exv4w4



 





Exhibit 4.4




 





McDATA CORPORATION




21/4% CONVERTIBLE SUBORDINATED NOTE DUE 2010




 






INDENTURE

DATED AS OF FEBRUARY 7, 2003




 






WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,

AS TRUSTEE




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1 DEFINITIONS
	 	 	1	 
	SECTION 1.2 OTHER DEFINITIONS
	 	 	6	 
	SECTION 1.3 TRUST INDENTURE ACT PROVISIONS
	 	 	7	 
	SECTION 1.4 RULES OF CONSTRUCTION
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 2 THE SECURITIES
	 	 	9	 
	 
	 	 	 	 
	SECTION 2.1 FORM AND DATING
	 	 	9	 
	SECTION 2.2 EXECUTION AND AUTHENTICATION
	 	 	10	 
	SECTION 2.3 REGISTRAR, PAYING AGENT AND CONVERSION AGENT
	 	 	11	 
	SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
	 	 	12	 
	SECTION 2.5 SECURITYHOLDER LISTS
	 	 	12	 
	SECTION 2.6 TRANSFER AND EXCHANGE
	 	 	12	 
	SECTION 2.7 REPLACEMENT SECURITIES
	 	 	13	 
	SECTION 2.8 OUTSTANDING SECURITIES
	 	 	14	 
	SECTION 2.9 TREASURY SECURITIES
	 	 	14	 
	SECTION 2.10 TEMPORARY SECURITIES
	 	 	14	 
	SECTION 2.11 CANCELLATION
	 	 	15	 
	SECTION 2.12 LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS
	 	 	15	 
	SECTION 2.13 CUSIP NUMBERS
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 3 PURCHASES
	 	 	18	 
	 
	 	 	 	 
	SECTION 3.1 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL
	 	 	18	 
	SECTION 3.2 EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE
	 	 	21	 
	SECTION 3.3 DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE
	 	 	21	 
	SECTION 3.4 SECURITIES PURCHASED IN PART
	 	 	22	 
	SECTION 3.5 COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES
	 	 	22	 
	SECTION 3.6 REPAYMENT TO THE COMPANY
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 4 CONVERSION
	 	 	22	 
	 
	 	 	 	 
	SECTION 4.1 CONVERSION PRIVILEGE
	 	 	22	 
	SECTION 4.2 CONVERSION PROCEDURE
	 	 	23	 
	SECTION 4.3 FRACTIONAL SHARES
	 	 	24	 
	SECTION 4.4 TAXES ON CONVERSION
	 	 	24	 
	SECTION 4.5 COMPANY TO RESERVE STOCK
	 	 	25	 
	SECTION 4.6 ADJUSTMENT OF CONVERSION PRICE
	 	 	25	 
	SECTION 4.7 SECTION 4.7. NO ADJUSTMENT
	 	 	31	 
	 
	 	 	 	 
	-i-







 









 






	 	 	 	 	 
	 	 	Page
	SECTION 4.8 ADJUSTMENT FOR TAX PURPOSES
	 	 	31	 
	SECTION 4.9 NOTICE OF ADJUSTMENT
	 	 	31	 
	SECTION 4.10 NOTICE OF CERTAIN TRANSACTIONS
	 	 	31	 
	SECTION 4.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE
	 	 	32	 
	SECTION 4.12 TRUSTEE’S DISCLAIMER
	 	 	33	 
	SECTION 4.13 VOLUNTARY REDUCTION
	 	 	33	 
	SECTION 4.14 PAYMENT OF CASH IN LIEU OF CLASS A COMMON STOCK
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 5 SUBORDINATION
	 	 	35	 
	 
	 	 	 	 
	SECTION 5.1 AGREEMENT OF SUBORDINATION
	 	 	35	 
	SECTION 5.2 PAYMENTS TO HOLDERS
	 	 	35	 
	SECTION 5.3 SUBROGATION OF SECURITIES
	 	 	37	 
	SECTION 5.4 AUTHORIZATION TO EFFECT SUBORDINATION
	 	 	38	 
	SECTION 5.5 NOTICE TO TRUSTEE
	 	 	39	 
	SECTION 5.6 TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS
	 	 	39	 
	SECTION 5.7 NO IMPAIRMENT OF SUBORDINATION
	 	 	40	 
	SECTION 5.8 CERTAIN CONVERSIONS DEEMED PAYMENT
	 	 	40	 
	SECTION 5.9 ARTICLE APPLICABLE TO PAYING AGENTS
	 	 	40	 
	SECTION 5.10 SENIOR INDEBTEDNESS ENTITLED TO RELY
	 	 	41	 
	SECTION 5.11 AGREEMENT TO SUBORDINATE UNAFFECTED
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 6 COVENANTS
	 	 	41	 
	 
	 	 	 	 
	SECTION 6.1 PAYMENT OF SECURITIES
	 	 	41	 
	SECTION 6.2 SEC REPORTS
	 	 	41	 
	SECTION 6.3 COMPLIANCE CERTIFICATES
	 	 	42	 
	SECTION 6.4 FURTHER INSTRUMENTS AND ACTS
	 	 	42	 
	SECTION 6.5 MAINTENANCE OF CORPORATE EXISTENCE
	 	 	42	 
	SECTION 6.6 RULE 144A INFORMATION REQUIREMENT
	 	 	42	 
	SECTION 6.7 STAY, EXTENSION AND USURY LAWS
	 	 	42	 
	SECTION 6.8 PAYMENT OF ADDITIONAL INTEREST
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	43	 
	 
	 	 	 	 
	SECTION 7.1 COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS
	 	 	43	 
	SECTION 7.2 SUCCESSOR SUBSTITUTED
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 8 DEFAULT AND REMEDIES
	 	 	44	 
	 
	 	 	 	 
	SECTION 8.1 EVENTS OF DEFAULT
	 	 	44	 
	SECTION 8.2 ACCELERATION
	 	 	46	 
	SECTION 8.3 OTHER REMEDIES
	 	 	46	 
	SECTION 8.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT
	 	 	46	 
	SECTION 8.5 CONTROL BY MAJORITY
	 	 	47	 
	SECTION 8.6 LIMITATIONS ON SUITS
	 	 	47	 
	SECTION 8.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT
	 	 	47	 
	 
	 	 	 	 
	-ii-







 









 






	 	 	 	 	 
	 	 	Page
	SECTION 8.8 COLLECTION SUIT BY TRUSTEE
	 	 	48	 
	SECTION 8.9 TRUSTEE MAY FILE PROOFS OF CLAIM
	 	 	48	 
	SECTION 8.10 PRIORITIES
	 	 	48	 
	SECTION 8.11 UNDERTAKING FOR COSTS
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 9 TRUSTEE
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.1 DUTIES OF TRUSTEE
	 	 	49	 
	SECTION 9.2 RIGHTS OF TRUSTEE
	 	 	50	 
	SECTION 9.3 INDIVIDUAL RIGHTS OF TRUSTEE
	 	 	51	 
	SECTION 9.4 TRUSTEE’S DISCLAIMER
	 	 	51	 
	SECTION 9.5 NOTICE OF DEFAULT OR EVENTS OF DEFAULT
	 	 	51	 
	SECTION 9.6 REPORTS BY TRUSTEE TO HOLDERS
	 	 	52	 
	SECTION 9.7 COMPENSATION AND INDEMNITY
	 	 	52	 
	SECTION 9.8 REPLACEMENT OF TRUSTEE
	 	 	53	 
	SECTION 9.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
	 	 	54	 
	SECTION 9.10 ELIGIBILITY; DISQUALIFICATION
	 	 	54	 
	SECTION 9.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	54	 
	 
	 	 	 	 
	SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	54	 
	SECTION 10.2 APPLICATION OF TRUST MONEY
	 	 	55	 
	SECTION 10.3 REPAYMENT TO COMPANY
	 	 	55	 
	SECTION 10.4 REINSTATEMENT
	 	 	56	 
	 
	 	 	 	 
	ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS
	 	 	56	 
	 
	 	 	 	 
	SECTION 11.1 WITHOUT CONSENT OF HOLDERS
	 	 	56	 
	SECTION 11.2 WITH CONSENT OF HOLDERS
	 	 	56	 
	SECTION 11.3 COMPLIANCE WITH TRUST INDENTURE ACT
	 	 	58	 
	SECTION 11.4 REVOCATION AND EFFECT OF CONSENTS
	 	 	58	 
	SECTION 11.5 NOTATION ON OR EXCHANGE OF SECURITIES
	 	 	58	 
	SECTION 11.6 TRUSTEE TO SIGN AMENDMENTS, ETC
	 	 	58	 
	SECTION 11.7 EFFECT OF SUPPLEMENTAL INDENTURES
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 12 MISCELLANEOUS
	 	 	59	 
	 
	 	 	 	 
	SECTION 12.1 TRUST INDENTURE ACT CONTROLS
	 	 	59	 
	SECTION 12.2 NOTICES
	 	 	59	 
	SECTION 12.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS
	 	 	60	 
	SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
	 	 	60	 
	SECTION 12.5 RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS
	 	 	61	 
	SECTION 12.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT
	 	 	61	 
	SECTION 12.7 LEGAL HOLIDAYS
	 	 	61	 
	SECTION 12.8 GOVERNING LAW
	 	 	61	 
	 
	 	 	 	 
	-iii-







 









 






	 	 	 	 	 
	 	 	Page
	SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
	 	 	61	 
	SECTION 12.10 NO RECOURSE AGAINST OTHERS
	 	 	61	 
	SECTION 12.11 SUCCESSORS
	 	 	62	 
	SECTION 12.12 MULTIPLE COUNTERPARTS
	 	 	62	 
	SECTION 12.13 SEPARABILITY
	 	 	62	 
	SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
	 	 	62	 
	 
	 	 	 	 
	-iv-







 









 






CROSS REFERENCE TABLE*




	 	 	 	 	 
	 	 	 	 	INDENTURE
	TIA SECTION	 	 	 	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)
	 	12.3
	 	 	(c)
	 	12.3
	Section	 	313(a)
	 	9.6
	 	 	(b)(1)
	 	N.A.
	 	 	(b)(2)
	 	9.6
	 	 	(c)
	 	9.6; 12.2
	 	 	(d)
	 	9.6
	Section	 	314(a)
	 	6.2; 6.4; 12.2
	 	 	(b)
	 	N.A.
	 	 	(c)(1)
	 	12.4(a)
	 	 	(c)(2)
	 	12.4(a)
	 	 	(c)(3)
	 	N.A.
	 	 	(d)
	 	N.A.
	 	 	(e)
	 	12.4(b)
	 	 	(f)
	 	N.A.
	Section	 	315(a)
	 	9.1(b)
	 	 	(b)
	 	9.5; 12.2
	 	 	(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)
	 	12.5
	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.





-v-




 









 








     THIS INDENTURE dated as of February 7, 2003 is between McDATA Corporation, a corporation
duly organized under the laws of the State of Delaware (the “Company”), and Wells Fargo Bank
Minnesota, National Association, a national banking association organized and existing under the
laws of the United States, as Trustee (the “Trustee”).



     In consideration of the premises and the purchase of the Securities (as defined below) by the
Holders (as defined below) 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
21/4% Convertible Subordinated Notes Due 2010.



ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.1 DEFINITIONS.



     “Additional Interest” has the meaning specified in Section 5 of the Registration Rights
Agreement. All references herein to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable as of such date as provided in the Registration Rights
Agreement.



     “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, in each case
to the extent applicable to such transfer or exchange.



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



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



     “Capital Stock” 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.



     “Common Stock” means the Class A Common Stock of the Company, $0.01 par value, 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 the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Company.



     “Conversion Rate” means $1,000 divided by the then-current Conversion Price.



     “Corporate Trust Office” means the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered which office at the date of the execution
of this Indenture is located at 213 Court Street, Suite 703, Middletown, CT 06457, Attention:
Corporate Trust Services 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 of the Company in
which the instrument creating or evidencing the same or the assumption or guarantee thereof (or any
related agreements or documents to which the Company is a party) expressly provides that such
Senior 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, 2010.



-2-









 





     “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 and
4 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 (i) for borrowed money
(including obligations of such Person in respect of overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments) or (ii) evidenced by credit or
loan agreements, 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) (other than
any accounts payable or other accrued current liability or obligation incurred in the ordinary
course of business in connection with the obtaining of materials or services), (b) all
reimbursement obligations and other liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bank guarantees or bankers’ acceptances, (c) all obligations and
liabilities (contingent or otherwise) of such Person (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 (as determined by the Company), or (ii) under any lease or related
document (including a purchase agreement, conditional sale or other title retention agreement) in
connection with the lease of real property or improvement 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 or pay an agreed upon residual
value of the leased property to the lessor (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 or other swap, cap,
floor or collar agreement, hedge agreement, forward contract, or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement; (e) all
direct or indirect guaranties, agreements to be jointly liable or similar agreements by such Person
in respect of, and obligations or liabilities 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), and (f) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments, modifications or



-3-









 







supplements to, any indebtedness, obligation or liability of the kind described in clauses (a)
through (e); provided, however, that the descriptions in (a), (b), (c) and (e) above shall only
constitute “Indebtedness” hereunder to the extent they would appear as a liability upon a balance
sheet of such Person that is prepared in accordance with GAAP.



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



     “Initial Purchasers” mean Banc of America Securities LLC, Credit Suisse First Boston LLC and
Salomon Smith Barney Inc.



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



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



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



     “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.



     “Principal” or “principal” of a debt security, including the Securities, means the principal
of the security.



     “Registration Rights Agreement” means the Registration Rights Agreement dated, as of February
7, 2003, between the Company and the Initial Purchasers.



     “Representative” means the (a) 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 Global Security” means a Global Security that is a Restricted Security.



     “Restricted Security” means a Security required to bear the restrictive legend set forth in
the form of Security set forth in Exhibit A of this Indenture.



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



-4-









 





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



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the 21/4% Convertible Subordinated Notes Due 2010 or
any of them (each, a “Security”), as amended or supplemented from time to time, that are issued
under this Indenture.



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



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



     “Senior Indebtedness” means the principal of, 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 allowed as a claim in any such proceeding) and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company, whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all
deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to,
the foregoing), unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities or expressly provides that
such Indebtedness is “pari passu” or “junior” to the Securities. Notwithstanding the foregoing,
the term Senior Indebtedness shall not include (i) any Indebtedness of the Company to any
Subsidiary of the Company (other than Indebtedness of the Company to such Subsidiary arising by
reason of guarantees by the Company of Indebtedness of such Subsidiary to a Person that is not a
Subsidiary of the Company); or (ii) the Securities. 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.



     “Significant Subsidiary” means, in respect of any Person, a Subsidiary of such Person that
would constitute a “significant subsidiary” as such term is defined under Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act.



     “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.



-5-









 





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



     “Trading Day” means, with respect to any security, each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not generally traded on the principal
exchange or market in which such security is traded.



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



     “Trust Officer”, with respect to the Trustee, any officer assigned to the Corporate Trust
Office to administer its corporate trust matters.



     “Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.



     SECTION 1.2 OTHER DEFINITIONS.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Agent Members”

	 	 	2.1	(c)
	“Bankruptcy Law”

	 	 	8.1	 
	“Cash Amount”

	 	 	4.14	 
	“Cash Settlement Averaging Period”

	 	 	4.14	 
	“Cash Settlement Notice Period”

	 	 	4.14	 
	“Change in Control”

	 	 	3.8	(a)
	“Change in Control Purchase Date”

	 	 	3.8	(a)
	“Change in Control Purchase Notice”

	 	 	3.8	(c)
	“Change in Control Purchase Price”

	 	 	3.8	(a)
	“Closing Price”

	 	 	4.6	(c)
	“Company Order”

	 	 	2.2	 
	“Conversion Agent”

	 	 	2.3	 
	“Conversion Date”

	 	 	4.2	 
	“Conversion Price”

	 	 	4.6	 
	“Conversion Obligation”

	 	 	4.14	 






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	 	 	Defined in
	Term	 	Section
	“Conversion Retraction Period”

	 	 	4.14	 
	“Current Market Price”

	 	 	4.6	(e)
	“Custodian”

	 	 	8.1	 
	“DTC”

	 	 	2.1	(b)
	“Depositary”

	 	 	2.1	(b)
	“Determination Date”

	 	 	4.6	(c)
	“Event of Default”

	 	 	8.1	 
	“Expiration Date”

	 	 	4.6	(c)
	“Expiration Time”

	 	 	4.6	(c)
	“Final Notice Date”

	 	 	4.14	 
	“Instrument”

	 	 	8.1	(6)
	“Legal Holiday”

	 	 	12.7	 
	“Legend”

	 	 	2.12	(a)
	“NNM”

	 	 	4.6	(c)
	“Paying Agent”

	 	 	2.3	 
	“Payment Blockage Notice”

	 	5.2(ii)

	“Primary Registrar”

	 	 	2.3	 
	“Purchase Agreement”

	 	 	2.1	 
	“Purchased Shares”

	 	 	4.6	(c)
	“QIB”

	 	 	2.1	(b)
	“Registrar”

	 	 	2.3	 
	“Rights Plan”

	 	 	4.6	(c)
	“Triggering Distribution”

	 	 	4.6	(c)
	“Trigger Event”

	 	 	4.6	(c)
	“Unissued Shares”

	 	 	3.8	(a)






     SECTION 1.3 TRUST INDENTURE ACT PROVISIONS.



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



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     “indenture securities” means the Securities;



     “indenture security holder” means a Securityholder;



     “indenture to be qualified” means this Indenture;



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



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



     SECTION 1.4 RULES OF CONSTRUCTION.



     Unless the context otherwise requires:



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



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



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



          (D) “or” is not exclusive;



          (E) provisions apply to successive events and transactions;



          (F) the term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;



          (G) the masculine gender includes the feminine and the neuter;



          (H) references to agreements and other instruments include subsequent amendments thereto;



          (I) references to sections of or rules promulgated under the Securities Act or the TIA shall
include subsequent amendments, replacements, successor or substitute sections or rules thereto as
adopted by the SEC from time to time; and



          (J) “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.



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ARTICLE 2

THE SECURITIES




     SECTION 2.1 FORM AND DATING.



     The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated the date of its authentication. The
Securities are being offered and sold by the Company pursuant to an Amended and Restated Purchase
Agreement dated February 4, 2003 (the “Purchase Agreement”), between the Company and the Initial
Purchasers, in transactions exempt from, or not subject to, the registration requirements of the
Securities Act.



     (a) The terms and provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
In case of any conflict between the provisions of any Security with the provisions of this
Indenture, the provisions of this Indenture shall control.



     (b) 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 Securities may from time to time be increased
or decreased by adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable Procedures.



     (c) 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, purchases or conversions of such Securities. Any endorsement of
a Global Security for adjustment of the aggregate principal amount of a Global Security to reflect
the amount of any increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 hereof and shall be made on the records of the Trustee and the Depositary.



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



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Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall (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.



     (d) The Company shall execute and the Trustee shall, in accordance with this Section 2.1(d),
authenticate and deliver initially one or more Global Securities that (i) shall be registered in
the name of the Depositary, (ii) shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary’s instructions and (iii) shall bear legends substantially to the following effect:




“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO McDATA CORPORATION (THE “COMPANY”) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”



     SECTION 2.2 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.



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     The Trustee shall authenticate and make available for delivery Securities for original issue
in the aggregate principal amount of up to $172,500,000 upon receipt of a written order or orders
of the Company signed by two Officers of the Company (a “Company Order”). The Company Order shall
specify the amount of Securities to be authenticated, shall provide that all such Securities will
be represented by a Restricted Global Security and the date on which each original issue of
Securities is to be authenticated. The aggregate principal amount of Securities outstanding at any
time may not exceed $172,500,000 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 principal amount and any integral multiple thereof.



     SECTION 2.3 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 City of New York. One
of the Registrars (the “Primary Registrar”) shall keep a register of the Securities and of their
transfer and exchange.



     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 Registrar, Paying Agent (except for the purposes of Section 6.1 and Article 10) or
Conversion Agent.



     The Company hereby initially designates the Trustee as Paying Agent, Registrar, Custodian and
Conversion Agent, and each of the Corporate Trust Office of the Trustee and the office or agency of
the Trustee in The City of New York (which shall initially be Wells Fargo Bank Minnesota, N.A., an
Affiliate of the Trustee, as agent of the Trustee located at Wells Fargo Bank Minnesota, N.A., c/o
Banker’s Trust Company, 16 Wall Street, 4th Floor, New York, NY 10015, Attention: Window No. 72,
one such office or agency of the Company for each of the aforesaid purposes.



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     SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.



     Prior to 11:00 a.m., New York City time, on each due date of the principal of or interest, 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 5.2, a Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest, 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 pay forthwith to
the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other
than the Company) shall have no further liability for the money.



     SECTION 2.5 SECURITYHOLDER LISTS.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders and shall otherwise comply with
Section 312(a) of the TIA. If the Trustee is not the Primary Registrar, the Company shall
furnish to the Trustee five (5) Business Days prior to 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.



     SECTION 2.6 TRANSFER AND EXCHANGE.



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



     Neither the Company, any Registrar nor the Trustee shall be required to exchange or register a
transfer of any Securities or portions thereof in respect of which a Change in Control Purchase



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



     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.



     (b) 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.



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



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



     SECTION 2.7 REPLACEMENT SECURITIES.



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



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



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



-13-









 





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



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



     SECTION 2.8 OUTSTANDING SECURITIES.



     Securities outstanding at any time are all Securities authenticated by the Trustee, except for
those canceled by it, those converted pursuant to Article 4, those delivered to it for cancellation
or surrendered for transfer or exchange 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 Change in
Control Purchase Date or the Final Maturity Date money sufficient to pay the principal of and
accrued interest on Securities (or portions thereof) payable on that date, then on and after such
Change in Control Purchase Date or the final Maturity Date, as the case may be, such
Securities (or portions thereof, as the case may be) shall cease to be outstanding and interest on
them shall cease to accrue.



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



     SECTION 2.9 TREASURY SECURITIES.



     In determining whether the Holders of the required principal amount of Securities have
concurred in any notice, direction, waiver or consent, Securities owned by the Company or any other
obligor on the Securities or by any Subsidiary 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 Subsidiary of the Company or of such
other obligor.



     SECTION 2.10 TEMPORARY SECURITIES.



     Until definitive Securities are ready for delivery, the Company may prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have



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variations that the Company considers appropriate for temporary Securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate and deliver definitive Securities in exchange for temporary
Securities.



     SECTION 2.11 CANCELLATION.



     The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any
Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee and no
one else shall promptly cancel, in accordance with its standard procedures, all Securities
surrendered for transfer, exchange, payment, conversion or cancellation and shall deliver the
canceled Securities to the Company. All Securities which are purchased or otherwise acquired by
the Company or any of its Subsidiaries prior to the Final Maturity Date shall be delivered to the
Trustee for cancellation, and the Company may not hold or resell such Securities or issue any new
Securities to replace any such Securities or any Securities that any Holder has converted pursuant
to Article 4.



     SECTION 2.12 LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.



     (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Securities attached
hereto as Exhibit A or additional legends required by law, stock exchange rules or usage
(collectively, the “Legend”), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed, as the case may be,
unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall
include an opinion of counsel if so requested by the Company or such Registrar, as may be
reasonably acceptable to the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are
not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security pursuant to a registration
statement under the Securities Act that is effective at the time of such sale. Upon (i) provision
of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and
Registrar of the sale of such Security pursuant to a registration statement that is effective at
the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and
deliver a Security that does not bear the Legend or any portion thereof. If the Legend is removed
from the face of a Security and the Security is subsequently held by an Affiliate of the Company,
the Legend may be reinstated by the Company.



     (b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security in accordance with
the terms of such Security. No transfer of a Security to any Person shall be effective unless and
until such Security has been registered in the name of such Person. Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in
part, shall be made only in accordance with this Section 2.12.



-15-









 





     (c) Subject to the succeeding paragraph, every Security shall be subject to the restrictions
on transfer provided in the Legend. Whenever any Restricted Security other than a Restricted
Global Security is presented or surrendered for registration of transfer or for exchange for a
Security registered in a name other than that of the Holder, such Security must be accompanied by a
certificate in substantially the form set forth in Exhibit A, dated the date of such surrender and
signed by the Holder of such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or exchange any
Security not so accompanied by a properly completed certificate.



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



     (e) As used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security.



     (f) The provisions of clauses (i), (ii), (iii) and (iv) below shall apply only to Global
Securities:



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



-16-









 







issued in exchange for a Global Security or any portion thereof shall be a Global Security;
provided that any such Security so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Security.



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



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



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



          (v) Neither Agent Members nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or
such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or such nominee, as the case may be, or impair,
as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member
may act, the operation of customary practices of such Persons governing the exercise of the rights
of a holder of any Security.



     SECTION 2.13 CUSIP NUMBERS.



     The Company in issuing the Securities may use one or more “CUSIP” numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of 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
purchase and that reliance may be placed only on the other identification numbers printed on the



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Securities, and any such purchase shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.



ARTICLE 3

PURCHASES




     SECTION 3.1 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL.



     (a) If at any time that Securities remain outstanding there shall occur a Change in Control,
Securities shall be purchased by the Company at the option of the Holders, as of the date that is
30 Business Days after the occurrence of the Change in Control (the “Change in Control Purchase
Date”) at a purchase price equal to 100% of the principal amount of the Securities, together with
accrued and unpaid interest to, but excluding, the Change in Control Purchase Date (the “Change in
Control Purchase Price”), subject to satisfaction by or on behalf of any Holder of the requirements
set forth in subsection (c) of this Section 3.1.



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



          (1) 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 50% or more of the total voting power of all outstanding classes of Voting Stock of
the Company or has the power, directly or indirectly, to elect a majority of the members of the
Board of Directors of the Company; or



          (2) the Company consolidates with, or merges with or into, another Person or the Company
sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the
assets of the Company, or any Person consolidates with, or merges with or into, the Company, in any
such event other than pursuant to a transaction in which the Persons that “beneficially owned” (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 surviving or transferee Person immediately after the transaction that represent at
least a majority of the total voting power of all then outstanding classes of Voting Stock of such
surviving or transferee Person; or



          (3) the holders of Capital Stock of the Company approve any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in compliance with the terms
hereof).


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


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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.




     Notwithstanding anything to the contrary set forth in this Section 3.1, a Change in Control
will not be deemed to have occurred if either:



          (1) the Closing Price (determined in accordance with Section 4.6(e) of this Indenture) of the
Common Stock for any five Trading Days during the ten Trading Days immediately preceding the Change
in Control is at least equal to 105% of the Conversion Price in effect on such Trading Day; or



          (2) in the case of a merger or consolidation, all of the consideration (excluding cash
payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) to be
received in the merger or consolidation constituting the Change in Control by holders of Common
Stock consists of common stock traded on a United States national securities exchange or
quoted on the Nasdaq National Market (or which will be so traded or quoted when issued or exchanged
in connection with such Change in Control) and as a result of such transaction or transactions the
Securities become convertible solely into such common stock.



     (b) 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 to each Holder (and to beneficial
owners as required by applicable law). The notice shall include the form of a Change in Control
Purchase Notice to be completed by the Holder and shall state:



          (1) the date of such Change in Control and, briefly, a description of such Change in Control;



          (2) the date by which the Change in Control Purchase Notice pursuant to this Section 3.1 must
be given;



          (3) the Change in Control Purchase Date;



          (4) the Change in Control Purchase Price;



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



          (6) briefly, information about the Holder’s right to convert the Securities;



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



          (8) the Conversion Price and any adjustments thereto;



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



          (10) the procedures that the Holder must follow to exercise rights under this Section 3.1;



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



          (12) 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.



     (c) A Holder may exercise its rights specified in subsection (a) of this Section 3.1 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 delivery, facsimile transmission or
in any other written form and, in the case of Global Securities, may be delivered electronically or
by other means in accordance with the Depositary’s customary procedures) of the exercise of such
rights (a “Change in Control Purchase Notice”) to any Paying Agent at any time prior to the close
of business on the Business Day next preceding the Change in Control Purchase Date.



     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 Purchase Price therefor.



     The Company shall purchase from the Holder thereof, pursuant to this Section 3.1, a portion of
a Security if so directed in the Change in Control Purchase Notice and 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 3.1 through 3.6 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 Purchase Notice contemplated by this subsection (c) shall have the right to
withdraw such Change in Control Purchase Notice in whole or in a portion thereof that is a
principal amount of $1,000 or in an integral multiple thereof by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.2 which is received by the Paying Agent
at any time prior to the close of business on the Business Day next preceding the Change in Control
Purchase Date.



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



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



     SECTION 3.2 EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.



     Upon receipt by any Paying Agent of the Change in Control Purchase Notice specified in Section
3.1(c), the Holder of the Security in respect of which such Change in Control Purchase Notice was
given shall (unless such Change in Control Purchase Notice is withdrawn as specified below)
thereafter be entitled to receive the Change in Control Purchase Price with respect to such
Security. Such Change in Control Purchase Price shall be paid to such Holder promptly following
the later of (i) the Change in Control Purchase Date with respect to such Security (provided the
conditions in Section 3.1 (c) have been satisfied) and (ii) the time of delivery of such Security
to a Paying Agent by the Holder thereof in the manner required by Section 3.1 (c). Securities in
respect of which a Change in Control Purchase Notice has been given by the Holder thereof may not
be converted into shares of Common Stock pursuant to Article 4 on or after the date of the delivery
of such Change in Control Purchase Notice unless such Change in Control Purchase Notice has first
been validly withdrawn.



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



     SECTION 3.3 DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.



     On or before 11:00 a.m. New York City time on the Change in Control Purchase Date, the Company
shall deposit with the Trustee or with a Paying Agent (other than the Company or an Affiliate of
the Company) an amount of money (in immediately available funds if deposited on such Change in
Control Purchase Date) sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof that are to be purchased as of such Change in Control Purchase Date.
The manner in which the deposit required by this Section 3.3 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 or before 11:00 a.m. New York
City time on the Change in Control Purchase Date.



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



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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 Purchase
Date.



     SECTION 3.4 SECURITIES PURCHASED IN PART.



     Any Security that is to be purchased only in part shall be surrendered at the office of a
Paying Agent, and promptly after the Change in Control Purchase Date the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security, without service charge
except that the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder, in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.



     SECTION 3.5 COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES.



     In connection with any offer to purchase or purchase of Securities under Section 3.1, 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 3.1 through 3.4 to be exercised in the time and in the manner specified therein.



     SECTION 3.6 REPAYMENT TO THE COMPANY.



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



ARTICLE 4

CONVERSION




     SECTION 4.1 CONVERSION PRIVILEGE.



     Subject to the further provisions of this Article 4 and paragraph 6 of the Securities, 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 Common Stock at any time
prior to the close of business on the Final Maturity Date, at the Conversion Price then in effect;
provided, however, that, if such Security is submitted or presented for purchase pursuant to
Article 3, such conversion right shall terminate upon the delivery of a Change in Control Purchase
Notice unless such notice has been validly withdrawn in accordance with Section 3.2, as the case
may be, for such Security or such earlier date as the Holder presents such Security for purchase
(unless the Company



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shall default in making the Change in Control Purchase 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 purchased). 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 6 of the Securities and is subject to
adjustment as provided in this Article 4.



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



     A Holder of a Security is not entitled to receive any accrued and unpaid interest in respect
of the Security upon, or from and after, the conversion of such Security.



     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 4.



     SECTION 4.2 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, (d) pay any transfer or similar tax, if required, and (e) satisfy
any additional requirement under paragraph 6 of the Security, if any. The date on which the Holder
satisfies all of those requirements is the “Conversion Date.” Upon conversion of a Security, the
Company may choose to deliver shares of Common Stock, cash or a combination of shares of Common
Stock and cash as set forth in Section 4.14. 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.



     Each conversion shall be deem to have been effected as to any Security (or portion thereof) as
of the close of business on the later of (i) the Conversion Date, (ii) the expiration of the Cash
Settlement Notice Period, or (iii) if the Company elects to pay cash in lieu of Common Stock
pursuant to Section 4.14, the expiration of the Cash Settlement Averaging Period, and the person in
whose name any certificate or certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the Holder of record of the shares
represented thereby; provided, however, that in case of any such surrender of a Security on any
date when the stock transfer books of the Company shall be closed, the person or persons in whose
name the certificate or certificates for such shares are to be issued shall be deemed to have
become the record Holder thereof for all purposes on the next day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect on the date upon
which such Securities shall be surrendered.



-23-









 





     No payment or adjustment will be made for dividends or distributions on Common Stock issued
upon conversion of a Security.



     Except as otherwise provided in this paragraph, no payment or adjustment will be made for
accrued interest on a converted Security. Securities 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 presented for
purchase upon a Change in Control on a Change in Control Purchase Date 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.



     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.



     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.



     For the avoidance of doubt, settlement for any conversion of a Security shall be on the first
Business Day following the Cash Settlement Averaging Period.



     SECTION 4.3 FRACTIONAL SHARES.



     The Company will not issue fractional shares of Common Stock upon conversion of Securities.
In lieu thereof, the Company will pay an amount in cash for the current market value of the
fractional shares. The current market value of a fractional share shall be determined (calculated
to the nearest 1/1000th of a share) by multiplying the Closing Price (determined as set
forth in Section 4.6(e)) of the Common Stock on the Trading Day immediately prior to the Conversion
Date by such fractional share and rounding the product to the nearest whole cent.



     SECTION 4.4 TAXES ON CONVERSION.



     If a Holder converts a Security, the Company shall pay any 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



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a name other than the Holder’s name. The Conversion Agent may refuse to deliver the certificate
representing the Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due because the shares are
to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax
withholding required by law or regulation.



     SECTION 4.5 COMPANY TO RESERVE 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 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 or other over-the-counter market or such other market on
which the Common Stock is then listed or quoted; provided, however, that if rules of such automated
quotation system or exchange permit the Company to defer the listing of such Common Stock until the
first conversion of the Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon conversion of the
Securities in accordance with the requirements of such automated quotation system or exchange at
such time. Any Common Stock issued upon conversion of a Security hereunder which at the time of
conversion was a Restricted Security will also be a Restricted Security.



     SECTION 4.6 ADJUSTMENT OF CONVERSION PRICE.



     The conversion price as stated in paragraph 6 of the Securities (the “Conversion Price”) shall
be adjusted from time to time by the Company as follows:



     (a) 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 record date of such event or the happening of such
event, as appropriate. An adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date for the determination of stockholders entitled to receive such
dividend or distribution in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of subdivision or combination.



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     (b) 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 (e) of this Section 4.6) on the record date for the
determination of stockholders entitled to receive such rights or warrants, the Conversion Price in
effect immediately prior to the date of issuance 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 defined in subsection (e) 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 such 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).



     (c) In case the Company shall distribute to all or substantially all of the holders of its
Common Stock any shares of capital stock of the Company (other than Common Stock), evidences of
indebtedness or other non-cash assets (including securities of any person other than the Company
but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or
substantially all of the 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 and also excluding the distribution of rights to all holders of Common Stock
pursuant to a Rights Plan (as defined below)), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the current Conversion
Price by a fraction of which the numerator shall be the Current Market Price per share (as defined
in subsection (e) of this Section 4.6) of the Common Stock on the record date mentioned below less
the fair market value on such record date (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and which shall be evidenced
by an Officers’ Certificate delivered to the Trustee) of the portion of the capital stock,
evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants
applicable to one share of Common Stock (determined on the basis of the number of shares of Common
Stock outstanding on the record date), and of which the denominator shall be the Current Market
Price per share (as defined in subsection (e) 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



-26-









 







for the determination of shareholders
entitled to receive such distribution. In the event that a record date for any dividend or
distribution referred to in this subsection (c) occurs, but such dividend or distribution is not
then paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which
would have been in effect if such dividend or distribution had not been declared.



     In the event the then fair market value (as so determined) of the portion of the capital
stock, evidences of indebtedness or other non-cash assets so distributed or of such rights or
warrants applicable to one share of Common Stock is equal to or greater than the Current Market
Price per share of the Common Stock on such record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of a Security shall have the right to receive
upon conversion the amount of capital stock, evidences of indebtedness or other non-cash assets so
distributed or of such rights or warrants such holder would have received had such holder converted
each Security on such record date. If the Board of Directors determines the fair market value of
any distribution for purposes of this Section 4.6(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common Stock.



     With respect to rights to purchase preferred shares issued pursuant to the Rights Agreement,
dated as of May 18, 2001, between the Company and The Bank of New York, as Rights Agent (the
“Existing Rights Plan”), and any rights that may be issued or distributed pursuant to any similar
rights plan that the Company implements after the date of this Indenture (each of the Existing
Rights Plan and any rights that may be issued pursuant to any such similar future rights plan being
referred to as a “Rights Plan”), upon conversion of the Securities into Common Stock, to the extent
that such Rights Plan is in effect upon such conversion, each holder of Securities will receive, in
addition to the Common Stock, the rights described therein (whether or not the rights have
separated from the Common Stock at the time of conversion), unless such holder is an Acquiring
Person (as defined in the Existing Rights Plan) or a similar Person specifically excluded from
securing such rights by any other Rights Plan. Any distribution of rights or warrants pursuant to
the Rights Plan in accordance with the requirements set forth in the immediately preceding sentence
of this paragraph shall not constitute a distribution of rights or warrants pursuant to this
Section 4.6(c).



     Rights or warrants, other than rights issued pursuant to a Rights Plan, distributed by the
Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company’s Capital Stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are
also issued in respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 4.6 (and no adjustment to the Conversion Price under this
Section 4.6 will be required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Price shall be made in accordance with this Section 4.6(c). If any
such right or warrant is subject to events, upon the occurrence of which such rights or warrants
become exercisable to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants (and a termination or
expiration of the existing rights or



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warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution or deemed distribution of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 4.6 was made, (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash distribution,
equal to the per share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.



          (i) In case the Company shall, by dividend or otherwise, at any time distribute (a “Triggering
Distribution”) to all or substantially all holders of its Common Stock cash in an aggregate amount
that, together with the aggregate amount of (A) any cash and the fair market value (as determined
by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall
be evidenced by an Officers’ Certificate delivered to the Trustee) of any other consideration
payable in respect of any tender offer by the Company or a Subsidiary of the Company for Common
Stock consummated within the 12 months preceding the date of payment of the Triggering Distribution
and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made
and (B) all other cash distributions to all or substantially all of the 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 (e) 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 (e) of this Section 4.6) on the Determination Date less the quotient of (y) the sum of
the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this
Section 4.6(c)(i)) of any such other consideration so distributed, paid or payable within such 12
months and described in clauses (A) and (B) above and the Triggering Distribution divided by (z)
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 (e) of this Section 4.6) on the Determination Date, such reduction to become effective
immediately prior to the opening of business on the day following the date on which the Triggering
Distribution is paid.



          (ii) In case any tender offer made by the Company or any of its Subsidiaries for Common Stock
shall expire and the Company shall pay for Purchased Shares (as defined below) an aggregate
consideration in an amount (determined as the sum of the aggregate amount of cash



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consideration and
the aggregate fair market value (as determined by the Board of Directors, whose determination shall
be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered
to the Trustee thereof) of any other consideration) that, together with the aggregate amount of (A)
any cash and the fair market value (as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate
delivered to the Trustee) of any other consideration payable in respect of any other tender offers
by the Company or any Subsidiary of the Company for Common Stock consummated within the 12 months
preceding the date of the Expiration Date (as defined below) and in respect of which no Conversion
Price adjustment pursuant to this Section 4.6 has been made and (B) all cash distributions to all
or substantially all of the 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 (e) 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 Purchased 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 the 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
Purchased Shares but excluding any shares held in the treasury of the Company) at the Expiration
Time multiplied by the Current Market Price per share of the Common Stock (as determined in
accordance with subsection (e) 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 stockholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration
Time and the Current Market Price per share of Common Stock (as determined in accordance with
subsection (e) 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(c)(ii) 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(c)(ii).



          (iii) For purposes of this Section 4.6(c), 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”



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(and all
similar references) shall mean and include shares tendered in both tender offers and exchange
offers.



     (d) After any adjustment to the Conversion Price is made in accordance with Section 4.6(c)(i)
or (ii), no distribution or consideration (including the Triggering Distribution) that is taken
into account in making such adjustment shall again be taken into account for any future or other
adjustments made in accordance with Section 4.6.



     (e) For the purpose of any computation under subsections (b) and (c) of this Section 4.6, the
current market price (the “Current Market Price”) per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices for the 30 consecutive Trading Days commencing
10 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with
respect to distributions or tender offers under subsection (c) of this Section 4.6 or (ii) the
record date with respect to distributions, issuances or other events requiring such
computation under subsection (b) or (c) of this Section 4.6. The closing price (the “Closing
Price”) for each day shall be the last reported sales price or, in case no such reported sale takes
place on such date, the average of the reported closing bid and asked prices in either case on The
Nasdaq National Market (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).



     (f) 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 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.



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     SECTION 4.7 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 4 shall be made to the nearest cent or to the nearest one-1/1000th 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.



     SECTION 4.8 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 stockholders shall not be taxable.



     SECTION 4.9 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.



     SECTION 4.10 NOTICE OF CERTAIN TRANSACTIONS.



     In the event that:



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



          (2) the Company 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



          (3) 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, of such event. The Company shall mail the notice at least ten




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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.




     SECTION 4.11 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, 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, and that each
such Holder will also receive the rights described in a Rights Plan with respect to such number of
shares of Common Stock. Such supplemental indenture shall provide for adjustments of the Conversion
Price which shall be as nearly equivalent, as the Board of Directors shall reasonably consider to
be practicable, to the adjustments of the Conversion Price provided for in this Article 4. 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.



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     SECTION 4.12 TRUSTEE’S DISCLAIMER.



     The Trustee shall have no duty to determine when an adjustment under this Article 4 should be
made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officers’ Certificate including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.9. The Trustee makes no
representation as to the validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure to comply with any
provisions of this Article 4.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.11, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.



     SECTION 4.13 VOLUNTARY 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
Company’s Board of Directors determines that such reduction would be in the best interest of the
Company or to avoid or diminish income tax to holders of shares of Common Stock in connection with
a dividend or distribution of stock or similar event, and the Company provides 15 days prior notice
of any reduction in the Conversion Price; provided, however, that in no event may the Company
reduce the Conversion Price to be less than the par value of a share of Common Stock.



     SECTION 4.14 PAYMENT OF CASH IN LIEU OF CLASS A COMMON STOCK



     If a Holder elects to convert all or any portion of a Security into shares of Common Stock as
set forth in this Section 4 and the Company receives such Holder’s conversion notice on or prior to
the day that is 20 days prior to the Final Maturity Date (the “Final Notice Date”), the Company may
choose to satisfy all or any portion of its conversion obligation (the “Conversion Obligation”) in
cash. Upon such election, the Company will notify such Holder through the Trustee of the dollar
amount to be satisfied in cash (which must be expressed either as 100% of the Conversion Obligation
or as a fixed dollar amount) at any time on or before the date that is two Business Days following
receipt of written notice of conversion as specified in Section 4.2 (such period, the “Cash
Settlement Notice Period”). If the Company elects to pay cash for any portion of the shares
otherwise issuable to the Holder, the Holder may retract the conversion notice at any time during
the two Business Day period beginning on the day after the final day of the Cash Settlement Notice
Period (a “Conversion Retraction Period”); no such retraction can be made (and a conversion notice
shall be irrevocable) if the Company does not elect to deliver cash in lieu of shares (other than
cash in lieu of fractional shares). If the conversion notice has not been retracted, then
settlement (in cash and/or shares) will occur on the Business Day following the final day of the 20
Trading Day period beginning on the day after the final day of the Conversion Retraction Period
(the “Cash Settlement Averaging Period”). Settlement amounts will be computed as follows:



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          (i) if the Company elects to satisfy the entire Conversion Obligation in shares of Common
Stock, the Company will deliver to such Holder a number of shares equal to (a) the aggregate
original principal amount at maturity of the Securities to be converted divided by 1,000,
multiplied by (b) the Conversion Rate;



          (ii) if the Company elects to satisfy the entire Conversion Obligation in cash, the Company
will deliver to such Holder cash in an amount equal to the product of:



               (B) a number equal to (x) the aggregate original principal amount at maturity of Securities to
be converted divided by 1,000, multiplied by (y) the Conversion Rate, and



               (C) the average Closing Price of the Common Stock during the Cash Settlement Averaging Period;
and



          (iii) if the Company elects to satisfy a fixed portion (other than 100%) of the Conversion
Obligation in cash (the “Cash Amount”), the Company will deliver to such Holder the Cash Amount and
a number of shares equal to the greater of (1) zero and (2) the excess, if any, of the number of
shares calculated as set forth in clause (i) above over the number of shares equal to the sum, for
each day of the Cash Settlement Averaging Period, of (x) 5% of the Cash Amount, divided by (y) the
closing price of the Common Stock on such day.



     Notwithstanding the foregoing, a Security in respect of which a Holder has delivered a Change
in Control Purchase Notice exercising such Holder’s option to require the Company to repurchase
such Security may be converted as described in this Section 4.14 only if such notice of exercise is
withdrawn as required in Section 4.1 hereof.



     If a Holder elects to convert all or any portion of a Security into shares of Common Stock as
set forth in Section 4.1 and the Company receives such Holder’s Conversion Notice after the Final
Notice Date, if the Company chooses to satisfy all or any portion of the Conversion Obligation in
cash, the Company will have previously notified the Holders through the Trustee of the dollar
amount to be satisfied in cash at any time on or before the Final Notice Date. Upon such election,
the Company will have notified the Holders through the Trustee of the dollar amount to be satisfied
in cash (which must be expressed either as 100% or as a fixed dollar amount) at any time on or
before the Final Notice Date. Settlement amounts and settlement dates will be computed in the same
manner as set forth above except that the “Cash Settlement Averaging Period” shall be the 20
Trading Day period beginning on the day after receipt of the Conversion Notice (or in the event the
Company receives the Conversion Notice on the Business Day prior to the Final Maturity Date, the 20
Trading Day period beginning on the day after the Final Maturity Date). Settlement (in cash and/or
shares) will occur on the Business Day following the final day of such Cash Settlement Averaging
Period.



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ARTICLE 5

SUBORDINATION




     SECTION 5.1 AGREEMENT OF SUBORDINATION.



     The Company agrees and each Securityholder by accepting a Security agrees that the payment of
the principal of and interest (including Additional Interest, if any) on all Securities (including,
but not limited to, the Change in Control Purchase Price with respect to the Securities subject to
purchase in accordance with Article 3 of this Indenture) issued hereunder 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 and that the
subordination is for the benefit of the holders of the Senior Indebtedness.



     No provision of this Article 5 shall prevent the occurrence of any default or Event of Default
hereunder.



     SECTION 5.2 PAYMENTS TO HOLDERS.



     No payment shall be made with respect to the principal of or interest (including Additional
Interest, if any) on the Securities (including, but not limited to, the Change in Control Purchase
Price with respect to the Securities subject to purchase in accordance with Article 3 of this
Indenture), except payments and distributions made by the Trustee as permitted by the first or
second paragraph of Section 5.5, if:



          (i) a default in the payment of principal, 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



          (ii) a default, other than a payment default, on a Designated Senior Indebtedness occurs and
is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a
Representative or holder of Designated Senior Indebtedness or the Company.



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



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



-35-









 





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



     (b) in the case of a default referred to in clause (ii) above, the earlier of the date on
which such default is cured or waived or ceases to exist or 179 days pass after the date on which
the applicable Payment Blockage Notice is received, if the maturity of such Designated Senior
Indebtedness has not been accelerated, unless this Article 5 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 relating to the Company or its property
or in an assignment for the benefit of creditors or any marshalling of the Company’s assets and
liabilities, 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 or interest (including Additional Interest, if any) on the
Securities (including, but not limited to, the Change of Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 of this Indenture) (and except payments
made pursuant to Article 10 from monies deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding-up, liquidation or reorganization); and
upon any such dissolution or winding-up or liquidation or reorganization of the Company or
bankruptcy, insolvency, receivership or other proceeding, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be entitled except for the
provision of this Article 5, 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 5, 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 5 with respect to
the Securities to the payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from
any reorganization or readjustment, and (ii) the rights of the holders of Senior Indebtedness
(other than leases which are not assumed by the Company or the new corporation, as the case may be)
are not, without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the



-36-









 







Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, transfer or lease of its
property as an entirety, or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 7 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 5.2 if such other corporation shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the conditions stated in
Article 7.



     In the event of the acceleration of the Securities because of an Event of Default, no payment
or distribution shall be made to the Trustee or any Holder of Securities in respect of the
principal of or interest (including Additional Interest, if any) on the Securities by the Company
(including, but not limited to, the Change in Control Purchase Price with respect to the Securities
subject to purchase in accordance with Article 3 of this Indenture), except payments and
distributions made by the Trustee as permitted by 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.



     SECTION 5.3 SUBROGATION OF SECURITIES.



     After 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 (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 extent of
the payments or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article 5, 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



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until the principal and interest (including Additional Interest, if any) on the
Securities shall be paid in full in cash or other payment satisfactory to the holders of the
Securities; 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 5, and no
payment pursuant to the provisions of this Article 5, 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 5, 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 5 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 5 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 interest (including
Additional Interest, if any) 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 5 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 5, 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 5.



     SECTION 5.4 AUTHORIZATION TO EFFECT SUBORDINATION.



     Each Holder of a Security by the Holder’s acceptance thereof authorizes and directs the
Trustee on the Holder’s behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article 5 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



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their representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Securities.



     SECTION 5.5 NOTICE TO TRUSTEE.



     The Company shall give prompt written notice in the form of an Officers’ Certificate to a
Trust Officer of the Trustee and to any Paying Agent of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in respect of
the Securities pursuant to the provisions of this Article 5. Notwithstanding the provisions of
this Article 5 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 5, 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 or
otherwise have actual knowledge thereof; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 9.1, shall be entitled in all respects to assume that no such facts
exist; provided that if on a date not less 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 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 5 to the contrary, nothing shall prevent any payment
by the Trustee to the Holders of monies deposited with it pursuant to Article 10, and any such
payment shall not be subject to the provisions of Article 5.



     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 5, 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 5, and if such evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.



     SECTION 5.6 TRUSTEE’S RELATION TO SENIOR INDEBTEDNESS.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article 5 in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other



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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 5,
and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and, 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 5 or otherwise.



     SECTION 5.7 NO IMPAIRMENT OF SUBORDINATION.



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



     SECTION 5.8 CERTAIN CONVERSIONS DEEMED PAYMENT.



     For the purposes of this Article 5 only, (1) the issuance and delivery of junior securities
upon conversion of Securities in accordance with Article 4 shall not be deemed to constitute a
payment or distribution on account of the principal of or interest on Securities or on account of
the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash
(except in satisfaction of fractional shares pursuant to Section 4.3), property or securities
(other than junior securities) upon conversion of a Security shall be deemed to constitute payment
on account of the principal of such Security. For the purposes of this Section 5.8, the term
“junior securities” means (a) shares of any stock of any class of the Company, or (b) securities of
the Company which are subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to substantially the same extent
as, or to a greater extent than, the Securities are so subordinated as provided in this Article.
Nothing contained in this Article 5 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other than holders of Senior Indebtedness
and the Holders, the right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article 4.



     SECTION 5.9 ARTICLE APPLICABLE TO PAYING AGENTS.



     If at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall (unless the
context otherwise requires) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that the first paragraph of Section 5.5
shall



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not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.



     SECTION 5.10 SENIOR INDEBTEDNESS ENTITLED TO RELY.



     The holders of Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article 5, and no amendment or modification of
the provisions contained herein shall diminish the rights of such holders unless such holders shall
have agreed in writing thereto.



     SECTION 5.11 AGREEMENT TO SUBORDINATE UNAFFECTED.



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



ARTICLE 6

COVENANTS




     SECTION 6.1 PAYMENT OF SECURITIES.



     The Company shall promptly make all payments in respect of the Securities on the dates and in
the manner provided in the Securities and this Indenture. An installment of principal, interest,
Additional Interest or Change in Control Purchase Price shall be considered paid on the date it is
due if the Paying Agent (other than the Company or an Affiliate thereof) 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 (in
immediately available funds) interest on overdue principal and overdue installments of interest at
the rate borne by the Securities per annum.



     SECTION 6.2 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).



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     SECTION 6.3 COMPLIANCE CERTIFICATES.



     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending January 31, 2004), an Officers’ Certificate as
to the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any default or Event of
Default. If such signer knows of such a default or Event of Default, the Officers’ Certificate
shall describe the default or Event of Default and the efforts to remedy the same. For the
purposes of this Section 6.3, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.



     SECTION 6.4 FURTHER INSTRUMENTS AND ACTS.



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



     SECTION 6.5 MAINTENANCE OF CORPORATE EXISTENCE.



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



     SECTION 6.6 RULE 144A INFORMATION REQUIREMENT.



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



     SECTION 6.7 STAY, EXTENSION AND USURY LAWS.



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



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not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.



     SECTION 6.8 PAYMENT OF ADDITIONAL INTEREST.



     If Additional Interest is 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 Additional Interest that is payable and (ii) the date on which such Additional
Interest is payable. Unless and until a Trust Officer of the Trustee receives such a certificate,
the Trustee may assume without inquiry that no such Additional Interest is payable. If the Company
has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to
the Trustee a certificate setting forth the particulars of such payment.



ARTICLE 7

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




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



     The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, unless:



          (1) (A) the Company is the surviving corporation or (B) 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 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, all of the obligations of the Company under the Securities and
this Indenture, and the conversion rights shall be provided for in accordance with Article 4 by
such Person under such supplemental indenture;



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



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



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     SECTION 7.2 SUCCESSOR SUBSTITUTED.



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



ARTICLE 8

DEFAULT AND REMEDIES




     SECTION 8.1 EVENTS OF DEFAULT.



     An “Event of Default” shall occur if:



          (1) the Company defaults in the payment of any interest or Additional Interest, if any,
payable 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 5
hereof;



          (2) the Company defaults in the payment of any principal of any Security when the same becomes
due and payable (whether at maturity, upon a Change of Control Purchase Date or otherwise), whether
or not such payment shall be prohibited by the provisions of Article 5 hereof;



          (3) 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;



          (4) the Company defaults in the payment of the purchase price of any Security when the same
becomes due and payable, whether or not such payment shall be prohibited by the provisions of
Article 5 hereof; or



          (5) the Company fails to provide notice of a Change in Control when required by Section 3.1;
or



          (6) any indebtedness under any bond, debenture, note or other evidence of indebtedness for
money borrowed by the Company or any Significant Subsidiary (all or substantially all of the
outstanding voting securities of which are owned, directly or indirectly, by the Company) or under
any mortgage, indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company or any Significant
Subsidiary (all or substantially all of the outstanding voting securities of which are



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owned,
directly or indirectly, by the Company) (an “Instrument”) with a principal amount then outstanding
in excess of U.S. $40, 000,000, whether such indebtedness now exists or shall hereafter be created,
is not paid at final maturity of the Instrument (either at its stated maturity or upon acceleration
thereof), and such indebtedness is not discharged, or such acceleration is not rescinded or
annulled, within a period of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Securities then outstanding a written notice specifying
such default and requiring the Company to cause such indebtedness to be discharged or cause such
default to be cured or waived or such acceleration to be rescinded or annulled and stating that
such notice is a “Notice of Default” hereunder; or



          (7) the Company or any Significant Subsidiary, pursuant to or within the meaning of any
Bankruptcy Law:



               (A) commences a voluntary case or proceeding;



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



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



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



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



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



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



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


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



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     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.



     SECTION 8.2 ACCELERATION.



     If an Event of Default (other than an Event of Default specified in clause (7) or (8) 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, together with all accrued and unpaid
interest, to the date of acceleration on the Securities then outstanding (if not then due and
payable) to be due and payable upon any such declaration, and the same shall become and be
immediately due and payable. If an Event of Default specified in clause (7) or (8) of Section 8.1
occurs, all unpaid principal, together with all accrued and unpaid interest, of the Securities then outstanding
shall ipso facto become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of
the Securities then outstanding by notice to the Trustee may rescind an acceleration and its
consequences if (a) all existing Events of Default, other than the nonpayment of the principal of
the Securities which has become due solely by such declaration of acceleration, have been cured or
waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the rate
per annum borne by the Securities) on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has been paid; (c) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and
(d) all payments due to the Trustee and any predecessor Trustee under Section 9.7 have been made.
No such rescission shall affect any subsequent default or impair any right consequent thereto.



     SECTION 8.3 OTHER REMEDIES.



     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.



     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.



     SECTION 8.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.



     Subject to Sections 8.7 and 11.2, the Holders of a majority of the aggregate 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 (including payment of the Change in Control Purchase Price
in connection with a Change in Control), a failure by the Company to convert any Securities into




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Common Stock or any default or Event of Default in respect of any provision of this Indenture or
the Securities which, under Section 11.2, cannot be modified or amended without the consent of the
Holder of each Security affected. When a default or Event of Default is waived, it is cured and
ceases.




SECTION 8.5 CONTROL BY MAJORITY.




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



SECTION 8.6 LIMITATIONS ON SUITS.




     A 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 4) unless:



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




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




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




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




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




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



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



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



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Article 4 and to bring suit for the enforcement of any such payment on or after such respective
dates or the right to convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.




     SECTION 8.8 COLLECTION SUIT BY TRUSTEE.



     If an Event of Default in the payment of principal or interest specified in clause (1) or (2)
of 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.



     SECTION 8.9 TRUSTEE MAY FILE PROOFS OF CLAIM.



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



     SECTION 8.10 PRIORITIES.



     If the Trustee collects any money pursuant to this Article 8, 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 5;



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



     Fourth, the balance, if any, to the Company.



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



     SECTION 8.11 UNDERTAKING FOR COSTS.



     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as 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 25% in aggregate principal amount of the Securities then outstanding.



ARTICLE 9



TRUSTEE




     SECTION 9.1 DUTIES OF TRUSTEE.



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



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



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




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




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



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




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




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




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



     (e) 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.



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



SECTION 9.2 RIGHTS OF TRUSTEE.




     Subject to Section 9.1 and its duties and responsibilities under the TIA:



     (a) 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.



     (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel, or both, which shall conform to Section 12.4(b). The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion.



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



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



     (e) 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.



     (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to



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the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.



     (g) 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.



     (h) 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 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.



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



     SECTION 9.3 INDIVIDUAL RIGHTS OF TRUSTEE.



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



     SECTION 9.4 TRUSTEE’S DISCLAIMER.



     The Trustee makes no representation as to the validity or adequacy of this Indenture 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 Securities other than its certificate of
authentication.



     SECTION 9.5 NOTICE OF DEFAULT OR EVENTS OF DEFAULT.



     If a default or an Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder notice of 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 of or interest on any Security.



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     SECTION 9.6 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 shall notify the Trustee whenever the Securities become listed on any stock exchange
or listed or admitted to trading on any quotation system and any changes in the stock exchanges or
quotation systems on which the Securities are listed or admitted to trading and of any
delisting thereof.



     SECTION 9.7 COMPENSATION AND INDEMNITY.



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



     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 of any such claim without its prior written consent, which
shall not be unreasonably withheld.



     Notwithstanding anything to the contrary herein, the Company need not reimburse the Trustee
for any expense or indemnify it against any loss or liability incurred by it resulting from its
negligence, bad faith or willful misconduct.



     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.



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     When the Trustee incurs expenses or renders services after an Event of Default specified in
clause (7) or (8) 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 9.7 shall survive the termination of this Indenture.



     SECTION 9.8 REPLACEMENT OF TRUSTEE.



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



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




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




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




          (4) the Trustee becomes incapable of acting.




     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 25% 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.



     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.



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     SECTION 9.9 SUCCESSOR TRUSTEE BY MERGER, ETC.



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



     SECTION 9.10 ELIGIBILITY; DISQUALIFICATION.



     The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA
Section 310(a). The Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000. If at any time the Trustee shall cease to satisfy any such
requirements, it shall resign immediately in the manner and with the effect specified in this
Article 9.



     The Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b).



     SECTION 9.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.



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



ARTICLE 10



SATISFACTION AND DISCHARGE OF INDENTURE




     SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.



     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



          (1) either




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



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



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                      (i) have become due and payable, or



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


and the Company, in the case of clause (i), (ii) or (iii) 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, cash in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest (including Additional Interest, if any) to the date of
such deposit (in the case of Securities which have become due and payable) or to the Final Maturity
Date;




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




          (3) 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 subclause (B) of clause (1) of this Section, the provisions of Sections
2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 12.5, Article 4, the last paragraph
of Section 6.2 and this Article 10, shall survive until the Securities have been paid in full.



     SECTION 10.2 APPLICATION OF TRUST MONEY.



     Subject to the provisions of Section 10.3, the Trustee or a Paying Agent shall hold in trust,
for the benefit of the Holders, all money deposited with it pursuant to Section 10.1 and shall
apply the deposited money in accordance with this Indenture and the Securities to the payment of
the principal of and interest on the Securities. Money so held in trust shall not be subject to
the subordination provisions of Article 5.



     SECTION 10.3 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 unless an applicable
abandoned property law designates another person.



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     SECTION 10.4 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.



ARTICLE 11



AMENDMENTS, SUPPLEMENTS AND WAIVERS




     SECTION 11.1 WITHOUT CONSENT OF HOLDERS.



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



     (a) to comply with Sections 4.11, 7.1 and 7.2;



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



     (c) to make any other change that does not adversely affect the rights of any Securityholder;



     (d) to comply with the provisions of the TIA, to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA or to make any change necessary
for the registration under the Securities Act of the Securities or the Common Stock issuable upon
conversion of the Securities;



     (e) to add to the covenants of the Company for the equal and ratable benefit of the
Securityholders or to surrender any right, power or option conferred upon the Company; or



     (f) to appoint a successor Trustee.



     SECTION 11.2 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 of the 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



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Securityholder affected, an amendment, supplement or waiver, including a waiver pursuant to Section
8.4, may not:



     (a) change the record or payment dates for interest payments or stated maturity of the
principal of, or interest on, any Security;



     (b) reduce the principal amount of or interest on any Security;



     (c) reduce the amount of principal payable upon acceleration of the maturity of any Security
or purchase price payable in connection with a Change in Control;



     (d) change the place or currency of payment of principal of or interest on any Security;



     (e) extend time for payment or otherwise waive a payment of default with respect to any
Security;



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



     (g) modify the provisions with respect to the purchase right of Holders pursuant to Article 3
upon a Change in Control in a manner adverse to Holders;



     (h) modify the subordination provisions of Article 5 in a manner materially adverse to the
Holders of Securities;



     (i) adversely affect the right of Holders to convert Securities other than as provided in or
under Article 4 of this Indenture;



     (j) reduce the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a modification or amendment;



     (k) 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



     (l) 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.



     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



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waiver.
An amendment or supplement under this Section 11.2 or under Section 11.1 may not make any change
that adversely affects the rights under Article 5 of any holder of any Senior Indebtedness unless
such holder consents to the change.



     SECTION 11.3 COMPLIANCE WITH TRUST INDENTURE ACT.



     Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA
as in effect at the date of such amendment or supplement. In the event of any conflict between
this Indenture and the TIA, the terms of the TIA shall govern.



     SECTION 11.4 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 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 (k) 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.



     SECTION 11.5 NOTATION ON OR EXCHANGE OF SECURITIES.



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



     SECTION 11.6 TRUSTEE TO SIGN AMENDMENTS, ETC.



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



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     SECTION 11.7 EFFECT OF SUPPLEMENTAL INDENTURES.



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



ARTICLE 12



MISCELLANEOUS




     SECTION 12.1 TRUST INDENTURE ACT CONTROLS.



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



     SECTION 12.2 NOTICES.



     Any demand, authorization notice, request, consent or communication shall be given in writing
and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by delivery in person or mail by first-class mail,
postage prepaid, or by guaranteed overnight courier) to the following facsimile numbers:


If to the Company, to:

McDATA Corporation

380 Interlocken Crescent

Broomfield, Colorado 80021

Attention: General Counsel

Facsimile No.: (303) 460-3235



if to the Trustee, to:

Wells Fargo Bank Minnesota, National Association

213 Court Street, Suite 703

Middletown, CT 06457

Attn: CORPORATE TRUST SERVICES

Facsimile No.: (860) 704-6219




     Such notices or communications shall be effective when received.



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



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



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



     SECTION 12.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.



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



     SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.



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



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




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




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



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




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




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




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



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




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     SECTION 12.5 RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS.



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



     SECTION 12.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT.



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



     SECTION 12.7 LEGAL HOLIDAYS.



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



     SECTION 12.8 GOVERNING LAW.



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



     SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.



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



     SECTION 12.10 NO RECOURSE AGAINST OTHERS.



     All liability described in paragraph 15 of the Securities of any director, officer, employee
or shareholder, as such, of the Company is waived and released.



-61-









 





     SECTION 12.11 SUCCESSORS.



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



     SECTION 12.12 MULTIPLE COUNTERPARTS.



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



     SECTION 12.13 SEPARABILITY.



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



     SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.



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



[SIGNATURE PAGE FOLLOWS]




-62-









 








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



	 	 	 	 	 	 	 
	 	 	McDATA Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Tom McGimpsey	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Tom McGimpsey	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Wells Fargo Bank Minnesota, National

Association, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Joseph P. O’Donnell	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	Joseph P. O’Donnell	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Corporate Trust Officer	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT A

[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)


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




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


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




     THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY
AND THE SHARES OF THE COMPANY’S CLASS A COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE
OFFERED, RESOLD,



 









 







PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.](2)


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




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



McDATA CORPORATION




			
	 	 	 
	CUSIP: 580 031 AC6
	 	R-






21/4% CONVERTIBLE SUBORDINATED NOTES DUE 2010




     McDATA Corporation, a Delaware corporation (the “Company”, which term shall include any
successor corporation under the Indenture referred to on the reverse hereof), promises to pay to
___, or registered assigns, the principal sum of ___Dollars ($___) on
February 15, 2010 [or such greater or lesser amount as is indicated on the Schedule of Exchanges of
Notes on the other side of this Note].(3)


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



Interest Payment Dates: February 15 and August 15



Record Dates: February 1 and August 1




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



SIGNATURE PAGE FOLLOWS





-2-









 








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



	 	 	 	 	 	 	 
	 	 	McDATA Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 




Attest:




	 	 	 	 	 
	 	 	 
	Name:

	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 	 	 





Trustee’s Certificate of Authentication: This is one of the

Securities referred to in the within-mentioned Indenture.




Wells Fargo Bank Minnesota, National Association, as Trustee




	 	 	 	 	 
	 	 	 
	Authorized Signatory	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 





[FORM OF REVERSE SIDE OF SECURITY]




 









 








McDATA CORPORATION

21/4% CONVERTIBLE SUBORDINATED NOTES DUE 2010




1. INTEREST




     McDATA Corporation, a Delaware corporation (the “Company”, which term shall include any
successor corporation under the Indenture hereinafter referred to), promises to pay interest on the
principal amount of this Note at the rate of 21/4% per annum. The Company shall pay interest
semiannually on February 15 and August 15 of each year, commencing August 15, 2003. Interest on
the Notes shall accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from February 7, 2003; provided, however, that if there is not an existing default
in the payment of interest and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Any reference herein to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable on such date as provided in the Registration Rights
Agreement.



2. METHOD OF PAYMENT




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



3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT




     Initially, Wells Fargo Bank Minnesota, 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 Affiliates may, subject
to certain limitations set forth in the Indenture, act as Paying Agent or Registrar.



4. INDENTURE, LIMITATIONS




     This Note is one of a duly authorized issue of Securities of the Company designated as its 21/4%
Convertible Subordinated Notes Due 2010 (the “Notes”), issued under an Indenture dated as of
February 7, 2003 (together with any supplemental indentures thereto, the “Indenture”), between the



 









 




Company and the Trustee. The terms of this Note include those stated in the Indenture and
those required by or made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended, as in effect on the date of the Indenture. This Note is subject to all such terms, and
the Holder of this Note is referred to the Indenture and said Act for a statement of them.
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture.




     The Notes are subordinated unsecured obligations of the Company limited to $172,500,000
aggregate principal amount. The Indenture does not limit other debt of the Company, secured or
unsecured, including Senior Indebtedness.



5. PURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL




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



6. CONVERSION




     A Holder of a Note may convert the principal amount of such Note (or any portion thereof equal
to $1,000 or any integral multiple of $1,000 in excess thereof) into shares of Common Stock at any
time prior to the close of business on February 15, 2010; provided, however, that the conversion
right will terminate at the close of business on the Business Day immediately preceding the date
the Change in Control Purchase Notice has been delivered, for so long as it has not been validly
withdrawn, for such Note or such earlier date as the Holder presents such Note for purchase (unless
the Company shall default in making the Change in Control Purchase 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 Note is purchased).



     The initial Conversion Price is $10.7068 per share, subject to adjustment under certain
circumstances as provided in the Indenture. The number of shares of Common Stock issuable upon
conversion of a Note is determined by dividing the principal amount of the Note or portion thereof
converted by the Conversion Price in effect on the Conversion Date. No fractional shares will be
issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Closing
Price (as defined in the Indenture) of Common Stock on the Trading Day immediately prior to the
Conversion Date.



     To convert a Note, a Holder must (a) complete and manually sign the conversion notice set
forth below and deliver such notice to a Conversion Agent, (b) surrender the Note to a Conversion



-2-









 







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.



     A Holder may convert a portion of a Note equal to $1,000 or any integral multiple thereof.



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



     Upon conversion, the Company may choose to deliver, in lieu of Common Stock, cash or a
combination of cash and Common Stock in accordance with the terms of the Indenture.



7. SUBORDINATION




     The indebtedness evidenced by the Notes is, to the extent and in the manner provided in the
Indenture, subordinate and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Company. Any Holder by accepting this Note agrees to and shall be bound by
such subordination provisions and authorizes the Trustee to give them effect. In addition to all
other rights of Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any terms of any instrument relating to
the Senior Indebtedness or any extension or renewal of the Senior Indebtedness or increase in
amount thereof.



8. DENOMINATIONS, TRANSFER, EXCHANGE




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



9. PERSONS DEEMED OWNERS




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



10. UNCLAIMED MONEY




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



-3-









 





11. AMENDMENT, SUPPLEMENT AND WAIVER




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



12. SUCCESSOR ENTITY




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



13. DEFAULTS AND REMEDIES




     Under the Indenture, an Event of Default includes: (i) default for 30 days in payment of any
interest or Additional Interest on any Notes; (ii) default in payment of any principal on the Notes
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 Notes; (iv) default in the payment of certain
indebtedness of the Company or a Significant Subsidiary (all or substantially all of the voting
securities of which are owned, directly or indirectly, by the Company) and (v) certain events of
bankruptcy, insolvency or reorganization of the Company or any Significant Subsidiary. 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 aggregate
principal amount of the Notes then outstanding may declare all unpaid principal on the Notes then
outstanding to be due and payable immediately, all as and to the extent provided in the Indenture.
If an Event of Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, unpaid principal of the Notes then outstanding shall become due and
payable immediately without any declaration or other act on the part of the Trustee or any Holder,
all as and to the extent provided in the Indenture. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Company is required to file periodic reports with the Trustee as
to the absence of default.



14. TRUSTEE DEALINGS WITH THE COMPANY




     Wells Fargo Bank Minnesota, 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



-4-









 







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.



15. NO RECOURSE AGAINST OTHERS




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



16. AUTHENTICATION




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



17. ABBREVIATIONS AND DEFINITIONS




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



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



18. INDENTURE TO CONTROL; GOVERNING LAW




     In the case of any conflict between the provisions of this Note and the Indenture, the
provisions of the Indenture shall control. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principals 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: McDATA Corporation, 380 Interlocken Crescent, Broomfield,
Colorado 80021, (303) 460-9200, Attention: Investor Relations.



-5-









 






ASSIGNMENT FORM




     To assign this Note, fill in the form below:



     I or we assign and transfer this Note to



 




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




 




 





 




 





 




 





 




 




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



and irrevocably appoint




 




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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

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

	 	guaranteed by:	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 







 




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




 









 










CONVERSION NOTICE




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



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



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



 




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




 




 





 




 





 




 





 




 




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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

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

	 	guaranteed by:	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 







 




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




 









 










OPTION TO ELECT REPURCHASE



UPON A CHANGE OF CONTROL




To: McDATA Corporation




     The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from McDATA 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.



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

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

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranty
	Principal amount to be redeemed

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




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





 









 








SCHEDULE OF EXCHANGES OF NOTES(4)




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



	 	 	 	 	 	 	 
	Principal Amount of this	 	 	 	 	 	 
	Global Note Following	 	 	 	Amount of Decrease in	 	Amount of Increase in
	Such Decrease Date of	 	Authorized Signatory of	 	Principal Amount of this	 	Principal Amount of this
	Exchange (or Increase)	 	Securities Custodian	 	Global Note	 	Global Note
	 	 	 	 	 	 	 




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




 









 








CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION



OF TRANSFER OF RESTRICTED SECURITIES(5)



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



Re: 21/4% Convertible Subordinated Notes Due 2010 (the “Notes”) of McDATA Corporation




     This certificate relates to $            principal amount of Notes 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 Notes.



     In connection with such request and in respect of each such Note, the Transferor does hereby
certify that the Transferor is familiar with transfer restrictions relating to the Notes as
provided in Section 2.12 of the Indenture dated as of February 7, 2003 between McDATA Corporation
and Wells Fargo Bank Minnesota, National Association, as trustee (the “Indenture”), and the
transfer of such Note is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities Act”) (check applicable box) or the transfer or
exchange, as the case may be, of such Note does not require registration under the Securities Act
because (check applicable box):




	 	o	 	Such Note is being transferred pursuant to an effective registration statement under
the Securities Act.
	 
	 	o	 	Such Note is being acquired for the Transferor’s own account, without transfer.
	 
	 	o	 	Such Note is being transferred to the Company or a Subsidiary (as defined in the
Indenture) of the Company.
	 
	 	o	 	Such Note is being transferred to a person the Transferor reasonably believes is a
“qualified institutional buyer” (as defined in Rule 144A or any successor provision
thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own
account or for the account of a “qualified institutional buyer”, in each case to whom
notice has been given that the transfer is being made in reliance on such Rule 144A,
and in each case in reliance on Rule 144A.
	 
	 	o	 	Such Note is being transferred pursuant to and in compliance with an exemption from
the registration requirements under the Securities Act in accordance with Rule 144
(or any successor thereto) (“Rule 144”) under the Securities Act.





     Such Note is being transferred pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act (other than an exemption referred to above) and as
a



 









 







result of which such Note will, upon such transfer, cease to be a “restricted security” within
the meaning of Rule 144 under the Securities Act.



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



	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	(Insert Name of Transferor)