securities” shall not be deemed to
include shares of stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this Article V with respect to the
Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided
that (i) the Senior


28









 






Indebtedness is assumed by the new corporation, if any, resulting from any reorganization or
readjustment, and (ii) the rights of the holders of Senior Indebtedness (other than leases which
are not assumed by the Company or the new corporation, as the case may be) are not, without the
consent of such Holders, altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and conditions provided for in
Article VII shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 5.2 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article VII.



In the event of the acceleration of the Securities because of an Event of Default, no payment or
distribution shall be made to the Trustee or any Holder of Securities in respect of the principal
of, premium, if any, or interest (including Liquidated Damages, if any) on the Securities
(including, but not limited to, the redemption price with respect to the Securities called for
redemption or the Change in Control Purchase Price with respect to the Securities subject to
purchase in accordance with Article III or Article XII, as applicable, as provided in this
Indenture), except payments and distributions made by the Trustee as permitted by the first or
second paragraph of Section 5.5, until all Senior Indebtedness has been paid in full in cash or
other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded
in accordance with the terms of this Indenture. If payment of the Securities is accelerated because
of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of such
acceleration.



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



Nothing in this Section 5.2 shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 9.7. This Section 5.2 shall be subject to the further provisions of Section 5.5.



SUBROGATION OF SECURITIES



Subject to the payment in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, of all Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article V (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to other indebtedness of
the Company to substantially the same extent as the Securities are subordinated and is entitled to
like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal, premium, if any, and interest (including


29









 






Liquidated Damages, if any) on the Securities, and any other obligation with respect to the
Securities, shall be paid in full in cash or other payment satisfactory to the holders of Senior
Indebtedness; and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this Article V, and no
payment over pursuant to the provisions of this Article V, to or for the benefit of the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the Holders of the
Securities pursuant to the subrogation provisions of this Article V, which would otherwise have
been paid to the holders of Senior Indebtedness shall be deemed to be a payment by the Company to
or for the account of the Securities. It is understood that the provisions of this Article V are
and are intended solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand.



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



Upon any payment or distribution of assets of the Company referred to in this Article V, the
Trustee, subject to the provisions of Section 9.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article V.



AUTHORIZATION TO EFFECT SUBORDINATION



Each Holder of a Security by the Holder’s acceptance thereof authorizes and directs the Trustee on
the Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article V and appoints the Trustee to act as the Holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in Section 5.3 hereof at
least 30 days before the expiration of the time to file such claim, the holders of any Senior
Indebtedness or their representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Securities.



NOTICE TO TRUSTEE



The Company shall give prompt written notice in the form of an Officers’ Certificate to a Trust
Officer of the Trustee and to any Paying Agent of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee


30









 






or any Paying Agent in respect of the Securities pursuant to the provisions of this Article V.
Notwithstanding the provisions of this Article V or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article V, unless and until a Trust Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office from the Company (in the form of an Officers’
Certificate) or a Representative or a Holder or Holders of Senior Indebtedness or from any trustee
thereof; and before the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided that if on a date not fewer than one Business
Day prior to the date upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of the principal of, or premium, if any, or
interest on any Security) the Trustee shall not have received, with respect to such monies, the
notice provided for in this Section 5.5, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be affected by any notice
to the contrary which may be received by it on or after such prior date. Notwithstanding anything
in this Article V to the contrary, nothing shall prevent any payment by the Trustee to the Holders
of monies deposited with it pursuant to Article X, and any such payment shall not be subject to the
provisions of this Article V.



The Trustee, subject to the provisions of Section 9.1, shall be entitled to rely on the delivery to
it of a written notice by a Representative or a person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been
given by a Representative or a holder of Senior Indebtedness or a trustee on behalf of any such
holder or holders. In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article V, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such Person under this
Article V, and if such evidence is not furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such Person to receive such payment.



TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS



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



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



NO IMPAIRMENT OF SUBORDINATION



No right of any present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or


31









 






failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.



CERTAIN CONVERSIONS DEEMED PAYMENT



For the purposes of this Article V only, (a) the issuance and delivery of junior securities
upon conversion of Securities in accordance with Article IV shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or interest on
Securities or on account of the purchase or other acquisition of Securities, and (b) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares pursuant to Section 4.3),
property or securities (other than junior securities) upon conversion of a Security shall be deemed
to constitute payment on account of the principal of such Security. For the purposes of this
Section 5.8, the term “junior securities” means (i) shares of any stock of any class of the
Company, or (ii) securities of the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article V. Nothing contained in this Article V or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with Article IV.



ARTICLE APPLICABLE TO PAYING AGENTS



If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term “Trustee” as used in this Article V shall (unless the context
otherwise requires) be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this Article V in
addition to or in place of the Trustee; provided, however, that the first paragraph of Section 5.5
shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.



SENIOR INDEBTEDNESS ENTITLED TO RELY



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



COVENANTS



PAYMENT OF SECURITIES



The Company shall promptly make all payments in respect of the Securities on the dates and in the
manner provided in the Securities and this Indenture. An installment of principal or interest shall
be considered paid on the date it is due if the Paying Agent (other than the Company) holds by
11:00 a.m., New York City time, on that date money, deposited by the Company or an Affiliate
thereof, sufficient to pay the installment. The Company shall, to the fullest extent permitted by
law, pay interest on overdue principal (including premium, if any) and overdue installments of
interest at the rate borne by the Securities per annum. All references in this Indenture or the
Securities to interest shall be deemed to include Liquidated Damages, if any, payable pursuant to
the Registration Rights Agreement.



Payment of the principal of (and premium, if any) and any interest on the Securities shall be made
at the Corporate Trust Office of the Paying Agent specified in Section 2.3 in such coin or currency
of the United States of America as at the time of payment


32









 






is legal tender for payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Register; provided further that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in immediately available
funds at the election of such Holder.



SEC REPORTS



The Company shall file all reports and other information and documents which it is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and within 15 days after it files
them with the SEC, the Company shall file copies of all such reports, information and other
documents with the Trustee.



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



COMPLIANCE CERTIFICATES



The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending January 31, 2003), an Officers’ Certificate as to
the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any default or Event of
Default. If such signer knows of such a default or Event of Default, the Officers’ Certificate
shall describe the default or Event of Default and the efforts to remedy the same. For the purposes
of this Section 6.3, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.



FURTHER INSTRUMENTS AND ACTS



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



MAINTENANCE OF CORPORATE EXISTENCE



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



RULE 144A INFORMATION REQUIREMENT



Within the period prior to the expiration of the holding period applicable to sales of Restricted
Securities 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 Securities or
any Common Stock issued upon conversion thereof which continue to be Restricted Securities in
connection with any sale thereof and any prospective purchaser of Securities or such Common Stock
designated by such Holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder or beneficial holder of the
Securities or such Common Stock and it will take such further action as any Holder or beneficial
holder of such Securities or such Common Stock may reasonably request, all to the extent required
from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock
without registration under the Securities Act within the limitation of the exemption provided by
Rule 144A, as such Rule may be amended from time to time. Upon the request of any Holder or any
beneficial holder of


33









 






the Securities or such Common Stock, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.



STAY, EXTENSION AND USURY LAWS



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



PAYMENT OF LIQUIDATED DAMAGES



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



RESALE OF CERTAIN SECURITIES



During the period of two years after the last date of original issuance of any Securities, the
Company shall not, and shall not permit any of its “affiliates” (as defined under Rule 144 under
the Securities Act) to, resell any Securities, or shares of Common Stock issuable upon conversion
of the Securities, which constitute “restricted securities” under Rule 144, that are acquired by
any of them within the United States or to “U.S. persons” (as defined in Regulation S) except
pursuant to an effective registration statement under the Securities Act or an applicable exemption
therefrom. The Trustee shall have no responsibility or liability in respect of the Company’s
performance of its agreement in the preceding sentence.



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE



COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS



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



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


34









 






with Article IV, by supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by such consolidation or
into which the Company shall have been merged or by the Person which shall have acquired the
Company’s assets;



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



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



SUCCESSOR SUBSTITUTED



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



DEFAULT AND REMEDIES



EVENTS OF DEFAULT



An “Event of Default” shall occur if:



THE COMPANY DEFAULTS IN THE PAYMENT OF ANY INTEREST (INCLUDING LIQUIDATED DAMAGES) ON ANY SECURITY
WHEN THE SAME BECOMES DUE AND PAYABLE AND THE DEFAULT CONTINUES FOR A PERIOD OF 30 DAYS, WHETHER OR
NOT SUCH PAYMENT SHALL BE PROHIBITED BY THE PROVISIONS OF ARTICLE V;



THE COMPANY DEFAULTS IN THE PAYMENT OF ANY PRINCIPAL OF (INCLUDING, WITHOUT LIMITATION, ANY
PREMIUM, IF ANY, ON) ANY SECURITY WHEN THE SAME BECOMES DUE AND PAYABLE (WHETHER AT MATURITY, UPON
REDEMPTION, A CHANGE IN CONTROL PURCHASE DATE OR OTHERWISE), WHETHER OR NOT SUCH PAYMENT SHALL BE
PROHIBITED BY THE PROVISIONS OF ARTICLE V;



THE COMPANY FAILS TO COMPLY WITH ANY OF ITS OTHER AGREEMENTS CONTAINED IN THE SECURITIES OR THIS
INDENTURE AND THE DEFAULT CONTINUES FOR THE PERIOD AND AFTER THE NOTICE SPECIFIED BELOW;



THE COMPANY PURSUANT TO OR WITHIN THE MEANING OF ANY BANKRUPTCY LAW:



commences a voluntary case or proceeding;



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



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



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


35









 






A COURT OF COMPETENT JURISDICTION ENTERS AN ORDER OR DECREE UNDER ANY BANKRUPTCY LAW THAT:



is for relief against the Company in an involuntary case or proceeding;



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



orders the liquidation of the Company;



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



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



A default under clause (3) above is not an Event of Default until the Trustee notifies the Company,
or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding
notify the Company and the Trustee, of the default, and the Company does not cure the default
within 60 days after receipt of such notice. The notice given pursuant to this Section 8.1 must
specify the default, demand that it be remedied and state that the notice is a “Notice of Default.”
When any default under this Section 8.1 is cured, it ceases.



The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by
the Company, a Paying Agent, any Holder or any agent of any Holder.



ACCELERATION



If an Event of Default (other than an Event of Default specified in clause (4) or (5) of Section
8.1) occurs and is continuing, the Trustee may, by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding may, by notice to the
Company and the Trustee, declare all unpaid principal on the Securities then outstanding (if not
then due and payable) to be due and payable upon any such declaration, and the same shall become
and be immediately due and payable. If an Event of Default specified in clause (4) or (5) of
Section 8.1 occurs, all unpaid principal of the Securities then outstanding shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in aggregate principal amount of the Securities then
outstanding by notice to the Trustee may rescind an acceleration and its consequences if (a) all
existing Events of Default, other than the nonpayment of the principal of the Securities which has
become due solely by such declaration of acceleration, have been cured or waived; (b) to the extent
the payment of such interest is lawful, interest (calculated at the rate per annum borne by the
Securities) on overdue installments of interest and overdue principal, which has become due
otherwise than by such declaration of acceleration, has been paid; (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due
to the Trustee and any predecessor Trustee under Section 9.7 have been made. No such rescission
shall affect any subsequent default or impair any right consequent thereto.



OTHER REMEDIES



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






36









 







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



WAIVER OF DEFAULTS AND EVENTS OF DEFAULT



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



CONTROL BY MAJORITY



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



LIMITATIONS ON SUITS



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



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



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



such Holder or Holders furnishes to the Trustee reasonable indemnity to the Trustee against any
loss, liability or expense;



the Trustee does not comply with the request within 60 days after receipt of the request and the
furnishing of indemnity; and



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



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



RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT



Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal of and interest on the Security, on or after the respective due
dates expressed in the Security and this Indenture, to convert such Security in accordance with
Article IV and to bring suit for the enforcement of any such payment on or after such respective
dates or the right to


37









 






convert, is absolute and unconditional and shall not be impaired or affected without the consent of
the Holder.



COLLECTION SUIT BY TRUSTEE



If an Event of Default in the payment of principal or interest specified in clause (1) or (2) of
Section 8.1 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or another obligor on the Securities for the whole
amount of principal and accrued interest remaining unpaid, together with, to the extent that
payment of such interest is lawful, interest on overdue principal and on overdue installments of
interest, in each case at the rate per annum borne by the Securities and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.



TRUSTEE MAY FILE PROOFS OF CLAIM



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



PRIORITIES



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



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



Second, to the holders of Senior Indebtedness to the extent required by Article V;



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



Fourth, to the Company.



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






38









 







UNDERTAKING FOR COSTS



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



TRUSTEE



DUTIES OF TRUSTEE



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



Except during the continuance of an Event of Default:



THE TRUSTEE NEED PERFORM ONLY THOSE DUTIES AS ARE SPECIFICALLY SET FORTH IN THIS INDENTURE AND NO
OTHERS; AND IN THE ABSENCE OF BAD FAITH ON ITS PART, THE TRUSTEE MAY CONCLUSIVELY RELY, AS TO THE
TRUTH OF THE STATEMENTS AND THE CORRECTNESS OF THE OPINIONS EXPRESSED THEREIN, UPON CERTIFICATES OR
OPINIONS FURNISHED TO THE TRUSTEE AND CONFORMING TO THE REQUIREMENTS OF THIS INDENTURE. THE
TRUSTEE, HOWEVER, SHALL EXAMINE ANY CERTIFICATES AND OPINIONS WHICH BY ANY PROVISION HEREOF ARE
SPECIFICALLY REQUIRED TO BE DELIVERED TO THE TRUSTEE TO DETERMINE WHETHER OR NOT THEY CONFORM TO
THE REQUIREMENTS OF THIS INDENTURE.



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



THIS PARAGRAPH DOES NOT LIMIT THE EFFECT OF SUBSECTION (b) OF THIS SECTION 9.1;



THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT MADE IN GOOD FAITH BY A TRUST OFFICER,
UNLESS IT IS PROVED THAT THE TRUSTEE WAS NEGLIGENT IN ASCERTAINING THE PERTINENT FACTS; AND THE
TRUSTEE SHALL NOT BE LIABLE WITH RESPECT TO ANY ACTION IT TAKES OR OMITS TO TAKE IN GOOD FAITH IN
ACCORDANCE WITH A DIRECTION RECEIVED BY IT PURSUANT TO SECTION 8.5.



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



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



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 applicable law.



RIGHTS OF TRUSTEE



Subject to Section 9.1:






39









 







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



Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel, which shall conform to Section 13.4(b). The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Certificate or Opinion.



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



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



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



The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have furnished to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or direction.



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



The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust
Officer of the Trustee has actual knowledge thereof or unless written notice from the Company or
the Holders of at least 25% of the Securities of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office, and such notice references the Securities
and this Indenture.



Except with respect to Sections 6.1, 6.2 and 6.3, the Trustee shall have no duty to inquire as to
the performance of the Company with respect to the covenants
contained in Article VI.



Delivery of reports, information and documents to the Trustee under Section 6.2 is for
informational purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any covenants hereunder (as to which the Trustee
is entitled to rely conclusively on Officers’ Certificates).



The rights, privileges, protections, immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed
by it to act hereunder.



INDIVIDUAL RIGHTS OF TRUSTEE


40









 






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



TRUSTEE’S DISCLAIMER



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



NOTICE OF DEFAULT OR EVENTS OF DEFAULT



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



REPORTS BY TRUSTEE TO HOLDERS



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



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



COMPENSATION AND INDEMNITY



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



The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of this
Section 9.7 shall include its officers, directors, employees and agents) for, and hold it harmless
against, any and all loss, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) and reasonable legal fees and expenses
incurred by it in connection with the acceptance or administration of its duties under this
Indenture or any action or failure to act as authorized or within the discretion or rights or
powers conferred upon the Trustee hereunder including the reasonable costs and expenses of the
Trustee and its counsel in defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement without its written consent, which shall not be
unreasonably withheld.






41









 







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



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



When the Trustee incurs expenses or renders services after an Event of Default specified in clause
(4) or (5) of Section 8.1 occurs, the expenses and the compensation for the services are intended
to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section
shall survive the termination of this Indenture.



REPLACEMENT OF TRUSTEE



The Trustee may resign by so notifying the Company. The Holders of a majority in principal amount
of the Securities then outstanding may remove the Trustee by so notifying the Trustee and may, with
the Company’s written consent, appoint a successor Trustee. The Company may remove the Trustee if:



the Trustee fails to comply with Section 9.10;



the Trustee is adjudged a bankrupt or an insolvent;



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



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. The resignation or removal of a
Trustee shall not be effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.



If a successor Trustee does not take office within 45 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of 10% in principal amount of the
Securities then outstanding may petition any court of competent jurisdiction for the appointment of
a successor Trustee at the expense of the Company.



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



A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after that, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee) hereunder, the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under this Indenture.



A successor Trustee shall mail notice of its succession to each Holder.



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






42









 







Notwithstanding replacement of the Trustee pursuant to this Section 9.8, the Company’s obligations
under Section 9.7 shall continue for the benefit of the retiring Trustee.



SUCCESSOR TRUSTEE BY MERGER, ETC.



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



ELIGIBILITY; DISQUALIFICATION



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



PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY



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



SATISFACTION AND DISCHARGE OF INDENTURE



SATISFACTION AND DISCHARGE OF INDENTURE



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



EITHER



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



all such Securities not theretofore delivered to the Trustee for cancellation




     have become due and payable, or



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



     are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the

Trustee in the name, and at the expense, of the Company,




and the Company, in the case of clause (a), (b) or (c) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee or a Paying Agent (other than the Company or any of its
Affiliates) as trust funds in trust for the purpose cash in an



43









 







amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Final Maturity Date or Redemption Date, as the case may be;


THE COMPANY HAS PAID OR CAUSED TO BE PAID ALL OTHER SUMS PAYABLE HEREUNDER BY THE COMPANY; AND



THE COMPANY HAS DELIVERED TO THE TRUSTEE AN OFFICERS’ CERTIFICATE AND AN OPINION OF COUNSEL, EACH
STATING THAT ALL CONDITIONS PRECEDENT HEREIN PROVIDED FOR RELATING TO THE SATISFACTION AND
DISCHARGE OF THIS INDENTURE HAVE BEEN COMPLIED WITH.



Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 9.7 shall survive and, if money shall have been deposited with the
Trustee pursuant to clause (1)(ii) of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6,
2.7, 2.12, Article IV, the last paragraph of Section 6.2, this Article X, Article XII and Section
13.5, shall survive until the Securities have been paid in full.



APPLICATION OF TRUST MONEY



Subject to the provisions of Section 10.3, the Trustee or a Paying Agent shall hold in trust, for
the benefit of the Holders, all money deposited with it pursuant to Section 10.1 and shall apply
the deposited money in accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities. Money so held in trust shall not be subject to the
subordination provisions of Article V.



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 creditors.



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 Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 10.1 until such time as the Trustee or such Paying Agent
is permitted to apply all such money in accordance with Section 10.2; provided, however, that if
the Company has made any payment of the principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive any such payment from the money held by the Trustee or such Paying
Agent.



AMENDMENTS, SUPPLEMENTS AND WAIVERS



WITHOUT CONSENT OF HOLDERS


44









 






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



to comply with Sections 4.11 and 7.1;



to cure any ambiguity, defect or inconsistency;



to make any other change that does not adversely effect the rights of any Securityholder;



to comply with the provisions of the TIA; or



to appoint a successor Trustee.



WITH CONSENT OF HOLDERS



The Company and the Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. The Holders of at least a majority in aggregate principal amount of
the Securities then outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any Securityholder. However,
notwithstanding the foregoing but subject to Section 11.4, without the written consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver pursuant to Section
8.4, may not:



extend the Maturity of the principal of, or interest on, any Security;



reduce the principal amount of, or any premium or interest on, any Security;



reduce the amount of principal payable upon acceleration of the maturity of any Security;



change the place or currency of payment of principal of, or any premium or interest on, any
Security;



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



adversely affect the right of Holders to convert Securities other than as provided in or under
Article IV of this Indenture;



reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders
must consent to a supplement or amendment;



reduce the percentage of the aggregate principal amount of the outstanding Securities necessary for
the waiver of compliance with certain provisions of this Indenture or the waiver of certain
defaults under this Indenture; and



modify any of the provisions of this Section or Section 8.4, except to increase any such percentage
or to provide that certain provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.



It shall not be necessary for the consent of the Holders under this Section 11.2 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.




45









 







After an amendment, supplement or waiver under this Section 11.2 becomes effective, the Company
shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amendment, supplement or waiver. An amendment or supplement under this
Section 11.2 or under Section 11.1 may not make any charge that adversely affects the rights under
Article V of any holder of Senior Indebtedness, unless the holders of that issue of Senior
Indebtedness, pursuant to its terms, consent to such change.



COMPLIANCE WITH TRUST INDENTURE ACT



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



REVOCATION AND EFFECT OF CONSENTS



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



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



NOTATION ON OR EXCHANGE OF SECURITIES



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



TRUSTEE TO SIGN AMENDMENTS, ETC.



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



REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE IN CONTROL



CHANGE IN CONTROL PUT



In the event that a Change in Control shall occur, each Holder shall have the right (a “Change in
Control Repurchase Right”), at the Holder’s option, but subject to the provisions of this Section
12.1(a), to require the Company to repurchase, and upon the




46









 







exercise of such right the Company shall repurchase, all of such Holder’s Securities not
theretofore called for redemption, or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple thereof as directed by such Holder pursuant to Section 12.31(c)
(provided that no single Securities may be repurchased in part unless the portion of the principal
amount of such Securities to be outstanding after such repurchase is equal to $1,000 or an integral
multiple thereof), on the date (the “Change in Control Repurchase Date”) that is the 30th Business
Day after the occurrence of the Change in Control at a purchase price in cash equal to 100% of the
principal amount of the Securities to be repurchased, plus accrued and unpaid interest (including
Liquidated Damages) to, but excluding, the Change in Control Repurchase Date (the “Change in
Control Repurchase Price”), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in subsection (c) of this Section 12.1.



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



ANY “PERSON” OR “GROUP” (AS SUCH TERMS ARE DEFINED BELOW) IS OR BECOMES THE “BENEFICIAL OWNER” (AS
DEFINED BELOW), DIRECTLY OR INDIRECTLY, OF SHARES OF VOTING STOCK OF THE COMPANY REPRESENTING MORE
THAN 50% OF THE TOTAL VOTING POWER OF ALL OUTSTANDING CLASSES OF VOTING STOCK OF THE COMPANY
(EXCLUDING ACQUISITIONS OF SUCH SHARES BY THE COMPANY, ITS SUBSIDIARIES OR ANY OF ITS EMPLOYEE
BENEFIT PLANS) OR HAS THE POWER, DIRECTLY OR INDIRECTLY, TO ELECT A MAJORITY OF THE MEMBERS OF THE
BOARD OF DIRECTORS OF THE COMPANY; OR



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 (DETERMINED ON A CONSOLIDATED BASIS), OR ANY PERSON CONSOLIDATES WITH, OR MERGES
WITH OR INTO, THE COMPANY,



IN ANY SUCH EVENT OTHER THAN PURSUANT TO A TRANSACTION IN WHICH THE PERSONS THAT “BENEFICIALLY
OWNED” (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



THERE SHALL OCCUR THE LIQUIDATION OR DISSOLUTION OF THE COMPANY.



Notwithstanding anything to the contrary set forth in this Section 12.1, a Change in Control will
not be deemed to have occurred if either:



       (A) THE CLOSING PRICE (DETERMINED IN ACCORDANCE WITH SECTION 4.6(F)) OF THE COMMON STOCK FOR
ANY FIVE TRADING DAYS WITHIN:



the period of the ten Trading Days immediately after the later of the Change in Control or the
public announcement of the Change in Control, in the case of a Change in Control resulting solely
from a Change in Control under Section 12.1(a)(1); or



the period of the ten Trading Days immediately preceding the Change in Control, in the case of a
Change in Control resulting from a Change in Control under Section 12.1(a)(2) or (3), is at least
equal to 105% of the Conversion Price in effect on such Trading Day; or



(B) IN THE CASE OF A MERGER OR CONSOLIDATION, AT LEAST 90% OF THE CONSIDERATION EXCLUDING CASH
PAYMENTS FOR FRACTIONAL SHARES IN THE MERGER OR CONSOLIDATION CONSTITUTING THE CHANGE IN CONTROL
CONSISTS OF COMMON STOCK TRADED ON A UNITED STATES NATIONAL SECURITIES EXCHANGE OR QUOTED ON THE
NNM (OR WHICH WILL BE SO TRADED OR QUOTED WHEN ISSUED OR EXCHANGED IN CONNECTION WITH SUCH CHANGE
IN CONTROL) AND AS A RESULT OF SUCH TRANSACTION OR TRANSACTIONS THE SECURITIES BECOME CONVERTIBLE
SOLELY INTO SUCH COMMON STOCK AND SUCH OTHER PERMITTED CONSIDERATION.




47









 








     For the purpose of the definition of “Change in 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 in 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 in
Control.


Within 10 Business Days after the occurrence of a Change in Control, the Company shall mail a
written notice of the Change in Control to the Trustee (and the Paying Agent if the Trustee is not
then acting as Paying Agent) and to each Holder (and to beneficial owners as required by applicable
law). The notice shall include the form of a Change in Control Repurchase Notice to be completed by
the Holder and shall state:



THE DATE OF SUCH CHANGE IN CONTROL AND, BRIEFLY, THE EVENTS CAUSING SUCH CHANGE IN CONTROL;



THE DATE BY WHICH THE CHANGE IN CONTROL REPURCHASE NOTICE PURSUANT TO THIS SECTION 12.1 MUST BE
GIVEN;



THE CHANGE IN CONTROL REPURCHASE DATE;



THE CHANGE IN CONTROL REPURCHASE PRICE;



BRIEFLY, THE CONVERSION RIGHTS OF THE SECURITIES;



THE NAME AND ADDRESS OF EACH PAYING AGENT AND CONVERSION AGENT;



THE CONVERSION PRICE AND ANY ADJUSTMENTS THERETO;



THAT SECURITIES AS TO WHICH A CHANGE IN CONTROL REPURCHASE NOTICE HAS BEEN GIVEN MAY BE CONVERTED
INTO COMMON STOCK PURSUANT TO ARTICLE IV OF THIS INDENTURE ONLY TO THE EXTENT THAT THE CHANGE IN
CONTROL REPURCHASE NOTICE HAS BEEN WITHDRAWN IN ACCORDANCE WITH THE TERMS OF THIS INDENTURE;



THE PROCEDURES THAT THE HOLDER MUST FOLLOW TO EXERCISE RIGHTS UNDER THIS SECTION 12.1;



THE PROCEDURES FOR WITHDRAWING A CHANGE IN CONTROL REPURCHASE NOTICE, INCLUDING A FORM OF NOTICE OF
WITHDRAWAL; AND



THAT THE HOLDER MUST SATISFY THE REQUIREMENTS SET FORTH IN THE SECURITIES IN ORDER TO CONVERT THE
SECURITIES.



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



A Holder may exercise its rights specified in subsection (a) of this Section 12.1 upon delivery of
a written notice (which shall be in substantially the form included in Exhibit A hereto and which
may be delivered by letter, overnight courier, hand


48









 






delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Depositary’s
customary procedures) of the exercise of such rights (a “Change in Control Repurchase Notice”) to
any Paying Agent at any time prior to the close of business on the Business Day next preceding the
Change in Control Repurchase Date.



The delivery of such Security to any Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by the Holder of the Change in
Control Repurchase Price therefor.



The Company shall purchase from the Holder thereof, pursuant to this Section 12.1, a portion of a
Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of the Indenture that apply to the purchase of all of a Security pursuant to Sections
12.1 through 12.6 also apply to the purchase of such portion of such Security.



Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the Change
in Control Repurchase Notice contemplated by this subsection (c) shall have the right to withdraw
such Change in Control Repurchase Notice in whole or in a portion thereof that is a principal
amount of $1,000 or in an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Change in Control Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 12.2.



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



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



EFFECT OF CHANGE IN CONTROL REPURCHASE NOTICE



Upon receipt by any Paying Agent of the Change in Control Repurchase Notice specified in Section
12.1(c), the Holder of the Security in respect of which such Change in Control Repurchase Notice
was given shall (unless such Change in Control Repurchase Notice is withdrawn as specified below)
thereafter be entitled to receive the Change in Control Repurchase Price with respect to such
Security. Such Change in Control Repurchase Price shall be paid to such Holder promptly following
the later of (a) the Change in Control Repurchase Date with respect to such Security (provided the
conditions in Section 12.1(c) have been satisfied) and (b) the time of delivery of such Security to
a Paying Agent by the Holder thereof in the manner required by Section 12.1(c). Securities in
respect of which a Change in Control Repurchase 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 in
Control Repurchase Notice unless such Change in Control Repurchase Notice has first been validly
withdrawn.



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



DEPOSIT OF CHANGE IN CONTROL REPURCHASE PRICE


49









 






On or before 11:00 a.m., New York City time, on the Change in Control Repurchase Date, the Company
shall deposit with the Trustee or with a Paying Agent (other than the Company or an Affiliate of
the Company) an amount of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Change in Control Repurchase Price of all the Securities or
portions thereof that are to be purchased as of such Change in Control Repurchase Date. The manner
in which the deposit required by this Section 12.3 is made by the Company shall be at the option of
the Company, provided that such deposit shall be made in a manner such that the Trustee or a Paying
Agent shall have immediately available funds on the Change in Control Repurchase Date.



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

principal amount of Securities purchased as a result of such Change in Control on or as soon as
practicable after the Change in Control Repurchase Date.



SECURITIES PURCHASED IN PART



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



COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES



In connection with any offer to purchase or purchase of Securities under Section 12.1, the Company
shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to either such Rule), if
applicable, under the Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer to purchase or purchase of
Securities, all so as to permit the rights of the Holders and obligations of the Company under
Sections 12.1 through 12.6 to be exercised in the time and in the manner specified therein.



REPAYMENT TO THE COMPANY



To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 12.3
exceeds the aggregate Change in Control Repurchase Price together with interest (including
Liquidated Damages), if any, thereon of the Securities or portions thereof that the Company is
obligated to purchase, then promptly after the Change in Control Repurchase Date the Trustee or a
Paying Agent, as the case may be, shall return any such excess cash to the Company.



MISCELLANEOUS



TRUST INDENTURE ACT CONTROLS



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



NOTICES


50









 






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



If to the Company:



Computer Network Technology Corporation

6000 Nathan Lane North

Plymouth, Minnesota 55442

Attention: Chief Financial Officer



If to the Trustee:



U.S. Bank National Association

180 East Fifth Street

St. Paul, Minnesota 55101

Attention: Corporate Trust Group



Such notices or communications shall be effective when received.



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



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



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



COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS



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



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 at the request of the Trustee:



AN OFFICERS’ CERTIFICATE STATING THAT, IN THE OPINION OF THE SIGNERS, ALL CONDITIONS PRECEDENT
(INCLUDING ANY COVENANTS, COMPLIANCE WITH WHICH CONSTITUTES A CONDITION PRECEDENT), IF ANY,
PROVIDED FOR IN THIS INDENTURE RELATING TO THE PROPOSED ACTION HAVE BEEN COMPLIED WITH; AND



AN OPINION OF COUNSEL STATING THAT, IN THE OPINION OF SUCH COUNSEL, ALL SUCH CONDITIONS PRECEDENT
(INCLUDING ANY COVENANTS, COMPLIANCE WITH WHICH CONSTITUTES A CONDITION PRECEDENT) HAVE BEEN
COMPLIED WITH.



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



A STATEMENT THAT THE PERSON MAKING SUCH CERTIFICATE OR OPINION HAS READ SUCH COVENANT OR CONDITION;



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;


51









 






A STATEMENT THAT, IN THE OPINION OF SUCH PERSON, HE OR SHE HAS MADE SUCH EXAMINATION OR
INVESTIGATION AS IS NECESSARY TO ENABLE HIM OR HER TO EXPRESS AN INFORMED OPINION AS TO WHETHER OR
NOT SUCH COVENANT OR CONDITION HAS BEEN COMPLIED WITH; AND



A STATEMENT AS TO WHETHER OR NOT, IN THE OPINION OF SUCH PERSON, SUCH CONDITION OR COVENANT HAS
BEEN COMPLIED WITH; PROVIDED, HOWEVER, THAT WITH RESPECT TO MATTERS OF FACT AN OPINION OF COUNSEL
MAY RELY ON AN OFFICERS’ CERTIFICATE OR CERTIFICATES OF PUBLIC OFFICIALS.



RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS



The Company (or, in the event deposits have been made pursuant to Section 10.1, the Trustee) may
set a record date for purposes of determining the identity of Holders entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture, which record date
shall not be more than 30 days prior to the date of the commencement of solicitation of such
action. Notwithstanding the provisions of Section 11.4, if a record date is fixed, those persons
who were Holders of Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to
be Holders after such record date.



RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT



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



LEGAL HOLIDAYS



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



GOVERNING LAW



This Indenture and the Securities shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to principles of conflicts of laws.



NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS



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



NO RECOURSE AGAINST OTHERS



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



SUCCESSORS



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



MULTIPLE COUNTERPARTS


52









 






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



SEPARABILITY



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



TABLE OF CONTENTS, HEADINGS, ETC.



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




53









 







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




	 	 	 	 	 
	 	COMPUTER NETWORK TECHNOLOGY CORPORATION

 	 
	 	By:  	/s/ Gregory T. Barnum
 	 
	 	 	Name:  	Gregory T. Barnum 	 
	 	 	Title:  	CFO 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/ Frank Leslie
 	 
	 	 	Name:  	Frank Leslie 	 
	 	 	Title:  	Vice President 	 
	 




54









 







[FORM OF FACE OF SECURITY]



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



[THIS SECURITY (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 SECURITY AND THE
COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.](2)



THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE
COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (II) 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, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (II) 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 SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.](2)



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






 




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






 









 








COMPUTER NETWORK TECHNOLOGY CORPORATION




			
	 CUSIP:
204-925-AB7
	 	R-                    






3.00% CONVERTIBLE SUBORDINATED NOTES DUE 2007



Computer Network Technology Corporation, a Minnesota corporation (the “Company”,
which term shall include any successor corporation under the Indenture referred
to on the reverse hereof), promises to pay to                     , or
registered assigns, the principal sum of                      Dollars
($                    ) on February 15, 2007 [or such greater or lesser amount as is
indicated on the Schedule of Exchanges of Securities on the other side of this
Security]. (1)



Interest Payment Dates: February 15 and August 15



Record Dates: February 1 and August 1




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



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




	 	 	 	 	 
	COMPUTER NETWORK TECHNOLOGY CORPORATION
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





Attest:



	 	 	 	 	 
	By:
	 	 	 	 
	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 	 	 




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




	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 
	 	 	 	 
	 





 




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






 









 





                    
[FORM OF REVERSE SIDE OF SECURITY]




                    
COMPUTER NETWORK TECHNOLOGY CORPORATION


3.00% CONVERTIBLE SUBORDINATED NOTES DUE 2007



     1. Interest


Computer Network Technology Corporation, a Minnesota corporation (the “Company”, which term shall
include any successor corporation under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate of 3.00% per annum. The Company shall
pay interest semiannually on February 15 and August 15 of each year, commencing August 15, 2002.
Interest on the Securities shall accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from February 20, 2002; provided, however, that if there is not
an existing default in the payment of interest and if this Security 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. Any reference herein to interest accrued or payable as of any date
shall include any Liquidated Damages accrued or payable on such date as provided in the
Registration Rights Agreement.




     2. Method of Payment


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




     3. Paying Agent, Registrar and Conversion Agent


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




     4. Indenture, Limitations


This Security is one of a duly authorized issue of Securities of the Company designated as its
3.00% Convertible Subordinated Notes due 2007 (the “Securities”), issued under an Indenture dated
as of February 20, 2002 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended, as in effect on the date of the Indenture. This Security is subject to all
such terms, and the Holder of this Security is referred to the Indenture and said Act for a
statement of them. The Securities are subordinated unsecured obligations of the Company limited to
$150,000,000 aggregate principal amount, subject to Section 2.2 of the Indenture. The Indenture
does not limit other debt of the Company, secured or unsecured, including Senior Indebtedness.




 









 








     5. Provisional Redemption


The Securities may be redeemed on at least 20 days and no more than 60 days notice, in whole or in
part, at the election of the Company, at a redemption price equal to 100% of the principal amount
thereof plus the “Make-Whole Payment” described below (the “Redemption Price”) if (a) the Closing
Price of the Common Stock has exceeded 175% 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 “Notice Date”), and (b) a shelf registration
statement covering resales of the Securities and the Common Stock issuable upon conversion thereof
is effective and available for use and is expected to remain effective and available for use until
the Redemption Date unless registration is no longer required. Upon any such redemption, the
Company shall pay an amount in cash (the “Make-Whole Payment”) with respect to the Securities
called for redemption to holders on the Notice Date in an amount equal to the aggregate amount of
interest that would have been payable on such Securities from the last day through which interest
was paid on the Securities (or February 20, 2002, if no interest has been paid) to the Maturity
Date. If the Redemption Date is an Interest Payment Date, interest will be payable to the Holders
in whose names the Securities are registered at the close of business on the relevant record dates.




     6. 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 Securities to be redeemed at its registered address.
Securities in denominations larger than $1,000 may be redeemed in part, but only in whole multiples
of $1,000. On and after the Redemption Date, subject to the deposit with the Paying Agent of funds
sufficient to pay the Redemption Price plus accrued interest, if any, accrued to, but excluding,
the Redemption Date, interest shall cease to accrue on Securities or portions of them called for
redemption.




     7. Purchase of Securities at Option of Holder Upon a Change in Control


Subject to the terms and conditions of the Indenture and at the option of the Holder, following the
occurrence of a Change in Control, the Company shall become obligated to purchase all of such
Holder’s Securities, or any portion of the principal amount thereof that is equal to any integral
multiple of $1,000, on the date that is the 30th Business Day after the occurrence of a Change in
Control at a repurchase price equal to 100% of the principal amount of the Securities to be
repurchased, plus accrued and unpaid interest to, but excluding, the Change in Control Repurchase
Date. The Holder shall have the right to withdraw any Change in Control Purchase Notice (in whole
or in a portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at any
time prior to the close of business on the Business Day next preceding the Change in Control
Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with
the terms of the Indenture.




     8. Conversion


Subject to compliance with the provisions of the Indenture, a Holder of a Security may convert the
principal amount of such Security (or any portion thereof equal to $1,000 or any integral multiple
of $1,000 in excess thereof) into shares of Common Stock at the Conversion Price in effect at the
time of conversion under certain circumstances described in the Indenture; provided, however, that
if the Security is called for redemption pursuant to Article III of the Indenture or upon a Change
in Control, the conversion right will terminate at the close of business on the Business Day
immediately preceding the redemption date or the Change in Control Repurchase Date, as the case may
be, for such Security or such earlier date as the Holder presents such Security for redemption or
purchase (unless the Company shall default in making the redemption payment or Change in Control
Repurchase Price, as the case may be, when


2









 






due, in which case the conversion right shall terminate at the close of business on the date such
default is cured and such Security is redeemed or purchased).



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



The initial Conversion Price is $19.17 per share, subject to adjustment under certain
circumstances. The number of shares of Common Stock issuable upon conversion of a Security is
determined by dividing the principal amount of the Security 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 Security, 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 Security 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. Securities so surrendered
for conversion (in whole or in part) during the period from the close of business on any Record
Date to the opening of business on the next succeeding Interest Payment Date (excluding Securities
or portions thereof called for redemption or upon a Change in Control on a Redemption Date or
Change in Control Repurchase Date, as the case may be, during the period beginning at the close of
business on a 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 Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the conversion of such
Security, 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 Security equal to $1,000 or any integral multiple thereof.



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




     9. Conversion Arrangement on Call for Redemption


Any Securities called for redemption, unless surrendered for conversion before the close of
business on the Business Day immediately preceding the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the Redemption Price,
together with accrued interest, if any, to, but not including, the Redemption Date, by one or more
investment bankers or other purchasers who may agree with the Company to purchase such Securities
from the Holders, to convert them into Common Stock of the Company and to make payment for such
Securities to the Paying Agent in trust for such Holders.



The indebtedness evidenced by the Securities 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 Security 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


3









 






Senior Indebtedness and entitled to the benefits of the subordinated 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.




     10. SUBORDINATION



     The indebtedness evidenced by the Securities 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 Security 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.



     11. Denominations, Transfer, Exchange


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




     12. Persons Deemed Owners


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




     15. Successor Corporation


When a successor corporation assumes all the obligations of its predecessor under the Securities
and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor
corporation 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 Securities; (ii) default in payment of any principal




4









 







(including, without limitation, any premium, if any) on the Securities when due; (iii) failure by
the Company for 60 days after notice to it to comply with any of its other agreements contained in
the Indenture or the Securities; and (iv) 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 Securities then outstanding may declare all
unpaid principal to the date of acceleration on the Securities 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 Securities 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 Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces
the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if 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


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




     18. No Recourse Against Others


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




     19. Authentication


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




     20. Abbreviations and Definitions


Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors
Act). All terms defined in the Indenture and used in this Security but not specifically defined
herein are defined in the Indenture and are used herein as so defined.




     21. Indenture to Control; Governing Law


In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control. This Security shall be governed by, and construed in
accordance with, the laws of the State of New York, 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: Computer Network Technology
Corporation, 6000 Nathan Lane North, Plymouth, Minnesota 55442, Attention: Chief Financial Officer.





5









 








ASSIGNMENT FORM



To assign this Security, fill in the form below:



I or we assign and transfer this Security to




 




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




 




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




			
	and irrevocably appoint
	 	agent to transfer this






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






	 	 	 
	 

	 	Your Signature:
	 
	 	 
	Date:
	 	 
	 
	 	 
	 

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





*Signature guaranteed by:



By:






 




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






 









 








CONVERSION NOTICE



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



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



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




 




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




 




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




	 	 	 
	 

	 	Your Signature:
	 
	 	 
	Date:
	 	 
	 
	 	 
	 

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





*Signature guaranteed by:



By:






 




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






 









 








OPTION TO ELECT REPURCHASE UPON A CHANGE IN CONTROL OR ON SPECIFIC DATES




     To: Computer Network Technology Corporation


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



Date:




	 	 	 
	 

	 	Signature(s)
	 
	 	 
	 

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

	 	Signature Guaranty





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



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





 









 







SCHEDULE OF EXCHANGES OF NOTES (1)



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




	 	 	 	 	 	 	 	 	 	 	 	 	 
	PRINCIPAL AMOUNT	 	 	 	 	 	 	 	 	 
	OF THIS GLOBAL	 	 	 	 	 	 	 	 	 
	SECURITY	 	AMOUNT OF	 	 	AMOUNT OF	 	 	 	 
	FOLLOWING SUCH	 	AUTHORIZED	 	 	DECREASE IN	 	 	INCREASE IN	 
	DECREASE DATE OF	 	SIGNATORY OF	 	 	PRINCIPAL AMOUNT	 	 	PRINCIPAL AMOUNT	 
	EXCHANGE (OR	 	SECURITIES	 	 	OF THIS GLOBAL	 	 	OF THIS GLOBAL	 
	INCREASE)	 	CUSTODIAN	 	 	SECURITY	 	 	SECURITY	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 




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






 









 








CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF TRANSFER RESTRICTED SECURITIES (1)





			
	          Re:	 	3.00% Convertible Subordinated Notes due 2007 (the “Securities”) of Computer
Network Technology Corporation




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




o book-entry or

o definitive form by                      (the “Transferor”).



The Transferor has requested a Registrar or the Trustee to exchange or register the transfer of
such Securities. In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating
to the Securities as provided in Section 2.6 of the Indenture dated as of February 20, 2002 between
Computer Network Technology Corporation and U.S. Bank National Association (the “Indenture”), and
the transfer of such Security is being made pursuant to an effective registration statement under
the Securities Act of 1933, as amended (the “Securities Act”) (check applicable box) or the
transfer or exchange, as the case may be, of such Security does not require registration under the
Securities Act because (check applicable box):



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



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



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



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



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



The Transferor acknowledges and agrees that, if the transferee will hold any such Securities in the
form of beneficial interests in a global Security 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)








 




			
	(1)	 	This certificate should only be included if this Security is a Transfer Restricted Security.