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Exhibit 4.1    
  






WIND RIVER SYSTEMS, INC.  


 33/4% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2006  




 INDENTURE

DATED AS OF DECEMBER 10, 2001  




 BANKERS TRUST COMPANY,

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	 	7
	

ARTICLE 2 THE SECURITIES	
 	

8
	 	SECTION 2.1.	 	FORM AND DATING	 	8
	 	SECTION 2.2.	 	EXECUTION AND AUTHENTICATION	 	9
	 	SECTION 2.3.	 	REGISTRAR, PAYING AGENT AND CONVERSION AGENT	 	10
	 	SECTION 2.4.	 	PAYING AGENT TO HOLD MONEY IN TRUST	 	10
	 	SECTION 2.5.	 	SECURITYHOLDER LISTS	 	11
	 	SECTION 2.6.	 	TRANSFER AND EXCHANGE	 	11
	 	SECTION 2.7.	 	REPLACEMENT SECURITIES	 	12
	 	SECTION 2.8.	 	OUTSTANDING SECURITIES	 	12
	 	SECTION 2.9.	 	TREASURY SECURITIES	 	12
	 	SECTION 2.10.	 	TEMPORARY SECURITIES	 	13
	 	SECTION 2.11.	 	CANCELLATION	 	13
	 	SECTION 2.12.	 	LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS	 	13
	 	SECTION 2.13.	 	CUSIP NUMBERS	 	15
	

ARTICLE 3 REDEMPTION AND PURCHASES	
 	

16
	 	SECTION 3.1.	 	RIGHT TO REDEEM; NOTICE TO TRUSTEE	 	16
	 	SECTION 3.2.	 	SELECTION OF SECURITIES TO BE REDEEMED	 	16
	 	SECTION 3.3.	 	NOTICE OF REDEMPTION	 	17
	 	SECTION 3.4.	 	EFFECT OF NOTICE OF REDEMPTION	 	17
	 	SECTION 3.5.	 	DEPOSIT OF REDEMPTION PRICE	 	18
	 	SECTION 3.6.	 	SECURITIES REDEEMED IN PART	 	18
	 	SECTION 3.7.	 	CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION	 	18
	 	SECTION 3.8.	 	PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL	 	19
	 	SECTION 3.9.	 	EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE	 	22
	 	SECTION 3.10.	 	DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE	 	23
	 	SECTION 3.11.	 	SECURITIES PURCHASED IN PART	 	23
	 	SECTION 3.12.	 	COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES	 	23
	 	SECTION 3.13.	 	REPAYMENT TO THE COMPANY	 	23
	

ARTICLE 4 CONVERSION	
 	

24
	 	SECTION 4.1.	 	CONVERSION PRIVILEGE	 	24
	 	SECTION 4.2.	 	CONVERSION PROCEDURE	 	24
	 	SECTION 4.3.	 	FRACTIONAL SHARES	 	25
	 	SECTION 4.4.	 	TAXES ON CONVERSION	 	25
	 	SECTION 4.5.	 	COMPANY TO PROVIDE STOCK	 	26
	 	SECTION 4.6.	 	ADJUSTMENT OF CONVERSION PRICE	 	26
	 	SECTION 4.7.	 	NO ADJUSTMENT	 	30
	 	SECTION 4.8.	 	ADJUSTMENT FOR TAX PURPOSES	 	31
	 	SECTION 4.9.	 	NOTICE OF ADJUSTMENT	 	31



i





 

	 	SECTION 4.10.	 	NOTICE OF CERTAIN TRANSACTIONS	 	31
	 	SECTION 4.11.	 	EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE	 	31
	 	SECTION 4.12.	 	TRUSTEE'S DISCLAIMER	 	32
	 	SECTION 4.13.	 	VOLUNTARY REDUCTION	 	32
	

ARTICLE 5 SUBORDINATION	
 	

33
	 	SECTION 5.1.	 	AGREEMENT OF SUBORDINATION	 	33
	 	SECTION 5.2.	 	PAYMENTS TO HOLDERS	 	33
	 	SECTION 5.3.	 	SUBROGATION OF SECURITIES	 	35
	 	SECTION 5.4.	 	AUTHORIZATION TO EFFECT SUBORDINATION	 	36
	 	SECTION 5.5.	 	NOTICE TO TRUSTEE	 	36
	 	SECTION 5.6.	 	TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS	 	37
	 	SECTION 5.7.	 	NO IMPAIRMENT OF SUBORDINATION	 	37
	 	SECTION 5.8.	 	CERTAIN CONVERSIONS DEEMED PAYMENT	 	37
	 	SECTION 5.9.	 	ARTICLE APPLICABLE TO PAYING AGENTS	 	38
	 	SECTION 5.10.	 	SENIOR INDEBTEDNESS ENTITLED TO RELY	 	38
	

ARTICLE 6 COVENANTS	
 	

38
	 	SECTION 6.1.	 	PAYMENT OF SECURITIES	 	38
	 	SECTION 6.2.	 	SEC REPORTS	 	38
	 	SECTION 6.3.	 	COMPLIANCE CERTIFICATES	 	39
	 	SECTION 6.4.	 	FURTHER INSTRUMENTS AND ACTS	 	39
	 	SECTION 6.5.	 	MAINTENANCE OF CORPORATE EXISTENCE	 	39
	 	SECTION 6.6.	 	RULE 144A INFORMATION REQUIREMENT	 	39
	 	SECTION 6.7.	 	STAY, EXTENSION AND USURY LAWS	 	39
	 	SECTION 6.8.	 	PAYMENT OF ADDITIONAL INTEREST	 	40
	

ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	
 	

40
	 	SECTION 7.1.	 	COMPANY MAY CONSOLIDATE, ETC, ONLY ON CERTAIN TERMS	 	40
	 	SECTION 7.2.	 	SUCCESSOR SUBSTITUTED	 	40
	

ARTICLE 8 DEFAULT AND REMEDIES	
 	

41
	 	SECTION 8.1.	 	EVENTS OF DEFAULT	 	41
	 	SECTION 8.2.	 	ACCELERATION	 	42
	 	SECTION 8.3.	 	OTHER REMEDIES	 	42
	 	SECTION 8.4.	 	WAIVER OF DEFAULTS AND EVENTS OF DEFAULT	 	43
	 	SECTION 8.5.	 	CONTROL BY MAJORITY	 	43
	 	SECTION 8.6.	 	LIMITATIONS ON SUITS	 	43
	 	SECTION 8.7.	 	RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT	 	43
	 	SECTION 8.8.	 	COLLECTION SUIT BY TRUSTEE	 	44
	 	SECTION 8.9.	 	TRUSTEE MAY FILE PROOFS OF CLAIM	 	44
	 	SECTION 8.10.	 	PRIORITIES	 	44
	 	SECTION 8.11.	 	UNDERTAKING FOR COSTS	 	44
	

ARTICLE 9 TRUSTEE	
 	

45
	 	SECTION 9.1.	 	DUTIES OF TRUSTEE	 	45
	 	SECTION 9.2.	 	RIGHTS OF TRUSTEE	 	46
	 	SECTION 9.3.	 	INDIVIDUAL RIGHTS OF TRUSTEE	 	46
	 	SECTION 9.4.	 	TRUSTEE'S DISCLAIMER	 	47



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	 	SECTION 9.5.	 	NOTICE OF DEFAULT OR EVENTS OF DEFAULT	 	47
	 	SECTION 9.6.	 	REPORTS BY TRUSTEE TO HOLDERS	 	47
	 	SECTION 9.7.	 	COMPENSATION AND INDEMNITY	 	47
	 	SECTION 9.8.	 	REPLACEMENT OF TRUSTEE	 	48
	 	SECTION 9.9.	 	SUCCESSOR TRUSTEE BY MERGER, ETC.	 	48
	 	SECTION 9.10.	 	ELIGIBILITY; DISQUALIFICATION	 	49
	 	SECTION 9.11.	 	PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY	 	49
	

ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE	
 	

49
	 	SECTION 10.1.	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	49
	 	SECTION 10.2.	 	APPLICATION OF TRUST MONEY	 	50
	 	SECTION 10.3.	 	REPAYMENT TO COMPANY	 	50
	 	SECTION 10.4.	 	REINSTATEMENT	 	50
	

ARTICLE 11 AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS	
 	

50
	 	SECTION 11.1.	 	WITHOUT CONSENT OF HOLDERS	 	50
	 	SECTION 11.2.	 	WITH CONSENT OF HOLDERS	 	51
	 	SECTION 11.3.	 	COMPLIANCE WITH TRUST INDENTURE ACT	 	52
	 	SECTION 11.4.	 	REVOCATION AND EFFECT OF CONSENTS	 	52
	 	SECTION 11.5.	 	NOTATION ON OR EXCHANGE OF SECURITIES	 	52
	 	SECTION 11.6.	 	TRUSTEE TO SIGN AMENDMENTS, ETC.	 	52
	 	SECTION 11.7.	 	EFFECT OF SUPPLEMENTAL INDENTURES	 	52
	

ARTICLE 12 MISCELLANEOUS	
 	

52
	 	SECTION 12.1.	 	TRUST INDENTURE ACT CONTROLS	 	52
	 	SECTION 12.2.	 	NOTICES	 	53
	 	SECTION 12.3.	 	COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS	 	53
	 	SECTION 12.4.	 	CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT	 	53
	 	SECTION 12.5.	 	RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS	 	54
	 	SECTION 12.6.	 	RULES BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT	 	54
	 	SECTION 12.7.	 	LEGAL HOLIDAYS	 	54
	 	SECTION 12.8.	 	GOVERNING LAW AND SUBMISSION TO JURISDICTION	 	54
	 	SECTION 12.9.	 	NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS	 	55
	 	SECTION 12.10.	 	NO RECOURSE AGAINST OTHERS	 	55
	 	SECTION 12.11.	 	SUCCESSORS	 	55
	 	SECTION 12.12.	 	MULTIPLE COUNTERPARTS	 	55
	 	SECTION 12.13.	 	SEPARABILITY	 	55
	 	SECTION 12.14.	 	TABLE OF CONTENTS, HEADINGS, ETC.	 	55




iii






  



 
 

CROSS-REFERENCE TABLE*    
  



	TIA SECTION
 
	 	 
	 	INDENTURE SECTION

	Section	 	310(a)(1)	 	9.10
	

 	
 	

(a)(2)	
 	

9.10
	

 	
 	

(a)(3)	
 	

N.A.**
	

 	
 	

(a)(4)	
 	

N.A.
	

 	
 	

(a)(5)	
 	

9.10
	

 	
 	

(b)	
 	

9.8; 9.10
	

 	
 	

(c)	
 	

N.A.
	

Section	
 	

311(a)	
 	

9.11
	

 	
 	

(b)	
 	

9.11
	

 	
 	

(c)	
 	

N.A.
	

Section	
 	

312(a)	
 	

2.5
	

 	
 	

(b)	
 	

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



iv





 

	

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 December 10, 2001 is between Wind River Systems, Inc., a corporation duly organized under the laws of the State of Delaware (the "Company"),
and Bankers Trust Company, a New York banking corporation, as Trustee (the "Trustee"). 



    In
consideration of the premises and the purchase of the Securities by the Holders thereof, both parties agree as follows for the benefit of the other and for the equal and ratable
benefit of the registered Holders of the Company's 33/4% Convertible Subordinated Notes Due December 15, 2006. 


 
 

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, 4 and 6 thereof. 


    "Common
Stock" means the common stock of the Company, $0.001 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 and further
provided that all references to "Common Stock" payable in connection with the purchase of Securities upon a Change in Control 


1





 


in accordance with the terms of Section 3.8(g) shall be deemed to include common stock of any parent company of the Company. 



    "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. 


    "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 Four Albany Street, New York, New York 10006, Attention: Dorothy Robinson 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 the Fuji Guarantee and any other 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. 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 and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time. 


    "Final
Maturity Date" means December 15, 2006. 


    "Fuji
Guarantee" means the guaranty letter dated as of October 20, 2000 made by the Company in favor of The Fuji Bank, Limited, guaranteeing the obligations of Wind River
Co., Ltd., a Japanese corporation and a wholly owned subsidiary of the Company, to The Fuji Bank, Limited, under a line of credit dated October 20, 2000, including any related documents,
instruments and agreements executed in connection therewith, and in each case as amended (including any amendment and restatement thereof), modified, renewed, refunded, replaced, refinanced or
restructured (including, without limitation, any amendment increasing the amount of available borrowing thereunder) from time to time and whether with the same or any other agent, lender or group of
lenders. 


    "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, 4 and 6 


2





 


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); 



    (d) all
obligations and liabilities, contingent or otherwise, as lessee under leases for facility equipment (and related assets leased together with such equipment) and
under any lease or related document (including a purchase agreement, conditional sale or other title retention or synthetic lease 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, including the obligations under such lease or related document to purchase
or cause a third party to purchase such leased property (whether or not such lease transaction is characterized as an operating lease or a capitalized lease in accordance with GAAP) or pay an agreed
upon residual value of the leased property to the lessor; 


    (e) all
obligations and liabilities (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; 


    (f)  all
direct or indirect guarantees or similar agreements by such Person in respect of, and obligations or liabilities of such Person (contingent or otherwise) 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
(e); 


    (g) any
indebtedness or other obligations described in clauses (a) through (f) secured by any mortgage, pledge, lien or other encumbrance existing on
property which is owned or held by such Person, regardless of whether the indebtedness or other obligations secured thereby shall have been assumed by such Person; and 


    (h) any
and all deferrals, renewals, extensions, refinancings, replacements and refundings of, or amendments, modifications or supplements to, any indebtedness,
obligation or liability of the kind described in clauses (a) through (g). 



3





 

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


    "Initial
Purchasers" means Credit Suisse First Boston Corporation, UBS Warburg LLC and Thomas Weisel Partners LLC. 



    "Notes"
means the 33/4% Convertible Subordinated Notes Due December 15, 2006 or any of them (each, a "Note"), as amended or supplemented from time to time, that
are issued under this Indenture. 


    "Officer"
means the chairman or any co-chairman of the Board of Directors, any vice chairman of the Board of Directors, the chief executive officer, the chief operating
officer, the president, any Vice President, the chief financial officer, the chief legal officer, the treasurer, any assistant treasurer, 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 plus, when appropriate, the premium, if any, on the security. 



    "Redemption
Date" when used with respect to any Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture, including, without limitation, any
Provisional Redemption Date. 


    "Redemption
Price" when used with respect to any Security to be redeemed, means the price fixed for such redemption pursuant to this Indenture, as set forth in the form of Security
annexed as Exhibit A hereto, including, without limitation, any Provisional Redemption Price. 


    "Registration
Rights Agreement" means the Registration Rights Agreement, dated as of December 10, 2001, 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. 


    "Responsible
Officer" means when used with respect to the Trustee, any managing director, director, vice president, assistant vice president, assistant treasurer, assistant secretary,
associate or any other officer within the corporate trust department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also shall
mean, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge and familiarity with the particular subject. 


    "Restricted
Global Security" means a Global Security that is a Restricted Security. 


4





 


    "Restricted Security" means a Security required to bear the restricted legend set forth in the form of Security set forth in Exhibit A  of this Indenture (corresponding to
footnote 2 thereof). 


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


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


    "SEC"
means the Securities and Exchange Commission. 



    "Securities"
means the 33/4% Convertible Subordinated Notes Due December 15, 2006 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, premium, if any, interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding,
whether or not a claim for post-petition interest is 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: 


    (1) commitment
or standby fees due and payable to lending institutions with respect to credit facilities available to such Person; 


    (2) all
noncontingent obligations (a) for the reimbursement of any obligor on any letter of credit, bankers' acceptance or similar credit transaction, and
(b) under any interest rate or other swap, cap, floor or collar agreement or hedge agreement, forward contract or other similar instrument or agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement; 


    (3) all
obligations under leases for real estate, facilities, equipment or related assets whether or not capitalized, entered into or leased for financing purposes; 


    (4) any
liabilities of others described in the preceding clauses that such Person has guaranteed or which are otherwise such Person's legal liability; and 


    (5) deferrals,
renewals, extensions, refinancings, replacement, restructurings, 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) our 5% Convertible Subordinated Notes due 2002, (ii) 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
(iii) 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. 


5





 


    "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. 


    "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. 


    "Transfer
Restricted Securities" has the meaning set forth in the Registration Rights Agreement and shall bear the legend set forth in the form of Security set forth in  Exhibit A of this Indenture
(corresponding to footnote 3 thereof) and include the certificate corresponding to footnote 7 thereof. 



    "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. 


    "Unrestricted
Certificated Security" means a Certificated Security that is not a Restricted Security. 


    "Unrestricted
Global Security" means a Global Security that is not a Restricted Security. 


    "Vice
President" when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the
title "vice president." 


    "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.  



	Term
 
	 	Defined in Section

	"Agent Members"	 	2.1(b)
	"Authorized Agent"	 	2.3
	"Bankruptcy Law"	 	8.1
	"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(d)
	"Company Order"	 	2.2
	"Conversion Agent"	 	2.3
	"Conversion Date"	 	4.2
	"Conversion Price"	 	4.1
	"Current Market Price"	 	4.6(d)
	"Custodian"	 	8.1



6





 

	"DTC"	 	2.1(a)
	"Depositary"	 	2.1(a)
	"Determination Date"	 	4.6(c)
	"Event of Default"	 	8.1
	"Expiration Date"	 	4.6(c)
	"Expiration Time"	 	4.6(c)
	"Legal Holiday"	 	12.7
	"Legend"	 	2.12
	"Make-Whole Payment"	 	3.1(a)
	"NNM"	 	4.6(d)
	"Notice Date"	 	3.1(a)
	"Paying Agent"	 	2.3
	"Payment Blockage Notice"	 	5.2
	"Primary Registrar"	 	2.3
	"Provisional Redemption"	 	3.1(a)
	"Provisional Redemption Date"	 	3.1(a)
	"Provisional Redemption Price"	 	3.1(a)
	"Purchase Agreement"	 	2.1
	"Purchased Shares"	 	4.6(c)
	"QIB"	 	2.1(a)
	"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: 



    "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; 



7





 


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


    (D) provisions
apply to successive events and transactions; 


    (E) the
term "merger" includes a statutory share exchange and the term "merged" has a correlative meaning; 


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


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


    (H) "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, unless the
content otherwise requires. 



 
 

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 a Purchase Agreement, dated December 5, 2001 (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)  Restricted Global Securities.  All of the Securities are initially being offered and sold to
qualified institutional buyers as defined in Rule 144A (collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A under the Securities Act and shall be issued
initially in the form of one or more Restricted Global Securities, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its Corporate Trust Office, as custodian for the depositary, The Depository Trust Company ("DTC") (such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its nominee, Cede & Co., duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Restricted Global 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. 


    (b)  Global Securities In General.  Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount
of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect replacements, exchanges, redemptions, purchases or conversions of such
Securities. Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be
made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof and shall be made on the records of the Trustee and the Depositary. 


    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 Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
and Holder 


8





 


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. 


    (c)  Book Entry Provisions.  The Company shall execute and the Trustee shall, in accordance with this
Section 2.1(c), authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary or its nominee, (ii) shall be delivered
by the Trustee to the Depositary or pursuant to the Depositary's instructions and (iii) shall bear a legend substantially to the following effect: 



"UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WIND RIVER SYSTEMS, INC. (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. Typographic and other minor errors or defects in any such facsimile signature shall not affect
the validity or enforceability of any Security which has been authenticated and delivered by the Trustee. 



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


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


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


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


9





 


    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 Borough of Manhattan, The City
of New York. One of the Registrars (the "Primary Registrar") shall keep a register of the Securities and of their transfer and exchange. 


    The
Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture and provide a copy to the Trustee. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent in any place required by this Indenture, or fails to give the foregoing notice, the Trustee shall act as such. Upon written notice to the Trustee, the
Company or any Affiliate of the Company may act as Paying Agent (except for the purposes of Section 3.7, Section 6.10 and Article 10). 


    The
Company hereby initially designates the Trustee as Paying Agent, Registrar, Primary 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 Borough of Manhattan, The City of New York (which shall initially be Bankers Trust Company located at Corporate Trust and Agency Service, Four
Albany Street, New York, New York 10006, Attention: Dorothy Robinson), as such office or agency of the Company for each of the aforesaid purposes. 


    The
Company hereby irrevocably appoints CT Corporation System, 1633 Broadway, New York, NY 10019 (together with any successor, the "Authorized Agent"), as its authorized agent for
receipt of notices and demands in respect of the Securities and this Indenture. 


    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. 


10





 

    SECTION 2.5.  SECURITYHOLDER LISTS.  


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


    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 2.7, 2.10, 2.12(a), 3.6, 3.11, 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 (i) any Securities for a period of 15 days next preceding any
mailing of a notice of Securities to be redeemed, (ii) any Securities or portions thereof selected or called for redemption (except, in the case of redemption of a Security in part, the portion
thereof not to be redeemed) or (iii) any Securities or portions thereof in respect of which a Change in Control Purchase 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
(i) to require delivery of such certificates and other documentation or evidence as are expressly required by this Indenture, (ii) to examine the same to determine substantial compliance
as to form with the express requirements hereof and (iii) to perform such other monitoring, determination or inquiry if and when the Indenture expressly requires it to do so. 


11







  




    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 written notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding. 


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


    Upon
the issuance of any new Securities under this Section 2.7, the Company 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 and their counsel) in connection therewith. 


    Every
new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the 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 Redemption Date, a Change in Control Purchase Date or the Final Maturity Date money sufficient to
pay the principal of (including premium, if any) and accrued interest on Securities (or portions thereof) payable on that date, then on and after such Redemption Date, Change in Control Purchase Date
or 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;  provided that if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor
reasonably satisfactory to the Trustee has been made. 


    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 


12





 


the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded, except that, for purposes of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities with respect to which a Responsible Officer of the Trustee has received written notice from the Company, an obligor or an Affiliate of either that
such Securities are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to the Securities and that the pledgee is not the Company or any other obligor on the Securities or any Affiliate of the Company or of such other obligor. 


    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 variations that the Company with the consent of the Trustee considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate and deliver definitive Securities in exchange for temporary Securities. 


    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, redemption, payment or conversion. The Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities
surrendered for transfer, exchange, redemption, payment, conversion or cancellation and shall deliver the canceled Securities to the Company. All Securities which are redeemed, purchased or otherwise
acquired by the Company or any of its Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee for cancellation, and the Company may not hold or 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. Without limitation to the foregoing, any Securities acquired by any
investment bankers or other purchasers pursuant to Section 3.7 shall be surrendered for conversion and thereafter cancelled, and may not be reoffered, sold or otherwise transferred. 


    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 legend set forth on the forms
of Securities attached hereto as Exhibit A (corresponding to footnote 2 thereof) (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, the Trustee and the Registrar such
satisfactory evidence, which shall include an opinion of counsel if requested by the Company, the Trustee or such Registrar, as may be reasonably required by the Company, the Trustee 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 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. If the Legend is removed from the face of a Security
and the Security is subsequently held by an Affiliate of the Company, the Legend shall be reinstated. 


13





 


    (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. No transfer of a Security to any Person shall be effective under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. 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. 


    (c) Subject
to the succeeding paragraph, every Security shall be subject to the restrictions on transfer provided in the Legend other than a Restricted Global Security.
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 the Certificate to be Delivered upon Exchange or Registration of Transfer of Transfer Restricted
Securities included 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). 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 and the Trustee, addressed to the Company, the Registrar and the Trustee and in form acceptable to the Company and the Trustee, 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. Neither the Trustee nor the Registrar
shall be liable for any action taken or omitted to be taken by them 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), (iv) and (v) below shall apply only to Global Securities: 



    (1) 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, or
(B) an Event of Default has occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant to subclause (A) above shall be so exchanged in whole and
not in part, and any Global Security exchanged pursuant to subclause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. 



14





 


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


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


    (3) 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. 


    (4) 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. 


    (5) 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 beneficial 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 redemption or
purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption or purchase shall not be affected by any defect in or omission of such "CUSIP" numbers. The Company will promptly notify the Trustee of any change in the "CUSIP" numbers. 


15





 
 
 

ARTICLE 3
  REDEMPTION AND PURCHASES    
  


    SECTION 3.1.  RIGHT TO REDEEM; NOTICE TO TRUSTEE.  


    (a) The
Securities may be redeemed at the election of the Company, as a whole or in parts from time to time, at any time prior to December 15, 2004 (a
"Provisional Redemption"), at a Redemption Price equal to $1,000 per $1,000 principal amount of the Securities redeemed (such amount, together with the Make-Whole Payment described below,
the "Provisional Redemption Price"), on the date of redemption (the "Provisional Redemption Date") specified in the notice of Provisional Redemption if (1) the closing price of the Common Stock
on the NNM (or other United States national securities exchange where the Company's Common Stock is traded) has exceeded 150% of the Conversion Price for at least 20 Trading Days within a period of
any 30 consecutive Trading Days ending on the Trading Day prior to the date of mailing of the notice of Provisional Redemption (the "Notice Date"), and (2) a
shelf registration statement covering resales of the Securities and the Common Stock issuable upon conversion thereof is effective and available for use and is expected to remain effective and
available for use for the 30 days following the Provisional Redemption Date, unless registration is no longer required. 



    Upon
any such Provisional Redemption, the Company shall make an additional payment (the "Make-Whole Payment") with respect to the Securities called for redemption to
holders on the Provisional Redemption Date in an amount equal to the total value of the aggregate amount of interest that would have been payable on the Securities from the last day through which
interest was paid on the Securities (or December 10, 2001 if no interest has been paid) through December 15, 2004. The Company may make these Make-Whole Payments, at its
option, either in cash or Common Stock or a combination thereof. Payments made in Common Stock will be valued at 97% of the average closing sales prices of the Common Stock on the NNM (or other United
States national securities exchange where Stock is traded) for the five Trading Days ending on the day prior to the Provisional Redemption Date. The Company shall make the Make-Whole
Payment on all Securities called for Provisional Redemption, including those Securities converted into Common Stock between the Notice Date and the Provisional Redemption Date. 


    The
Company will comply with all Federal and state securities laws in connection with any offer to sell or solicitations of offers to buy Common Stock pursuant to this
Section 3.1(a). 


    (b) The
Securities may be redeemed at the election of the Company, as a whole or from time to time in part, in cash at any time on or after December 15, 2004, at
the Redemption Prices specified in paragraph 5 of the form of Security attached hereto as Exhibit A, together with accrued interest up to,
but not including, the Redemption Date; provided that if the Redemption Date falls after an interest payment record date and on or before an interest payment date, then the interest will be payable to
the Holders in whose name the Securities are registered at the close of business on the interest payment record date. 


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


    SECTION 3.2.  SELECTION OF SECURITIES TO BE REDEEMED.  


    If
less than all of the Securities are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall, at least 30 days but not more than
60 days prior to the Redemption Date, select the Securities to be redeemed. The Trustee shall make the selection from the 


16





 


Securities outstanding and not previously called for redemption on a pro rata basis. Securities in denominations of $1,000 may only be redeemed in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of Securities that have denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. 


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


    SECTION 3.3.  NOTICE OF REDEMPTION.  



    At
least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed a notice of redemption to each Holder of Securities to
be redeemed at such Holder's address as it appears on the Primary Registrar's books. 


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


    (1) the
Redemption Date; 


    (2) the
Redemption Price; 


    (3) the
then current Conversion Price; 



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


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


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


    (7) that,
unless the Company defaults in paying the Redemption Price, interest on Securities called for redemption shall cease accruing on and after the Redemption Date
and the only remaining right of the Holder shall be to receive payment of the Redemption Price plus accrued interest, if any, upon presentation and surrender to a Paying Agent of the Securities; 


    (8) the
type of consideration for the Make-Whole Payment, if applicable; and 


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


    If
any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the
Depositary applicable to redemptions. At the Company's written request, which request shall (i) be irrevocable once given and (ii) set forth all relevant information required by clauses
(1) through (9) of the preceding paragraph, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. 


    SECTION 3.4.  EFFECT OF NOTICE OF REDEMPTION.  


    Once
notice of redemption is mailed, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice, together with
accrued interest, if any, except for Securities that are converted in accordance with the provisions of Article 4. Upon 


17





 


presentation and surrender to a Paying Agent, Securities called for redemption shall be paid at the Redemption Price, plus accrued interest up to but not including the Redemption Date;  provided that if
the Redemption Date falls after an interest payment record date and on or before an interest payment date, interest will be payable to
the Holders in whose names the Securities are registered on the relevant record date. 


    SECTION 3.5.  DEPOSIT OF REDEMPTION PRICE.  


    Prior
to 11:00 a.m. New York City time, on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company, after written notice to the Trustee, acts as
Paying Agent, shall segregate and hold in trust) an amount of money (in immediately available funds if deposited on such Redemption Date) or Common Stock, if applicable, sufficient to pay the
Redemption Price of and accrued interest on all Securities to be redeemed on that date, other than Securities or portions thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money or Common Stock not required for that purpose because
of the conversion of Securities pursuant to Article 4 or, if such money or Common Stock is then held by the Company in trust and is not required for such purpose, it shall be discharged from
the trust. 


    SECTION 3.6.  SECURITIES REDEEMED IN PART.  


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


    SECTION 3.7.  CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.  


    In
connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities called for redemption by an agreement with one or more
investment banks or other purchasers to purchase such Securities by paying to a Paying Agent (other than the Company or any of its Affiliates) in trust for the Holders, on or before 11:00 a.m.
New York City time on the Redemption Date, an amount that, together with any amounts deposited with such Paying Agent by the Company for the redemption of such Securities, is not less than the
Redemption Price, together with interest accrued to, but not including, the Redemption Date, of such Securities. Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Securities, including all accrued interest, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such
purchasers; provided, however, that nothing in this Section 3.7 shall relieve the Company of its obligation to pay the Redemption Price, plus
accrued interest to but excluding the relevant Redemption Date, on Securities called for redemption. If such an agreement with one or more investment banks or other purchasers is entered into, any
Securities called for redemption and not surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the option of the Company upon written notice to the Trustee,
be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article 4) surrendered by such
purchasers for conversion, all as of 11:00 a.m. New York City time on the Redemption Date, subject to payment of the above amount as aforesaid. The Paying Agent shall hold and pay to the
Holders whose Securities are selected for redemption any such amount paid to it for purchase in the same manner as it would money deposited with it by the Company for the redemption of Securities.
Subject to Article 11, without the Paying Agent's prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase
or otherwise affect any of the powers,
duties, responsibilities or obligations of the Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Paying Agent and Trustee from, and hold them harmless against, any
loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Company and such purchasers, including the costs and 


18





 


expenses incurred by the Paying Agent or Trustee in the defense of any claim or liability arising out of or in connection with the exercise or performance of any of their powers, duties,
responsibilities or obligations under this Indenture. 


    SECTION 3.8.  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 their
Holders, as of the date that is 35 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"), at the option of the Company, in cash, by
delivery of Common Stock in accordance with the provisions of Section 3.8(g) or in a combination of cash and Common Stock, subject to satisfaction by or on behalf of any Holder of the
requirements set forth in subsection (c) of this Section 3.8. 


    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, excluding a grant of security interest, 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 Company representing at least a majority of the total voting power of all outstanding classes of Voting Stock of the surviving
or transferee Person; or 


    (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 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. 


19





 


    Notwithstanding anything to the contrary set forth in this Section 3.8, a Change in Control will be deemed not to have occurred if either: 



    (1) the
Closing Price 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) in the merger or consolidation constituting the Change in Control consists of common stock quoted on the NNM or traded on a United States national securities exchange (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
15 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, the events causing such Change in Control; 


    (2) the
date by which the Change in Control Purchase Notice pursuant to this Section 3.8 must be given; 


    (3) the
Change in Control Purchase Date; 


    (4) the
Change in Control Purchase Price and whether the Change in Control Purchase Price shall be payable in cash, Common Stock or a combination thereof and, if
payable in Common Stock, the method of calculating the amount of the Common Stock to be delivered as provided in Section 3.8(g); 


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


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


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



    (8) the
Conversion Price and any adjustments thereto; 


    (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 3.8; 


    (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 3.8 upon delivery of a written notice (which shall be in substantially
the form included in Exhibit A hereto and which may 


20





 


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
second Business Day next preceding the Change in Control Purchase Date. The notice must specify the Securities, or the portion thereof, for which the purchase right is being exercised. 


    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 3.8, a portion of a Security delivered to a Paying Agent only 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 3.8 through 3.13 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 at any time prior to the close of
business on the second Business Day next preceding the Change in Control Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9. 


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



    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. 


    (d) Any
issuance of shares of Common Stock in respect of the Change in Control Purchase Price shall be deemed to have been effected immediately prior to the close of
business on the Change in Control Purchase Date and the Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such purchase shall
be deemed to have become on the Change in Control Purchase Date the holder or holders of record of the shares represented thereby; provided, however,
that any surrender for purchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in whose name or names the certificate or certificates for
such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or
adjustment shall be made for dividends or distributions on any Common Stock issued upon purchase of any Security declared prior to the Change in Control Purchase Date. 


    (e) No
fractions of shares of Common Stock shall be issued upon the purchase of Securities. If more than one Security shall be repurchased from the same Holder and the
Change in Control Purchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the aggregate
principal amount of the Securities so repurchased. Instead of any fractional share of Common Stock otherwise issuable on the repurchase of any Security or Securities, the Company will deliver to the
applicable Holder a check for the current market value of such fractional share. The current market value of a fraction of a share is determined by multiplying the Current Market Price of a full share
by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the Current Market Price of a share of Common Stock is the Closing Price of the Common Stock on the Trading
Day immediately preceding the Change in Control Purchase Date. 


21





 


    (f)  Any issuance and delivery of certificates for shares of Common Stock on purchase of Securities shall be made without charge to the Holder of Securities being
purchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the securities represented thereby; provided,
however, that the Company shall not be required to pay any tax or duty which may be payable in respect of any transfer involving the issuance or delivery of certificates for
shares of Common Stock in a name other than that of the Holder of the Securities being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance
or delivery has paid to the Company the amount of any such tax or duty or has established, to the satisfaction of the Company, that such tax or duty has been paid. 


    (g) The
Company may elect to pay, at is option, all or a portion of the Change in Control Purchase Price by delivery of shares of Common Stock if and only if the
following conditions shall have been satisfied: 



    (1) the
shares of Common Stock deliverable in payment of the Change in Control Purchase Price shall have a fair market value as of the Change in Control Purchase Date
of not less than the Change in Control Purchase Price less any cash payments, if any. For purposes of this Section 3.8, the fair market value of shares of Common Stock shall be determined by
the Company and shall be equal to 97% of the average of the Closing Prices of the Common Stock on the NNM or other United States national securities exchange for the five consecutive Trading Days
ending on the day prior to the Change in Control Purchase Date; 


    (2) such
shares have been registered under the Securities Act or are freely transferable without such registration; 


    (3) the
issuance of such Common Stock does not require registration with or approval of any governmental authority under any state law or any other federal law, which
registration or approval has not been made or obtained; 


    (4) such
shares have been approved for quotation on the NNM or listing on a United States national securities exchange; and 



    (5) such
shares will be issued out of the Company's or such other permitted Person's authorized but unissued stock and, upon issuance, will be duly and validly and
fully paid and non-assessable and free of any preemptive rights. 




    SECTION 3.9.  EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.  


    Upon
receipt by any Paying Agent of the Change in Control Purchase Notice specified in Section 3.8(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 (a) the Change in Control Purchase Date with respect to such Security
(provided the conditions in Section 3.8(c) have been satisfied) and (b) the time of delivery of such Security to a Paying Agent by the
Holder thereof in the manner required by Section 3.8(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 second 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. 


22







  




    SECTION 3.10.  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), Common Stock or a combination thereof 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 any deposit required by
this Section 3.10 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 such Common Stock (in a form transferable by the Paying Agent), immediately available funds or a combination thereof on the Change in Control Purchase Date. 


    If
a Paying Agent holds, in accordance with the terms hereof, money, Common Stock or a combination thereof 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 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 3.11.  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, 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 3.12.  COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES.  


    In
connection with any offer to purchase or purchase of Securities under Section 3.8, 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 and any offer to sell or solicitation of offers to buy Common Stock of the Company, all so as to permit the
rights of the Holders and obligations of the Company under Sections 3.8 through 3.11 to be exercised in the time and in the manner specified therein. 


    SECTION 3.13.  REPAYMENT TO THE COMPANY.  


    To
the extent that the aggregate amount of cash and/or Common Stock deposited by the Company pursuant to Section 3.10 exceeds the aggregate Change in Control Purchase Price
together with 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 and/or excess Common Stock to the Company. 


23





 
 
 

ARTICLE 4
  CONVERSION    
  


    SECTION 4.1.  CONVERSION PRIVILEGE.  



    Subject
to the further provisions of this Article 4 and paragraph 8 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 called for redemption or submitted or presented for purchase pursuant to Article 3,
such conversion right shall terminate at the close of business on the second Business Day immediately preceding the Redemption Date or Change in Control Purchase Date, as the case may be, for such
Security or such earlier date as the Holder presents such Security for redemption or for purchase (unless the Company shall default in making the redemption payment or 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 redeemed or purchased, as the case may be). The
number of shares of Common Stock issuable upon conversion of a Security shall be determined by dividing the principal amount of the Security or portion thereof surrendered for conversion by the
Conversion Price in effect on the Conversion Date. The initial Conversion Price is set forth in paragraph 8 of the Securities and is subject to adjustment as provided in this Article 4
(as so adjusted from time to time, the "Conversion Price"). 


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



    A
Security in respect of which a Holder has delivered a Change in Control Purchase Notice pursuant to Section 3.8(c) exercising the right of such Holder to require the Company
to purchase such Security may be converted only if such Change in Control Purchase Notice is withdrawn by a written notice of withdrawal delivered to a Paying Agent prior to the close of business on
the second Business Day immediately preceding the Change in Control Purchase Date in accordance with Section 3.9. 


    A
Holder of Securities is not entitled to any rights of a holder of Common Stock until and only to the extent its 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) furnish such
other documents, including such representations and agreements, as, in the opinion of counsel to the Company, may be required by law, and (e) pay any transfer or similar tax, if required. The
date on which the Holder satisfies all of those requirements is the "Conversion Date." In the event of any conversion of Securities prior to the end of the period referred to in Rule 144(k)
under the Securities Act which have been transferred pursuant to Regulation S under the Securities Act prior to such conversion, the Company shall issue and deliver shares of Common Stock in
certificated form, including additional terms, conditions and restrictions, and take all other actions as, in the opinion of counsel to the Company, may be required by law. As soon as practicable
after the Conversion Date, the Company shall deliver to the Holder through a Conversion Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and cash in lieu
of any fractional shares pursuant to Section 4.3. Anything herein to the contrary notwithstanding, in the case of Global Securities, conversion notices may be delivered and such Securities may
be surrendered for conversion in accordance with the Applicable Procedures as in effect from time to time. 


24





 


    The person in whose name the Common Stock certificate is registered shall be deemed to be a stockholder of record on the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer books of the Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the record holder or holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the person or persons entitled to receive such shares of Common Stock as the record holder or holders thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; provided, further, that such conversion shall be at the Conversion Price in effect on the Conversion
Date as if the stock transfer books of the Company had not been closed. Upon conversion of a Security and beginning on the Conversion Date, such person shall no longer be a Holder of such Security. No
payment or adjustment will be made for accrued interest on the notes or dividends or distributions on shares of Common Stock issued upon conversion of a Security other than as specified in this
Section 4.2, in Article 3 and in Section 4.6. 


    Securities
so surrendered for conversion (in whole or in part) during the period from the close of business on any regular record date to the opening of business on the next
succeeding interest payment date (excluding Securities or portions thereof called for redemption or presented for purchase upon a Change in Control on a Redemption Date or Change in Control Purchase
Date, as the case may be, during the period beginning at the close of business on a regular record date and ending at the opening of business on the first Business Day after the next succeeding
interest payment date, or if such interest payment date is not a Business Day, the second such Business Day) shall also be accompanied by payment in funds acceptable to the Company and the Conversion
Agent of an amount equal to the interest payable on such interest payment date on the principal amount of such Security then being converted, and such interest shall be payable to such registered
Holder notwithstanding the conversion of such Security, subject to the provisions of this Indenture relating to the payment of defaulted interest by the Company. Except as otherwise provided in this
Section 4.2, in Article 3 and in Section 4.6 no payment or adjustment will be made for accrued interest on a converted Security. If the Company defaults in the payment of interest
payable on such interest payment date, the Company shall promptly repay such funds to such Holder. 


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


    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. 


    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 1/1000thof a share) by multiplying the Closing Price (determined as set
forth in Section 4.6(d)) 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 a name 


25





 


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 PROVIDE STOCK.  


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



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


    The
Company will endeavor promptly to comply with all federal and state securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if
any, and will list or cause to have quoted such shares of Common Stock on the NNM, each national securities exchange or other over-the-counter market or such other market on
which the Common Stock is then listed or quoted; provided, however, that if rules of such automated quotation system or exchange permit the Company to
defer the listing of such Common Stock until the first conversion of the Notes into Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Notes in accordance with the requirements of such automated quotation system or exchange at such time. 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 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 after such event had such Security been converted immediately prior to such event. An adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of subdivision or combination. 


    (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 (d) 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 thereto shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares of Common Stock so offered (or the aggregate conversion price of
the convertible securities so offered, which shall 


26





 


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 (d) of this Section 4.6) of Common Stock on such record date, and of which the
denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so
offered are convertible). Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of
the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would
have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued). 


    (c) In
case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock),
evidences of indebtedness or
other non-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 4.6), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or
purchase any of its securities (excluding those rights and warrants referred to in subsection (b) of this Section 4.6), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the then current Conversion Price by a fraction of which (A) the numerator shall be the Current Market Price per share (as defined
in subsection (d) 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 (B) the denominator shall be the Current Market Price per share (as defined in subsection (d) of this Section 4.6) of the Common
Stock on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution. 


    In
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. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If
the Board of Directors determines the fair market value of any distribution for purposes of this Section 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. 


    In
the event that the Company has a preferred shares rights plan in effect ("Rights Plan"), upon conversion of the Securities into Common Stock, the holders 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), subject to the limitations set forth
in the Rights Plan. Any 


27





 


distribution of rights or warrants pursuant to a Rights Plan complying 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 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 under this Section 4.6(c). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of this Indenture, are 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 with such rights (and a termination or expiration of the existing rights or 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, (i) 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 (ii) 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. 



    (1) 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 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 (d) of this Section 4.6) at the close of business, New York City time, 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 



28





 


subsection (d) of this Section 4.6) on the Determination Date less the sum of the aggregate amount of cash and the aggregate fair market value (determined as aforesaid in this
Section 4.6(c)(1)) of any such other consideration so distributed, paid or payable within such 12 months (including, without limitation, the Triggering Distribution) applicable to one
share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Determination Date) and the denominator shall be such Current Market Price per share of the
Common Stock (as determined in accordance with subsection (d) 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. 


    (2) In
case any tender offer made by the Company or any of its Subsidiaries for Common Stock shall expire and such tender offer (as amended through the expiration
thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by
the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee thereof) of any other consideration)
that, together with the aggregate amount of (A) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for
Common Stock consummated within the 12 months preceding the date of the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this
Section 4.6 has been made and (B) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in
respect of which no Conversion Price adjustment pursuant to this Section 4.6 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 (d) of this Section 4.6) as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock
outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time, then, immediately prior to the opening of business on the day after the
Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to 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 tendered shares but excluding any shares held in the treasury
of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (d) 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 (d) 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 



29





 


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)(2) 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)(2). 


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




    (d) 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 45 Trading Days before (i) the Determination Date
or the Expiration Date, as the case may be, with respect to distributions or tender offers under 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") of Common Stock for
any 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). 


    (e) 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. 


    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



30





 


adjustments which by reason of this Section 4.7 are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment meets the 1%
threshold. All calculations under this Article 4 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. 


    No
adjustment need be made for 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 Article 4, 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 or any event treated as such for federal income tax purposes 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. The Company shall mail the notice at least ten days before such
date. Failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 4.10. 



    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 


31





 


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. Such supplemental indenture shall provide for adjustments of the Conversion
Price which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Price provided for in this Article 4. If, in the case of any such consolidation, merger,
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. 


    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 our 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 our Common Stock in
connection with a dividend or distribution of stock or similar event, and the Company provides 15 days prior notice of any 


32





 


reduction in the Conversion Price; provided, however, that in no event may the Company reduce the Conversion Price to be less than the par value of a
share of Common Stock. 


 
 

ARTICLE 5
  SUBORDINATION    
  


    SECTION 5.1.  AGREEMENT OF SUBORDINATION.  


    The
Company covenants and agrees, and each Holder of Securities issued hereunder by its acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject
to the provisions of this Article 5; and each Person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such
provisions. 


    The
payment of the principal of, premium, if any, and interest (including Additional Interest, if any) on all Securities (including, but not limited to, the Redemption Price with
respect to the Securities called for redemption or the Change in Control Purchase Price with respect to the Securities subject to purchase in accordance with Article 3 as provided in 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. 



    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 premium, if any, or interest (including Additional Interest, if any) on the Securities (including, but not limited to,
the Redemption Price with respect to the Securities to be called for redemption or the Change in Control Purchase Price with respect to the Securities subject to purchase in accordance with
Article 3 as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 5.5, if: 



    (i)  a
default in the payment of principal, premium, interest, rent or other obligations due on any Senior Indebtedness occurs and is continuing (or, in the case of
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 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 default
under clause (ii) above 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
for a period of not less than 90 consecutive days and thereafter subsequently reoccurred) shall be, or be made, the basis for a subsequent Payment Blockage Notice. 


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


    (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, all amounts due or to
become due upon all Senior Indebtedness shall first be paid in full in cash, or other payments satisfactory to the holders of Senior Indebtedness before any payment is made on account of the principal
of, premium, if any, or interest (including Additional Interest, if any) on the Securities (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 be deemed not 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 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. 


34





 


    In the event of the acceleration of the Securities because of an Event of Default, no payment or distribution shall be made to the Trustee or any Holder of Securities in respect of
the principal of, premium, if any, or interest (including Additional Interest, if any) on the Securities by the Company (including, but not limited to, the Redemption Price with respect to the
Securities called for redemption or the Change in Control Purchase Price with respect to the Securities subject to purchase in accordance with Article 3 as provided in 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.  


    Subject
to the payment in full, in cash or other payment satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness, the rights of the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article 5 (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is subordinated to other indebtedness of the Company to substantially the same extent as the Securities are subordinated and is
entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the
principal, premium, if any, and interest (including Additional Interest, if any) on the Securities shall be paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness;
and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article 5, and no payment over 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 


35





 


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
premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 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 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 Responsible 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 Responsible 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 one or more holders of Senior Indebtedness or from any trustee
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 premium, if any, or interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 5.5, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full power and 


36





 


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 reasonably determines 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 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 premium, if any) 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, 


37





 


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 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. 


 
 

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 or
interest or Additional Interest, if any, shall be considered paid on the date it is due if the Paying Agent (other than the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof, sufficient to pay the installment. The Company shall (in immediately
available funds), to the fullest extent permitted by law, pay interest on overdue principal (including premium, if any) and overdue installments of interest at the rate borne by the Securities per
annum. 


    Payment
of the principal of (and premium, if any) and any interest on the Securities shall be made at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York (which shall initially be the Trustee) or at the Corporate Trust Office of the Trustee in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest on
Certificated Securities may be made by check mailed to the address of the Person entitled thereto as such address appears in the Register; provided further  that a Holder of a Certificated Security 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 and the Paying Agent at least 10 Business Days prior to the payment date. 


    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
30 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). 


38







  




    SECTION 6.3.  COMPLIANCE CERTIFICATES.  



    The
Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company (beginning with the fiscal year ending January 31, 2002), 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 make available to such Holder or beneficial holder of Securities or any Common Stock issued upon conversion thereof which continue to be Restricted Securities in connection with any sale
thereof and any prospective purchaser of Securities or such Common Stock designated by such Holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the
Securities Act or such Common Stock and it will take such further action as any Holder or beneficial holder of such Securities or such Common Stock may
reasonably request, all to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within
the limitation of the exemption provided by Rule 144A, as such Rule may be amended from time to time. Upon the request of any Holder or any beneficial holder of the Securities or such Common
Stock, the Company will deliver to such Holder a written statement as to whether it has complied with such requirements. 


    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, premium, if any, 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 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. 


39





 

    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 Responsible 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 (in a transaction in which the Company is not the surviving corporation) or, excluding a grant of a security
interest, convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: 



    (1) 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, excluding any
grant of a security interest, 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 reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or observed and the conversion rights shall be provided for in accordance with Article 4, by supplemental indenture
reasonably satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the Company) formed by such consolidation or into which the Company shall have been
merged or by the Person which shall have acquired the Company's assets; 


    (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. 




    SECTION 7.2.  SUCCESSOR SUBSTITUTED.  


    Upon
any consolidation of the Company with, or merger of the Company into, any other Person or, excluding any grant of a security interest, 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. 


40





 
 
 

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 to all holders of Registrable Securities (as defined in the Registration
Rights Agreement) 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 (including, without limitation, any premium, if any, on) any Security when the same becomes due and payable
(whether at maturity, upon redemption, on 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 and is not cured or waived for
the period and after the notice specified below; 


    (4) 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
owned, directly or indirectly, by the Company) with a principal amount then outstanding in excess of U.S. $35,000,000, whether such indebtedness now exists or shall hereafter be created, is not paid
in full at final maturity thereof (either at its stated maturity or upon acceleration thereof), and such indebtedness is not discharged, or such acceleration is not cured, waived, rescinded or
annulled, within a period of 60 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 outstanding Securities
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; 



    (5) 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), 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 




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



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




41





 



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


    (C) orders
the liquidation of the Company or such 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. 


    The
Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Responsible 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 clauses (5) or (6) 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 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 clauses (5) or (6) of Section 8.1 occurs, all unpaid principal of the Securities then outstanding shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Any payments by the Company on the Securities following any such acceleration will be subject to the subordination provisions of
Article 5 to the extent provided therein. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee and the Company in writing may
rescind an acceleration and its consequences and waive such defaults 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 or deposited by the Trustee;
(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 


42





 


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 in 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, premium, if any, or interest on any Security, a failure by the Company to convert any
Securities into Common Stock or any default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 11.2, cannot be modified or amended without
the consent of the Holder of each Security affected. When a default or Event of Default is waived, it is cured and ceases. 


    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 not taking part in such direction or the Trustee, or that may involve the Trustee in personal liability if the Trustee shall have reasonable grounds
for believing that adequate indemnity against such liability is not reasonably assured 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 25% 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 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. 


43





 

    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, advisors 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, advisors
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; 


    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 


44





 


filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 8.11 does not apply to a suit made by
the Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in 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; 


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


    (3) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to
Section 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 if the Trustee has reasonable grounds for believing that repayment of such funds or adequate indemnity against the risk or liability
is not reasonably assured. 


    (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. 


45





 

    SECTION 9.2.  RIGHTS OF TRUSTEE.  



    Subject
to Section 9.1: 


    (a) The
Trustee may rely conclusively on any document reasonably 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, 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 under the
Indenture. 


    (e) The
Trustee may consult with counsel of its selection and reasonably acceptable to the Company, 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 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 Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities and this Indenture. 


    (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. Subject to the limitations imposed by the Trust
Indenture Act, nothing in this Indenture shall prohibit the Trustee from becoming and acting as Trustee under other indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee hereunder. 


46





 

    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 Responsible 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. 


    SECTION 9.6.  REPORTS BY TRUSTEE TO HOLDERS.  


    If
such report is required by TIA Section 313, within 60 days after each March 15, beginning with the March 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such March 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.  


    (a) 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 in accordance with the Indenture. Such expenses may include the reasonable compensation, disbursements and expenses of the
Trustee's agents, advisors and counsel. 


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


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


    To
secure the Company's payment obligations in this Section 9.7, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or
property held or collected by the Trustee, except such money or property held in trust pursuant to Article 10 to pay the principal 


47





 


of and interest on the Securities. The obligations of the Company under this Section 9.7 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the
Trustee. 


    When
the Trustee incurs expenses or renders services after an Event of Default specified in clauses (5) or (6) of Section 8.1 occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section shall survive the termination of this Indenture. 


    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 10% in
principal amount of the Securities then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee at the expense of the Company. 


    If
the Trustee fails to comply with Section 9.10, the Company may remove the Trustee and 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. 


    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 corporation, the resulting, surviving or transferee corporation, without any further act, shall be the successor Trustee, provided such
transferee corporation shall qualify and be eligible under Section 9.10. Such successor Trustee shall promptly mail notice of its succession to the Company and each Holder. 


48







  




    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 



    (i)  have
become due and payable, or 


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



    (iii) are
to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, 





and
the Company, in the case of clause (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 for the purpose 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 or Redemption Date, as the case may be; 


    (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. 


49





 


    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, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13 and 12.5, Article 4, Article 9, 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 any money held by them for the payment of principal or interest that remains unclaimed for a period ending on the earlier of
ten Business Days prior to the date such money would escheat to the state or 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 or, if an address of any Holder is unknown, publish once in a newspaper
customarily published on a Business Day of global circulation in each place of payment notice, 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. 


    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 in trust from which the Company has been discharged or released pursuant to Section 10.1. 


 
 

ARTICLE 11
  AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS    
  


    SECTION 11.1.  WITHOUT CONSENT OF HOLDERS.  


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



    (a) to
comply with Sections 4.11 and 7.1; 


    (b) to
provide for uncertificated Securities in addition to or in place of Certificated Securities; 


50





 


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


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



    (e) to
comply with the provisions of the TIA; 


    (f)  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 


    (g) 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 in aggregate principal amount of
the Securities then outstanding. However, notwithstanding the foregoing but subject to Section 11.4, without the written consent of each Securityholder affected, an amendment, modification or
supplement may not: 


    (a) change
the stated maturity of the principal of, or interest on, any Security; 


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


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



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


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


    (f)  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; 


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


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



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


    (j)  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 


    (k) 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 waiver. An amendment or supplement under this Section 11.2 or under Section 11.1 may not make any change 


51





 


that adversely affects the rights under Article 5 of any holder of an issue of Senior Indebtedness unless the holders of that issue, pursuant to its terms, consent 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. 


    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 or any Agent
(when the Trustee also serves as Agent hereunder). 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. 


    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. 


52





 

    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: 


Wind
River Systems, Inc.

500 Wind River Way

Alameda, California 94501

Attention: Vice President and General Counsel

Facsimile No.: (510) 749-2944 


and
to: 


CT
Corporation System

1633 Broadway

New York, NY 10019 



If
to the Trustee, to: 


Bankers
Trust Company

Corporate Trust and Agency Services

Four Albany Street

New York, New York 10006

Attention: Dorothy Robinson

Facsimile No.: (201) 593-6443 





    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. 


    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 



53





 


    (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. 



    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, waive or consent to any action by such vote, waiver 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, Alameda, California 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 AND SUBMISSION TO JURISDICTION.  


    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. 



    To
the extent permissible by law, the Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in the City of
New York in any suit or 


54





 


proceeding arising out of or relating to this Indenture and the Securities or the transactions contemplated hereby. 


    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 18 of the Securities of any director, officer, employee or shareholder, as such, of the Company is waived and released. 


    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] 


55





 


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



	 	 	WIND RIVER SYSTEMS, INC.
	

 	
 	
By:	

 Name:

Title:
	

 	
 	
BANKERS TRUST COMPANY, AS TRUSTEE
 
	

 	
 	

By:	

 Name:

Title:




56






  



 
 

EXHIBIT A
  [FORM OF FACE OF NOTE]    
  


    [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO WIND RIVER SYSTEMS INC. (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
	This
paragraph 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 COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. 


    THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE SHARES OF 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
	This
paragraph to be included only if the Security is a Restricted Security. 


A–1





 

    [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.]3 


	3
	This
paragraph to be included only if the Security is a Transfer Restricted Security. 


A–2





 

WIND RIVER SYSTEMS, INC.  





	CUSIP:	 	R-      




33/4%
CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2006 


    Wind
River Systems, Inc., 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 December 15, 2006 [or such
greater or lesser amount as is indicated on the Schedule of Exchanges of Notes on the other side of this Note].4 


	4
	This
phrase should be included only if the Security is a Global Security. 



Interest
Payment Dates: June 15 and December 15 


Record
Dates: June 1 and December 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 


A–3





 


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



	 	 	WIND RIVER SYSTEMS, INC.
 
	

 	
 	

By:	

/s/ MICHAEL ZELLNER   
 Name: Michael Zellner

Title: Vice President, Finance and Chief Financial Officer





Dated:



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

Securities referred to in the within-mentioned Indenture. 


BANKERS TRUST COMPANY,

as Trustee  



	/s/ WANDA CAMACHO
 Authorized Signatory





By:
Wanda Camacho 


A–4






   [FORM OF REVERSE SIDE OF NOTE]  


 WIND RIVER SYSTEMS, INC.

33/4% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2006  


 1.  INTEREST  


    Wind River Systems, Inc., 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 33/4% per annum. The Company shall pay interest semiannually on June 15 and
December 15 of each year, commencing June 15, 2002. 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
December 15, 2001; 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 June 1 or December 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 of a Certificated Security 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, Bankers Trust Company (the "Trustee", which term shall include any successor trustee under the Indenture hereinafter referred to) will act as Paying
Agent, Registrar and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to the Holder. The Company or any of its Subsidiaries may, subject to
certain limitations set forth in the Indenture, act as Paying Agent or Registrar. 



4.  INDENTURE, LIMITATIONS  


    This Note is one of a duly authorized issue of Securities of the Company designated as its 33/4% Convertible Subordinated Notes Due
December 15, 2006 (the "Notes"), issued under an Indenture dated as of December 10, 2001 (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. 


A–5





 


    The Notes are subordinated unsecured obligations of the Company limited to $150,000,000 aggregate principal amount. The Indenture does not limit other debt of the Company, secured or
unsecured, including Senior Indebtedness. 


5.  OPTIONAL AND PROVISIONAL REDEMPTION  


    The Notes are subject to redemption, at any time on or after December 15, 2004, as a whole or from time to time in part, at the election of the Company.
The Redemption Prices (expressed as percentages of the principal amount) are as follows for Notes redeemed during the periods set forth below: 



	Period
 
	 	Redemption Price

	December 15, 2004 through December 14, 2005	 	100.75%
	December 15, 2005 and thereafter	 	100.00%





in
each case together with accrued interest up to but not including the Redemption Date; provided that if the Redemption Date falls after an interest
payment record date and on or before an interest payment date, then the interest will be payable to the Holders in whose names the Notes are registered at the close of business on the relevant
interest payment record dates. 


    The
Securities may be redeemed at the election of the Company, as a whole or in parts from time to time, at any time prior to December 15, 2004 (a "Provisional Redemption"), at
a Redemption Price equal to $1,000 per $1,000 principal amount of the Notes redeemed (such amount, together with the Make-Whole Payment described below, the "Provisional Redemption
Price"), on the date of redemption (the "Provisional Redemption Date") if (i) the closing price of the Common Stock on the NNM (or other United States national securities exchange where the
Company's Common Stock is traded) has exceeded 150% of the Conversion Price for at least 20 Trading Days within a period of any 30 consecutive Trading Days ending on the Trading Day prior to the date
of mailing of the provisional notice of redemption (the "Notice Date"), and (ii) a shelf registration statement covering resales of the Notes and the Common Stock issuable upon conversion
thereof is effective and is expected to remain effective and available for use for the 30 days following the Provisional Redemption Date, unless registration is no longer required. 


    Upon
any such Provisional Redemption, the Company shall make an additional payment, (the "Make-Whole Payment") to holders of the Notes called for redemption, including
those Notes converted into Common Stock between the Notice Date and the Provisional Redemption Date, in an amount equal to the total value of the aggregate amount of interest that would have been
payable on the Securities from the last day through which interest was paid on the Notes (or December 10, 2001 if no interest has been paid) through December 15, 2004. The Company may
make these Make-Whole Payments, at its option, either in cash or in Common Stock or a combination thereof. Payments made in Common Stock will be valued at 97% of the average closing prices
of Common Stock on the NNM (or other United States national securities exchange where the Company's Common Stock is traded) for the five Trading Days ending on the day prior to the Provisional
Redemption Date. 


    No
sinking fund is provided for the Notes. 


6.  NOTICE OF REDEMPTION  


    Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On and after the Redemption Date, subject to
the deposit with the Paying Agent of funds sufficient to pay the Redemption Price plus accrued interest, if any, accrued to, but excluding, the Redemption Date, interest shall cease to accrue on Notes
or portions of them called for redemption. 


A–6





 

7.  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 35 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 interest up to, but excluding, the Change in Control Purchase Date.
Subject to the conditions of Section 3.8 of the Indenture, the Company may, at its option, pay the Change in Control Purchase Price in cash, in Common Stock or Common Stock of the parent
company to the Company or in a combination of cash and such Common Stock, such Common Stock being valued at 97% of the average of the closing prices on the NNM (or other United States national
securities exchange on which such Common Stock is traded) for the five Trading Days immediately before and including the Trading Day prior to the Repurchase Date. The Holder shall have the right to
withdraw any Change in Control Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at any time prior to the close of business on the
second Business Day next preceding the Change in Control Purchase Date by delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture. 


8.  CONVERSION  


    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 December 15, 2006; provided, however, that if the Note is called for
redemption or subject to purchase upon a Change in Control, the conversion right will terminate at the close of business on the second Business Day immediately preceding the Redemption Date or the
Change in Control Purchase Date, as the case may be, for such Note or such earlier date as the Holder presents such Note for redemption or purchase (unless the Company shall default in making the
redemption payment or Change in Control Purchase Price, as the case may be, when due, in which case
the conversion right shall terminate at the close of business on the date such default is cured and such Note is redeemed or purchased). 


    The
initial Conversion Price is $24.115 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 the Common Stock on the Trading Day immediately prior to the
Conversion Date. 


    To
convert a Note, a Holder must (a) complete and manually sign the conversion notice set forth below and deliver such notice to a Conversion Agent, (b) surrender the
Note to a Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent, (d) furnish such other documents, including such
representations and agreements, as, in the opinion of counsel to the Company, may be required by law, and (e) pay any transfer or similar tax, if required. Notes so surrendered for conversion
(in whole or in part) during the period from the close of business on any regular record date to the opening of business on the next succeeding interest payment date (excluding Notes or portions
thereof called for redemption or subject to purchase upon a Change in Control on a Redemption Date or Change in Control Purchase Date, as the case may be, during the period beginning at the close of
business on a regular record date and ending at the opening of business on the first Business Day after the next succeeding interest payment date, or if such interest payment date is not a Business
Day, the second such Business Day) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest 


A–7





 


payable on such interest payment date on the principal amount of such Note then being converted, and such interest shall be payable to such registered Holder notwithstanding the conversion of such
Note, subject to the provisions of this Indenture relating to the payment of defaulted interest by the Company. If the Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay such funds to such Holder. A Holder may convert a portion of a Note equal to $1,000 or any integral multiple thereof. 



    A
Note in respect of which a Holder had delivered a Change 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. 


9.  CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION  


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


10. SUBORDINATION  


    The indebtedness evidenced by the Notes is, to the extent and in the manner provided in the Indenture, subordinate and junior in right of payment to the prior
payment in full 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. 


11. 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 of or
exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or other
governmental charges that may be imposed in relation thereto by law or permitted by the Indenture. 


12. PERSONS DEEMED OWNERS  


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


13. UNCLAIMED MONEY  


    If money for the payment of principal or interest remains unclaimed for a period ending on the earlier of the date that is ten Business Days prior to the date
such money would escheat to the state or 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. 


A–8





 

14. AMENDMENT, SUPPLEMENT AND WAIVER  


    Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in 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 in 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, defect or inconsistency or make any other change that does not adversely affect the rights of any
Holder. 


15. 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) shall be released from those obligations. 


16. DEFAULTS AND REMEDIES  


    Under the Indenture, an Event of Default includes: (i) default for 30 days in payment of any interest or Additional Interest on any Notes,
whether or not prohibited by the subordination provisions of the Indenture; (ii) default in payment of any principal (including, without limitation, any premium, if any) on the Notes when due,
upon acceleration, redemption or otherwise, whether or not prohibited by the subordination provisions of the Indenture; (iii) failure by the Company for 60 days after written 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 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 to the date of acceleration on the Notes then outstanding to be due and payable immediately, all as and to the extent provided in the Indenture. If an Event of Default occurs as a result of
certain events of bankruptcy, insolvency or reorganization of the Company, unpaid principal of the Notes then outstanding shall become due and payable immediately without any declaration or other act
on the part of the Trustee or any Holder, all as and to the extent provided in the Indenture. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in 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. 



17. TRUSTEE DEALINGS WITH THE COMPANY  


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


A–9





 

18. NO RECOURSE AGAINST OTHERS  


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



19. AUTHENTICATION  


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


20. ABBREVIATIONS AND DEFINITIONS  


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



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


21. INDENTURE TO CONTROL; GOVERNING LAW  


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


    To
the extent permissible by law, the Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in the City of
New York in any suit or proceeding arising out of or relating to the Indenture and this Note or the transactions contemplated thereby. 


    The
Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture. Requests may be made to: Wind River Systems, Inc., 500 Wind River Way,
Alameda, CA 94501, (510) 748-4100, Attention: Investor Relations. 


A–10






  



 
 

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. 



A–11





 




 
 

CONVERSION NOTICE    
  


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


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



A–12





 




 
 

OPTION TO ELECT REPURCHASE
  UPON A CHANGE OF CONTROL    
  


    To: Wind River Systems, Inc. 


    The
undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Wind River Systems, Inc. (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. 


    [If
the price paid to purchase this Security will be paid in Common Stock, the undersigned requests the stock certificate to be made out in another person's name, as
indicated below: 



	

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


	


	


	

 (Print or type assignee's name, address and zip code)]5







	

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. 




	5
	Include
this section only if you would like to have the Common Stock issuable upon repurchase of the Securities issued in another person's name. 


A–13





 
 
 

SCHEDULE OF EXCHANGES OF NOTES6    
  


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



	Principal Amount

of this Global Note

Following Such

Decrease Date

of Exchange

(or Increase)
	 	Authorized

Signatory of

Securities

Custodian
	 	Amount of Decrease in

Principal Amount

of this Global Note
	 	Amount of

Increase in

Principal Amount

of this Global Note

	

 	
 	

 	
 	

 	
 	

 
	

 	
 	

 	
 	

 	
 	

 
	

 	
 	

 	
 	

 	
 	

 
	

 	
 	

 	
 	

 	
 	

 






	6
	This
schedule should be included only if the Security is a Global Security. 


A–14





 
 
 

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
  OF TRANSFER OF TRANSFER RESTRICTED SECURITIES7    
  



	Re:	 	33/4% Convertible Subordinated Notes Due December 15, 2006 (the "Notes") of Wind River Systems, Inc.





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


            / /    book-entry
or            / /    definitive form by
             (the "Transferor"). 


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


    In
connection with such request and in respect of each such Note, the Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating to the Notes
as provided in Section 2.12 of the Indenture dated as of December 10, 2001 between Wind River Systems, Inc. and Bankers Trust Company, 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): 



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

/ /	
 	

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

/ /	
 	

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

/ /	
 	

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

/ /	
 	

Such Note is being transferred pursuant to and in 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)






	7
	This
certificate should only be included if this Security is a Transfer Restricted Security. 


A–15









QuickLinks



Exhibit 4.1



TABLE OF CONTENTS


CROSS-REFERENCE TABLE


ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE

ARTICLE 2 THE SECURITIES


ARTICLE 3 REDEMPTION AND PURCHASES


ARTICLE 4 CONVERSION

ARTICLE 5 SUBORDINATION

ARTICLE 6 COVENANTS


ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

ARTICLE 8 DEFAULT AND REMEDIES

ARTICLE 9 TRUSTEE


ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE

ARTICLE 11 AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS

ARTICLE 12 MISCELLANEOUS


EXHIBIT A [FORM OF FACE OF NOTE]


ASSIGNMENT FORM

CONVERSION NOTICE

OPTION TO ELECT REPURCHASE UPON A CHANGE OF CONTROL

SCHEDULE OF EXCHANGES OF NOTES6

CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF TRANSFER RESTRICTED SECURITIES7