Exhibit 4.1

EXECUTION VERSION

POWER-ONE, INC.
as Issuer

AND

THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee

Indenture

Dated as of June 17, 2008

8% SENIOR SECURED CONVERTIBLE NOTES DUE 2013

TABLE OF CONTENTS

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INDENTURE, dated as of June 17, 2008, between POWER-ONE, INC., a corporation duly organized and existing under the laws of the State of Delaware, as Issuer (the “Company”), having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, as Trustee (the “Trustee”).

RECITALS OF THE COMPANY

WHEREAS, the Company has duly authorized the creation of an issue of 8% Senior Secured Convertible Notes due 2013 (each a “Security” and collectively, the “Securities”) of the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, all things necessary to make the Securities, when executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid and legally binding obligations of the Company, and to make this Indenture a valid and legally binding agreement of the Company, in accordance with the terms of the Securities and the Indenture, have been done;

NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Securities by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Securities, as follows:

I.  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

1.01                           DEFINITIONS.

“Act,” when used with respect to any Holder, has the meaning specified in Section 1.05(a).

“Additional Interest” means Default Additional Interest and Late Filing Additional Interest.

“Additional Securities” has the meaning specified in Section 2.17.

“Additional Shares” has the meaning specified in Section 5.03(a).

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified 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 Members” has the meaning specified in Section 2.09(f).

“Applicable Price” has the meaning specified in Section 5.07(n).

“Averaging Period” has the meaning specified in Section 5.07(f).

“Bankruptcy Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

“Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or State law for relief of debtors.

“Beneficial Owner” means a “beneficial owner” as determined in accordance with Rule 13d-3 under the Exchange Act.

“Board of Directors” means, with respect to any Person, either the board of directors of such Person or any duly authorized committee of that board.

“Business Day” means any day, other than a Saturday or a Sunday, that is neither a legal holiday in the City of New York nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York.

“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock and limited liability company interests and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

“Cap Price” has the meaning set forth in Section 5.07(m).

“Cash Equivalents” means:

(i)                           United States dollars;

(ii)                        securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition;

(iii)                     certificates of deposit and eurodollar time deposits with maturities of twelve months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having combined capital and surplus in excess of $500 million and a Thomson BankWatch Rating at the time of acquisition of “B” or better;

(iv)                    repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above;

(v)                       commercial paper having one of the two highest ratings obtainable from ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Rating Services and in each case maturing within six months after the date of acquisition; and

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(vi)                    money market or mutual funds at least 90% of the assets of which constitute cash equivalents of the kinds described in clauses (i) through (v) of this definition.

“Collateral” means the assets of the Company and its domestic, first tier, Wholly Owned Subsidiaries and any other property or assets that fall within the definition of “Pledged Collateral” under the Pledge Agreement that from time to time secure the Securities, and the payment and performance of all other obligations of the Company to the Holders or the Trustee hereunder.

“Collateral Agent” means The Bank of New York Trust Company, N.A. or such successors appointed under the Security Documents.

“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act.

“Common Stock” means the shares of common stock, par value $0.001 per share, of the Company as they exist on the date of this Indenture or any other Reference Property into which the Common Stock shall be reclassified, changed, converted into or exchanged for in accordance with to Section 5.12.

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“Company Notice” has the meaning specified in Section 13.03.

“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that person with respect to any Indebtedness, lease or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; provided, that indemnification provisions not otherwise constituting a guarantee shall not be deemed to be a “contingent obligation.”

“Continuing Directors” means (i) individuals who on the Issue Date were members of the Board of Directors of the Company and (ii) any new directors whose election or appointment to the Board of Directors of the Company or nomination for election by the Company’s stockholders was approved by at least a majority of the Company’s directors then still in office (or a duly constituted committee thereof), either who were directors on the Issue Date or whose election, appointment or nomination for election was previously so approved.

“Conversion Agent” has the meaning specified in Section 2.06(a) and shall include any additional conversion agents appointed pursuant to Section 2.06(a).

“Conversion Date” has the meaning specified in Section 5.04(b).

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“Conversion Notice” has the meaning specified in Section 5.04(a).

“Conversion Obligation” has the meaning specified in Section 5.05(a).

“Conversion Price” means, at any time, $1,000 divided by the Conversion Rate as at that time.

“Conversion Rate” means the Initial Conversion Rate, as it may be adjusted pursuant to Section 5.03 or Section 5.07.

“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, as of the date of this Indenture, located at The Bank of New York Trust Company, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:  Corporate Unit, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

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

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

“Default Additional Interest” has the meaning specified in Section 7.03(a).

“Delegending Date” has the meaning specified in Section 2.10(d).

“Depositary” means The Depository Trust Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean such successor Depositary.

“Dilutive Issuance” has the meaning specified in Section 5.07(n).

“Distributed Property” has the meaning specified in Section 5.07(d).

“Effective Date” has the meaning specified in Section 5.03(c).

“Event of Default” has the meaning specified in Section 7.01.

“Ex-Date” means, with respect to any issuance or distribution to holders of the Common Stock, the first date on which the shares of the Common Stock trade on the Relevant Exchange, regular way, without the right to receive such issuance or distribution.

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

“Excluded Securities” means any Common Stock issued or issuable: (i) in connection with any employee benefit plan or agreement which has been, as of the date of determination,

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approved by the Company’s Board of Directors, pursuant to which the Company’s securities may be issued in the ordinary course of business to any consultant, employee, officer or director for services provided to the Company or any of its subsidiaries; (ii) upon conversion of the Securities; (iii) pursuant to any bona fide firm commitment underwritten public offering with a nationally recognized underwriter, which generates gross proceeds to the Company in excess of $50,000,000 (other than an “at-the-market offering” as defined in Rule 415(a)(4) under the 1933 Act and “equity lines”); (iv) upon exercise or conversion of any options (including the warrants held by PWER Bridge LLC) or convertible securities which are outstanding on June 11, 2008, provided that the terms of such options or convertible securities are not materially amended, modified or changed on or after June 12, 2008 in a manner adverse to the holders; (v) pursuant to rights under the Rights Agreement, dated as of July 27, 2000, between the Company and the rights agent named therein or any similar successor agreement (the “Rights Plan”) and (vi) directly on an arm’s-length basis to an unrelated third party in connection with bona fide, strategic transactions, joint ventures, collaborations, licenses of products or technology, or similar transactions approved by the Company’s Board of Directors; provided that the primary purpose of such issuance is not to raise equity capital.

“Fundamental Change” means the occurrence of any one of the following events at any time after the Issue Date:

(a)                                  any Person other than the Company, its Subsidiaries or its or their employee benefit plans, files a Schedule TO or any similar schedule, form or report under the Exchange Act disclosing that such Person has become the direct or indirect ultimate Beneficial Owner of the Company’s Capital Stock representing more than 50% of the total voting power of all shares of the Capital Stock of the Company entitled to vote generally in elections of directors;

(b)                                 the Company (1) merges or consolidates with or into any other Person, another Person merges with or into the Company, or the Company conveys, sells, transfers or leases all or substantially all of its assets to another Person (excluding a pledge of securities issued by the Company or any of its Subsidiaries) or (2) engages in any recapitalization, reclassification or other acquisition transaction or series of transactions in which all or substantially all the Common Stock is exchanged for or converted into cash, securities or other property, in each case, other than any merger or consolidation:

(i)                           pursuant to which the holders of the Common Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the voting power of all shares of Capital Stock entitled to vote generally in the election of directors of either (A) the continuing or surviving corporation immediately after the transaction or (B) the corporation that directly or indirectly owns 100% of the Capital Stock of such continuing or surviving corporation;

(ii)                        that does not result in a reclassification, conversion, exchange or cancellation of the outstanding Common Stock; or

(iii)                     that is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity;

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(c)                                  at any time the Continuing Directors do not constitute a majority of Board of Directors of the Company (or, if applicable, of a successor person to the Company); or

(d)                                 if shares of the Common Stock, or shares of any other Capital Stock into which the Securities are convertible pursuant to the terms of this Indenture, are not listed for trading on any United States national or regional securities exchange.

Notwithstanding the foregoing, any transaction or event described above shall not constitute a Fundamental Change if, in connection with such transaction or event, or as a result therefrom, a transaction described in clause (b) above occurs (without regard to any exclusion to such clause described in the paragraphs (i), (ii) or (iii) thereunder) and at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares, cash payments made pursuant to dissenters’ appraisal rights and cash dividends) consists of shares of common stock (or depositary receipts in respect thereof) traded on any Relevant Exchange (or will be so traded or quoted immediately following the completion of the merger or consolidation or such other transaction) and, as a result of such transaction, the Securities become convertible into such Common Stock (or depositary receipts in respect thereof) pursuant to Section 5.12.

For the purposes of this definition, the term “Person” has the meaning specified in Section 1.01 and also includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

“Fundamental Change Expiration Time” has the meaning specified in Section 4.02(b).

“Fundamental Change Repurchase Date” has the meaning specified in Section 4.02(a).

“Fundamental Change Repurchase Notice” has the meaning specified in Section 4.02(b).

“Fundamental Change Repurchase Price” has the meaning specified in Section 4.02(a).

“Fundamental Change Repurchase Right Notice” has the meaning specified in Section 4.01(a).

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Public Company Accounting Oversight Board and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, in each case, as in effect in the United States from time to time.

“Global Security” means a Security in global form registered in the Security Register in the name of a Depositary or a nominee thereof.

“Holder” means a Person in whose name a Security is registered in the Security Register.

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“Indebtedness” of a Person means, without duplication (i) all indebtedness for borrowed money, (ii) all obligations issued, undertaken or assumed as the deferred purchase price of property or services, including (without limitation) capital leases in accordance with GAAP (other than trade payables entered into in the ordinary course of business and any liabilities relating to the application of FASB 133 or any other related accounting literature under GAAP or in connection with embedded or standalone derivatives related to indebtedness), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (vi) all monetary obligations under any leasing or similar arrangement that would be classified as a capital lease in accordance with GAAP, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, Lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; and provided, however, that neither the accrual of interest nor the accretion of original issue discount (in each case, whether as the issuance of pay-in-kind securities or otherwise) nor imputed interest, cost or premiums shall be deemed to be Indebtedness for purposes of this definition.

“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.

“Indenture Documents” means, collectively, this instrument, the Pledge Agreement and the Security Documents, in each case, as amended from time to time in accordance with the terms thereof.

“Initial Conversion Rate” means 304.8780 shares of Common Stock per $1,000 principal amount of Securities.

“Initial Purchaser” means the initial purchaser of the securities under the Purchase Agreement.

“interest” means, when used with reference to the Securities, any interest payable under the terms of the Securities, including any Additional Interest payable under the terms of the Securities.

“Interest Payment Date” means each March 31, June 30, September 30 and December 31 of each year, commencing September 30, 2008.

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“Issue Date” means June 17, 2008, being the date the Securities are originally issued.

“Last Reported Sale Price” means, with respect to the Common Stock or any other security for which a Last Reported Sale Price must be determined, on any date, the closing sale price per share of Common Stock or unit of such other security (or, if no closing sale price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) on such date as reported in composite transactions for the Relevant Exchange, if any.  If the Common Stock or such other security is not listed for trading on a United States national or regional securities exchange on such date, the “Last Reported Sale Price” shall be the average of the last quoted bid and ask prices per share of Common Stock or unit of such other security in the over-the-counter market on such date, as reported by Pink Sheets LLC or similar organization.  If the Common Stock or such other security is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock or such other security on such date from each of at least three nationally recognized independent investment banking firms, selected from time to time by the Company for that purpose.  The Last Reported Sale Price shall be determined without reference to extended or after hours trading.  Any such determination shall be conclusive absent manifest error.

“Late Filing Additional Interest” has the meaning specified in Section 3.05(a).

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

“LTM EBITDA” shall mean, with respect to the Company and its Subsidiaries on a consolidated basis for the most recent twelve-month period for which financial statements are, or are made, publicly available, the consolidated net income of the Company and its Subsidiaries for such period (treated as a single period), plus for such period, to the extent such amount was deducted in calculating such consolidated net income,

(a)                                  the sum of (in each case without duplication):

(i)                                     provision for taxes based on income, profits or capital of the Company and its Subsidiaries for such period, including, without limitation, state, franchise and similar taxes, and taxes paid by the Company and its Subsidiaries during such period,

(ii)                                  interest expense of the Company and its Subsidiaries for such period plus the amount of dividends and accretion on preferred capital stock, and accretion of discounts on the Company’s debt, for such period,

(iii)                               depreciation and amortization expenses of the Company and its Subsidiaries for such period,

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(iv)                              business optimization expenses and restructuring charges and reserves, in each case based on the good faith determination of the audit committee of the Company’s Board of Directors (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs (including future lease commitments) and costs to consolidate facilities and relocate employees),

(v)                                 any other non-cash charges or other non-cash items (including, without limitation, non-cash charges or other non-cash items relating to the application of FASB 133 or any other related accounting literature under GAAP or in connection with embedded or standalone derivatives related to indebtedness, or the write-off of goodwill or other intangibles in accordance with SFAS 142 or SFAS 144, or any non-cash compensation charges in accordance with SFAS 123(R)); provided that, for purposes of this subclause (v), any non-cash charges, other non-cash items or losses shall be treated as cash charges, other non-cash items or losses in any subsequent period during which cash disbursements attributable thereto are made, and

(vi)                              Transaction Costs,

minus for such period

(b)                                 the sum of (in each case without duplication), non-cash gains from:

(i)                                     the disposition of assets,

(ii)                                  the change of estimates, and

(iii)                              change of actuarial assumptions.

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change pursuant to clauses (a) or (b) of the definition thereof other than, for the avoidance of doubt, any such transaction or event that is not a Fundamental Change as a result of the paragraph following clause (d) thereof.

“Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock on the Relevant Exchange, and such suspension or limitation occurs or exists at any time within the 30 minutes prior to the closing time of the Relevant Exchange on such day.

“Maturity” means, in respect of any Security, the date on which the principal, Fundamental Change Repurchase Price or Redemption Price of such Security becomes due and payable pursuant to this Indenture, whether at the Stated Maturity Date, Fundamental Change Repurchase Date or Redemption Date, by declaration of acceleration or otherwise.

“New Issuance Price” has the meaning specified in Section 5.07(n).

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“Officer” means each of the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer and the Secretary, of the Company.

“Officers’ Certificate” means a certificate signed by two Officers, or by one Officer and any Senior Vice President of the Company, and delivered to the Trustee.

“Opinion of Counsel” means a written opinion of counsel for the Company, who may be external or in-house counsel.

“Outstanding” means, in respect of a Security, that such Security is outstanding pursuant to the terms of Section 2.13.

“PAI” means PAI Capital LLC, a limited liability company established under the laws of the State of Delaware.

“Paying Agent” has the meaning specified in Section 2.06(a) and shall include any additional paying agents appointed pursuant to Section 2.06(a).

“Permitted Indebtedness” means (i) the Indebtedness evidenced by the Securities, (ii) unsecured Indebtedness incurred by the Company that is made expressly subordinate in right of payment to the Indebtedness evidenced by the Securities, provided that such Indebtedness does not provide for (A) the payment, prepayment, repayment, repurchase or defeasance, directly or indirectly, of any principal or premium, if any, thereon until ninety-one (91) days after the maturity date of the Securities or later and (B) total interest and fees at a rate in excess of eight percent (8%) per annum, (iii) Indebtedness of the Company and its Subsidiaries outstanding as of the date of this Indenture (which, for the avoidance of doubt, shall include the maximum principal amount that may be borrowed under any outstanding revolving credit facility), (iv) Indebtedness secured by Permitted Liens, (v)  unsecured obligations or Indebtedness to trade creditors of the Company or any of its Subsidiaries incurred in the ordinary course of business, (vi) extensions, refinancings and renewals of any items of Permitted Indebtedness, provided that (W) the principal amount is not increased, (X) the stated maturity date is not made earlier, (Y) if the Indebtedness being extended, refinanced or renewed is subordinate in right of payment to the Indebtedness evidenced by the Securities, such extended, refinanced or renewed Indebtedness is subordinated in right of payment to the Securities on terms at least as favorable in the aggregate to the Holders of the Securities as those contained in the documentation governing the Indebtedness being extended, refinanced or renewed and (Z) such Indebtedness is incurred either by (1) the Subsidiary who is the obligor on the Indebtedness being extended, refinanced or renewed or (2) the Company, (vii) Indebtedness in the form of a bond or other obligation in favor of a foreign tax authority to secure actual or potential tax obligations to it and (viii) any Indebtedness not otherwise set forth in clauses (i) through (vii) above, provided that the aggregate amount of such Indebtedness shall not exceed $10 million.

“Permitted Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation of law, arising in the ordinary course of business with respect to a

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liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) easements, rights-of-way, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and Liens in favor of governmental authorities and public utilities, that do not materially interfere with the ordinary course of business of the Company and its Subsidiaries, taken as a whole, (v) Liens securing obligations under indebtedness included in clauses (i) and (iii) of the definition of Permitted Indebtedness, (vi) Liens (A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B) existing on such equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such equipment, (vii) Liens on property of, or on shares of stock or Indebtedness of, any corporation existing at the time such corporation becomes, or becomes a part of, any Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Subsidiary other than the property or assets acquired and the proceeds and products thereof and were not incurred in anticipation of such Person becoming a Subsidiary; (viii) Liens incurred in connection with the extension, renewal or refinancing of any Indebtedness secured by Liens of the type described in clauses (v) and (vi) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien, (ix) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries, (x) any option or other agreement to purchase any asset of the Company or any Subsidiary the purchase, sale or other disposition of which is not prohibited by any provision of the Securities, (xi) leases or subleases and licenses and sublicenses granted to others in the ordinary course of the Company’s business, not interfering in any material respect with the business of the Company and its Subsidiaries taken as a whole, (xii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation of goods and (xiii) Liens arising from judgments, decrees or attachments other than orders or decrees constituting a bankruptcy-related event of default.

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

“Physical Securities” means permanent certificated Securities in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.

“Pledge Agreement” means that certain Pledge and Security Agreement, dated as of even date herewith, by the Company and certain of its Subsidiaries in favor of the Trustee, as such agreement may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

“Pledged Equity Co-Collateral Agents” has the meaning specified in Section 13.01(b).

“Pledged Subsidiaries” means each first tier Subsidiary of the Company, Capital Stock in which constitutes “Pledged Collateral” under and as defined in the Pledge Agreement.

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“PowerOne UK” means Power-One Limited, a UK company incorporated in England and Wales with registration number 3103043.

“Protected Purchaser” has the meaning specified in Section 2.12(a).

“Purchase Agreement” means the Purchase Agreement between the Company and ▇▇▇▇▇▇ Brothers Inc., dated June 12, 2008, relating to the Securities,

“Ratio Event” has the meaning specified in Section 4.05(a).

“Ratio Event Expiration Time” has the meaning specified in Section 4.06(b).

“Ratio Event Repurchase Date” has the meaning specified in Section 4.06(a).

“Ratio Event Repurchase Notice” has the meaning specified in Section 4.06(b).

“Ratio Event Repurchase Period” has the meaning specified in Section 4.06(a).

“Ratio Event Repurchase Price” has the meaning specified in Section 4.06(a).

“Ratio Event Repurchase Right Notice” has the meaning specified in Section 4.05(a).

“Record Date” means, with respect to any Interest Payment Date, the March 15, June 15, September 15 or December 15 immediately preceding such Interest Payment Date (whether or not a Business Day).

“Redemption Date” means, with respect to any Security to be redeemed, the date fixed for redemption of such Security by the Company.

“Redemption Notice” has the meaning specified in Section 4.11(a).

“Redemption Price” has the meaning specified in Section 4.09(a).

“Reference Property” has the meaning specified in Section 5.12(a).

“Released Collateral” has the meaning specified in Section 13.03.

“Relevant Exchange” means, at any time, the principal United States national or regional securities exchange or market on which the Common Stock is listed or admitted for trading at such time.

“Reorganization Event” has the meaning specified in Section 5.12(a).

“Resale Restriction Termination Date” has the meaning specified in Section 2.10(a).

“Responsible Officer” means any officer of the Trustee within the corporate trust department of the Trustee including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively,

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with direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer of the Trustee to whom such matter is referred because of such officer’s knowledge and familiarity with the particular subject.

“Restricted Security” has the meaning specified in Section 2.10(b).

“Restricted Security Legend” has the meaning specified in Section 2.10(a).

“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Scheduled Trading Day” means a day during which trading in the Common Stock is scheduled to occur on the Relevant Exchange.  If the Common Stock is not then listed or admitted for trading on a United States national or regional securities exchange or market, “Scheduled Trading Day” shall mean a Business Day.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Security” has the meaning specified in the first paragraph of the Recitals of the Company.

“Security Documents” means, collectively, the Pledge Agreement and all other security agreements, mortgages, deeds of trust, pledges, collateral assignments and other agreements or instruments evidencing or creating any security in favor of the Trustee and any Holders in any or all of the Collateral, (including, without limitation, (a) the pledge agreement dated on or about the Closing Date and entered into between the Company, as chargor and The Bank of New York Trust Company (Cayman) Limited, as chargee in its own name and behalf and in the name of and on behalf of the other secured creditors referred to therein (the “Cayman Pledge Agreement”), relating to the shares representing 66% of the corporate capital, as issued from time to time and paid up, of Power-One Limited, a company incorporated in the Cayman Islands, (b) the pledge agreement dated on or about the Closing Date and entered into between PAI, as pledgor and The Bank of New York, as pledgee in its own name and behalf and in the name of and on behalf of the other secured creditors referred to therein (the “Chinese Pledge Agreement”), relating to the shares representing 66% of the corporate capital, as issued from time to time and paid up, of Shenzhen, a wholly foreign owned limited liability company established under the laws of the People’s Republic of China, (c) the pledge agreement dated on or about the Closing Date and entered into between the Company, as pledgor and The Bank of New York (Luxembourg) S.A., as collateral agent in its own name and behalf and in the name of and on behalf of the other secured creditors referred to therein (the “Italian Pledge Agreement”), relating to the shares representing 66% of the corporate capital, as issued from time to time and paid up, of Power-One Italy Holdings, S.p.A., an Italian corporation with, as of the Closing Date, corporate capital of Eur. 120,000.00, and with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇, fiscal code 09159521005 and (d) the pledge agreement dated on or about the Closing Date and entered into between the Company, as pledgor and BNY Corporate

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Trust Services Limited, as collateral agent in its own name and behalf and in the name of and on behalf of the other secured creditors referred to therein (the “UK Pledge Agreement”), relating to the shares representing 60.1% of 66% of the corporate capital, as issued from time to time and paid up, of PowerOne UK) in each case, as amended from time to time in accordance with the terms thereof.

“Security Register” has the meaning specified in Section 2.06(b).

“Security Registrar” has the meaning specified in Section 2.06(a) and shall include any co-registrars appointed pursuant to Section 2.06(a).

“Shenzhen” means Power-One Asia Pacific Electronics (Shenzhen) Co., Ltd., a wholly foreign owned limited liability company established under the laws of the People’s Republic of China.

“Significant Subsidiary” means any subsidiary, or group of subsidiaries, that would constitute a “significant subsidiary” under Regulation S-X under the Securities Act.

“Spin-Off” has the meaning specified in Section 5.07(d).

“Stated Maturity Date” means, for any Security, June 17, 2013.

“Stock Price” means, for a Make-Whole Fundamental Change (a) if holders of the Common Stock receive only cash consideration for their shares of Common Stock in connection with such Make-Whole Fundamental Change, the cash amount paid per share of Common Stock and (b) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Effective Date of such Make-Whole Fundamental Change.

“Subordinated Indebtedness” means any Indebtedness of the Company or its Subsidiaries (whether outstanding on the Issue Date or thereafter incurred) that is subordinate or junior in right of payment to the Securities pursuant to a written agreement.

“Subsidiary” means a corporation, association, company, limited partnership, joint-stock company or business trust more than 50% of the outstanding voting stock or other voting interests of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “voting stock or other voting interests” means stock or other voting interests which ordinarily have voting power for the election of directors or comparable governing body, whether at all times or only so long as no senior class of stock or other interests has such voting power by reason of any contingency.

“Successor Company” has the meaning specified in Section 8.01(a)(i).

“Tangible Net Worth” means, with respect to any Person at any date of determination, its consolidated stockholders’ equity, as determined on a consolidated basis, excluding the impact of non-cash charges or other non-cash items relating to the application of FASB 133 or any other related accounting literature under GAAP or in connection with embedded or standalone

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derivatives related to Indebtedness, minus the aggregate intangible assets of such Person, as determined on a consolidated basis.

“Total Debt” means, as of any date of determination, the total amount of Indebtedness that would appear as such on the balance sheet of a Person as of such date, prepared in accordance with GAAP.

“Total Net Debt” means, as of any date of determination and in respect of any Person, the total amount of Indebtedness that would appear as such on the balance sheet of such Person, minus the total amount of cash and Cash Equivalents that would appear as such on such balance sheet of such Person, in each case as of the same date and as prepared in accordance with GAAP.

“Trading Day” means a day during which (a) trading in the Common Stock generally occurs on the Relevant Exchange and (b) there is no Market Disruption Event.  If the Common Stock is not then listed or admitted for trading on a United States national or regional securities exchange or market, then “Trading Day” means a Business Day.

“Transaction Costs” means all fees, costs and expenses incurred by the Company in connection with the offering of the Securities and the application of the net proceeds thereof, including all fees, costs and expenses relating to this Indenture, the Security Documents, the Purchase Agreement relating to the Securities, and any other document prepared in connection therewith and the application of the proceeds thereof relating to the payoff of outstanding Indebtedness and the release of related Liens and all costs, fees and expenses associated with any amendment or waiver under any such document, together with all fees, costs and expenses of financial, legal and accounting advisors related thereto.

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in effect on the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

“United States” means the United States of America.

“Valuation Period” has the meaning specified in Section 5.07(d).

“VWAP” means the volume weighted average price and refers to such price as reported by the Bloomberg Professional Service provided by Bloomberg L.P. or, if such service is no longer providing such information, such other comparable service as the Company shall reasonably specify. To the extent that Common Stock is listed on The Nasdaq Global Market, the VWAP on The Nasdaq Global Market will be determined based on the Bloomberg function: “TICKER [PWER] EQUITY AQR” or a successor function on such service.  If for whatever reason the VWAP is unavailable for a Trading Day, then the Last Reported Sale Price of Common Stock on that Trading Day shall be used in lieu of the VWAP.

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“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, all the Capital Stock of which (other than directors’ qualifying shares) is owned by such Person or another Wholly Owned Subsidiary of such Person.

1.02                           RULES OF CONSTRUCTION.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(a)                                  the terms defined in Section 1.01 have the meanings assigned to them in Section 1.01 and include the plural as well as the singular;

(b)                                 all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and

(c)                                  the words “herein,” “hereof’ and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

1.03                           COMPLIANCE CERTIFICATES AND OPINIONS.

(a)                                  Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required hereunder.  Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with any other requirement set forth in this Indenture.

(b)                                 Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(i)                                     a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(ii)                                  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;

(iii)                               a statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(iv)                              a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

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1.04                         FORM OF DOCUMENTS DELIVERED TO TRUSTEE.

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

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

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

1.05                         ACTS OF HOLDERS; RECORD DATES.

(a)                                  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 9.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.05.

(b)                                 The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee reasonably deems sufficient.

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(c)                                  The Company may fix any day as the record date for the purpose of determining the Holders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders.  If not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 10.01) prior to such first solicitation or vote, as the case may be.  With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.

(d)                                 The ownership of the Securities shall be proved by the Security Register.

(e)                                  Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

1.06                         NOTICES, ETC., TO TRUSTEE AND COMPANY.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

(i)                                     the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its applicable Corporate Trust Office provided that such notice shall be effective only upon actual receipt by the Trustee; or

(ii)                                  the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention:  General Counsel.

1.07                         NOTICE TO HOLDERS; WAIVER.

(a)                                  Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.  Notices will be deemed to have been given on the date of mailing.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such

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filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

(b)                                 In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

(c)                                  Whenever under this Indenture the Trustee is required to provide any notice by mail, in all cases the Trustee may alternatively provide notice by overnight courier or by telefacsimile, with confirmation of transmission.

1.08                         EFFECT OF HEADINGS AND TABLE OF CONTENTS.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof, and all Article and Section references are to Articles and Sections, respectively, of this Indenture unless otherwise expressly stated.

1.09                         SEVERABILITY CLAUSE.

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

1.10                         BENEFITS OF INDENTURE.

Except as provided in Article 13 hereof, nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their respective successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

1.11                         GOVERNING LAW.

This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

1.12                         NO RECOURSE AGAINST OTHERS.

No director, officer, employee, stockholder or Affiliate of the Company from time to time shall have any liability for any obligations of the Company under the Securities or this Indenture.  Each Holder by accepting a Security waives and releases such liability.

II.  THE SECURITIES

2.01                         DESIGNATION, AMOUNT AND ISSUANCE OF SECURITIES.

The Securities shall be designated as “8% Senior Secured Convertible Notes due 2013.”  The Securities shall be limited to an aggregate principal amount of up to $80,000,000, subject to

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Section 2.17.  Upon the execution of this Indenture, or from time to time thereafter, Securities may be executed by the Company and delivered to the Trustee for authentication in accordance with Section 2.05.

2.02                         FORM OF THE SECURITIES.

(a)                                  The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form set forth in Exhibit A hereto.  The terms and provisions contained in the form of Securities attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

(b)                                 Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the custodian for the Global Securities, the Depositary or by The Nasdaq Stock Market, Inc. in order for the Securities to be tradable on The PORTAL Market or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.

(c)                                  So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, subject to Section 2.09, all of the Securities will be represented by one or more Global Securities.  The transfer and exchange of beneficial interests in any such Global Securities shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.09, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Security.

(d)                                 Any Global Security shall represent such of the outstanding Securities as shall be specified therein and 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 increased or reduced to reflect issuances, repurchases, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the custodian for the Global Security, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Securities in accordance with this Indenture.

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2.03                         DATE AND DENOMINATION OF SECURITIES AND INTEREST.

The Securities shall be issuable in fully registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof.  Each Security shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Securities attached as Exhibit A hereto.  Interest on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

2.04                         PAYMENTS ON THE SECURITIES.

(a)                                  On the Stated Maturity Date, each Holder shall be entitled to receive on such date the principal amount of the Securities held, plus accrued and unpaid interest to, but not including, the Stated Maturity Date.

(b)                                 On each Interest Payment Date, the Person in whose name a Security is registered on the Register at the close of business on the Record Date for such Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date, except that the interest payable upon Maturity shall be payable to the Person to whom principal is payable upon Maturity.

(c)                                  If any Interest Payment Date or any date on which principal or any other amount is payable in respect of the Securities falls on a day that is not a Business Day, such payment of interest or principal, as the case may be, shall be postponed to the next succeeding Business Day and no interest or other amount shall be paid as a result of such postponement.

(d)                                 The Company shall pay any amount of principal when due:

(i)                                     with respect to Global Securities, to the Depositary or its nominee in immediately available funds; and

(ii)                                  with respect to Physical Securities, at the office of the Paying Agent, which initially shall be the Corporate Trust Office.

(e)                                  The Company shall pay interest on each Interest Payment Date:

(i)                                     with respect to any Global Securities by wire transfer of immediately available funds to the account of the Depositary or its nominee;

(ii)                                  with respect to any Physical Securities having a principal amount of $2,000,000 or less, by check mailed to the address of the Person entitled thereto as it appears in the Security Register; provided that at Maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office; and

(iii)                               with respect to any Physical Securities having a principal amount of more than $2,000,000, either (A) by check mailed to the address of the Person entitled thereto as it appears in the Security Register or (B) at the election of the Person entitled thereto, by wire transfer in immediately available funds to an account within the United States of

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such Person if such Person has duly delivered notice of such election and applicable wire instructions to the Registrar not later than the Record Date for such Interest Payment Date and has not delivered notice to the Registrar revoking such election prior to such Record Date; provided that at Maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office.

(f)                                    If the Company is required to pay any Additional Interest under this Indenture, the Company shall pay such Additional Interest to Holders on the same dates and in the same manner as regular interest is paid to Holders, except as set forth in Section 3.05 and Section 7.03.

2.05                         EXECUTION AND AUTHENTICATION.

(a)                                  One or more Officers shall sign the Securities for the Company by manual or facsimile signature.  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.

(b)                                 The Company shall deliver the Securities executed by the Company to the Trustee for authentication together with an authentication order executed by the Chief Executive Officer of the Company ordering the authentication and delivery of such Securities, which authentication order shall set forth the number of separate Securities certificates, the principal amount of each of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the Holder of each such Security and delivery instructions.  Upon receipt of such executed Securities and such authentication order, the Trustee shall authenticate and deliver such Securities in accordance with such authentication order.

(c)                                  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.

(d)                                 The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities.  Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Company.  Unless limited by the terms of such appointment, 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 has the same rights as any Security Registrar, Paying Agent or agent for service of notices and demands.

2.06                         SECURITY REGISTRAR, PAYING AGENT AND CONVERSION AGENT.

(a)                                  The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Security Registrar”), an office or agency where Securities may be presented for payment (the “Paying Agent”) and an office or agency where Securities may be presented for conversion (the “Conversion Agent”), in each case, in the Borough of Manhattan, The City of New York.  The Company initially appoints the Trustee as Security Registrar, Conversion Agent and Paying Agent in connection with the Securities.  The Bank of New York, an Affiliate of the Trustee, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,

▇▇

▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration, shall be considered as one such office or agency of the Company for each of the aforesaid purposes.  The Company or any of its domestically organized Wholly Owned Subsidiaries may act as Paying Agent, Conversion Agent or Security Registrar.  The Company may from time to time appoint one or more additional Conversion Agents, Paying Agents and co-registrars and may from time to time rescind such designations.

(b)                                 The Security Registrar shall keep a register of the Securities (the “Security Register”) and of their transfer and exchange.

(c)                                  The Company shall enter into an appropriate agency agreement with any Security Registrar, Paying Agent or Conversion Agent not a party to this Indenture.  Each such agreement shall implement the provisions of this Indenture that relate to such agent.

(d)                                 The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency, if not the Trustee, or if not designated or appointed by the Trustee.

(e)                                  If at any time the Company fails to maintain a Security Registrar, Paying Agent or Conversion Agent or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

(f)                                    The Company may remove any Security Registrar, Paying Agent or Conversion Agent at any time and without prior notice to Holders by written notice to such Security Registrar, Paying Agent or Conversion Agent and to the Trustee; provided that no such removal shall become effective until (i) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Security Registrar, Paying Agent or Conversion Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Security Registrar, Paying Agent or Conversion Agent until the appointment of a successor in accordance with clause (i) above.  The Security Registrar, Paying Agent or Conversion Agent may resign at any time upon written notice; provided that the Trustee may resign as Paying Agent, Conversion Agent or Security Registrar only if the Trustee also resigns as Trustee in accordance with Section 9.11.

2.07                         PAYING AGENT TO HOLD MONEY IN TRUST.

(a)                                  On or prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming due.  If the Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund for the benefit of the Persons entitled thereto.  If such deposit is made, or such segregation is effected, on a due date for such principal or interest, such deposit shall be received, or such segregation shall be effected, by 11:00 a.m., New York City time, on such due date.

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(b)                                 The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment.

(c)                                  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent.  Upon complying with this Section 2.07, the Paying Agent shall have no further liability for the money delivered to the Trustee.

2.08                         EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.

(a)                                  The Company shall cause to be kept at the Corporate Trust Office the Security Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Security Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

(b)                                 Upon surrender for registration of transfer of any Securities to the Security Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.08 and in Section 2.10, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

(c)                                  Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture, upon surrender of the Securities to be exchanged at the office of the Security Registrar.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

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

(e)                                  All Securities presented or surrendered for registration of transfer or for exchange, repurchase, redemption or conversion shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, duly executed by the Holder thereof or his attorney duly authorized in writing.

(f)                                    No service charge shall be made to any Holder for any registration of, transfer or exchange of Securities, but the Company may require payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.

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(g)                                 Neither the Company nor the Trustee nor any Security Registrar shall be required to exchange, issue or register a transfer of any Securities or portions thereof (i) tendered for repurchase (and not withdrawn) pursuant to Article 4, (ii) surrendered for conversion pursuant to Article 5, or (iii) selected for redemption pursuant to Article 4.

2.09                         GLOBAL SECURITIES.

(a)                                  Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to the Depositary or a nominee thereof or custodian for the Global Securities therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

(b)                                 Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless:

(i)                                     the Depositary (A) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (B) has ceased to be a clearing agency registered under the Exchange Act, and in each case, a successor depositary has not been appointed by the Company within 90 calendar days; or

(ii)                                  in accordance with clause (c) below.

Any Global Securities exchanged pursuant to this Section 2.09(b) shall be so exchanged in whole and not in part.

(c)                                  In addition, Physical Securities shall be issued in exchange for beneficial interests in a Global Security upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Securities or this Indenture upon the occurrence and during the continuance of an Event of Default.

(d)                                 Securities issued in exchange for a Global Security or any portion thereof pursuant to Section 2.09(b) or Section 2.09(c) shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Securities 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 any legends required hereunder.  Any Global Securities to be exchanged shall be surrendered by the Depositary to the Trustee, as Security Registrar, provided that pending completion of the exchange of a Global Security, the Trustee acting as custodian for the Global Securities for the Depositary or its nominee with respect to such Global Securities, shall reduce the principal amount thereof, 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 make available for delivery the Securities issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

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(e)                                  In the event of the occurrence of any of the events specified in Section 2.09(b) above or upon any request described in Section 2.09(c), the Company will promptly make available to the Trustee a sufficient supply of Physical Securities in definitive, fully registered form, without interest coupons.

(f)                                    Neither any members of, or participants in, the Depositary (“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 Securities registered in the name of the Depositary or any nominee thereof, 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 Securities for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Securities.

(g)                                 At such time as all interests in a Global Security have been redeemed, repurchased, converted, cancelled or exchanged for Physical Securities, such Global Security shall, upon receipt thereof, be canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the custodian for the Global Security.  At any time prior to such cancellation, if any interest in a Global Security is redeemed, repurchased, converted, cancelled or exchanged for Physical Securities, the principal amount of such Global Security shall, in accordance with the standing procedures and instructions existing between the Depositary and the custodian for the Global Security, be appropriately reduced, and an endorsement shall be made on such Global Security, by the Trustee or the custodian for the Global Security, at the direction of the Trustee, to reflect such reduction.

2.10                         TRANSFER RESTRICTIONS.

(a)                                  Until the date (the “Resale Restriction Termination Date”) that is the later of (1) one year after the Issue Date or such shorter period of time as permitted under Rule 144, and (2) such later date, if any, as may be required by applicable law:

(i)                                     any certificate evidencing a Security shall bear a legend in substantially the form identified as “Form of Restricted Security Legend” in the form of Security set forth in Exhibit A; and

(ii)                                  any certificate representing Common Stock issued upon conversion or redemption of a Security shall bear a legend substantially in the form identified as “Form of Restricted Security Legend for Common Stock Issued Upon Conversion or Redemption” in Exhibit B,

(each a “Restricted Security Legend”), in each case, unless (A) such Security or such Common Stock, as the case may be, has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of

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such transfer) or sold without transfer restrictions pursuant to Rule 144, (B) such Restricted Security Legend has been removed pursuant to Section 2.10(d), or (C) otherwise agreed by the Company in writing with written notice thereof to the Trustee.

(b)                                 Every Security (and all securities issued in exchange therefor or in substitution thereof) and any Common Stock issued upon conversion or redemption of any Security that bears or is required under Section 2.10(a) to bear a Restricted Security Legend (each a “Restricted Security”) shall be subject to the restrictions on transfer set forth in this Section 2.10 and in the Restricted Security Legend for such Restricted Security, unless such restrictions on transfer shall be waived by written consent of the Company following receipt of legal advice supporting the permissibility of the waiver of such transfer restrictions, and the Holder of any Restricted Securities, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.

(c)                                  In connection with any transfer of a Physical Security that is a Restricted Security, the Holder must complete and deliver the form of assignment set forth on the certificate representing the Securities with the appropriate box checked to the Trustee.  If the proposed transfer is pursuant to clause (2)(D) of the Restricted Security Legend (other than a transfer pursuant to Rule 144), the Holder must, prior to such transfer, furnish to the Trustee, such certifications, legal opinions or other information as the Company may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

(d)                                 The Company shall cause the Restricted Securities Legend to be removed from any Restricted Security on the date (the “Delegending Date”) that is earlier of (1) the date that is one year after the Issue Date for any Security Outstanding, (2) the transfer of such Restricted Security pursuant to an effective registration statement or (3) on any transfer of such Restricted Security without transfer restrictions under Rule 144, in each case as follows:

(i)                                     with respect to any Restricted Security that is a Physical Security, upon surrender of such Restricted Security by the Holder thereof to the Security Registrar for exchange, such Restricted Security shall be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Restricted Security Legend; and

(ii)                                  with respect to any Restricted Security represented by a Global Security, the Company shall, on or promptly after the Delegending Date direct the Depositary to remove the Restricted Securities Legend from the Global Security; provided that if such a direction is not permitted under the applicable rules, regulations, policies and procedures of the Depositary as at the Delegending Date, the Company shall, upon surrender of such Restricted Security by the Holder thereof, reduce the principal amount of such Global Security by the principal amount of such Restricted Security and increase the principal amount of a Global Security without the Restricted Security Legend by an equal principal amount.  If a Global Security without the Restricted Security Legend is not then outstanding, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary, a Global Security without the Restricted Security Legend.

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2.11                         RESPONSIBILITIES AND OBLIGATIONS RELATING TO THE DEPOSITARY.

(a)                                  Neither the Company nor the Trustee shall have any responsibility or obligation to any Agent Members or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Member or other Person (other than the Depositary) of any notice or the payment of any amount under or with respect to such Securities.

(b)                                 All notices and communications to be given to the Holders of Securities and all payments to be made to Holders of Securities under the Securities shall be given or made only to or upon the order of the registered Holders of Securities (which shall be the Depositary or its nominee in the case of a Global Security).

(c)                                  The rights of beneficial owners in any Global Securities shall be exercised only through the Depositary subject to the customary procedures of the Depositary.

(d)                                 The Company and the Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

(e)                                  The Company and 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 Securities (including any transfers between or among Agent Members) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

2.12                         REPLACEMENT SECURITIES.

(a)                                  If a mutilated Security is surrendered to the Security Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder:

(i)                                     notifies the Company or the Trustee within a reasonable time after he has notice of such loss, destruction or wrongful taking and the Security Registrar does not register a transfer prior to receiving such notification;

(ii)                                  makes such request to the Company or the Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “Protected Purchaser”); and

(iii)                               satisfies any other reasonable requirements of the Trustee and the Company.  Such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Company, the Trustee, the Paying Agent, the Conversion Agent and the Security Registrar from any loss or liability that any of them may suffer if a Security is replaced and subsequently presented or claimed for payment.

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(b)                                 The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

(c)                                  In case any Security which (i) has matured or is about to mature, (ii) has been properly tendered for repurchase on a Fundamental Change Repurchase Date (and not withdrawn), (iii) is to be converted into shares of Common Stock or redeemed or repurchased for cash, shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, convert or authorize the conversion of, or redeem or repurchase or authorize redemption or repurchase of, the same (without surrender thereof except in the case of a mutilated Securities), as the case may be, if the applicant for such conversion or redemption or repurchase shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Securities and of the ownership thereof.

(d)                                 The provisions of this Section 2.12 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Securities.

2.13                         OUTSTANDING SECURITIES.

(a)                                  At any time, the Securities outstanding at that time are all Securities that have been authenticated by the Trustee and delivered under this Indenture as at that time, other than:

(i)                                     Securities cancelled by the Trustee or accepted by the Trustee for cancellation as at that time;

(ii)                                  Securities replaced pursuant to Section 2.12 as at that time, unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a Protected Purchaser;

(iii)                               Securities repurchased pursuant to Article 4 which are no longer outstanding as at that time pursuant to Section 4.03(d) or Section 4.07(d);

(iv)                              Securities redeemed pursuant to Article 4 which are no longer outstanding as at that time pursuant to Section 4.12(c);

(v)                                 Securities converted pursuant to Article 5 which are no longer outstanding as at that time pursuant to Section 5.05(g); and

(vi)                              Securities that have matured at the Stated Maturity in respect of which the Paying Agent segregates and holds in trust, in accordance with this Indenture, as of the Stated Maturity Date, sufficient funds to pay all amounts due on the Stated Maturity Date with respect to such Securities maturing and the Paying Agent is not prohibited from paying such money to the Holders on such date pursuant to the terms of this Indenture.

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(b)                                 Subject to Section 2.13(c), a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

(c)                                  Notwithstanding anything else in this Section 2.13, in determining whether the Holders of the requisite principal amount of Securities outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

(d)                                 The Company may from time to time repurchase outstanding Securities on the open market or in negotiated or other transactions without prior notice to the Holders.

2.14                         TEMPORARY SECURITIES.

(a)                                  Pending the preparation of Securities in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Securities (printed or lithographed).  Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Security, all as may be determined by the Company.  Every such temporary Security shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in certificated form.

(b)                                 Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities in certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor, at the office of the Security Registrar and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of Securities in certificated form.  Such exchange shall be made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in certificated form authenticated and delivered hereunder.

2.15                         CANCELLATION.

(a)                                  The Company may, at any time, deliver Securities to the Trustee for cancellation.  The Security Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or

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cancellation and deliver canceled Securities to the Company pursuant to written direction by an Officer.

(b)                                 The Company may not issue new Securities to replace Securities it has redeemed, repurchased, converted, paid or delivered to the Trustee for cancellation.  The Trustee shall not authenticate Securities in place of canceled Securities other than pursuant to the terms of this Indenture.

2.16                         CUSIP AND ISIN NUMBERS.

The Company in issuing the Securities may use “CUSIP” and/or “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in notices of redemption or otherwise 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 and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

2.17                         ADDITIONAL SECURITIES.

The Company may, from time to time without the consent of the Holders of Outstanding Securities, increase the aggregate principal amount of the Securities by issuing additional Securities in the future pursuant to this Indenture (“Additional Securities”) having terms and conditions identical to those of the other Outstanding Securities, except that Additional Securities may have a different initial date from which interest begins to accrue thereon so that the Additional Securities are fungible with Outstanding Securities; provided that the Additional Securities may have the same CUSIP number as the Securities issued on the Issue Date, only if:

(a)                                  such issuance of Additional Securities is permissible as a “qualified reopening” for United States federal income tax purposes;

(b)                                 the resale of such Additional Securities by non-affiliates of the Company would not require registration under the Securities Act; and

(c)                                  at the time of, and after giving effect to, such transaction, no Default or Event of Default shall have occurred and be continuing.

2.18                         RANKING.

The indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued under this Indenture from time to time constitutes and will constitute a senior secured obligation of the Company, ranking equally in right of payment to all of the Company’s existing and future unsecured obligations that are not subordinated by their terms and ranking senior in right of payment to any existing or future indebtedness of the Company that is expressly subordinated in right of payment to the Securities.

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III.  PARTICULAR COVENANTS OF THE COMPANY

3.01                         PAYMENT OF PRINCIPAL AND INTEREST.

The Company covenants and agrees that it shall duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities at the places, at the respective times and in the manner provided herein and in the Securities.

3.02                         MAINTENANCE OF OFFICE OR AGENCY.

The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Securities may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

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

The Company hereby designates The Bank of New York, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration, as one such office or agency of the Company in accordance with Section 2.06 hereof.

3.03                         RESALE OF CERTAIN SECURITIES.

Except as in accordance with Section 2.17, the Company shall not, and shall not permit any of its “affiliates” (as defined under Rule 144 or any successor provision thereto) to, resell any Securities that have been reacquired by any of them.  The Trustee shall have no responsibility in respect of the Company’s performance of its agreement in the preceding sentence.

3.04                         NOTICE OF EVENT OF DEFAULT.

The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or Default, its status and the action which the Company proposes to take with respect thereto.  Any notice required to be

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given under this Section 3.04 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.

3.05                         LATE FILING ADDITIONAL INTEREST.

(a)                                  If, at any time during the six-month period beginning on, and including, December 17, 2008, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act), as applicable (other than reports on Form 8-K), the Company shall pay additional interest (the “Late Filing Additional Interest”) in accordance with this Section 3.05.

(b)                                 Late Filing Additional interest shall accrue on all Restricted Securities then Outstanding at an annual rate of 0.50% per annum of the principal amount of such Restricted Securities during such six-month period for which the Company’s failure to file occurs until June 17, 2009.

(c)                                  Late Filing Additional Interest shall be payable in arrears on each of up to two Interest Payment Dates following the late filing in the same manner as regular interest on the Securities.

(d)                                 No Late Filing Additional Interest shall accrue after the end of such six-month period, regardless of whether any such failure has occurred or is continuing.  No Late Filing Additional Interest or other amounts shall be payable in respect of any Common Stock delivered upon conversion or redemption of the Securities.

(e)                                  If the Company becomes obligated to pay any such Late Filing Additional Interest, it shall provide an Officers’ Certificate to the Trustee setting forth the amount thereof, and referencing Section 3.05(e) of the Indenture.

3.06                         CORPORATE EXISTENCE.

Except as otherwise permitted in this Indenture or the Security Documents, the Company shall, and shall cause each of its Pledged Subsidiaries to, do or cause to be done all things necessary to preserve and keep in full force and effect its respective corporate existence in accordance with its organizational documents (as the same may be amended from time to time).

3.07                         OWNERSHIP OF SUBSIDIARIES.

The Company shall maintain direct ownership of all of, and shall not transfer or dispose of any of, and shall not permit to be issued to any Person other than the Company any of, the Capital Stock in the Pledged Subsidiaries; provided that, in the case of Shenzhen, PAI shall maintain direct ownership of all of, and shall not transfer or dispose of any of, and shall not permit to be issued to any Person other than PAI any of, the Capital Stock in Shenzhen; and provided further that, in the case of PowerOne UK, the Company shall maintain direct ownership of no less than 60.5% of, and shall not transfer or dispose of any of, and shall not permit to be issued (if after such issuance the Company shall have less than 60.5% of the Capital

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Stock in PowerOne UK) to any Person other than the Company any of, the Capital Stock in PowerOne UK.

3.08                         RESTRICTED PAYMENTS.

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any unsecured Subordinated Indebtedness (or any extension, refinancing or renewal thereof), whether by way of payment in respect of principal of (or premium, if any) or interest on such Indebtedness if at the time such payment is due or otherwise made or, after giving effect to such payment, an Event of Default has occurred and is continuing.

3.09                         REDEMPTION AND DIVIDENDS.

The Company shall not directly or indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on the Company’s Capital Stock without the prior written consent of the Holders of the majority of the aggregate principal amount of the Securities outstanding, except for repurchases of securities pursuant to, and in accordance with, the Company’s equity compensation plans.

3.10                         LIENS.

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, allow or suffer to exist any Lien upon or in any property or assets (including accounts and contract rights) owned by the Company or any of its Subsidiaries other than Permitted Liens.

3.11                           INDEBTEDNESS

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness unless, in each case, (x) no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of such incurrence of Indebtedness, and (y) such Indebtedness is Permitted Indebtedness.

3.12                         FINANCIAL COVENANTS

(a)                                  Until the first anniversary of the Issue Date, the Company’s Total Debt as of the end of any fiscal quarter shall not exceed $110 million, plus the principal amount of any additional Securities issued as a result of the Initial Purchaser’s exercise of its option to acquire up to $5 million of additional Securities pursuant to the Purchase Agreement, but in no event greater than $115 million; thereafter, as of the end of any fiscal quarter the Company’s Total Debt shall not exceed the greater of (i) $125 million and (ii) the product of (x) three and (y) LTM EBITDA, in each case determined on a pro forma basis, including a pro forma sale of assets, incurrence of indebtedness and/or application of the net proceeds therefrom, in each case as of

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such date of determination, as if such transaction had occurred at the beginning of the relevant twelve-month period;

(b)                                 Until the first anniversary of the Issue Date, cash and Cash Equivalents shall not be less than $20 million at the end of each fiscal quarter; thereafter cash and Cash Equivalents shall not be less than $25 million at the end of each fiscal quarter; and

(c)                                  Until the first anniversary of the Issue Date, the Company’s Tangible Net Worth at the end of each fiscal quarter shall not be less than $90 million; thereafter, the Company’s Tangible Net Worth shall not be less than $100 million at the end of each fiscal quarter.

3.13                         PRESERVATION OF REPURCHASE RIGHTS.

The Company will not enter into any contract or financing arrangement that would restrict its ability to repurchase the Securities upon exercise of the Holders’ repurchase rights pursuant to Article 4.

3.14                         SHARE CAP PROPOSAL

No later than 90 days after the Issue Date, the Company will submit for approval by its stockholders a proposal (the “Share Cap Proposal”) that, if approved, will permit the Company to issue Common Stock at a conversion price that is lower than the Cap Price so that the conversion of the Securities pursuant to this Indenture will not be limited by the rules and regulations of The Nasdaq Global Market or any other securities exchange on which the Common Stock may be traded or listed that may otherwise limit such issuance without such shareholder approval.  To the extent that the Share Cap Proposal is not approved by the Company’s stockholders, the Company will resubmit the Share Cap Proposal for approval by its stockholders at the next regular annual meeting of stockholders (which shall be held within no more than 230 days after the initial vote) and, if not then approved, within successive 180 day intervals thereafter over the term of the Securities until the Share Cap Proposal is either approved or the Securities are no longer outstanding.

3.15                         FURTHER ASSURANCES.

Upon request of the Trustee, the Company shall 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.

3.16                         ANNUAL COMPLIANCE CERTIFICATE.

The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture in all material respects, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge, in his or her capacity as such, the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture in all material respects and is not in Default in the

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performance or observance of any of the terms, provisions and conditions of this Indenture (and, if a Default or an Event of Default shall have occurred, describing all such Defaults or Events of Default) of which he or she may have knowledge, in his or her capacity as such, and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which, payments on account of the principal of or interest, if any, on the Securities is prohibited or if such event has occurred, a description of the event.

IV.  REPURCHASE AND REDEMPTION OF SECURITIES

4.01                         FUNDAMENTAL CHANGE REPURCHASE RIGHT NOTICE.

(a)                                  On or before the 10th Business Day following the occurrence of a Fundamental Change, the Company shall provide to all Holders and the Trustee and Paying Agent a notice (the “Fundamental Change Repurchase Right Notice”) of the occurrence of such Fundamental Change and of the repurchase right, if any, at the option of the Holders arising as a result thereof.

(b)                                 A Fundamental Change Repurchase Right Notice shall specify (if applicable):

(i)                                     the events causing a Fundamental Change;

(ii)                                  the date of the Fundamental Change;

(iii)                               the Fundamental Change Repurchase Date and the last date on which a Holder may exercise the repurchase right;

(iv)                              the Fundamental Change Repurchase Price;

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

(vi)                              the Conversion Rate and any adjustments to the Conversion Rate;

(vii)                           that the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;

(viii)                        that the Holder must exercise the repurchase right on or prior to the Fundamental Change Expiration Time;

(ix)                                that the Holder shall have the right to withdraw any Securities surrendered for repurchase prior to the Fundamental Change Expiration Time; and

(x)                                   the procedures that Holders must follow to require the Company to repurchase their Securities.

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(c)                                  No failure of the Company to give a Fundamental Change Repurchase Right Notice and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Article 4.

4.02                         RIGHT TO REQUIRE REPURCHASE UPON FUNDAMENTAL CHANGE.

(a)                                  If a Fundamental Change occurs, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof that is an integral multiple of $1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Repurchase Right Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).  However, if such Fundamental Change Repurchase Date falls after a Record Date for the payment of interest and on or prior to the corresponding Interest Payment Date, the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the holder of record at 5:00 p.m., New York City time, on such Record Date and the Fundamental Change Repurchase Price shall not include such accrued and unpaid interest.

(b)                                 In order to exercise the repurchase right, a Holder shall:

(i)                                     deliver to the Trustee (or other Paying Agent appointed by the Company) a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Security prior to 5:00 p.m., New York City time, on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); and

(ii)                                  deliver or effect a book-entry transfer of the Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.02 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice.

(c)                                  A Fundamental Change Repurchase Notice shall state:

(i)                                     if certificated, the certificate numbers of Securities to be delivered for repurchase;

(ii)                                  the portion of the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and

(iii)                               that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture.

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(d)                                 A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal, delivered to the Paying Agent in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the Fundamental Change Expiration Time, specifying:

(i)                                     if certificated Securities have been issued, the certificate numbers of the withdrawn Securities;

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

(iii)                               the principal amount, if any, of such Securities that remain subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000.

(e)                                  If the Securities to be repurchased are represented by a Global Security, any Fundamental Change Repurchase Notice or notice of withdrawal thereof in respect of such Securities must comply, to the extent required by law, with appropriate procedures of the Depositary.

(f)                                    The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or notice of withdrawal thereof in accordance with the provisions of this Section 4.02.

4.03                         SETTLEMENT OF FUNDAMENTAL CHANGE REPURCHASES.

(a)                                  Any repurchase by the Company pursuant to this Article 4 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security.

(b)                                 Any Security that is to be repurchased in part only shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.

(c)                                  On or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Securities to be repurchased on such date at the Fundamental Change Repurchase Price.  Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made promptly after the later of:

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(i)                                    the Fundamental Change Repurchase Date with respect to such Security; provided that the Holder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price in this Section 4.03; and

(ii)                                 the time of book-entry transfer or the delivery of such Security to the Paying Agent by the Holder thereof in the manner required by this Section 4.03.

The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.

(d)                                If the Paying Agent holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Securities shall cease to be outstanding, (ii) interest shall cease to accrue on such Securities, and (iii) all other rights of the Holders of such Securities shall terminate (other than the right to receive the Fundamental Change Repurchase Price in respect of such Securities), in each case, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Paying Agent.

(e)                                 In connection with any repurchase of Securities pursuant to this Article 4, the Company hereby agrees to:

(i)                                    comply with the provisions of Rule 13e-1, Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; and

(ii)                                 otherwise comply with all applicable federal and state securities laws.

4.04                          RESTRICTIONS ON REPURCHASES.

No Securities may be repurchased at the option of Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such date.

4.05                          RATIO EVENT REPURCHASE RIGHT NOTICE.

(a)                                 On or after June 17, 2011, with respect to any fiscal quarter as of the last day of which the ratio of Total Net Debt to LTM EBITDA was greater than 3.0x (the end of such fiscal quarter, a “Ratio Event”), the Company shall, within two (2) Business Days of the date that it is required to file with the Commission a report on Form 10-Q or Form 10-K covering such fiscal quarter (without giving effect to any applicable grace period provided by Rule 12b-25 under the Exchange Act), give notice (the “Ratio Event Repurchase Right Notice”) to the Trustee for delivery to all Holders and the Paying Agent of the occurrence of such Ratio Event and of the repurchase right, if any, at the option of the Holders arising as a result thereof.

(b)                                A Ratio Event Repurchase Right Notice shall specify (if applicable):

(i)                                    the occurrence of a Ratio Event;

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(ii)                                 the Ratio Event Repurchase Period and the last date on which a Holder may exercise the repurchase right;

(iii)                              the method for calculating the Ratio Event Repurchase Price;

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

(v)                                 the then current Conversion Rate;

(vi)                             that the Securities with respect to which a Ratio Event Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Ratio Event Repurchase Notice in accordance with the terms of this Indenture;

(vii)                          that the Holder must exercise the repurchase right on or prior to the Ratio Event Expiration Time;

(viii)                       that the Holder shall have the right to withdraw any Securities surrendered for repurchase prior to the Ratio Event Expiration Time; and

(ix)                               the procedures that Holders must follow to require the Company to repurchase their Securities.

(c)                                 No failure of the Company to give a Ratio Event Repurchase Right Notice and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Article 4.

4.06                          RIGHT TO REQUIRE REPURCHASE UPON RATIO EVENT.

(a)                                 If a Ratio Event occurs, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof that is an integral multiple of $1,000 principal amount, for cash on any date (such date, a “Ratio Event Repurchase Date”) within the period commencing on the first day of the calendar month following the date the Ratio Event Repurchase Right Notice is provided to the Trustee, and ending three calendar months thereafter (the “Ratio Event Repurchase Period”), at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Ratio Event Repurchase Date (the “Ratio Event Repurchase Price”).  However, if such Ratio Event Repurchase Date falls after a Record Date for the payment of interest and on or prior to the corresponding Interest Payment Date, the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the holder of record at 5:00 p.m., New York City time, on such Record Date and the Ratio Event Repurchase Price shall not include such accrued and unpaid interest.

(b)                                In order to exercise the repurchase right, a Holder shall:

(i)                                    deliver to the Trustee (or other Paying Agent appointed by the Company) a duly completed notice (the “Ratio Event Repurchase Notice”) in the form set forth on the reverse of the Security after 9:00 a.m., New York City time, on the date that is 20 Business Days prior to the applicable Ratio Event Repurchase Date and prior to 5:00 p.m.,

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New York City time, on the applicable Ratio Event Repurchase Date elected by such Holder (the “Ratio Event Expiration Time”); and

(ii)                                 deliver or effect a book-entry transfer of the Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Ratio Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Ratio Event Repurchase Price therefor; provided that such Ratio Event Change Repurchase Price shall be so paid pursuant to this Section 4.06 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Ratio Event Repurchase Notice.

(c)                                 A Ratio Event Repurchase Notice shall state:

(i)                                    the applicable Ratio Event Repurchase Date elected by the Holder;

(ii)                                 if certificated, the certificate numbers of Securities to be delivered for repurchase;

(iii)                              the portion of the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and

(iv)                             that the Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture.

(d)                                A Ratio Event Repurchase Notice may be withdrawn by means of a written notice of withdrawal, delivered to the Paying Agent in accordance with the Ratio Event Repurchase Right Notice at any time prior to the Ratio Event Expiration Time, specifying:

(i)                                    if certificated Securities have been issued, the certificate numbers of the withdrawn Securities;

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

(iii)                              the principal amount, if any, of such Securities that remain subject to the original Ratio Event Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000.

(e)                                 If the Securities to be repurchased are represented by a Global Security, any Ratio Event Repurchase Notice or notice of withdrawal thereof in respect of such Securities must comply with appropriate procedures of the Depositary.

(f)                                   The Paying Agent shall promptly notify the Company of the receipt by it of any Ratio Event Repurchase Notice or notice of withdrawal thereof in accordance with the provisions of this Section 4.06.

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4.07                          SETTLEMENT OF RATIO EVENT REPURCHASES.

(a)                                 Any repurchase by the Company pursuant to this Article 4 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Ratio Event Repurchase Date and the time of the book-entry transfer or delivery of the Security.

(b)                                Any Security that is to be repurchased in part only shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Security so surrendered.

(c)                                 On or prior to 11:00 a.m., New York City time, on the Ratio Event Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to repurchase on the Ratio Event Repurchase Date all of the Securities tendered by Holders as of 5:00 p.m. on the Business Day immediately preceding the Ratio Event Repurchase Date to be repurchased on the Ratio Event Repurchase Date at the Ratio Event Repurchase Price.  On or prior to 11:00 a.m., New York City time, on the Business Day immediately following the Ratio Event Repurchase Date, the Company shall deposit with the Paying Agent (or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of additional money sufficient to repurchase on such date all of the Securities tendered by Holders subsequent to 5:00 p.m. on the Business Day immediately preceding the Ratio Event Repurchase Date and at or before 5:00 p.m. on the Ratio Event Repurchase Date to be repurchased at the Ratio Event Repurchase Price.  Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for repurchase (and not withdrawn) prior to the Ratio Event Expiration Time shall be made promptly after the later of:

(i)                                    the Ratio Event Repurchase Date with respect to such Security; provided that the Holder has satisfied the conditions to the payment of the Ratio Event Repurchase Price in this Section 4.07; and

(ii)                                 the time of book-entry transfer or the delivery of such Security to the Paying Agent by the Holder thereof in the manner required by this Section 4.07.

The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Ratio Event Repurchase Price.

(d)                                If the Paying Agent holds money sufficient to repurchase on the Ratio Event Repurchase Date all the Securities or portions thereof that are to be purchased as of the Business Day following the Ratio Event Repurchase Date, then on and after the Ratio Event Repurchase Date (i) such Securities shall cease to be outstanding, (ii) interest (including Additional Interest, if any) shall cease to accrue on such Securities, and (iii) all other rights of the Holders of such

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Securities shall terminate (other than the right to receive the Ratio Event Repurchase Price in respect of such Securities), in each case, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Paying Agent.

(e)                                 In connection with any repurchase of Securities pursuant to this Article 4, the Company hereby agrees to:

(i)                                    comply with the applicable provisions of Rule 13e-1, Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable; and

(ii)                                 otherwise comply with all applicable federal and state securities laws,

and the provisions of this Indenture are subject to the Company’s compliance, to the extent required by law, with such rules and laws.

4.08                          REDEMPTION RIGHTS.

(a)                                 The Securities shall be redeemable at the Company’s option in accordance with this Article 4:

(i)                                    in whole or in part, at any time on or after June 17, 2010, if the Last Reported Sale Price of the Common Stock for 20 or more Trading Days in a period of 30 consecutive Trading Days ending on the Trading Day prior to the date the Company provides a Redemption Notice in accordance with this Article 4 exceeds 175% of the Conversion Price in effect on each such Trading Day; and

(ii)                                 in whole but not in part, at any time if less than 10% of the aggregate principal amount of Securities initially issued (including any additional Securities issued in connection with exercise by the Initial Purchaser of its over-allotment option) are then Outstanding.

(b)                                Notwithstanding the foregoing, the Company may only exercise its redemption rights pursuant to clause (a) of this Section 4.08 if, as evidenced by an Officers’ Certificate, all of the conditions listed below (the “Equity Conditions”) are satisfied on each day during the period (x) commencing ten days prior to the date a Redemption Notice is delivered to the Trustee and (y) ending on the Redemption Date (the “Equity Conditions Measuring Period”). The Equity Conditions are as follows:

(i)                                    all shares of Common Stock issuable upon conversion of the Securities and held by a non-affiliate of the Company shall be eligible for sale without the need for registration under any applicable federal or state securities laws;

(ii)                                 the Company shall have no knowledge of any fact that would cause any shares of Common Stock issuable upon conversion of the Securities not to be eligible for sale without restriction pursuant to Rule 144 and any applicable state securities laws (other than restrictions due to the Holder of such Common Stock being an Affiliate of the Company);

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(iii)                             during the equity conditions measuring period, the common stock is listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The Nasdaq Capital Market, the New York Stock Exchange or the American Stock Exchange, or any of their respective successors (each an “Eligible Market”) and shall not have been suspended from trading on such exchange or market (other than suspensions of not more than two trading days and occurring prior to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by such exchange or market been threatened or pending either (A) in writing by such exchange or market or (B) by falling below the then effective minimum listing maintenance requirements of such exchange or market;

(iv)                             during the Equity Conditions Measuring Period, to the extent any Securities have been delivered to the Company for conversion in accordance with the terms of the Securities, the Company shall have delivered shares of Common Stock upon conversion of the Securities to the Holders on a timely basis;

(v)                                 any applicable shares of Common Stock to be issued upon conversion may be issued in full without violating the rules or regulations of The Nasdaq Global Market or any applicable Eligible Market on which the Common Stock delivered upon conversion are then listed or trading;

(vi)                             during the Equity Conditions Measuring Period, the Company shall not have failed to make any payments within five (5) Business Days of when such payment is due pursuant to the Securities, this Indenture, the Pledge Agreement or the other security documents;

(vii)                          during the Equity Conditions Measuring Period, there shall not have occurred the public announcement of a pending, proposed or intended transaction or event that will constitute a Fundamental Change, pursuant to clause (a) or (b) of the definition thereof (other than, for the avoidance of doubt, any such transaction or event that is not a Fundamental Change as a result of the second to last paragraph of the definition thereof), which has not been abandoned, terminated or consummated;

(viii)                      the average daily trading volume of the Common Stock on The Nasdaq Global Market or any other Eligible Market on which the shares of Common Stock delivered upon conversion are then-listed or trading for the Equity Conditions Measuring Period was at least $2.5 million; and

(ix)                              no Default or Event of Default under the indenture shall have occurred and be continuing.

(c)                                 The Company may elect to redeem any Securities pursuant to this Section 4.08 by providing notice to each Holder of such Securities in accordance with Section 4.11 not less than 25 Scheduled Trading Days nor more than 60 days prior to the Redemption Date for such Securities.

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4.09                          REDEMPTION PRICE.

(a)                                 The “Redemption Price” (as determined by the Company) for any Securities redeemed pursuant to Section 4.08 shall be an amount in cash equal to 100% of the principal amount of the Securities being redeemed, plus any accrued and unpaid interest to (but excluding) the Redemption Date, plus the present value of all remaining interest payments on such Holder’s Securities (including deferred interest, if any) through and including the Stated Maturity Date.  The present value of the remaining interest payments will be computed using a discount rate of 350 basis points.

(b)                                If the Redemption Date for any Security falls after a Record Date for the payment of interest and on or prior to the corresponding Interest Payment Date, the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the holder of record at 5:00 p.m., New York City time, on such Record Date and the cash portion of the Redemption Price shall not include such accrued and unpaid interest.

4.10                          SELECTION OF SECURITIES TO BE REDEEMED.

(a)                                 If less than all the Securities are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities not previously called for redemption, by lot, on a pro rata basis or in accordance with such other method as the Trustee shall deem fair and appropriate; provided that the unredeemed portion of the principal amount of any Security shall be in a denomination not less than the minimum authorized denomination for such Security.

(b)                                The Trustee shall promptly notify the Company in writing of the Securities selected for partial redemption and the principal amount thereof to be redeemed.  For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed.

(c)                                 If the Trustee selects a portion of a Holder’s Security for partial redemption and such Holder converts a portion of the same Security, the converted portion shall be deemed to be from the portion selected for redemption.

4.11                          REDEMPTION NOTICE.

(a)                                 Notice of redemption (a “Redemption Notice”) shall be given by first-class mail, postage prepaid, to each Holder of Securities to be redeemed, at the address of such Holder as it appears in the Securities Register.

(b)                                The Redemption Notice for any Securities to be redeemed shall state:

(i)                                    the Redemption Date;

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(ii)                                the Redemption Price or, if the Redemption Price cannot be calculated prior to the time the Redemption Notice is required to be sent, a statement of how the Redemption Price will be calculated;

(iii)                             if less than all Outstanding Securities are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Securities to be redeemed;

(iv)                             that on the Redemption Date, the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon, if any, shall cease to accrue on and after said date;

(v)                                the place or places where such Securities are to be surrendered for payment of the Redemption Price; and

(vi)                             the CUSIP number for the Securities redeemed.

(c)                                 A Redemption Notice shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company; provided that the Company shall have delivered to the Trustee, at least five Business Days before the Redemption Notice is required to be mailed (or such shorter period agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the complete form of such notice and the information to be stated in such notice.

(d)                                A Redemption Notice shall be irrevocable.

(e)                                 A Redemption Notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice.  In any case, a failure to give such Redemption Notice by mail or any defect in the Redemption Notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.

4.12                          PAYMENT OF SECURITIES CALLED FOR REDEMPTION.

(a)                                 If any Redemption Notice has been given in respect of any Securities in accordance with Section 4.11, such Securities or portion of such Securities shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price.  On presentation and surrender of such Securities at the place or places stated in the Redemption Notice, such Securities or the portions thereof specified in the Redemption Notice shall be paid and redeemed by the Company at the applicable Redemption Price.

(b)                                On or prior to 11:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money and shares of Common Stock, if any, sufficient to pay the Redemption Price of all of the Securities to be redeemed on such Redemption Date.  Subject to receipt of funds and Common Stock, if any, by the Paying Agent, payment for the Securities to be redeemed shall be made promptly after the later of:

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(i)                                    the Redemption Date for such Securities; and

(ii)                                 the time of presentation of such Security to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.12.

The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price.

(c)                                 Subject to a Holder’s right to receive interest on the related Interest Payment Date where the Redemption Date falls between a Record Date and the Interest Payment Date to which it relates as described in Section 4.09(b) above, if the Paying Agent holds money and, if applicable, shares of Common Stock sufficient to pay the Redemption Price for all the Securities or portions thereof that are to be redeemed as of the Business Day immediately following the Redemption Date, then on and after the Redemption Date (i) such Securities shall cease to be outstanding and interest, if any, will cease to accrue, whether or not book-entry transfer of the Securities is made or whether or not the Security is delivered to the Paying Agent, (ii) all other rights of the Holder will terminate as of the Redemption Date, other than the right to receive the Redemption Price and previously accrued and unpaid interest, if any, upon delivery or transfer of the Securities, and (iii) the Holder will be deemed to be a holder of record of any shares of Common Stock issuable in connection with such redemption as of the date of delivery or transfer of the Securities by such Holder.

(d)                                Cash amounts due upon redemption in respect of Securities presented for redemption shall be paid by the Company to such Holder, or such Holder’s nominee or nominees.

(e)                                 Upon presentation of any Security redeemed in part only, the Company shall not be required to issue, register the transfer of or exchange any Physical Security.

4.13                         RESTRICTIONS ON REDEMPTION.

The Company may not redeem any Security on any date if the principal amount of the Securities has been accelerated in accordance with the terms of this Indenture, and such acceleration has not been rescinded on or prior to such date.

4.14                         OFFICERS’ CERTIFICATE TO TRUSTEE.

In connection with any redemption of Securities effected pursuant to this Article IV, the Company shall deliver to the Trustee an Officers’ Certificate dated as of the Redemption Date to the effect that all conditions precedent to the redemption of such Securities have been satisfied.

V.  CONVERSION

5.01                         CONVERSION RIGHTS.

At any time prior to the close of business on the Business Day immediately preceding the Maturity of the Securities, a Holder shall have the right, at such Holder’s option, to convert all its

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Securities or any portion thereof that is an integral multiple of $1,000 principal amount at the Conversion Rate.

5.02                         LIMITATION ON BENEFICIAL OWNERSHIP.

In no event will any Holder will be entitled to receive Common Stock upon conversion to the extent (but only to the extent) that such receipt would cause such converting Holder to become, directly or indirectly, a Beneficial Owner of more than 9.9% of the shares of Common Stock outstanding at such time. Any purported delivery of shares of Common Stock upon conversion of Securities shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the converting Holder becoming the beneficial owner of more than 9.9% of the shares of Common Stock outstanding at such time. If any delivery of shares of Common Stock owed to a Holder upon conversion of Securities is not made, in whole or in part, as a result of this limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such delivery would not result in such Holder being the Beneficial Owner of more than 9.9% of the shares of Common Stock outstanding at such time.

5.03                         MAKE-WHOLE FUNDAMENTAL CHANGES.

(a)                                 If a Holder elects to convert Securities in connection with a Make-Whole Fundamental Change that occurs prior to the Stated Maturity Date, the Conversion Rate applicable to each $1,000 principal amount of Securities so converted shall, to the extent applicable, be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below.  For purposes of this Section 5.03, a conversion shall be deemed to be “in connection with” a Make-Whole Fundamental Change if the Conversion Date for such conversion occurs at any time from, and including, the Effective Date of such Make-Whole Fundamental Change to, and including, the Business Day prior to the related Fundamental Change Repurchase Date.

(b)                                The Company shall notify Holders and the Trustee of the occurrence of any Make-Whole Fundamental Change on the Effective Date of the Make-Whole Fundamental Change.

(c)                                 The number of Additional Shares shall be determined by the Company by reference to the table set forth in Schedule A, based on the date on which the Make-Whole Fundamental Change becomes effective (the “Effective Date”) and the Stock Price.  If the exact Stock Price and Effective Date are not set forth in such table, then:

(i)                                    if the actual Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Prices and the two nearest Effective Dates, as applicable, based on a 365-day year;

(ii)                                 if the Stock Price is greater than $9.00 per share of Common Stock (subject to adjustment in the same manner and at the same time as the Stock Prices as set

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forth in clause (d) of this Section 5.03), no Additional Shares shall be added to the Conversion Rate; and

(iii)                              if the Stock Price is less than $2.85 per share (subject to adjustment in the same manner and at the same time as the Stock Prices as set forth in clause (d) of this Section 5.03), no Additional Shares shall be added to the Conversion Rate.

(d)                                The Stock Prices set forth in the first column of the table in Schedule A shall be adjusted by the Company as of any date on which the Conversion Rate of the Securities is adjusted (other than pursuant to this Section 5.03).  The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted.  The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate is adjusted (other than pursuant to this Section 5.03).

(e)                                 Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 350.6670 per $1,000 principal amount of Securities (subject to adjustment in the same manner as the Conversion Rate is adjusted pursuant to Section 5.07(b), (c), (d), (e) and (f)) as a result of any increase under this Section 5.03, nor will any Additional Shares of Common Stock be issued or issuable to the extent that such issuance would not be in compliance with the rules of The Nasdaq Global Market or other Eligible Market on which the Common Stock is then traded.

5.04                          EXERCISE OF CONVERSION PRIVILEGE.

(a)                                 Before any Holder shall be entitled to convert its Securities as forth above, such Holder shall:

(i)                                    in the case of a Global Security, comply with the procedures of the Depositary in effect at that time and, if required under Section 5.05(f), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.05(f) and, if required under Section 5.04(g), pay any taxes or duties such Holder is required to pay as set forth in Section 5.04(g); and

(ii)                                 in the case of a Physical Security, (A) complete and manually sign and deliver an irrevocable written notice to the Conversion Agent in the form attached to such Physical Security as set forth in Exhibit A (or a facsimile thereof) (a “Conversion Notice”) at the office of the Conversion Agent and shall state in writing therein the principal amount of Securities to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock, if any, to be delivered upon settlement of the Conversion Obligation to be registered, (B) surrender such Securities, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (C) if required under Section 5.05(f), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 5.05(f) and, (D) if required under Section 5.04(g), pay any taxes or duties such Holder is required to pay as set forth in Section 5.04(g).

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(b)                                 The date on which the Holder has complied with the requirements set forth in Section 5.04(a) in respect of a Security shall be deemed to be the “Conversion Date” for such Security.

(c)                                  No Conversion Notice with respect to any Securities may be tendered by a Holder thereof if such Holder has also tendered a Fundamental Change Repurchase Notice or a Ratio Event Repurchase Notice and not validly withdrawn such Fundamental Change Repurchase Notice or Ratio Event Repurchase Notice, as the case may be, in accordance with the applicable provisions of Article 4.

(d)                                 If the Company calls Securities for redemption pursuant to Section 4.08, a Holder may convert its Securities only until the close of business on the Business Day prior to the applicable Redemption Date.

(e)                                  If more than one Security shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Securities, if any, that shall be payable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered.

(f)                                    In case any Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall, as provided in an Officers’ Certificate, authenticate and deliver to or upon the written order of the Holder of the Security so surrendered, without charge to such Holder, a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.

(g)                                 If a Holder submits a Security for conversion, the Company shall pay all stamp and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of shares of Common Stock, if any, upon the conversion.  However, the Holder shall pay any such tax which is due because the Holder requests any shares of Common Stock to be issued in a name other than the Holder’s name.  The Company may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax which will be due because the shares are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax withholding required by law or regulations.

(h)                                 Upon the conversion of an interest in a Global Security, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby.  The Company shall notify the Trustee in writing of any conversion of Securities effected through any Conversion Agent other than the Trustee.

5.05                           SETTLEMENT OF CONVERSION OBLIGATION.

(a)                                  Subject to clause (d) of this Section 5.05, upon conversion of any Securities in accordance with this Article 5, the Company shall deliver, with respect to each $1,000 principal amount of Securities converted, no later than the third Business Day immediately following the Conversion Date, a number of shares of Common Stock equal to the Conversion Rate in effect

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on the Conversion Date, and, if applicable, cash in lieu of fractional shares (the “Conversion Obligation”).

(b)                                 If applicable, upon conversion the Company will also pay to a converting Holder, subject to Section 5.16, that amount of cash, if any, contemplated to be paid pursuant to Section 5.07(m), in addition to the shares of Common Stock received upon conversion and any cash in lieu of fractional shares.

(c)                                  If the Conversion Price as adjusted pursuant to Section 5.03 above is lower than the Cap Price and, absent the Cap Price, the Conversion Price would have been reduced pursuant to the Make-Whole Fundamental Change to a price that is lower than the Cap Price, then, subject to Section 5.16, upon conversion of a Security, the converting Holder will, in addition to the shares of Common Stock received upon conversion and any cash in lieu of fractional shares, receive an additional cash payment equal to the Last Reported Sale Price on the applicable Conversion Date multiplied by that number of additional shares of Common Stock that would have been issuable upon conversion of the Securities had the Cap Price not been applicable.

If, pursuant to the vote required by Section 3.14, the Company’s stockholders approve the Share Cap Proposal and a Make-Whole Fundamental Change adjustment is triggered, then the Cap Price will no longer apply and the conversion price thereafter applicable shall be reduced to equal the greater of the Floor Price or the Conversion Price as adjusted pursuant to Section 5.03 above.

(d)                                 Notwithstanding clause (a) above, if, following a Make-Whole Fundamental Change, Securities are surrendered for conversion following the related Effective Date and the Reference Property into which the Securities are convertible consists solely of cash as set forth in Section 5.12, then the Company shall satisfy the related Conversion Obligations by delivering, no later than the third Business Day following the Conversion Date, cash in an amount equal to the Stock Price multiplied by the Conversion Rate then in effect.

(e)                                  The Company shall issue, or shall cause to be issued, for any shares of Common Stock due upon conversion to such Holder, or such Holder’s nominee or nominees, certificates or, to the extent permissible, a book-entry transfer through the Depositary (together with any cash in lieu of fractional shares and any cash payable pursuant to Sections 5.05(f) or 5.07(m)).

(f)                                    Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest except as set forth in this clause (f).  The Company’s settlement of the Conversion Obligation as described above shall be deemed to satisfy its obligation to pay the principal amount of the Security and accrued and unpaid interest to, but not including, the Conversion Date.  As a result, accrued and unpaid interest to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited.  Notwithstanding the preceding sentence, if Securities are converted after 5:00 p.m., New York City time, on a Record Date for the payment of interest, Holders of such Securities as of 5:00 p.m., New York City time, on the Record Date shall receive the interest payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion.  Securities surrendered for conversion during the period from 5:00 p.m., New York City time, on any Record Date to 9:00 a.m., New York City time, on the corresponding Interest Payment Date

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must be accompanied by payment of an amount equal to the interest payable on the Securities so converted; provided that no such payment need be made with respect to any Security:

(i)                                     if the Company has specified a Fundamental Change Repurchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date;

(ii)                                  if the Company has called such Security for redemption and specified a Redemption Date for such Security that is after a Record Date and on or prior to the corresponding Interest Payment Date;

(iii)                               to the extent of any overdue interest on such Security which remains unpaid at the time of conversion with respect to such Security; or

(iv)                              if the Conversion Date for such Security occurs after the close of business on the Record Date immediately preceding the Stated Maturity Date.

Except as described above, no payment or adjustment shall be made for accrued interest on converted Securities.

(g)                                 Upon conversion of any Securities pursuant to this Article 5, (i) any such Securities shall be deemed to have been converted and shall cease to be outstanding immediately prior to the close of business on the Conversion Date and, (ii) as of the close of business on the last Trading Day prior to the Conversion Date the Holder of such Securities shall be deemed to be a holder of record of any shares of the Common Stock issuable as a result of the conversion of such Securities.

5.06                           FRACTIONS OF SHARES.

(a)                                  No fractional shares of Common Stock shall be issued upon conversion of any Security.

(b)                                 If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof) so surrendered.

(c)                                  Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any Securities (or specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the Last Reported Sale Price of the Common Stock on the last Trading Day prior to the Conversion Date.

5.07                           ADJUSTMENT OF CONVERSION RATE.

(a)                                  The Conversion Rate shall be adjusted from time to time by the Company as set forth in this Section 5.07; provided that the Company shall not make any adjustments to the Conversion Rate pursuant to clauses (b) through (f) hereunder if Holders of the Securities participate (as a result of holding the Securities, and at the same time as holders of the Common

52

Stock participate) in any of the transactions described below as if such Holders held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holders, without having to convert their Securities.

(b)                                 In case the Company shall issue shares of Common Stock as a dividend or distribution on shares of Common Stock, or shall effect a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

where,

CR1=                   the Conversion Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be;

CR0=                   the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be;

OS1=                    the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, in each case, after giving effect to such dividend, distribution or share split or combination, as the case may be; and

OS0=                    the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or the effective date of such share split or combination, as the case may be.

Such adjustment shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution, or the effective date for such share split or share combination.  If any dividend or distribution of the type described in this Section 5.07(b) is declared but not so paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Company determines not to pay such dividend or distribution, or split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared.

(c)                                  In case the Company shall distribute to all or substantially all holders of its outstanding shares of Common Stock any rights or warrants entitling them for a period of not more than 60 days from the issuance date for such distribution to subscribe for or purchase shares of Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date of such distribution, the Conversion Rate shall be increased based on the following formula:

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where,

CR1 =                      the Conversion Rate in effect immediately after the open of business on the Ex-Date for such distribution;

CR0 =                      the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

OS0 =                       the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such distribution;

X =                                    the total number of shares of Common Stock issuable pursuant to such rights or warrants; and

Y =                                     the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution.

Such adjustment shall be successively made whenever any such rights or warrants are distributed and shall become effective immediately after the open of business on the Ex-Date for such distribution.  To the extent such rights or warrants are not exercised prior to their expiration or shares of the Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.  If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Ex-Date for such distribution had not been fixed.

In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Last Reported Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

If, based on the same event, a Conversion Rate adjustment is triggered pursuant to both this clause (c) and subclause (ii) of clause (n) of this Section 5.07, the Conversion Rate shall be adjusted in accordance with the provisions of the clause that provides the adjustment most favorable to the Holders.

(d)                                 In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of the Company, evidences of its indebtedness or other assets or property of the Company, excluding:

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(i)                                     dividends or distributions as to which an adjustment was effected pursuant to Section 5.07(b) or Section 5.07(c);

(ii)                                  dividends or distributions paid exclusively in cash; and

(iii)                               distributions described below in this clause (d) with respect to Spin-Offs),

(any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this clause (d) called the “Distributed Property”), then, in each such case the Conversion Rate shall be increased based on the following formula:

where,

CR1 =                      the Conversion Rate in effect immediately after the open of business on the Ex-Date for such distribution;

CR0 =                      the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

SP0 =                        the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution; and

FMV =                 the fair market value as determined by the Board of Directors of the Distributed Property distributed with respect to each outstanding share of Common Stock as of the open of business on the Ex-Date for such distribution.

Such adjustment shall become effective immediately after the open of business on the Ex-Date for such distribution.  If the Board of Directors determines “FMV” for purposes of this Section 5.07(d) 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 Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution.

With respect to an adjustment pursuant to this clause (d) where there has been a payment of a dividend or other distribution on the Common Stock or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company that are listed on a national or regional securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

where,

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CR1 =                      the Conversion Rate in effect immediately after the open of business on the Ex-Date for the Spin-Off;

CR0 =                      the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for the Spin-Off;

FMV =                 the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the third Trading Day after the Ex-Date for the Spin-Off (such period, the “Valuation Period”); and

MP0 =                    the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

Such adjustment to the Conversion Rate under the foregoing provisions of this clause (d) shall be made immediately after the open of business on the day after the last Trading Day of the Valuation Period, but shall be given effect as of the open of business on the Ex-Date for the Spin-Off.

(e)                                  In case the Company shall pay cash dividends or make cash distributions to all or substantially all holders of the Common Stock, the Conversion Rate shall be increased based on the following formula:

where,

CR1=                          the Conversion Rate in effect immediately after the open of business on the Ex-Date for such distribution;

CR0=                          the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

SP0=                            the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution; and

C=                                       the amount in cash per share the Company distributes to holders of Common Stock in such distribution.

Such adjustment shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution.  If the portion of the cash so distributed applicable to one share of the Common Stock is equal to or greater than “SP₀” as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall receive on the date on which such cash dividend is distributed to holders of Common Stock, for

56

each $1,000 principal amount of Securities, the amount of cash such holder would have received had such Holder owned a number of shares equal to the Conversion Rate on the Ex-Date for such distribution, without being required to convert the Securities.  If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

(f)                                    In case the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for all or any portion of the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Conversion Rate shall be increased based on the following formula:

where,

CR₁ =                        the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;

CR0 =                       the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires;

AC =                          the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer;

SP1 =                         the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires (the “Averaging Period”);

OS1 =                       the number of shares of Common Stock outstanding immediately after the close of business on the date such tender or exchange offer expires (after giving effect to such tender offer or exchange offer); and

OS0 =                       the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to such tender offer or exchange offer).

Such adjustment shall be made immediately prior to the open of business on the day following the last day of the Averaging Period, but shall be given effect as of the open of business on the Trading Day next succeeding the date such tender or exchange offer expires.

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If the Company or any of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting all or any such purchases or all or any portion of such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected.

(g)                                 For purposes of this Section 5.07 the term “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of shareholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

(h)                                 For the avoidance of doubt, for purposes of clauses (b), (c), (d), (e) and (f) of this Section 5.07 in the event of any reclassification of the Common Stock, as a result of which the Securities become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to any of clauses (b), (c), (d), (e) and (f), references in those clauses to one share of Common Stock or Last Reported Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Securities are then convertible equal to the numbers of shares of such class issued in respect of one share of Common Stock in such reclassification.  The above provisions of this paragraph shall similarly apply to successive reclassifications.

(i)                                     In addition to those required by clauses (b), (c), (d), (e) and (f) of this Section 5.07, and to the extent permitted by applicable law and the rules of The Nasdaq Global Market or any other securities exchange or market on which the Common Stock is then listed, the Company from time to time may, in its sole discretion, increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Company’s Board of Directors determines that such increase would be in the Company’s best interest.  Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the Holder of each Security at his last address appearing on the Register provided for in Section 1.07 an irrevocable notice of the increase at least 20 Business Days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.  In addition, the Company may also (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event.

(j)                                     Without limiting the foregoing, no adjustment to the Conversion Rate need be made

(i)                                     except as provided under clause (c) above or clauses (n) through (q) below, upon the issuance of any shares of Common Stock or any options, warrants, rights or any exchangeable or convertible security;

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(ii)                                  for a change in the par value of the Common Stock; or

(iii)                               for accrued and unpaid interest (including any Additional Interest).

(k)                                  The Company shall not make any adjustment to the Conversion Rate under clauses (b), (c), (d), (e), (f) or (n) of this Section 5.07 unless the adjustments would result in a change of at least 1% in the Conversion Rate.  However, the Company will carry forward any adjustment that it would otherwise have to make and take that adjustment into account in any subsequent adjustment.  In addition, regardless of whether the aggregate adjustment is less than 1%, the Company will make such carried-forward adjustments not otherwise effected with respect to any Security on the earlier of (i) the date of the conversion of such Security, and (ii) the one-year anniversary of the first date upon which an adjustment would otherwise have been made, except to the extent such adjustment has already been made.

(l)                                     All calculations and other determinations under this Article 5 shall be made by the Company and shall be made to the nearest cent or to the nearest 1/10,000th of a share, as the case may be.

(m)                               If the arithmetic average of the daily VWAP per share of Common Stock for the five consecutive Trading Days immediately preceding, but not including, June 18, 2009 (the “366 Day Price”) is less than the $3.28, then the Conversion Price shall be reduced (the “Reset”) to equal the greater of (i) the 366 Day Price or (ii) $2.76 (the “Cap Price”) (and the Conversion Rate shall be accordingly and proportionally increased).  If the 366 Day Price is lower than the Cap Price and, absent the Cap Price, the Conversion Price would have been reduced pursuant to the Reset to the 366 Day Price, then, subject to Section 5.16, upon conversion of a Security, the converting Holder will, in addition to the shares of Common Stock received upon conversion and any cash in lieu of fractional shares, receive an additional cash payment equal to the Last Reported Sale Price on the applicable Conversion Date multiplied by that number of additional shares of Common Stock that would have been issuable upon conversion of the Securities had the Cap Price not been applicable and the conversion price had been reset to the greater of $2.00 (the “Floor Price”) or the 366 Day Price.

If, pursuant to the vote required by Section 3.14, the Company’s stockholders approve the Share Cap Proposal and the Reset is triggered, then the Cap Price will no longer apply and the conversion price thereafter applicable shall be reduced to equal the greater of the Floor Price or the 366 Day Price.

If the 366 Day Price equals or exceeds the $3.28, no adjustment shall be made pursuant to the Reset provisions described above.  The foregoing $3.28 price, the Floor Price and the Cap Price are prior to any adjustment and shall be adjusted in accordance with adjustments to the Conversion Rate described clauses (b), (c), (d), (e) and (f) of this Section 5.07 but they shall not be adjusted as a result of adjustments to the Conversion Rate described under Section 5.12.  The Conversion Rate pursuant to this clause (m) shall be determined without giving effect to any increase in the Conversion Rate pursuant to clause (i) of this Section 5.07.

(n)                                 (i)                                     If and whenever the Company issues or sells, or is deemed to have issued or sold, any shares of common stock, options, rights, warrants, convertible or other securities

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(including the issuance or sale of shares of common stock, options, rights, warrants, convertible or other securities owned or held by or for the account of the Company, but excluding Excluded Securities or securities that are deemed to have been issued or sold by the Company in connection with any Excluded Security) for a consideration per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the conversion price in effect immediately prior to such issue or sale (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Rate then in effect shall be increased to an amount equal to the product of (A) the Conversion Rate in effect immediately prior to such Dilutive Issuance and (B) the quotient determined by dividing (1) the product derived by multiplying (I) the Applicable Price in effect immediately prior to such Dilutive Issuance by (II) the number of shares of Common Stock deemed outstanding immediately after such Dilutive Issuance, by (2) the sum of (I) the product derived by multiplying the Applicable Price by the number of shares of Common Stock deemed outstanding immediately prior to such Dilutive Issuance plus (II) the consideration, if any, received by the Company upon such Dilutive Issuance.

(ii)                                  If the Company in any manner grants or sells any options, rights, warrants or convertible securities (collectively, “Options,” as used in this clause (o)) and the lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion or exchange or exercise of any convertible securities issuable upon exercise of such Option is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this paragraph, the “lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion or exchange or exercise of any convertible securities issuable upon exercise of such option” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon granting or sale of the option, upon exercise of the Option and upon conversion or exchange or exercise of any convertible security issuable upon exercise of such Option. No further adjustment of the Conversion Rate shall be made upon the actual issuance of such share of Common Stock or of such convertible securities upon the exercise of such Options or upon the actual issuance of such Common Stock upon conversion or exchange or exercise of such convertible securities.  If, based on the same event, a Conversion Rate adjustment is triggered pursuant to both this subclause (ii) and clause (c) of this Section 5.07, the Conversion Rate shall be adjusted in accordance with the provisions of the clause that provides the adjustment most favorable to the Holders.

(iii)                               If the Company in any manner issues or sells any convertible securities and the lowest price per share for which one share of Common Stock is issuable upon such conversion or exchange or exercise thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such convertible securities for such price per share. For the purposes of this paragraph, the “lowest price per share for which one share of Common Stock is issuable upon such conversion or exchange or exercise” shall be equal to the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the issuance or sale of the convertible security and upon the conversion or exchange

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or exercise of such convertible security. No further adjustment of the Conversion Rate shall be made upon the actual issuance of such share of Common Stock upon conversion or exchange or exercise of such convertible securities, and if any such issue or sale of such convertible securities is made upon exercise of any options for which adjustment of the Conversion Rate had been or are to be made pursuant to this clause (n), no further adjustment of the Conversion Rate shall be made by reason of such issue or sale.

(iv)                              If the purchase price provided for in any options, the additional consideration, if any, payable upon the issue, conversion, exchange or exercise of any convertible securities, or the rate at which any convertible securities are convertible into or exchangeable or exercisable for Common Stock changes at any time, the Conversion Rate in effect at the time of such change shall be adjusted to the Conversion Rate which would have been in effect at such time had such options or convertible securities provided for such changed purchase price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this paragraph, if the terms of any option or convertible security that was outstanding as of the date of this offering memorandum are changed in the manner described in the immediately preceding sentence, then such option or convertible security and the Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such change. No adjustment shall be made if such adjustment would result in a reduction of the Conversion Rate then in effect.

(v)                                 In case any option is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such options by the parties thereto, such options will be deemed to have been issued for the difference of (x) the aggregate fair market value of such options and other securities issued or sold in such integrated transaction, less, (y) the fair market value of the securities other than such option, issued or sold in such transaction, and the other securities issued or sold in such integrated transaction will be deemed to have been issued or sold for the balance of the consideration received by the Company. If any Common Stock, options or convertible securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount received by the Company therefor. If any Common Stock, options or convertible securities are issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Company will be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration received by the Company will be the Last Reported Sale Price of such securities on the date of receipt. The fair value of any consideration other than cash or securities will be determined, at the Company’s expense, within five Business Days after the tenth day following the valuation event by an independent, nationally-recognized appraiser appointed by the Company. The determination of such appraiser shall be binding absent manifest error.

(vi)                              Unless approval of the stockholders permitting such issuance has been obtained in advance, the Company will not take any action that would cause the provisions of this clause (n) to be triggered to the extent the resulting adjustment would

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not be in compliance with the applicable regulations of The Nasdaq Global Market or any other exchange or market on which the Company’s Common Stock is then traded.

(o)                                 If the Company takes a record of the holders of Common Stock for the purpose of entitling them (i) to receive a dividend or other distribution payable in Common Stock, options or in convertible securities or (ii) to subscribe for or purchase Common Stock, options or convertible securities, then such record date will be deemed to be the date of the issue or sale of the Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

(p)                                 For purposes of this Section 5.07, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

5.08                          NOTICE OF ADJUSTMENTS OF CONVERSION RATE.

(a)                                  Whenever the Conversion Rate is adjusted as herein provided:

(i)                                     the Company shall compute the adjusted Conversion Rate in accordance with Section 5.07 and shall prepare a certificate signed by an Officer setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with each Conversion Agent (if other than the Trustee); and

(ii)                                  as soon as reasonably practicable after each such adjustment, the Company shall provide a notice to all Holders stating that the Conversion Rate has been adjusted and setting forth the adjusted Conversion Rate.

(b)                                 Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations contained therein, except to exhibit the same to any Holder of Securities desiring inspection thereof at its office during normal business hours.

5.09                          COMPANY TO RESERVE COMMON STOCK.

The Company shall initially reserve out of its authorized and unissued Common Stock a number of shares of Common Stock per $1,000 principal amount of Securities equal to 130% of the Initial Conversion Rate.  So long as any Securities are outstanding, the Company shall take all action necessary to reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Securities, 130% of the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of all of the Securities then outstanding; provided that at no time shall the number of shares of Common Stock so reserved be less than the number of shares required to be reserved by the previous sentence (without regard to any limitations on conversions) (the “Required Reserve Amount”).

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If at any time while any of the Securities remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Securities at least a number of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Securities then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than 60 days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock and the Company shall be required to increase the number of authorized shares no later than 90 days after the occurrence of the Authorized Share Failure (the “Authorized Share Failure Deadline”). In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to cause its Board of Directors to recommend to the stockholders that they approve such proposal.

5.10         CERTAIN COVENANTS.

Before taking any action which would cause an adjustment reducing the Conversion Rate below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Securities, the Company shall take all corporate action which it reasonably determines may be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.

5.11         CANCELLATION OF CONVERTED SECURITIES.

All Securities delivered for conversion shall be delivered to the Trustee or its agent and canceled by the Trustee as provided in Section 2.15.

5.12         EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.

(a)           If there shall be:

(i)            any reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a split, subdivision or combination);

(ii)           a consolidation, binding share exchange, recapitalization, reclassification, merger, combination or other similar event; or

(iii)          any sale or conveyance to another Person of all or substantially all of the property and assets of the Company (excluding a pledge of securities issued by any of the Company’s subsidiaries),

in any case as a result of which holders of Common Stock shall be entitled to receive cash, securities or other property or assets with respect to or in exchange for such Common Stock (any such event described in clauses (i) through (iii), a “Reorganization Event”), then at the

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effective time of such Reorganization Event, the right to convert each $1,000 principal amount of Securities shall be changed to a right to convert such Securities by reference to the kind and amount of cash, securities or other property or assets that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the “Reference Property”).

(b)           From and after the effective time of a Reorganization Event, upon conversion of a Security, the Last Reported Sale Price shall be calculated with respect to a unit of Reference Property corresponding to the amount of Reference Property that a holder of one share of the Common Stock would have received in the Reorganization Event.

(c)           For purposes of determining the constitution of Reference Property, the type and amount of consideration that a holder of Common Stock would have been entitled to in the case of reclassifications, consolidations, mergers, sales or conveyance of assets or other transactions that cause the Common Stock to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election) shall be deemed to be the (i) weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of Common Stock affirmatively make such election, the types and amounts of consideration actually received by such holders.

(d)           The Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 12.01 providing for the conversion and settlement of the Securities as set forth in this Indenture.  Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 5 and the Trustee may conclusively rely on the determination by the Company of the equivalency of such adjustments.

(e)           In the event a supplemental indenture is executed pursuant to this Section 5.12, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or assets that will constitute the Reference Property after any such Reorganization Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders.  Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

(f)            The Company shall not become a party to any such transaction unless its terms are consistent with this Section 5.12.  None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article 5 prior to the effective date of a Reorganization Event.

(g)           The provisions of this Section 5.12 shall similarly apply to successive Reorganization Events.

5.13         RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.

(a)           The Trustee, subject to the provisions of Article 9, and any Conversion Agent, shall not at any time be under any duty or responsibility to any Holder of Securities or to the

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Company to determine whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, herein or in any supplemental indenture provided to be employed, in making the same, or whether a supplemental indenture need be entered into.

(b)           Neither the Trustee, subject to the provisions of Article 9, nor any Conversion Agent shall be accountable with respect to the validity or value (or the kind or amount) of any Common Stock, or of any other securities or property or cash, which may at any time be issued or delivered upon the conversion of any Securities, and it or they do not make any representation with respect thereto nor shall the Trustee or any Conversion Agent be responsible for monitoring the price of any Common Stock.  Neither the Trustee, subject to the provisions of Article 9, nor any Conversion Agent shall be responsible for making calculations under this Article 5, nor any failure of the Company to make or calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or share certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Article 9, and any Conversion Agent shall not be responsible for any failure of the Company to comply with any of the covenants of the Company contained in this Article 5.

5.14         STOCKHOLDER RIGHTS PLAN.

To the extent shares of Common Stock traded on the Relevant Exchange trade with rights, if any, as may be provided by the terms of any stockholder rights plan adopted by the Company, as the same may be amended from time to time, each share of Common Stock issued upon conversion of Securities pursuant to this Article 5 shall be entitled to receive the appropriate number of such rights and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan adopted by the Company, as the same may be amended from time to time.  If prior to any conversion, however, such rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights agreement, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all holders of the Common Stock, shares of the Company’s Capital Stock, evidences of indebtedness, assets, property, rights or warrants as described in Section 5.07(d), subject to readjustment in the event of the expiration, termination or redemption of such rights.

5.15         COMPANY DETERMINATION FINAL.

Any determination that the Company or the Board of Directors must make pursuant to this Article 5 shall be conclusive if made in good faith, absent manifest error.

5.16         COMPLIANCE WITH LISTING RULES.

Notwithstanding any of the conversion provisions described in this Article 5, including without limitation the right to receive an additional cash payment if the Cap Price conditions described above under Sections 5.05(b), (c) and 5.07(m) are met, there shall be an overriding limit on the conversion provisions with respect to the Securities such that to the extent that the operation of any conversion provision would cause the Company to breach the applicable rules and regulations of The Nasdaq Global Market or any applicable eligible securities exchange or

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market on which the Common Stock to be delivered upon conversion is then listed or trading, such conversion provision shall be null and void and of no force or effect to such extent.

VI.  RIGHTS OF PARTICIPATION IN FUTURE EQUITY ISSUANCES

6.01         OFFER NOTICES.

Prior to June 17, 2010, the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of, or announce any offer, sale, grant of any option to purchase or other disposition of, any of its or its Subsidiaries’ Capital Stock or equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock, unless it first shall have delivered to the Trustee for delivery to each Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance, sale or exchange of the securities being offered which (a) identifies and describes the securities being offered, (b) describes the price and other terms upon which the securities are to be issued, sold or exchanged, (c) sets forth the number or amount of securities being issued, sold or exchanged, (d) identifies the persons or entities (if known) to which the securities are to be offered, issued, sold or exchanged and (e) offers to issue, sell or exchange to the Holders up to 35% of the securities, allocating among the Holders (x) based on each Holder’s pro rata portion of the aggregate principal amount of Securities purchased on the Issue Date (such pro rata portion of such Holder being such Holder’s “Basic Amount”), and (y) with respect to each Holder that elects to purchase its Basic Amount, any additional portion of the securities being issued, sold or exchanged attributable to the Basic Amounts of other Holders as such Holder indicates it will purchase or acquire in the event the other Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until the Holders have an opportunity to subscribe for any remaining Undersubscription Amount.

6.02         ACCEPTANCE OF OFFERS.

To accept an offer to purchase or acquire the securities being issued, sold or exchanged, in whole or in part, a Holder must deliver a written notice to the Company prior to the end of the fifth Business Day after such Holder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Holder’s Basic Amount that the Holder elects to purchase and, if the Holder elects to purchase all of its Basic Amount, the Undersubscription Amount, if any, that the Holder elects to purchase (the “Notice of Acceptance”).  If the Basic Amounts subscribed for by all Holders are less than the total of all of the Basic Amounts, then each Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, that if (a) the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), then (b) the Available Undersubscription Amount shall be allocated among the Holders who have subscribed for Undersubscription Amounts based on each Holder’s pro rata portion of all of the Basic Amounts of the Holders who have subscribed for Undersubscription Amounts (subject to rounding by the Company to the extent it deems necessary).

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Notwithstanding this Section 6.02 and Section 6.01 above, if, prior to five Business Days after delivery of the Offer Notice, the Company chooses to modify or amend the terms and conditions upon which the securities are being offered, issued, sold or exchanged, then the Company may deliver to the Holders a new Offer Notice and the Holders shall have three Business Days after receipt of such new Offer Notice to deliver a Notice of Acceptance.

6.03         SETTLEMENT OF PARTICIPATION IN EQUITY ISSUANCES.

(a)           The Company shall have 20 Business Days from the expiration of the Offer Period above:

(i)            to offer, issue, sell or exchange, pursuant to a definitive agreement(s), all or any part of the securities as to which a Notice of Acceptance was not given by the Holders, but only to the persons or entities described in the Offer Notice (if any persons or entities were described in the Offer Notice) or their affiliates and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice, and

(ii)           to publicly announce (i) the execution of such definitive agreement(s), and either (ii) the consummation of the transactions contemplated by such agreement(s) or (iii) the termination of such agreement(s); all of (i), (ii) and (iii) which shall be filed with the SEC on a Current Report on Form 8-K, (and if the filing is disclosing the consummation of such transactions, the definitive agreement(s) and any applicable transaction documents shall be filed as exhibits thereto).

(b)           In the event the Company proposes to offer, issue, sell or exchange less than all of the securities not subscribed by the Holders pursuant to a Notice of Acceptance, then each Holder may, at its sole option and in its sole discretion, reduce the number or amount of the securities specified in its Notice of Acceptance to an amount that is greater than or equal to the number or amount the Holder initially subscribed to in its Notice of Acceptance multiplied by the ratio of the number of securities that the Company proposes to sell to the number of securities the Company originally proposed to offer, issue, sell or exchange.  In the event that, pursuant to this paragraph, any Holder elects to reduce the number or amount of securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the securities unless and until the Company re-offers such securities to the Holders pursuant to an Offer Notice (except that, in that case, the Offer Period for such re-offer shall be reduced to five Business Days).

(c)           Upon the closing of the issuance, sale or exchange of all or less than all of the securities not subscribed by the Holders pursuant to a Notice of Acceptance, the Holders shall acquire from the Company, and the Company shall issue to the Holders, the number or amount of securities specified in the Notices of Acceptance (as reduced pursuant to clause (b) above, if applicable), upon the terms and conditions specified in the Offer Notice. The purchase by the Holders of any of the securities is subject in all cases to the preparation, execution and delivery by the Company and the Holders of a definitive agreement, reasonably satisfactory in form and substance to the Holders and their respective counsel.

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(d)           Any securities not acquired by the Holders or other persons in accordance with clause (a) above may not be issued, sold or exchanged until they are again offered to the Holders under the procedures specified in Sections 6.01 and 6.02 and clauses (a) through (c) above.

(e)           the Company and the Holders agree that if any Holder elects to purchase or acquire securities pursuant to the procedures in Sections 6.01 and 6.02 and clauses (a) through (d) above, neither the subsequent definitive agreement nor any other related transaction documents shall include any term or provisions requiring the Holder to agree to any trading restrictions with respect to any securities of the Company held by the Holder prior to such purchase or acquisition.

(f)            Notwithstanding anything to the contrary in Sections 6.01 and 6.02 and clauses (a) through (e) above and unless otherwise agreed to by the Holders,

(i)            The Company shall either (x) confirm in writing to the Holders that the transaction with respect to the issuance, sale or exchange of the securities has been abandoned or (y) shall publicly disclose its intention to issue, sell or exchange the securities, in either case in such a manner such that the Holders will not be in possession of material non-public information, by the 20th Business Day following delivery of the Offer Notice;

(ii)           if by the 20th Business Day following delivery of the Offer Notice no public disclosure regarding the transaction with respect to the issuance, sale or exchange of the securities has been made, and no notice regarding the abandonment of such transaction has been received by the Holders, the transaction shall be deemed to have been abandoned and the Holders shall not be deemed to be in possession of any material, non-public information with respect to the Company; and

(iii)          should the Company decide to pursue the transaction with respect to the issuance, sale or exchange of the securities, the Company shall provide each Holder with another Offer Notice and each Holder will again have the right of participation set forth in these Sections 6.01 through 6.03.  The Company shall not be permitted to deliver more than one such Offer Notice to the Holders in any 60 day period.

6.04         PARTICIPATION RIGHTS NOT APPLICABLE

The rights of the Holders contained in Sections 6.01 through 6.03 above shall not apply in connection with the issuance of any Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock equivalents issued or issuable pursuant to any issued convertible securities: (a) directly on an arm’s-length basis to an unrelated third party that is a counterparty, such counterparty’s affiliates or their respective stockholders, in connection with bona fide, strategic transactions approved by the Company’s Board of Directors (provided that the primary purpose of such issuance is not to raise equity capital); (b) pursuant to any bona fide firm commitment underwritten public offering with a nationally recognized underwriter, which generates gross proceeds to the Company in excess of $50,000,000; (c) that are Excluded Securities; or (d) in connection with any issuances of any securities related to the exercise, exchange, adjustment or conversion of the Securities.

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VII.  EVENTS OF DEFAULT; REMEDIES

7.01         EVENTS OF DEFAULT.

An “Event of Default” means any one of the following events with respect to the Securities (whatever the reason for such event or whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(a)           The Company’s (A) failure to comply with its obligation to convert the Securities into shares of Common Stock and, if applicable, cash  upon exercise of a Holder’s conversion right and that failure continues for five days; or (B) written notice to any Holder of the Securities, including by way of public announcement or through any of its agents, at any time, of its intention not to comply with a request for conversion of any Securities that are tendered in accordance with the provisions of the Securities;

(b)           The Company’s failure to pay to any amount of principal or interest or other amounts when and as due under the Securities (including, without limitation, failure to pay any redemption or repurchase payments or amounts hereunder), except, in the case of a failure to pay interest when and as due, in which case only if such failure continues for a period of at least five Business Days;

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

(i)            commences a voluntary case; or

(ii)           consents to the entry of an order for relief against the Company or such Significant Subsidiary in an involuntary case, as the case may be; or

(iii)          consents to the appointment of a Bankruptcy Custodian of the Company or such Significant Subsidiary, or of all or substantially all of the property of the Company or such Significant Subsidiary, as the case may be; or

(iv)          makes a general assignment for the benefit of creditors of the Company or such Significant Subsidiary, as the case may be; or admits in writing that it is generally unable to pay its debts as they become due; or

(v)           commences a voluntary liquidation, dissolution or winding up;

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

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

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(ii)           appoints a Bankruptcy Custodian of the Company or a Significant Subsidiary of the Company, or of all or substantially all of the property of the Company or a Significant Subsidiary of the Company; or

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

(e)           any default in the payment when due, after the expiration of any applicable grace period, of principal of, or premium, if any, or interest on, indebtedness, in the aggregate principal amount then outstanding of $10,000,000 or more, or any other defaults or other events on any Indebtedness of the Company or any of its Subsidiaries in an aggregate principal amount of $10,000,000 or more and which has resulted in the acceleration of the maturity date thereof and the principal amount of which having been declared due and payable or otherwise been caused to come due prior to its stated maturity;

(f)            except as otherwise set forth in this section, the Company or any of its Subsidiaries party thereto fails to comply with any covenant or agreement contained in this Indenture, the Securities, the Pledge Agreement or the other Security Documents, and such failure continues for a period of at least ten consecutive Business Days after the Company receives written notice of such failure from the Holders of Securities representing at least 25% of the aggregate principal amount of the Securities then Outstanding;

(g)           a final judgment or judgments for the payment of money aggregating in excess of $10,000,000 are rendered against the Company or any of its Significant Subsidiaries and which judgments are not, within 90 days after the entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 90 days after the expiration of such stay; provided, however, that any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $10,000,000 amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company will receive the proceeds of such insurance or indemnity within 30 days of the issuance of such judgment;

(h)           at any time following an Authorized Share Failure Deadline if there has been an Authorized Share Failure;

(i)            the suspension from trading or failure of the Common Stock to be listed on The Nasdaq Global Market or on an Eligible Market for a period of five consecutive days or for more than an aggregate of 15 days in any 365-day period; or

(j)            any breach or failure in any respect to comply with any covenant of this Indenture relating to these Securities and such breach or failure continues for a period of at least ten consecutive Business Days after the Company receives written notice of such breach or failure from the Holders of Securities representing at least 25% of the aggregate principal amount of the Securities then outstanding.

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7.02         ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.

(a)           If an Event of Default (other than an Event of Default specified in Section 7.01(c) or Section 7.01(d)) occurs and is continuing, then in every such case (except as provided in Section 7.03) the Holders of not less than 25% in principal amount of the Outstanding Securities may, and the Trustee at the written request of such Holders shall, declare the principal of all such Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal shall become immediately due and payable.

(b)           If an Event of Default specified in Section 7.01(c) or Section 7.01(d) occurs, the principal of, and accrued and unpaid interest on, all of the Securities shall become immediately due and payable without any declaration or other Act of the Holders or any act on the part of the Trustee.

(c)           At any time following an Event of Default and after such a declaration of acceleration has been made, the Holders of a majority in aggregate principal amount of the Outstanding Securities, by written notice to the Company and the Trustee and without notice to any other Holder, may rescind and annul such declaration and its consequences if:

(i)            such rescission and annulment will not conflict with any judgment or decree of a court of competent jurisdiction;

(ii)           all Events of Default, other than the non-payment of the principal amount plus accrued and unpaid interest on Securities that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.13;

(iii)          the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and

(iv)          in the event of the cure or waiver of an Event of Default of the type described in clause (c) or (d) of Section 7.01, the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

7.03         DEFAULT ADDITIONAL INTEREST.

(a)           Notwithstanding Section 7.02, if the Company so elects, the sole remedy of Holders for an Event of Default specified in Section 7.01(f) relating to the failure by the Company to comply with its obligations under Section 10.03 shall, for the first 90 days after the occurrence of such an Event of Default (which shall be the 10th Business Day after written notice is provided to the Company in accordance with Section 7.01(f)) consist exclusively of the right to receive additional interest (“Default Additional Interest”) at an annual rate equal to 0.25% per annum of the principal amount of the Outstanding Securities for each day of such 90-day period during which time such Event of Default continues.  The Company may elect to pay

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Default Additional Interest as the sole remedy under this Section 7.03(a) by giving notice to the Holders, the Trustee and Paying Agent of such election on or before the close of business on the date on which such Event of Default occurs.  If the Company fails to timely give such notice or pay Default Additional Interest, the Securities will be immediately subject to acceleration as provided in Section 7.02.  If such Event of Default has not been cured or waived prior to the 91st day after its occurrence, then the Securities shall be subject to acceleration in accordance with Section 7.02.

(b)           Default Additional Interest shall be payable in arrears on each Interest Payment Date following the occurrence of such Event of Default in the same manner as regular interest on the Securities.

(c)           If Default Additional Interest is payable under this Section 7.03, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating that Default Additional Interest is payable and the date upon which such Default Additional Interest shall begin to accrue.  Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that Default Additional Interest is not payable.  If Default Additional Interest has been paid by the Company directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

(d)           The provisions of this Section 7.03 with respect to an Event of Default of the type described in clause (a) above shall not affect the rights of the Holders in the event of the occurrence of any other Event of Default.

7.04         COLLECTION OF INDEBTEDNESS AND ENFORCEMENT BY TRUSTEE.

(a)           The Company covenants that if a Default is made in the payment of the principal amount and accrued and unpaid interest at the Maturity thereof or in the payment of the Fundamental Change Repurchase Price in respect of any Security, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities, and, in addition thereto, such further amounts required pursuant to Section 7.08, together with amounts owed to the Trustee, its agents and counsel hereunder.

(b)           Subject to the provisions of this Indenture relating to the duties of the Trustee, the Trustee may exercise any of the rights or powers under this Indenture, but will be under no obligation to do so at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense.

(c)           The Trustee may maintain a proceeding even if the Trustee does not possess any of the Securities or does not produce any of the Securities in the proceeding, and any recovery or judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities.  A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or

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constitute a waiver of, or acquiescence in, the Event of Default.  No remedy is exclusive of any other remedy.  All available remedies are cumulative.

7.05         TRUSTEE MAY FILE PROOFS OF CLAIM.

(a)           In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 9.07.

(b)           No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

7.06         APPLICATION OF MONEY COLLECTED.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money to Holders, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST:  To the payment of all amounts due the Trustee and the Collateral Agent hereunder and under the Security Documents;

SECOND:  To the payment of the amounts then due and unpaid on the Securities for the principal amount, Fundamental Change Repurchase Price, Redemption Price or interest, as the case may be, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities; and

THIRD:  To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.

7.07         LIMITATION ON SUITS.

No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for

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any other remedy hereunder (other than in the case of an Event of Default specified in Section 7.01(a) or Section 7.01(b)), unless:

(a)           such Holder has previously given written notice to the Trustee of a continuing Event of Default;

(b)           the Holders of at least 25% in aggregate principal amount of the Outstanding Securities shall have made written request to the Trustee to pursue such remedy in its own name as Trustee hereunder;

(c)           such Holder or Holders have provided to the Trustee security or indemnity reasonably satisfactory to the Trustee against the expenses, losses and liabilities to be incurred in compliance with such request;

(d)           the Trustee, for 60 days after its receipt of such notice, request and provision of adequate security or indemnity, has failed to institute any such proceeding; and

(e)           no direction, in the opinion of the Trustee, 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 Outstanding Securities,

it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders.

7.08         UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT.

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the principal amount, Fundamental Change Repurchase Price, Ratio Event Repurchase Price, Redemption Price or accrued and unpaid interest in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities or any Fundamental Change Repurchase Date or Ratio Event Repurchase Date, as applicable, and to convert the Securities in accordance with Article 5, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, shall not be impaired or affected adversely without the consent of such Holder.

7.09         RESTORATION OF RIGHTS AND REMEDIES.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

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7.10         RIGHTS AND REMEDIES CUMULATIVE.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.12, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

7.11         DELAY OR OMISSION NOT WAIVER.

No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

7.12         CONTROL BY HOLDERS.

The Holders of a majority in principal amount of the Outstanding Securities shall have the right to 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 the Trustee, provided that:

(i)            such direction shall not be in conflict with any rule of law or with this Indenture; and

(ii)           the Trustee may refuse to follow any such direction that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability;

(iii)          it being understood that the Trustee shall be entitled to the protections provided to it under Sections 9.01(b)(iii) and 9.01(c) in connection with such direction.

7.13         WAIVER OF PAST DEFAULTS.

(a)           The Holders of a majority or more in aggregate principal amount of the Securities may waive any existing Default under this Indenture, and its consequences, except a default in the payment of the principal of or interest or Additional Interest, if any, on any Securities.  Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

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7.14         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, in either case in respect of the Securities, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorney’s 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; but the provisions of this Section 7.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal amount on any Security on or after Maturity of such Security or the Fundamental Change Repurchase Price.

7.15         WAIVER OF STAY OR EXTENSION LAWS.

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest 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 that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

7.16         VIOLATIONS OF CERTAIN COVENANTS.

A violation of any covenant or agreement in this Indenture that expressly provides that a violation of such covenant or agreement shall not constitute an Event of Default may only be enforced by the Trustee by instituting a legal proceeding against the Company for enforcement of such covenant or agreement.

VIII.  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

8.01         COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.

(a)           The Company shall not consolidate with or merge with or into any other Person or, transfer all or substantially all its assets to another Person (excluding a pledge of securities issued by the Company or any of the Company’s Subsidiaries), unless:

(i)            the resulting, surviving or transferee person (the “Successor Company”) assumes by supplemental indenture all of the Company’s obligations under the Securities and this Indenture;

(ii)           the Successor Company shall be a corporation organized and existing under the laws of the United States of America, and a state thereof or the District of Columbia;

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

(iv)          if the Securities become convertible into Common Stock or other securities issued by a Person other than the Successor Company as a result of such transaction, such Person shall fully and unconditionally guarantee all obligations of the Successor Company under the Securities and this Indenture;

(v)           the Trustee shall have received an Opinion of Counsel to the effect that the merger, consolidation or transfer complies with the Indenture; and

(vi)          the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 8.

(b)           Upon satisfaction of the conditions described above, all of the Company’s obligations in respect of the Securities shall be terminated, and the Successor Company shall succeed to, and may exercise, all of the Company’s rights and powers under this Indenture.

8.02         EFFECTIVENESS OF CONSOLIDATION, MERGER OR TRANSFER.

(a)           Upon satisfaction of all applicable conditions in Section 8.01, all such obligations of the Company or such other predecessor corporation shall be terminated.

(b)           The Successor Company formed by such consolidation or into which the Company is merged or the Successor Company to which such conveyance, transfer, lease or other disposition 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 had been named as the Company herein; and thereafter, except in the case of a conveyance, transfer or lease of all or substantially all the Company’s assets (in which case the Company will not be discharged from the obligation to pay the principal amount of the Securities and interest, including any Additional Interest) and except for obligations, if any, that the Company may have under a supplemental indenture, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities.  Subject to Section 12.04, the Company, the Trustee and the Successor Company shall enter into a supplemental indenture to evidence the succession and substitution of such Successor Company and such discharge and release of the Company.

IX.  THE TRUSTEE

9.01         DUTIES AND RESPONSIBILITIES OF TRUSTEE.

(a)           The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee.  If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture,

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and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

(b)           No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

(i)            prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred:

(A)          the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(B)           in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely as to the truth and accuracy of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate, and shall not be responsible for, the accuracy of any mathematical calculations or other facts stated therein);

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

(iii)          the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding in accordance with Section 1.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

(iv)          whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 9.01;

(v)           the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any other Paying Agent or any records maintained by the Security Registrar with respect to the Securities; and

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(vi)          if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred.

(c)           None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

9.02         NOTICE OF DEFAULTS.

(a)           If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall give the Holders notice of thereof within 90 days after it obtains such knowledge, unless such Default has been cured or waived.

(b)           Notwithstanding Section 9.02(a), the Trustee shall be protected in withholding notice of a Default, except in the case of any Default in the payment of principal amount or interest on any of the Securities or Fundamental Change Repurchase Price, or in the performance of Conversion Obligations, if and so long as the Board of Directors or a committee of Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities.

9.03         RELIANCE ON DOCUMENTS, OPINIONS, ETC.

Except as otherwise provided in Section 9.01:

(a)           the Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

(b)           any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed), and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;

(c)           the Trustee may consult with counsel of its own selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;

(d)           the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have provided to the Trustee security

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or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby;

(e)           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 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 reasonable expense of the Company and the Trustee shall incur no liability of any kind by reason of such inquiry or investigation);

(f)            the Trustee shall be under no obligation to review, ascertain or confirm the Company’s compliance with, or breach of, any representation, warranty or covenant made in this Indenture;

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

(h)           the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

(i)            in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

(j)            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 of the Trustee, and such notice references the Securities and the Indenture;

(k)           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 each agent, custodian and other Person employed to act hereunder;

(l)            the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture;

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

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(n)           the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as duties; and

(o)           the Trustee agrees to accept and act upon facsimile and electronic transmission of written instructions and/or directions pursuant to this Indenture given by the Company, provided, however that: (i) the Company, subsequent to such facsimile or electronic transmission of written instructions and/or directions, shall provide the originally executed instructions and/or directions to the Trustee in a timely manner and (ii) such originally executed instructions and/or directions shall be signed by an authorized officer of the Company.

9.04         NO RESPONSIBILITY FOR RECITALS, ETC.

The recitals contained herein and in the Securities (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee or any authenticating agent assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee or any authenticating agent shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee or any authenticating agent in conformity with the provisions of this Indenture.

9.05         TRUSTEE, SECURITY REGISTRAR AND AGENTS MAY OWN SECURITIES.

The Trustee, any Paying Agent, any Conversion Agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent, Conversion Agent or Security Registrar.

9.06         MONIES TO BE HELD IN TRUST.

Subject to the provisions of Section 11.04, all monies and properties received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received.  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall have no liability for interest on any money received by it hereunder except as may be agreed in writing from time to time by the Company and the Trustee.

9.07         COMPENSATION AND EXPENSES OF TRUSTEE.

(a)           The Company shall pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to from time to time in writing between the Company and the Trustee, and the Company will pay or reimburse the Trustee upon its request for all reasonable out-of-pocket expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its gross negligence, willful misconduct or bad faith.

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(b)           The Company shall indemnify the Trustee or any predecessor Trustee (and all officers, directors and employees of the Trustee or any predecessor Trustee), in any capacity under this Indenture and its agents and any authenticating agent for, and to hold each of them harmless against, any and all loss, damage, liability, claim or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence, willful misconduct or bad faith on the part of the Trustee or such officer(s), director(s), employee(s) and agent(s) or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim of liability in the premises.

(c)           The obligations of the Company under this Section 9.07 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a Lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.  The obligation of the Company under this Section 9.07 shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.

(d)           When the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 7.01(c) or Section 7.01(d) with respect to the Company occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.

9.08         OFFICERS’ CERTIFICATE AS EVIDENCE.

Except as otherwise provided in Section 9.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee.

9.09         CONFLICTING INTERESTS OF TRUSTEE.

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

9.10         ELIGIBILITY OF TRUSTEE.

There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank holding company system, its bank holding company shall have a combined capital and surplus of at least $50,000,000).  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 9.10 the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to

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be eligible in accordance with the provisions of this Section 9.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

9.11         RESIGNATION OR REMOVAL OF TRUSTEE.

(a)           The Trustee may at any time resign by giving written notice of such resignation to the Company and to the Holders of Securities.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment 60 days after the mailing of such notice of resignation to the Holders:

(i)            the resigning Trustee may, upon ten business days’ notice to the Company and the Holders, appoint a successor identified in such notice or may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee; or

(ii)           any Holder who has been a bona fide Holder of a Security or Securities for at least 6 months may, subject to the provisions of Section 7.14, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.

(b)           In case at any time any of the following shall occur:

(i)            the Trustee shall fail to comply with Section 9.09 within 90 days after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security or Securities for at least 6 months; or

(ii)           the Trustee shall cease to be eligible in accordance with the provisions of Section 9.10 and shall fail to resign after written request therefor by the Company or by any such Holder; or

(iii)          the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 7.14, any Holder who has been a bona fide Holder of a Security or Securities for at least 6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee; provided, however, that if no successor Trustee shall have been appointed and have accepted appointment 60 days after either the Company or the Holders has removed the Trustee, the Trustee so removed may petition at the Company’s expense any court of competent jurisdiction for an appointment of a successor trustee.  Such court may

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thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

(c)           The Holders of a majority in aggregate principal amount of the Securities at the time Outstanding may at any time remove the Trustee and nominate a successor trustee which shall be deemed appointed as successor trustee unless, within ten days after notice to the Company of such nomination, the Company objects thereto, in which case the Trustee so removed or any Holder, or if such Trustee so removed or any Holder fails to act, the Company, upon the terms and conditions and otherwise as in Section 9.11(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.

(d)           Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 9.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 9.12.

9.12         ACCEPTANCE BY SUCCESSOR TRUSTEE.

(a)           Any successor trustee appointed as provided in Section 9.11 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section 9.07, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a Lien upon all property and funds held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Securities, to secure any amounts then due it pursuant to the provisions of Section 9.07.